Del Mundo v Secretary of State [2005] EWCST 557(PVA) (March 13 2006)

CARE STANDARDS TRIBUNAL DECISION

Nelson Del Mundo (Appellant) 

-v-

Secretary of State for Health  (Respondent)

(2005)  557.PVA
(2005) 558 PC

Before:

Miss H Clarke,  (Nominated Chairman)
Mr M Flynn
Mrs C Wiggin

Heard on February 22nd and 23rd 2006 at Lewtrenchard Manor, Lewdown, Okehampton EX20 4PN

For the Appellant  :  Miss C Mashembo of Counsel instructed by Coodes, solicitors

For the Respondent  :  Mr A Sharland of Counsel instructed by Treasury Solicitor

DECISION

 1.	The Appellant appeals against the two decisions of the Respondent contained in a  letter  to the Appellant dated July 7th 2005 ( the  Decision Letter ); firstly ( the First Appeal) to confirm him on the Protection of Vulnerable Adults List (the POVA List) and secondly ( the Second Appeal) to confirm him on the Protection of Children Act List (the POCA List).

2.	The Decision Letter also notified the Appellant that the effect of inclusion on the POCA list also meant that the Appellant would not be able to carry out work to which S142 of the Education Act 2002  applies and that his name had been added to the Education Act List.

3.	A Restricted Reporting  Order was made by the Tribunal under Regulation18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations) on the first day of the hearing   which  will  continue at the conclusion of the hearing until the decision is promulgated.     

A Direction was made by the President of the Care Standards Tribunal, His Honour Judge David Pearl, (The President) on 21st November 2005 restricting the reporting of the name of the resident at the centre of this case and directing that  reference to him will be by the initial ‘R’ so as to protect his private life.

4.	The Tribunal heard evidence on behalf of the Respondent from Ms Catherine Susan Aller (Ms Aller) R’s partner, Joy Louise Thorpe (Ms Thorpe) a registered general nurse who works at Kernow House Care Centre, Launceston (Kernow House), Dennis Henry Wing (Mr Wing), a senior care worker at Kernow House and Frederick George Pooley (Mr Pooley), a registered mental health and general nurse who worked at Kernow House, until October 2005.

The Appellant gave evidence but called no witnesses.

5.	In addition to the Tribunal bundle of papers, which was prepared in advance of the hearing, the following additional documentation was considered by the Tribunal.

(i)	Two Polaroid photographs showing R’s groin area taken on May 22nd 2004.
(ii)	A police video of an interview with R on May 28th 2004 ( the Police Video)
(iii)	A copy of the training record of the Appellant  whilst employed at Kernow House 
(iv)	A copy of the certificate dated April 21st 2004 awarded to the Appellant for completion of a multi media based customer care course at Kernow House.

6.	The First Appeal (the POVA Appeal) is brought under S 86 (3) of the Care 
Standards Act 2000 (CSA 2000) which  states:- 

“If on an appeal or determination under this Section the Tribunal is not satisfied of either of the following, namely:-

(a)	That the individual was guilty of misconduct (whether or not in the course of his duty) which harmed or placed at risk of harm a vulnerable adult; and
(b)	that the individual is unsuitable to work with vulnerable adults, 

the Tribunal shall allow the Appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the Appeal or direct the individual’s inclusion in the list.”

7.	The second Appeal (the POCA Appeal) is brought under S4(3)of the Protection of Children Act 1999 ( POCA 1999), which is in similar terms to the CSA 2000 S86(3) except that unsuitability to work with vulnerable adults is replaced under the terms of S4(3) of POCA 1999 with unsuitability to work with children.

8.	In both  the appeals the burden of proof rests on the Respondent . The standard of proof is the civil standard, namely on the balance  of probabilities  as defined in Re H [1996]AC563.
	
The written statements, correspondence and other documents filed by both parties with the Care Standards Tribunal prior to the hearing have been collated into one paginated bundle (the Tribunal Bundle).

