Jones v Commission for Social Care Inspection [2005] EWCST 426(EA) (01 July 2005) 

Peter Jones
-v-
Commission for Social Care Inspection
[2005] 426.EA

-Before-

His Honour Judge David Pearl
(President)
Mr Graham Harper
Mrs Jenny Lowcock

Heard at the Care Standards Tribunal sitting at the Bailey Rooms, Shire Hall, Cambridge on 13th, 14th, 15th, 16th and 17th June 2005.

For the Appellant: Ms M. McDonald of Counsel instructed by Carol Triplett, Solicitors
For the Respondent: Mr B. Silvester of Counsel instructed by Mills and Reeve, Solicitors.

DECISION

Background

1.	This is a rehearing of the Appellant’s appeal from the decision of the Respondent dated 4th April 2003 to refuse his registration as Manager of Middlefield House Nursing Home, Gainsborough, Lincolnshire. The Care Home caters for the needs of young adults with severe learning disabilities. It is owned by Prime Life Limited, a company whose head office is in Leicester and which operates some 45 homes with another 7 under construction at the present time.
2.	The matter first came before the Care Standards Tribunal in December 2003 and that Tribunal allowed the appeal. The decision is dated 2nd January 2004 and reported as [2003] EWCST 168 (NC). The Commission appealed the decision on a point of law. Sullivan J heard the appeal on 21st April 2004.  In his decision, cited at [2004] EWHC 918(Admin), the Judge allowed the Respondent’s appeal and remitted the matter to be reheard by another Tribunal. 
3.	Mr Jones appealed the decision of Sullivan J, and the case came before the Court of Appeal on 16th November 2004. The decision of the Court of Appeal was handed down on 16th December 2004 and is reported as [2004] EWCA Civ 1713. The appeal from Sullivan J was dismissed, and thus the remittal to the Tribunal for a rehearing was upheld.
4.	We have been provided with the transcripts of most of the witnesses who gave evidence at the first Tribunal hearing. These transcripts have been used by both Counsel to enable much of the agreed evidence to be produced before this Tribunal in a convenient form. It is important to emphasise, however, that the proceedings before us are a fresh hearing. We have relied on the oral evidence presented to us, and have only considered evidence that appears in the transcripts of the earlier hearing when our attention has been directed to these transcripts by Counsel.

The Agreed facts.

