Mrs Sheela Hunt
-v-
National Care Standards Commission
[2003] 207.NC

Before: Mr Mark Rowland (chairman)
Mrs Susan Howell
Mrs Denise Rabbetts

Sitting at 18 Pocock Street, London SE1 
on 23 to 27 February 2004

Appeal against a decision of the National Care Standards Commission, dated and served on 15 July 2003, whereby the registration of the Appellant under Part II of the Care Standards Act 2000 as both owner and manager of the care home at 281 Hinckley Road, Leicester was cancelled under section 14(1)(c) of that Act on the ground that the establishment was being, and had been, carried on otherwise than in accordance with the relevant requirements.

Representation:

The Commission were represented by Mr Bruce Silvester of Counsel, instructed by Messrs Mills & Reeve, Solicitors, of 54 Hagley Road, Edgbaston, Birmingham  B16 8PE.

The Appellant appeared in person.

DECISION

The appeal is dismissed.

REASONS

Background

1.	The home was established by the Appellant in 1989 but, as it had fewer than four residents, it was not at that time necessary for the Appellant to be registered in respect of it under the Registered Homes Act 1984 as then in force.  On 21 January 1991, she was registered under that Act subject to a condition that not more than four people were to be cared for in the home.  After an extension was built, the number of permitted residents was increased to six, of either sex, aged over 55 and suffering from dementia or other mental disorder.  When the National Care Standards Commission became the registration authority, upon the coming into force of Part II of the Care Standards Act 2000 on 1 April 2002, they issued a transitional certificate of registration, dated 30 July 2002, in those terms.

2.	The Appellant was registered as both provider and manager.  She had been an enrolled nurse but she had allowed her registration as a nurse to lapse after opening the home.

3.	The Commission’s first announced inspection of the home started on 14 October 2002, but it was postponed both then and on 18 October 2002 while the inspectors took advice in the light of their finding that two residents, married to each other, had recently been admitted to the home despite the fact that they did not fall within the permitted categories and that there was no room for them.  It appears that the Appellant was under the misapprehension that her registration permitted her to take in as residents people suffering from the effects of past or present alcohol abuse even if they were not suffering from mental disorder and she had not sought variation of her conditions of registration in order to be allowed to admit the resident who was under the age of 55.  With six residents in the home, the Appellant had had her office in one residents’ bedroom and, as the new residents were living in what had been her bedroom, she had set up a fold-up bed in a box room used for drying clothes.  In the event, the two residents concerned, who had only recently been admitted, were moved very quickly.  The Appellant concedes that the home is big enough only for four residents and that the conditions should now be varied to that extent, although at one time she did intend moving herself to another house.  This concession makes it unnecessary for us to consider how the conditions of registration were settled upon by the previous registration authority, which is a mystery as the Appellant has lived in the home ever since it was opened and the address shown as hers on the present certificate is the address of the home so that it seems clear that the authority knew she was living there.

4.	A number of visits were made by inspectors during the next two months and such were the concerns of the Commission that, on 24 December 2002, the Appellant was asked to, and did, attend a fairly formal interview conducted by the Commission’s area manager.  The interview was taped but it was not conducted under caution, being a form of final warning before possible cancellation of registration rather than a prelude to prosecution.  The announced statutory inspection was eventually concluded on 9 January 2003.  An unannounced statutory inspection took place on 6 March 2003.  Following that, the area manager herself made an unannounced visit on 12 March 2003, with the locality manager, and, in the light of her observations, a notice of proposal to cancel registration was issued.  The Appellant made representations but the proposal was adopted and the registration cancelled on 15 July 2003 on the ground that the home was being, and had been, carried on otherwise than in accordance with the relevant requirements.  There have been further frequent visits since January 2003 and inspections on 29 August 2003 and 5 January 2004 while this appeal has been pending.  The Commission are not satisfied that sufficient progress has been made to justify not opposing this appeal.  In particular, they point to there being no fewer than fifteen statutory requirements in the draft report of the latest inspection, all of which remain outstanding from the previous inspections.