9.	Background Information

The Appellant is originally from the Philippines and arrived in the UK on April 19th 2004 having obtained a job with Westminster Care Homes, the then owners of Kernow House, through an agency in the Philippines.   The Appellant immediately started work at Kernow House as a senior carer.

The Appellant in his witness statement and in his evidence to the Tribunal confirmed that he had a BSc in nursing which he obtained in 1993 and that he had worked as a nurse attendant for a period of over five years in a home for the elderly in Singapore.

The day after arriving in the UK the Appellant had a two day multi media based customer care course  and then began working at Kernow House. The Appellant received the theory part  and  a limited  part of  the practical aspects of his  moving and handling  training    from  Mr Ken Williams ( Mr Williams )  on  April 26th 2004 .During this  initial  period the  Appellant was  on duty   during the day and  on May 4th 2004 he  received  further  training  from  Mr Pooley   immediately  prior to commencing night duty.

In the early hours of May 22nd 2004 the Appellant was involved in an incident relating to the movement of the resident known as R who had fallen in his en suite toilet and was unable to move himself back into his wheelchair because of the nature of his disabilities.

There was no report of any fall logged in the accident book at Kernow House or any record of the fall in R’s notes.

The Appellant initially denied  that  R had fallen  but  subsequently admitted that R  had fallen  and that  he and another  carer  Reynita Arenas ( Ms Arenas)  had manoeuvred R by holding his underpants, which he now accepted was not an appropriate way to move R.

10.	R did not make a formal complaint at the time of the  incident  but he did  disclose what had happened to his partner, Ms Aller, during a home visit later that  day  and she telephoned  Kernow House  and informed  Ms Thorpe of what  she had  been told by R.

On his return to Kernow House R was examined by Mr Wing, Ms P Smith and Ms Thorpe and Polaroid photographs were taken of R’s groin area.

12.	Ms Aller  attended a meeting at  Kernow House on Tuesday May 25th  2004   and  later  that  day  a GP was called to examine R but  he could find no evidence of any physical   injuries to R’s groin or scrotum.

R was interviewed by the police on May 28th 2004  and   a police  video of the  interview ( the police  video was played to the  Tribunal).The Appellant was interviewed on June 4th  2004 ( the  first police interview )  and again on July 29th 2004 ( the  second police interview ) and subsequently the Appellant accepted a Caution by  the Cornwall police on  July 29 th  2004 for assaulting R contrary to S39 of the Criminal Justice Act 1988.

13.	The Appellant was suspended from duty following the incident on May 22nd 2004  and following further internal disciplinary investigations the Appellant was notified on the 15th July 2004 that he was  being dismissed for gross misconduct arising out of the incorrect moving and handling of R.  The Appellant did not exercise any form of appeal in relation to the dismissal.

Westminster Health Care in a letter dated September 3rd 2004  informed the Respondent   of what had taken place and as a result of the information and further investigation the Appellant was subsequently  placed on the POVA and POCA lists.

14.	Evidence

Ms Aller in her evidence to the Tribunal claimed that when R came to visit her on May 22nd she had helped him to the toilet and had noticed that his testicles were swollen.  When asked by the Tribunal Ms Aller stated   that there was no redness around R’s groin area.    Ms Aller said  that R was distressed but on cross examination by  Counsel  and questioning by the Tribunal she accepted that the distress was because R had recognised  that he was becoming  more vulnerable because of the progression of his illness .

Ms Aller in her witness statement claimed that R had stated to her  that “he had been dragged across the floor and picked up by his underpants that morning by a big chap who had held him down.”

Under  cross examination  as to whether or not R had actually claimed that he had been dragged across the floor (as this  was not mentioned in the  transcript  of the police interview with R),Ms Aller said that she couldn’t remember what R had said to the police although she had been present at the time.Ms Aller was also specifically asked whether R had told her that two other people were present during the incident when he fell and she, after some deliberation, said that she thought he had  not told her this.