5.	Mr Jones was born on 13th September 1958. In his written statement dated 12th November 2003, he states that he has worked in the care profession for over twenty years, working his way up from a care assistant. He told us that after leaving school he worked in heavy engineering. He was made redundant, and took the opportunity to become a care assistant. He said that he liked the role, and felt that it suited him. He applied for, and was accepted on to, a course for enrolled nurses training. He gained the qualification of Enrolled Nurse in 1985 and Registered Nurse in 1989. 
6.	He joined Prime Life in August 1995, and became the manager of Lowfield House, Scunthorpe. This is a home for adults with physical and learning disabilities. It is common ground that certain allegations were made against him in March 1998 about his conduct towards service users in the period 1996/1997. 
7.	His witness statement of 12th November 2003 states that in “February 1998 I went to the police station to be interviewed about this.” A solicitor representing him was present during this interview. We have seen an undated letter from Humberside Police which says that after a six-month wait, the Crown Prosecution Service had recommended that there be no prosecution for any of the incidents. The letter concludes: “Therefore there will be no further police action in relation to the incidents you were interviewed in connection with on 12th February 1998.” Mr Jones received this letter sometime during September 1998.
8.	Mr Jones told us that after he received the letter from the Police, he telephoned Mrs Michelle Hurst, an inspector at the South Humber Health Authority, the body then responsible for registration. He said that she told him that she had a duty to refer the matter to the Appellant’s professional body, the United Kingdom Central Council for Nursing, Midwifery and Health Visiting. 
9.	Mr Jones was appointed manager at Middlefield in December 1999. He had worked there before he had worked at Lowfield, but at a time when Middlefield was not part of the Prime Life portfolio. Middlefield was purchased by Prime Life sometime in 1999. Mr Jones was approved as the Person in Charge of Middlefield on 8th February 2000 by the Principal Inspector, Adult Services of the then relevant Registration Authority under the Registered Homes Act 1984.
10.	It was not until July 2000 that Mr Jones heard from the UKCC. The letter, dated 17th July 2000, sets out 15 allegations and explains that the allegations will be investigated and will then be placed before the Council’s Preliminary Proceedings Committee, which will consider the matter “in due course.” Mr Jones informed Mrs Hurst of the South Humber Health Authority of the letter, and he sought information regarding the number of complaints she had received. Mrs Hurst replied on 5th September 2000 stating that a single complaint was received from the Independent Inspection Unit via the Police. 
11.	The next letter received by Mr Jones from the UKCC is dated 16th January 2001. This states that the matter has now been investigated and “will be put before the Preliminary Proceedings Committee”. The letter states that the Preliminary Proceedings Committee will consider six allegations.
12.	A subsequent letter from UKCC dated 4th May 2001 identifies eight allegations that will be considered by the Committee. 
13.	A decision was taken by the Preliminary Proceedings Committee to start proceedings against Mr Jones in a Notice that was sent to him on 21st June 2001. The Notice identifies the eight allegations. The Preliminary Proceedings Committee considered the case on 21st August 2001 and informed Mr Jones by letter dated 30th August 2001 that it had decided to refer all eight charges to the Professional Conduct Committee.
14.	Mr Jones wrote to the Managing Director of Prime Life, Mr Peter Van Herrewege, in February 2002 to seek a reference from him and to provide him with a copy of the allegations that he had to face. It would appear that the particulars of the charges were to have been considered in March 2002, but for reasons that are not entirely clear, the hearing was adjourned and no alternative date was set. 
15.	In the meantime, the Care Standards Act 2000 came into force on 1st April 2002. Mr Jones completed the application form (Form R3) to the National Care Standards Commission for registration as a manager on 14th April 2002. Page 40 asks the applicant “please indicate below whether you have ever been: charged with any offence, or been subject to an investigation by police.” He answered “No”. A second question asks whether he has ever been subject to any form of complaint, dismissal or disciplinary proceedings. He answered “No”. The declaration that he signed and dated on 14th April 2002 states “I hereby declare that the information detailed above is accurate to the best of my knowledge. I understand that a false declaration may lead to refusal of this application.”
16.	The Nursing Midwifery Council [having taken over the statutory responsibilities of the UKCC for Nurses, Midwives and Health Visitors] wrote to Mr Jones on 12th September 2002 providing details of the hearing to take place in Nottingham on 14th October 2002 with a three day time estimate.