5.	Only two residents remain in the home.  The first has recently been assessed as having few personal care needs and it appears that she has been wrongly categorised in the past as suffering from learning difficulties when she is a former teacher and has never suffered from more than mild mental illness.  The second has greater care needs but it has been suggested that those might be met by carers coming into his home rather than through residential care.  Both are mentally competent and have expressed the wish to remain in the home.  Thus, it was suggested to us that they might be able to remain living with the Appellant even if the Appellant ceased to be registered and the home therefore ceased to be a care home.  Plainly there would be funding implications and therefore we have not relied on this suggestion.  The third resident who remained in the home at the end of October 2002 was a woman who was the subject of a guardianship order and suffered from severe dementia.  During 2003, she moved to other accommodation on the recommendation of her social worker.  The fourth resident died at the home in August 2003.  

6.	The witnesses who gave oral evidence to us on behalf of the Commission were four inspectors, including the area manager and locality manager, and an environmental health officer.  The witnesses who gave oral evidence on behalf of the Appellant were the Appellant herself, one former care assistant, one present care assistant and two relatives of the resident who died in August 2003.  We have also taken account of written statements from a pharmacist and social worker, on behalf of the Commission, and letters from the current residents and the daughter of one and an advocacy worker for the other, on behalf of the Appellant.

7.	Section 14(1)(c) of the 2000 Act permits the cancellation of registration where an establishment is being, or has at any time been, carried on otherwise than in accordance with the relevant requirements, which, by virtue of section 14(3) include the requirements imposed by regulations made under section 22.  In the present context, the material regulations are the Care Homes Regulations 2001. By section 23(4) of the 2000 Act, in considering whether there has been a breach of regulations, regard must be had to the national Minimum Standards published by the Minister under section 23(1).  Obviously, not every breach of regulations justifies cancellation. Material considerations are the seriousness of the breach and whether it has been, or can be expected to be, remedied.

8.	The alleged breaches of regulations in this case can usefully be grouped under a number of headings.

General care and care planning

9.	In our view, the most important consideration when deciding whether a person should be allowed to continue running a care home is the quality of day-to-day care given to residents. Good quality care involves the proper assessment of residents’ needs, planning how to meet them and then ensuring that there is adherence to the plan.

10.	In the present case, there is much that can be said in praise of the Appellant.  The home of the residents is her home too and her whole life revolves around it.  She was described by the locality manager of the Commission as a very caring person.  The residents who are still in the home have expressed, in writing, their desire not to move and so have the relatives of one of them.  They are plainly settled and happy there.  Two witnesses gave oral evidence to us, saying how happy their relative had been in the home.  He had previously been neglecting himself and his sister described him as having been “a bit befuddled”.  Living in the Appellant’s home, he was clean and tidy and his mind sharpened up.  The Appellant took him out to visit his relatives and for meals and for holidays, even taking him to Mauritius with her.  When he became ill, she involved the general practitioner appropriately and called the family and he died in the home with dignity.

11.	The Appellant told us with evident, and justified pride, of the care of the skin of the resident who suffered from dementia, which was kept free of pressure sores despite her incontinence and immobility.  The resident had a fall and had to spend some time in hospital.  The Appellant was plainly horrified that she returned to the home with a pressure sore that it took the home several months to get rid of.  She criticised the hospital for not having an appropriate mattress and cited the case as an example of the level of care she provided.  The social services department assessments and reviews show that, at least before the Commission’s concerns were made known, this resident’s relatives too were happy for her to remain in the home as long as the Appellant felt she could meet her needs.  The social worker observed her eating well and appearing to have a good relationship with the Appellant.  Both the assessment and the oral evidence we heard suggest that the Appellant and the resident communicated effectively despite the latter’s near total loss of speech.  The resident’s behaviour could be challenging but it appears that the Appellant, the other staff and the other residents engaged with her and she was well looked after.  Again, there appeared to be appropriate involvement of other professionals and the family.  