15.	Ms Thorpe in her evidence described how when she had examined R on his return to Kernow House on May 22 nd 2004 she had seen a long graze on R’s scrotum and she refuted the suggestion that this might have been caused by R scratching himself.

16.	Ms Thorpe described how she had worked with the Appellant on the day shift before he went on to the night shift rota and  specifically described an occasion when   R had fallen and the Appellant had  been present when he had been moved correctly by other members of staff.   Ms Thorpe stated that she had told him not to assist at that stage as he hadn’t  completed the moving and handling training but that he should stand back and watch the procedure .

Miss Thorpe claimed that on that  occasion R had been moved by sitting him on two slide sheets and that the Appellant had seen this procedure.

17.	Mr Wing in his  evidence  to the  Tribunal  confirmed that the photographs presented to the Tribunal did relate to R’s groin area.   Mr Wing stated  that  when  he  examined  R on his return to Kernow House on May 22 nd 2004  his groin was sore and painful and that there was a long vertical line deep into his groin which was bleeding.  Mr Wing confirmed that R’s groin was often red as he suffered from excoriation which causes the skin to become itchy and dry and that is why creams were  applied to R’s skin to reduce  the discomfort.

Mr Wing told the Tribunal  that the care plans for each of the residents were available for all carers to read, the carers did make entries in the evaluation and progress report for each of the  residents and that if a resident fell this should be recorded in the  resident’s report  and then countersigned  by the registered  general nurse ( the RGN) on duty .

18.	Although previously thought to be unavailable, on the second day of the Tribunal   the police video  became available and was played to the Tribunal, the Appellant, and the Respondent, and  the Appellant’s Counsel.R’s illness has affected his speech and the sound quality of the interview was poor.  The Tribunal Bundle contained an apparent transcript of the interview but it became clear to the Tribunal that the transcript did not reflect fully all the questions that were raised; when evaluating this evidence the Tribunal has proceeded with caution.  The video did provide visual confirmation of R’s physical appearance, at that time R was believed to   weigh approximately 20 stone and to be approximately 5 ft 7 inches tall.

19. Mr Pooley, who no longer works for Westminster Care Homes and who was a somewhat reluctant witness, made it clear that he had not delivered  all of R’s training  nor had  he been  able  to  review the Appellant,  training  record  prior to delivery  of the training on May 4th 2004. He had been asked by Mr Williams, who was the trainer at Kernow House to complete the Appellant’s  manual handling and training session to enable the Appellant to go on night duty.   Mr Pooley claimed that he taught the Appellant for approximately 2 ¼ hours  but that he did not train the Appellant on how to manoeuvre someone who had fallen on the floor.

Mr Pooley was asked why the training records had not been countersigned by the Appellant and why there were no entries relating to the observations which would normally be completed.   He admitted that the omissions were unusual but that all the training records had been locked in Mr Williams’ office on May 4th 2004. He admitted that he   had not bothered to follow up what training had been done and he made it clear that as far as he was concerned the records were kept centrally by Mr Williams and were not his responsibility.

20.	The Appellant in his evidence confirmed that he had received training from Mr Pooley but stated that it had been less than a hour and that Mr Pooley had demonstrated to the Appellant how to use a hoist, how to use slide sheets on a bed, how to turn a patient, and how to get a person out of bed.  

The Appellant when describing what had happened when R  had fallen stated that he had been called on May 22nd by the RGN on duty that night, Sheila Catulong ( Ms Catulong) and that he, his co –worker  Ms Arenas ,  and  Ms Catulong had found R sitting on the foot pedal of his wheelchair in his  en-suite toilet.   The Appellant said there was no possibility of his moving R with a hoist because of the restricted space, he also said that nobody had told him that they should use slide sheets. He said he found himself in “a situation”.

The Appellant firmly denied that he had dragged R across the floor but admitted that he had used R’s underpants to manoeuvre R back into the wheelchair. The Appellant  during the hearing stated  that he and Ms Arenas had been on either side of R and had each taken hold of R’s underpants. In response  to a question from the  Tribunal  the  Appellant said that  he and Ms Arenas  had each used one hand on R’s underpants.  