17.	There was an announced inspection of Middlefield on 2nd October 2002 by Mr Douglas Tunmore, the Commission inspector responsible for Middlefield. This inspection was followed by a planned visit by Mr Tunmore on 8th October 2002 to see Mr Jones to discuss the inspection, and the contents of the report. Mr Jones gave Mr Tunmore an inspection feedback card on 8th October 2002. Mr Jones accepted in evidence that he did not inform Mr Tunmore, on either the 2nd October or the 8th October, of the letter from the NMC dated 12th September 2002 or of the forthcoming hearing in Nottingham on 14th October 2002.
18.	The contact notes on Middlefield House written contemporaneously by Mr Tunmore reveal that on 15th October 2002, Mrs Anne Carswell, then the Area Manager at the Lincoln Office of the Commission, “discussed a newspaper cutting that she had received from Scunthorpe NCSC about Peter Jones care manager.” The cutting from the Scunthorpe Telegraph is dated 15th October 2002 and refers to the hearing before the NMC conduct panel.
19.	Mr Tunmore received a telephone message from Mr Jones on 16th October 2002 asking him to return the call. Mr Tunmore did return the call, and Mr Jones asked for a copy of the inspection report for the purposes of helping in the ongoing proceedings before the NMC.
20.	The NMC found 4 of the eight charges proved. These are as follows:
•	On an unknown date during 1996, he hit Resident A on his penis with a pen
•	On an unknown date during 1996, he wheeled resident B into the dining room with a waste paper basket on her head
•	On 1st January 1997, he forcibly administered medication to resident B
•	On 22nd October 1997, he kicked resident D on her buttocks.
21.	He admitted the second of those charges at the beginning of the hearing.
22.	The Committee imposed a five-year caution. It also asked Mr Jones to study the NMC’s Code of Professional Conduct, and to follow its standards in his future professional practice and conduct.
23.	Mr Jones attended the fit person interview with the Commission in connection with his application for registration as manager on 22nd January 2003. The interviewing inspectors were Ms K Emmons and Mr D Howells. We have seen both the Assessment by the Inspectors of the Answers given by Mr Jones and the Report written by Mr Howells for the attention of Mrs Carswell. The recommendation in the Report was that Mr Jones’ application not be approved.
24.	Mr Howells telephoned Mr Van Herrewege on 10th February 2003 to inform him of the intention to refuse the registration of Mr Jones as Manager, and the proposal to refuse registration was sent to Mr Jones on the same day. Having received and considered representations by Mr Jones, the Notice of Refusal of Registration was sent on 4th April 2003 and signed by Mrs Carswell.
25.	There are eight reasons for the refusal of registration. We set them out here in summary form:
1.	Knowledge of the Law: Mr Jones has failed to demonstrate that he has knowledge of the Care Standards Act 2000, Care Homes Regulations 2001, National Minimum Standards related to running a care home, and other key Laws relating to people with disabilities.
2.	Knowledge of the concepts and principles of management: Mr Jones’ responses to questions were anecdotal. He did not display any knowledge of management principles. 
3.	Knowledge of concepts of care or care management: Mr Jones’ responses to questions were anecdotal. He failed to demonstrate that he understood the key principles in relation to care practices.
4.	Knowledge of adult abuse and protection: Mr Jones did not understand the key concepts of protecting vulnerable adults.
5.	Rights of service users: Although Mr Jones said that service users would be empowered to exercise their rights, independence and choice, he failed in his pre-assessment questionnaire and during the interview to demonstrate how this would be achieved…He failed to demonstrate his understanding of the right to privacy.
6.	Personal development and training: There was no evidence from the interview or the application made, that Mr Jones had kept himself up to date through training on subjects relating to the management of care homes, or the category of service users, for which the home is registered.
7.	Incorrect Information on his Application Form: Mr Jones had declared and signed on his application form (R3) that he had not been subject to an investigation by the police or an adult protection investigation.
8.	Professional Conduct: The NMC found Mr Jones guilty on four accounts (sic) which related to the abuse and mistreatment of service users. The Chairman of the Committee made the following statement: “In relation to each charge, we feel that you have failed to safeguard and promote the interests of individual patients and clients, failed to justify public trust and confidence, uphold the good standing and reputation of the profession, and failed to recognise and respect the uniqueness of each patient and client and respond to their needs.”