12.	The other residents were capable of a considerable degree of independence and they were encouraged, for instance, to go shopping.

13.	Plainly, on an informal level, all this involved a certain amount of assessment of residents’ needs and planning.  For instance, the Appellant realised that the resident suffering from dementia needed a special mattress and ensured that she had one, notwithstanding that that was not specifically mentioned in the social services department’s care plan and that she had not made a written care plan herself.  Furthermore, she would sit down with the staff and discuss the residents over a cup of tea once a fortnight or so and she wrote up progress reports at weekly intervals.

14.	However, there was no formal system of care planning and reviews.  Apart from the progress reports, which were not particularly informative, hardly anything was written down and the progress reports were not used by other members of staff.  Planning was therefore liable to be unstructured and there was nothing to which staff or inspectors or other professionals could refer.

15.	In early October 2002, the need for proper care plans was impressed on the Appellant but she had still not produced any by 12 March 2003.  She did produce plans two days later.  We share the inspectors’ view that they were wholly inadequate.  

16.	It is not the absence of a written document that concerns us so much as the inadequacy of the planning.  In truth, though, a lack of documentation is usually a sign that there may be inadequate planning because a person sufficiently organised to make proper plans is likely to be sufficiently organised to keep a written record.  Furthermore, a lack of documentation hinders proper communication between staff within the home and between the home and other professionals.  In the absence of the Appellant, a care assistant should have been able to look in a file to find out about the needs of a resident.  The documentation in this case was not adequate for that purpose.

17.	Care planning is not a mere bureaucratic chore.  The lack of it has a practical effect on the care and safety of residents.  For example, after her discharge from hospital, the resident suffering from dementia was even less mobile than before.  The care assistants from whom we heard said that she needed two people to move her.  That is borne out by the social services department’s assessment based on the opinion of a physiotherapist.  The Appellant said that she could manage to move the resident by herself if she was co-operative, but she conceded that she could not otherwise.  Had that assessment been part of a proper care plan within the home, it would immediately have become apparent that it was not appropriate to leave the resident in the home with only one member of staff on duty.

18.	It is not disputed that, on occasions, there was only one member of staff on duty while that resident was living in the home.  That was a failure to provide an adequate level of care.  On the other hand, we are not satisfied that the consequences were quite as bad as the inspectors thought.  They, understandably, drew the conclusion that the resident, who was said in the social services department’s assessment to be doubly incontinent, was routinely left in soiled clothes until she could be changed when there was a staff hand-over.  Our impression is that the resident did not often lose control of her bowels, provided that she was placed on a commode at regular intervals, and that the home understood her needs in that regard.  Furthermore, we are prepared to accept that the Appellant was generally able to manage to place the resident on a commode by herself and that other members of staff were not generally left alone for long periods because it tended to be when the Appellant was just out shopping.  One particular occasion on which the inspectors were concerned was when the Appellant was on holiday.  One of the care assistants who gave evidence to us was seen as being the only person on duty.  However, it is not disputed that the Appellant’s brother was also there and, although he was not formally a member of staff and never talked to the inspectors and the care assistant regarded herself as being in charge of the care of the residents, it is quite clear that he was there precisely to help the care assistant move the resident concerned.  One way or another, therefore, we think that the situation envisaged by the inspectors was avoided.  If it had not been avoided, the Appellant would not have been able to take such pride in the care of the resident’s skin.  However, there was plainly a degree of risk whenever only one person was on duty in the home.  That risk should have been assessed and either avoided altogether or recognised in a document that could be viewed by staff, so that they could minimise the risk, and by social workers and inspectors, so that they knew that the issue had been addressed and could express any reservations.