21.	The Appellant when asked  why he had lied  in his  first police interview  and  during the initial internal investigations at Kernow House  about the incident stated that he had been frightened when he had been interviewed by the police and that  he  had   not wanted  to get  his  colleagues   into  trouble .

During his oral evidence the Appellant confirmed that he had worked as a nurse attendant in a nursing home in Singapore for a period of approximately six years and that he had been trained on how to deal with patients who had fallen.

The Tribunal specifically asked whether in any other care setting patients had been moved using clothing, the Appellant stated no but that he had used handling belts in  the past.   The Appellant also disclosed that he was not a registered nurse as he had failed the Board exams in the Philippines   and said he was too upset to re-sit them.

22.	Submissions

Counsel for the Respondent submitted that misconduct had been established by the inappropriate manoeuvring of R and the repeated lying by the Appellant. Counsel submitted that the misconduct was caused by the actual physical harm and although there were discrepancies about the type of injuries that had been sustained, R’s account that it had hurt should be accepted.

Counsel for the Respondent suggested that the misconduct was also established by the consistent lying and the other incident that had been alleged, namely that the Appellant had pushed R back down onto the bed by placing his hands on his shoulders.

Counsel for the Respondent submitted that the issue of whether the Appellant had had sufficient training prior to going on to night duty was a “red herring” as the Appellant was not an inexperienced person. The Appellant had accepted an appointment as a senior carer.  It was submitted that the Appellant had a four year BSc in nursing and had worked for six years in Singapore during which time he had received training in moving and handling. Any limitations in the training did not constitute extenuating circumstances as it was submitted that common sense dictated that it was not appropriate to move a 20 stone man by his underpants.

The Respondent’s claim that the Appellant had not admitted his guilt and had sought to minimise the level of misconduct and shift the blame to R rather than accept responsibility and his lack of insight made him unsuitable to work with either vulnerable adults or children.

23.	Counsel for the Appellant submitted that the Appellant was not claiming that his behaviour had been right and that he had accepted that the way he had handled R was wrong.   It was submitted that a lack of effective training and his naivety in following others had led the Appellant to make an inappropriate decision about what to do in the circumstances  in which R was found when he had slipped out  of his  wheelchair.

It was submitted that the Appellant should have had at least six hours manual handling  training and that although his performance did fall below what was appropriate this was due to the lack of supervised training.

It was submitted that there was no evidence to confirm that the Appellant had dragged R at any stage nor was there any clear substantiated evidence to confirm the claim  that the Appellant had restrained or pushed R back on to the bed .

Counsel for the Appellant submitted  that the physical evidence  of harm was mixed with Ms Thorpe suggesting there had been grazing while Mr Wing went much further in  describing   damage  to R’s groin  but  that there was no medical evidence from a GP or anyone else to verify the position.

24.	Findings

All the parties at the hearing accepted that to move someone weighing approximately 20 stone by their underpants was wrong.   As well as the potential risk of physical harm to both handler and the person being moved there is also the question of respect and human dignity for the resident.

The Appellant submitted that his failure to move R in an appropriate manner was due to the inadequate training that he had received in the care home.   It was also submitted that the Appellant was naïve and that he had been willing to follow more experienced staff on duty on May 22nd 2005.

25.	The Appellant’s training record at Kernow House  shows that the Appellant did not receive all the planned moving and handling training.   There was clearly also a poor level of communication between Mr Pooley and Mr Williams the permanent trainer at Kernow House.    Mr Pooley  was  asked at short notice to finish the Appellant’s manual and handling training and  he did so without knowledge  of the  training which  the Appellant  had already received  from Mr Williams .The lack of training records   led Mr Pooley  to  make incorrect  assumptions  and as   a consequence the Appellant was not trained in a number of manoeuvres.  He was specifically not shown how to move a resident in a confined space or to move a resident from a fallen position.