26.	Mr Jones wrote to the Care Standards Tribunal on 14th April 2003, received by the Tribunal on 22nd April 2003, appealing this decision. 

The Law

27.	Section 13(2) of the Care Standards Act 2000 states: 
If the registration authority is satisfied that –
(a)	the requirements of regulations under section 22; and
(b)	the requirements of any other enactment which appears to the registration authority to be relevant,
are being and will continue to be complied with (so far as applicable) in relation to the establishment or agency, it shall grant the application; otherwise it shall refuse it.
28.	The relevant regulations made under section 22 are the Care Homes Regulations 2001 and in particular Regulation 9. This states:
(1)	A person shall not manage a care home unless he is fit to do so.
(2)	A person is not fit to manage a care home unless –
(a)	he is of integrity and good character
(b)	having regard to the size of the care home, the statement of purpose, and the number and needs of the service users –
(i)	he has the qualifications, skills and experience necessary for managing the care home; and 
(ii)	he is physically and mentally fit to manage the care home;…

29.	The law has been considered by Sullivan J and by the Court of Appeal, and most, although perhaps not all, of the uncertainties in the law have now been resolved. We can set out the law as we see it by the following propositions:
•	The provisions of the Care Homes Regulations 2001 (in respect to applications) places the burden on the applicant. In this context, Thomas LJ states: “It is entirely in the public interest that they should do so. A manager of a care home occupies an important position of trust and must demonstrate that he is fit and proper to hold such a position”.
•	Any doubts must be resolved against registration.
•	The burden of proof remains on the applicant in any appeal to the Care Standards Tribunal.
•	Regulation 9 sets out mandatory requirements that an applicant must satisfy before he may be registered as a manager of a care home under the 2000 Act.
•	It is not helpful to add anything to the statutory definition of fitness, integrity and good character. Exploring synonyms is likely to be of little if any assistance (per Sullivan J)
•	In requiring an applicant for registration to be of integrity and good character, Regulation 9 should not be construed as requiring perfection. 
•	The first question that must be asked is; is the applicant for registration a person of integrity and good character? If the answer to that question is “no”, then whatever other qualities an applicant may possess, the statutory scheme states that he or she is not fit to manage a care home (per Sullivan J). If the answer is “yes”, then the second question to be asked is whether he has the qualifications, skills and experience necessary for managing the care home. If the answer is “yes”, then the third question is whether he is physically and mentally fit to manage the care home.
•	Findings of professional misconduct are relevant to the first question. The Tribunal must look at the situation as at the date of the hearing, and there may be some circumstances where it can be concluded that at the date of the hearing a person is of integrity and good character notwithstanding findings of professional misconduct. Sullivan J draws attention to the analogy of a defendant in a criminal trial who is treated by a judge as of good character notwithstanding a previous conviction because, for example, a previous conviction took place many years ago, or was of a very minor character, or peripheral or of little relevance.
•	Satisfaction of each of the relevant provisions of Regulation 9 is a necessary condition for registration. 
30.	We heard argument on whether it is possible to consider matters relevant to “qualifications, skills and experience” when considering the first issue of “integrity and good character.” We believe that although they are essentially very different matters and that additional qualifications, skills and experience obtained since the decision of the Respondent will go primarily to the second question, there may indeed be some circumstances where the passage of time and what has happened during this period can provide an important additional dimension to the first question on “integrity and good character.” Each case will depend on its own facts.
31.	There is one final matter of law that we need to deal with in this decision. Ms McDonald referred us to the observations of Brooke LJ at paragraphs 23 and 24 of his judgement. Brooke LJ  said:
“…While there is no reason why the Tribunal should not be free to consider any argument addressed by either party on the question whether it should or should not confirm the Commission’s decision, it was a pity in this case that the Commission’s advocate decided to widen his client’s grounds of objection on the eve of the appeal hearing by suggesting for the first time that the allegations found to be proved were “about as serious a set of allegations as can be made against a manager of a care home (which was manifestly not the case), and that Mr Jones  was “obviously disbelieved” by the disciplinary committee when he was doing his best to defend himself against accusations which went back five or six years…The Tribunal’s time would have been better spent if this issue had never been raised, and it would set an unfortunate precedent if the Commission, after setting out its reasons fully and dispassionately at the outset of the appeal procedure was in any way encouraged to embellish them in much more emotive terms at the appeal hearing.”
32.	The Commission needs to take account of these remarks by Brooke LJ when preparing cases for Appeal. It is important to bear in mind, however, that the Judge expressly stated that “there is no reason why the Tribunal should not be free to consider any argument addressed by either party”. The facts must be considered as at the date of the hearing, and therefore there may well be much that has happened since the original decision was made that needs to be drawn to the attention of the Tribunal.
33.	In this case, the remarks of the Committee Chairman when sentencing were specifically quoted in Ground 8 of the Notice for the Reasons for Refusal of Registration. In our view, it would have been a fiction to have not heard evidence relating to the four charges, on which these remarks were based.

The first question: Is the applicant of integrity and good character?