19.	More recently, the Appellant has belatedly acted on the advice of inspectors and obtained some forms from the local association of care homes.  However, it is plain that she really has no idea how to use them.  For instance, on one form, headed “safety issues”, she has recorded that the resident concerned does not pose any risk but has nonetheless gone on to fill in the part of the form for a risk assessment, saying that there was a risk to “everyone”, assessing the seriousness of the risk as “dangerous” and then recording that the potential results could be a “damages claim by the legal department”.  Thus she was focusing on the risks to the home rather than to the resident.  She has also produced review forms signed by residents but there plainly have not been proper reviews because there have not been the plans to review and, anyway, there have not been the monthly discussions suggested by the forms.  Just as the lack of documents may be of relatively little importance in itself if the home functions properly without them, so the existence of documents is of no value if there is no real planning behind them.  The fortnightly talks with staff about the residents and the weekly reports could have been developed into tools for useful planning and reviews but they were not and this, in our view, is due to the Appellant’s lack of understanding of the issues.

20.	We accept that there have been breaches of regulations 15 and 17 of the 2001 Regulations (service users’ plans and records).

Food

21.	The inspectors were understandably concerned about the adequacy of the food that the residents received because on one occasion there did not appear to be enough food for the planned supper but, having listened to the witnesses, we are satisfied that the food provided was adequate, both in quantity and quality, and was varied.  However, we will refer below to concerns about food hygiene.

Medication

22.	The Appellant’s practices in relation to the giving of medication to residents have been transformed as a result of the Commission’s intervention and are now regarded as satisfactory.  Nonetheless, the Commission argue that the Appellant’s lack of insight into the errors of her previous ways suggests that she cannot be relied upon to maintain the progress.

23.	The most serious criticism made by the Commission was of the Appellant’s practice of sub-dispensing medication.  One example occurred when she went on holiday.  She left a number of tablet bottles so that there was one bottle for each resident for each time of each day for which medication was required.  She sub-dispensed the relevant combination of tablets into each bottle and labelled the bottle with the resident’s name and the date and the time of day when the tablets were to be taken.  All the care assistant in charge had to do was take the relevant bottle for the resident, day and time concerned and give him or her the tablets in the bottle.  The problem with this system was that the care assistant might not know what the tablets were that she was giving to the resident.  One of the care assistants who gave evidence to us said that that was so in her case.  Obvious difficulties would have arisen if the medication was actually given to the wrong resident and a doctor needed to be told what the medication was or if a resident’s general practitioner decided to change his or her medication.  Happily these situations did not arise.

24.	Another example of sub-dispensing was observed by inspectors on 12 March 2003.  In a drawer in the kitchen were four sherry glasses, each containing that day’s medication for each of the residents.  At 11.45 am, the morning medication had still not been given to some of the residents.  Furthermore, the Diazepam tablet to be given to one of the residents that afternoon was actually left in a glass on a shelf in her room.  The Appellant said that only she would have given the medication to the residents and she knew which glass in the drawer contained what.  Nonetheless, one of the care assistants had thought it necessary to write the residents’ names on pieces of paper, which she had put under the four glasses.  The names did not in fact match the medication.

25.	Two clearer breaches of the general principle that medication should be dispensed from the original bottle and should be seen by the care assistant to be taken by the resident before being signed for are hard to imagine.  It had been recorded on 30 October 2002 that the Appellant had not been aware of that principle, but she had been made aware of it then.  By 12 March 2003, she therefore had even less excuse for her sub-dispensing than she had had before.