34.	Mr Silvester submitted that the Applicant had failed to satisfy the Tribunal on a balance of probability that he is a man of integrity and good character. He placed reliance, firstly, on the false declaration in the application form. Mr Silvester said that Mr Jones had made a false declaration in order to conceal those matters from the Commission. Mr Jones admitted in evidence to us that a statement in his witness statement to the contrary was untrue. Mr Silvester submitted that this further demonstrated that he was not a man of integrity. 
35.	Ms McDonald asked the Tribunal to accept that even at the date he completed the application, Mr Jones was a man of good character and integrity who in a moment of weakness allowed himself to be persuaded by Mr Van Herrewege, against his better judgement, to do something that was completely and utterly wrong. 
36.	The thrust of the evidence that we heard on this matter was to the effect that Mr Van Herrewege suggested to Mr Jones the way the questions should be answered. Both Mr Van Herrewege and Mr Jones gave evidence to that effect. In his re-examination on this point, Mr Jones said, “There was no conspiracy going on between us. My head had a clear idea of how to fill the form in. I hold Mr Van Herrewege in high regard for both professional issues and general ones. I wanted him to concur with my view. Subsequently I chose his line of thought and filled in the form in an untruthful way.”
37.	We have no doubt but that Mr Jones decided, certainly with the support and possibly the recommendation, of Mr Van Herrewege, to fill in the form in an untruthful way. Mr Van Herrewege tried to persuade us that all of the blame should be placed on his shoulders. Mr Van Herrewege said in evidence: “I regret giving him that advice. It was dishonest of me.”
38.	The involvement of Mr Van Herrewege in the deception is not the primary consideration for us when looking at this matter. We believe that the responsibility must rest firmly on the applicant. The questions are simple and straightforward and there can be only one truthful way in which this form could have been filled in. 
39.	Mr Silvester submitted that the four counts on which he had been found guilty by the NMC each involved abuse and mistreatment of vulnerable residents. For the reasons that we have indicated above, we heard evidence from Mr Jones about these matters, and indeed from Mr Van Herrewege about what he had been told of these matters by Mr Jones. Mr Jones and Mr Van Herrewege have differing recollection of the conversations between them, and Ms McDonald urged on us to prefer the evidence of Mr Jones. We have decided that this is a peripheral issue, and that it is the findings themselves that are relevant to Regulation 9(2)(a). All that needs to be said about these matters is that they were treated as “a very serious matter” by the NMC, which are not condoned or excused in any way by them.
40.	Ms McDonald submitted to us that the incidents themselves and the untruthful filling in of the form were out of character. We are not persuaded by this argument. Mr Jones had at least two opportunities to inform the Respondent of the pending disciplinary hearing, namely when Mr Tunmore came to the home for the inspection on 2nd October 2002 and when he revisited on 8th October 2002 for a follow up visit. We were totally unimpressed with Mr Jones’ explanation that he did not inform Mr Tunmore of the forthcoming hearing because he thought that it concerned Lowfield, and that it was irrelevant to the Middlefield inspection. We believe that he did not raise the hearing with Mr Tunmore because he hoped that it would all be resolved in his favour and the Commission need never have known. We accept Mr Tunmore’s evidence to us that on 2nd October 2002, Mr Jones was present throughout the day, and that they went through every standard together and discussed each and every one of them, including issues relating to adult abuse. Failure to mention the hearing impacts very heavily on Mr Jones’ “integrity and good character.” 
41.	Furthermore, we accept the evidence of Mr Tunmore as to the telephone call between the two of them on 16th October 2002. We accept that Mr Tunmore did ask Mr Jones why he had not been told of the hearing, and that Mr Jones did respond that he did not have the date of the hearing, which of course was untrue because he had known the date since 12th September 2002. We reject the suggestion by Mr Jones that the conversation was extremely brief and that none of this was discussed. Mr Tunmore states in his Contact Note that the Notes were made “directly after speaking to Mr Jones and are contemporaneous.” We accept this part of the Contact Note as reflecting the truth of the 16th October 2002 telephone conversation. We are not able to agree with Ms McDonald in her suggestion that the Contact Note is an unreliable document.
42.	Another matter that is drawn to our attention by Mr Silvester is the witness statement of 12th November 2003 that Mr Jones admitted at this hearing to be misleading. Ms Helen Laverty, of the Faculty of Medicine and Health Sciences at the University of Nottingham, Lincoln gave evidence in support of Mr Jones. She said however in her evidence that his admissions to the untruths in the witness statement “makes me reflect upon his integrity…he’s a fool at times. He is his own worst enemy.” 
43.	We have arrived at the conclusion that Mr Jones has lied in the past about the investigation by the police and his professional body, and that he has attempted to continue the deception in his witness statement in November 2003.
44.	We turn to consider whether any improvement in his qualifications, skills and experience since 2002 impact on his integrity and good character. We have said that there will be cases where such matters are going to be significant. Ms McDonald urged on us that this was one of those. She referred us to the large number of generous character references for example Catherine Cocking, Mark Coulson, Kerry Walters, and Pat Whitehead; to the evidence of Ms Laverty; to the evidence in support produced by the workers at the home; and to the Inspection reports of September 2004 and March 2005 by Ms Anne Ward.  We have decided that the evidence of Mr Jones’ professional practice at the present time does not change our view on “integrity and good character.” Indeed, there are considerable concerns that we have in any event about the body of information that we have received about the current and ongoing position. Firstly, it is clear to us that as a nurse under caution he should be receiving regular, structured clinical supervision. Mr Van Herrewege asserted in a letter dated 21st February 2005 to the Business Relations Manager of CSCI that that he was receiving this supervision from Ms Laverty. In her evidence to us, she said that she had never mentored Mr Jones and that she assumed that he was receiving clinical supervision from Prime Life.
45.	Secondly, although we have heard evidence of and seen documents relating to two qualifications that have been obtained by Mr Jones, namely NVQ4 and DC3, the DC3 certainly does not seem to have dealt with issues of abuse, notwithstanding that Mr Van Herrewege told Mr Howells in November 2002 that the DC3 did include an awareness of issues that may constitute abuse. Ms Laverty said in evidence that abuse would be a topic that people could consider, but that the main emphasis was on reflections on practice. She said that Mr Jones wrote an assignment on a journey in relation to his career.
46.	Thus, in this case we have decided that this is not the type of exceptional case where matters relating to qualifications, skills and experience can affect in any way our findings in relation to integrity and good character. Mr Jones has not satisfied us as to Regulation 9(2)(a), and the evidence relating to Regulation 9(2)(b)(i) is not sufficiently overpowering to negate our view on Regulation 9(2)(a).