26.	When the inspectors visited at the end of 2002 the Appellant had no proper policy as regards medication and the medication was not even kept under lock and key. Even in 12 March 2003, medication was being left in glasses and jars in places where the residents had access to it.  A bottle of senna tablets was found in a flower-pot where medication had been found on a previous occasion.  The Appellant said they were for her own use but that was immaterial.  There were also occasions when the medication was not give at the time it should have been given and the Appellant appeared quite happy to give the resident suffering from dementia quite substantial quantities of drugs at times that did not correspond with the doctor’s prescription without any reference back to the doctor.  Discrepancies in the old records made it difficult to assess the extent to which she did this, particularly as the Appellant used to give drugs prescribed for one resident to other residents if the supplies of the other residents had come to an end.  In March 2003, she was found to be giving a fortified drink, available only on prescription, to a resident for whom it had not been prescribed.  Not only had the drink been prescribed for a person who had never been a resident of the home but its “use-by date” was April 2002, nearly a year earlier.  Several other cartons prescribed for the same person and bearing the same date were found stored outside in an open basket.  The Appellant was unwilling to explain how she had acquired them.

27.	The Appellant’s judgment is further called into question by two other incidents involving medication.  The first is the disappearance of 56 Temazepam tablets.  Temazepam is a controlled drug.  The Appellant explained that she was expecting the delivery of the drug while she was away for the day.  Because there was a considerable amount of money in the cupboard where the medication was kept, she told us that she did not give the care assistant the key but instead asked her to take delivery of the drug and hide it in an unlocked cupboard in a resident’s room.  When she returned, she put the packet in the medication cupboard but did not open it for three days, when she discovered that the tablets were missing.  She made enquiries of the pharmacy and her suspicion fell on a member of staff in the home.  She reported the loss to the police.  We agree with the Commission that the only possible construction to put on the Appellant’s account is that she put the safety of the money above the safety of the drugs and that she did not trust her staff with the money.  We are not sure how consciously the Appellant really weighed up the various considerations but, on any view, she showed huge misjudgment, as she acknowledged at the hearing before us

28.	The second incident was the discovery at another property owned by the Appellant of some tablets that had been prescribed to a resident at the home.  The Appellant’s account is that she had the medication in her bag because she was intending to return it to the pharmacy as being surplus to requirements.  She went to her other property to talk with some builders and because she was afraid they might take the medication from her bag she took it out and hid in the home.  She then forgot about the medication.  We share Mr Silvester’s scepticism about that account but even if it is accepted it shows a further lack of care. 

29.	There have been substantial improvements in the way medication is administered.  The Commission arranged for a pharmacist to give advice to the Appellant and the consequence has been the introduction of a new system of blister packs, all provided by the same pharmacy, and the training of the Appellant and other staff.  At first the new system was not being operated properly but, once the old stock of medication had been taken away and the training had been carried out, matters improved.  The Appellant told us, in effect, that it is now easier to do things properly than to do them improperly and we do not fully share the Commission’s pessimism about the likelihood of her being able to maintain her new standards.

30.	On the other hand, we accept the Commission’s argument that the poor judgment exhibited by the Appellant and her continuing defence of her former practices of sub-dispensing medication and not keeping it secure reflect poorly on her judgment generally and her likely ability to manage other aspects of the home.  In particular, the evidence shows that she has simply not made herself aware of proper practices and has not understood the reasons for the practices and that she has been prepared to take short cuts when it has been convenient for her. 

31.	We accept that there have been breaches of regulation 13(2) of the 2001 Regulations (arrangements for the recording, handling, safekeeping, safe administration and disposal of medicines).

Staff

32.	We agree with the Commission that the Appellant’s recruitment practices did not meet acceptable standards.  There were no adequate files on members of staff, so that there was not even a record of their addresses, and it is clear that applicants were not required to complete application forms detailing their employment histories or produce proper references and were not police-checked.  She has improved in some respects but she plainly does not understand the need for the formalities and the fact that some of them are required as one means of protecting residents from possible abuse.  The position of her brother exposed her lack of understanding.  She did not think it necessary for him to be checked because he was not paid, even though he provided assistance to residents.  He was, in fact a chef, and had no relevant training, although he had known the residents for some time.  The Appellant saw nothing inappropriate in a man who was not a proper care assistant helping a female resident on and off a commode.