The second question: Has he the qualifications, skills and experience?

47.	It is not of course necessary for us to consider the second question given our finding in relation to the first question. However, it may be of assistance to both Mr Jones and the Commission if we were to make some general observations.
48.	Mr Jones accepted that at the time of the fit person interview he had failed to demonstrate adequate depth, breadth and clarity of knowledge in relation to professional working requirements. The issue really is whether he has made sufficient gains in the intervening period. We consider that the oral evidence of Ms Day is important to this matter. She said that the relationship between Mr Jones and the staff when she visited was good, and the relationship between the staff and the service users was very good to excellent. She has no problems with Mr Jones’ training and she referred to the NVQ4 qualification. She has a few ongoing concerns relating to Door locks, supervision of staff, and the fact that there are difficulties relating to PoVa checks. She did say however that currently as regards experience and skills, Mr Jones is fit to manage, although she would like to see regular supervision and support for Mr Jones addressing his clinical practice. 
49.	It is our view that a nurse under caution should be subject to supervision; and that supervision is inconsistent with the role of a registered manager. At this moment in time therefore, it would be difficult to argue that Mr Jones has the necessary qualification, skills and experience to satisfy Regulation 9(2)(b)(i). Furthermore, he has had little if no abuse training, and he has not had any structured clinical supervision. 
50.	Although we dismiss this appeal for the reasons set out above, we would hope that Prime Life and CSCI can work together in moving the situation forward. This must be in the interests of the service users. We would hope that a framework can be established that will enable Prime Life and CSCI to achieve a satisfactory interim solution prior to Mr Jones reapplying at some date in the future, once the caution has expired. We wish to emphasise the critical importance of structured and accountable clinical supervision, and also the value of courses dedicated to adult abuse issues. Ms Laverty refers to his need to learn about the autonomous role of his practice and to learn to think before he acts. He is obviously a well-liked person, and we were ourselves struck by the high regard that the staff at the home and the management of Prime Life has for him. 

Conclusion

51.	Our decision is unanimous

APPEAL DISMISSED

His Honour Judge David Pearl
(President)
Mr Graham Harper
Mrs Jenny Lowcock

1st July 2005.