33.	There are discrepancies in the rotas that we have seen but even the versions most favourable to the Appellant showed unsatisfactory staffing patterns for the period when there were four residents.  They suggest that the Appellant regarded herself as being on duty most of the day and as being on call at night, with one other member of staff on duty at any one time during the day.  However, there was not necessarily another person on for the whole period from 8am to 8pm so that there were occasions when the Appellant was on duty alone.  There were also the occasions we have already mentioned when she went out – so that she was not really on duty when the rota suggested she was – and one other member of staff was left alone.  This might have been all very well in a small home with residents with low dependency had it all been planned, but, as we have noted, one of the residents required two people to move her.  Furthermore, we accept the evidence of the inspectors that on 7 November 2002 the only person on duty identified herself as a cleaner rather than a care assistant and appeared to have limited English.  The Appellant was unable to produce any records at all in relation to that member of staff.

34.	There was no written evidence of a training programme.  However, it is clear that the Appellant trained staff herself by introducing them to duties, showing them how to carry out tasks and by example.  Some, at least, of the staff appear to have started doing mostly domestic work and then progressed to providing more personal care for the residents and giving them medication, although, as we have seen, the Appellant retained a degree of control over medication.  The two care assistants who gave evidence to us seemed to have gained a reasonable understanding of their role and the needs of the residents and the answers they gave suggested that they were probably fairly competent.  Following the involvement of the Commission, the one who was still employed had had external training in first aid, medication and moving and handling residents.

35.	However, it is plain that some of the staff who have been recruited have not been suitable and have not lasted and there were no recognisable criteria for deciding when a member of staff is fit to be left in charge.  One of the care assistants who gave evidence to us had been left in charge of the home during the day, assisted only by the Appellant’s brother, when she had been employed for only one or two months.  She had not been told about the role of inspectors and she told inspectors, untruthfully, that she did not have the key to the cupboard where the staff records were, kept because she believed that the inspectors were not entitled to look at them.

36.	Perhaps most worrying is the fact that, until 2003, the Appellant herself had not undergone any training since the home had opened in 1989, so that all the training that she provided was based on what she recalled from her days as a nurse.  She had also not been a member of the local association of care homes, except for a brief period in 2003, and had clearly not kept up-to-date with developments in residential care generally or, in particular, the care of those suffering from mental disorder.  Despite much prompting, she did not even have a copy of the National Minimum Standards, until an inspector gave her one because it was difficult to discuss with her what was required when she did not know what the standards were.  It is hardly surprising that the home has been left behind as standards in other homes have improved.

37.	There has now been some training of staff by an outside agency and we were shown various certificates.  However, we are not confident that the Appellant is capable of developing a proper programme of training for new staff.  Even more seriously, she has not made adequate plans to bring herself up to date.  She told us that she intended to do a course for managers but she was hazy about the details.

38.	We accept that there have been breaches of regulations 10(2) and (3), 18(1) and (2) and 19 of the 2001 Regulations (training of provider and manager, numbers, training and supervision of staff and recruitment of staff).

Physical environment

39.	We note that, despite the many criticisms of the fabric and appearance of the home, there has been no complaint about the smell, despite the incontinence of some residents.  That suggests that, generally, standards of cleanliness inside the home were reasonable.  Certainly, the two relatives who gave evidence to us had no complaints on that score.  However, the physical condition of the home was unsatisfactory in a number of respects.

40.	The inspectors commented unfavourably on the standard of decoration and the photographs we have seen, taken on 12 March 2003, show a stained ceiling, missing tiles from a shower, an old cooker covered with a cloth being used as an occasional table, badly cut carpets, dirty rugs (some of which were potential trip hazards) and a chair with a dirty cover used by residents in the shower room.  There was also one chair in particular in the smokers’ lounge that the inspectors regarded as being so dirty as to present a health risk.  Other health risks were a mop, the head of which was leaning against clothes that were drying in the shower room, and a basket of dirty laundry next to a bin containing soiled continence pads.

41.	There were two bins for that purpose outside the house.  The idea was that they kept the smell out of the house, which seems to have been successful.  However, the lids were not always closed – the Appellant blamed the staff – and they were unhygienic and made the garden area unpleasant.  Furthermore, there were no proper arrangements for the disposal of pads soiled with faeces rather than urine, which should have been taken away in yellow clinical waste bags, rather than in ordinary black rubbish bags.  One of the bins was right outside the room of a resident.  The inspectors saw a continence pad in a waste-paper bin in the resident’s room.  When they drew that to the attention of the Appellant, she picked it up and threw it though the window so that it landed in the bin, which had the lid open.  They naturally concluded that the open topped bin was part of a system for disposing of that resident’s pads.  The Appellant denied that was so and it is possible that she merely saw that the lid was open and reacted accordingly.  Whatever the truth, the standards of hygiene were poor and reflect badly on the training of staff as well as on the general management of the home.

42.	The garden area was a shambles, with all sorts of item scattered round it.  On 14 October 2002, those included an old caravan, gas bottles and cans of paint. Some of the combustible items were just outside the fire exit.  The caravan, gas bottles and paint cans had been removed by 12 March 2003, but the garden was still not fit to be used by the residents, being full of discarded items such as an old sink, pieces of linoleum, supermarket shopping baskets, rubble and so on, quite apart from the open bins containing soiled continence pads.  The fire exit was still not as clear of obstacles as it might have been.

43.	The environmental health officer who gave evidence to us visited the home in 2001 and had to revisit it because she was not satisfied with what she found.  She was appalled by the lack of cleanliness.  She also found food improperly stored and inadequately labelled in the refrigerator and found that the freezer was not working properly, because the seal was broken, so that some food had to be thrown away. Furthermore, she believed, rightly in our view, that the temperature records had been fabricated because the temperature had purportedly been taken with a thermometer designed for taking body temperatures, which would not have been capable of taking the temperature in the refrigerator.  In 2002, she revisited twice after her initial visit and was so concerned after her second visit that she contacted the Commission.  The kitchen was dirty and gaps in the floor round the edges were covered by tiles placed on top of the others.  Excess grout had not been cleaned from tiles.  A sieve and the toaster were rusty.  The Appellant told us that the sieve got like that because it was dried on the cooker, but she does not seem to have appreciated that the rust still presented a health hazard.  A dirty chip pan full of oil was without a lid.  Food utensils were stored next to cleaning chemicals.  The probe for testing the temperature of cooked meat was dirty and being kept in a dirty bowl.  The fridge/freezer was not working so that the temperatures were not low enough.  Saucepans of cooked food were kept on the cooker for long periods of time and margarine that should have been refrigerated was kept in the breadbin.  On 13 January 2003, the freezer temperatures were so high that some of the food was not frozen and had to be thrown away.  The Appellant was asked to monitor the temperatures.  When the environmental health officer returned three days later, she had not done so but the freezer temperatures were acceptable.  However, coleslaw with a “use by” date of 23 December 2002 was in the refrigerator and a saucepan of cold porridge was on the cooker.  Food was being defosted at ambient temperature.  The Appellant was using a defective fridge/freezer in her own room.  In August 2003, food was again being defrosted at ambient temperature (30o C), again there was out-of-date food and again there was food on the cooker in a saucepan, which the environmental health officer was led to believe by a resident had been there for days, although the Appellant denied that.  By 15 January 2004, however, there had been some improvement and, although food was again being defrosted at ambient temperature, the environmental health officer had no other complaints.

44.	The witnesses for the Appellant who gave evidence to us had seen nothing amiss in the kitchen, but much that concerned the environmental health officer would not have been immediately obvious to the casual observer.  We are prepared to accept that the level of risk may not have been particularly high.  However, the health hazards that the environmental health officer found were easily avoidable and should not have been allowed to continue.  The Commission accept that there have been improvements in the physical environment and we accept that the Appellant still intends to have work carried out to improve the shower and the fire exit, but what concerns us is the Appellant’s willingness to continue bad practices for so long having been told they were unacceptable.

45.	We are satisfied that there have been breaches of regulations 13(3) and (4)(a) and 23(2)(b), (d) and (o) and (4)(b) of the 2001 Regulations (prevention of infection, maintaining areas free of hazards to safety, maintenance of the premises and provision of adequate means of escape in case of fire).

Conclusion

46.	For the reasons we have given, we are satisfied that, at the date of the Commission’s decision, there had been many breaches of the Care Homes Regulations 2001 and therefore cancellation of the registration was permissible.  The question for the Commission was whether the breaches justified cancellation.  The questions for us are whether the Commission were right and, if so, whether cancellation is still justified.  It is not in dispute that we are entitled to take account of developments since the date of the Commission’s decision.  That must be right because one of the issues for the Commission was how likely it was that there would be further breaches of the Regulations in the future and it would be absurd if we had to close our eyes to what has in fact happened in the months since the Commission’s decision.  The Commission, being a party to the proceedings, have been able to express their view of the significance of recent developments.

47.	In favour of the Appellant, it can be said that there have been improvements in relation to medication, staff recruitment and training and the physical environment of the home.  However, there has really been no progress in respect of care planning and residents’ records and standards in most other areas remain inadequate.  Mr Silvester argued that, whether residents pay privately or whether the state pays on their behalf, a resident in a care home is entitled to have the home run in a manner that at least meets the National Minimum Standards and, he submits, this home comes nowhere near those standards, however well-meaning the Appellant may be.

48.	In addition to the breaches of the regulations mentioned above, there has, as the Commission submits, been a breach of regulation 10(1) of the 2001 Regulations because the Appellant has failed to “carry on or manage the care home … with sufficient care, competence and skill”.  Having heard the Appellant at some length, we are satisfied that she still does not possess the competence and skills needed to carry on or manage a care home in 2004 and we do not consider that those deficiencies are remediable within a reasonable period of time, if at all.  Her lack of understanding of what is required means, in our view, that there is no prospect of this home being managed to an acceptable standard within the foreseeable future, in order adequately to meet the needs of residents, including residents whose needs may be more demanding than the current needs of the present residents, and to protect them against unnecessary risks.

49.	The Appellant conceded before us that she had not been a good manager and she suggested that she would obtain a manager.  However, she does not just need an administrator.  She herself needs to be managed or supervised if she is to care for vulnerable adults and we do not consider that she is competent even to carry on a home with a manager.  Therefore, quite apart from the fact that no manager has been put forward and our scepticism about the financial viability of her proposal, we do not consider that her proposal answers the Commission’s case.

50.	We recognise that cancellation of the Appellant’s registration may have the effect that one or both of the present residents will have to move and that that would be unsettling for them.  However, it will be apparent from what we have said that, although some aspects of their care have been good, there are other respects in which it has not been as good as it should have been.  We do not consider that the residents’ desire to stay justifies allowing what is, by today’s criteria, a substandard home to continue operating.  Nor would it be in their long-term interests, if they do require residential care.  Accordingly, we are satisfied that this appeal should be dismissed.

51.	We wish to add that we are impressed by the way in which the Commission approached this case.  The Appellant was given an adequate opportunity to put matters right both by inspectors visiting the home and more formally in the interview on 24 December 2002.  At the same time, the Commission did not let the case drift but took appropriately firm action after five months.  Since then, they have kept the case under review and have been open-minded about reconsidering their position.  We reject the suggestions made by the Appellant, albeit faintly, that she was not treated fairly.  

Mark Rowland
Susan Howell
Denise Rabbetts

Signed by the chairman on this 29th day of March 2004.