Proper staff training in moving and handling techniques is an important part of the safety programme of any care home and these omissions and the poor training records have serious implications for the standards of care, and the safety of both the staff and the residents of Kernow House.

26.	The Appellant completed a BSc nursing degree in 1993 in the Philippines; it was a four year course and included  practical clinical  training as well as theory.

The Appellant also spent six years working as a nurse attendant in a home for the elderly in Singapore.   The Appellant because of his previous experience and employment history was appointed as a senior care worker at Kernow House.   The Appellant confirmed to the Tribunal that he had previous experience of handling people with hoists and had been trained in the use of handling belts.  The Tribunal specifically asked whether he had ever been taught to move patients using clothing and he replied “no”.

The Appellant initially went on day duty at the care home and Ms Thorpe stated that the Appellant had been present when after R had fallen he  had been moved from a fallen position using slide sheets.  The Appellant initially said that he could not remember the incident and then denied being present when anyone had fallen during the day shift.

The Tribunal found Ms Thorpe’s account of the incident on day duty plausible.   
	
27.	One of the issues for the Tribunal is whether the lack of effective training negates and excuses the misconduct. In the Tribunal decision of   Angela Mairs [2004] 269 PC at paragraph 109, misconduct is not defined in the legislation and it is not necessary to establish that it was either serious or gross misconduct.    “In principle a single act of negligence could constitute misconduct (per Webster J in R –v- Pharmaceutical Society of Great Britain ex parte Sokoh (1986) (The Times 4th December) but in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have know what he or she was doing was contrary to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling.”

28.	The Appellant was an experienced care worker who had at least six years of direct clinical experience handling residents.   He acknowledged that he had received training in Singapore and that he had received training in using slide sheets  albeit  in relation  to movement on a bed rather than on a floor and in the use of handling belts during his initial training at Kernow House.

29.	The Tribunal accepts that it would be difficult to move R in a confined setting but there were other options such as using slide sheets to manoeuvre him on, or to the floor or the use of a handling belt.

The Appellant in his  evidence  to the Tribunal  maintained that  Ms Catulong  and Ms Arenas  had both been present  when the Appellant  and Ms Arenas   moved  R. The Appellant   continued  to appear  reticent  about revealing further information about any conversation  between the three colleagues as they attended  to R. In  his witness statement ( Tribunal Bundle p161 para 7) the Appellant claimed  that  although  M Catulong was present “ I was not given any guidance or told that  I was using  the incorrect  procedure .”
During the  hearing the  Appellant  suggested  that  he had  spoken  to Ms Catulong   before  he moved R but  he did  not  recount  any  verbal exchanges  between  the parties.
  
The Appellant claimed that both he and Ms Arenas working together moved R by his underpants. The Tribunal does not   accept as credible that   no discussion took place between the Appellant and Ms Arenas about how they both intended to move   R. They would have had to   liaise with each other to ensure they both moved him at the same time.

The Tribunal accepts that the Appellant  may have been  reluctant during the original investigations  to expose his work colleague to criticism, however  he  no longer works at the care home therefore  the lack of a detailed explanation of precisely what was said and  what happened  on May  22 nd 2004  does  undermine the  credibility of his account .

30.	As an experienced senior care worker the Appellant should have been aware of the serious risk of harm in attempting to move a man the size of R by his underpants and therefore his action did constitute misconduct.

31.	The Appellant lied   when originally questioned about whether R had fallen and   whether he used   R’s underpants to manoeuvre him but eventually admitted that he had done so. The Respondent submitted that the Appellant’s behaviour in lying to the police, and during the internal investigations by Westminster Care of the complaint also amounted to misconduct. 
 The Tribunal cannot condone in any way the Appellant’s repeated lying but it does accept that the Appellant was in a foreign country; he was scared of losing his job and his immigration status and was possibly intimidated by the police becoming involved in the investigations.

32.	Nevertheless the failure of the Appellant to disclose what had happened  and in particular to lie about R’s fall are serious issues which do fall below what the public and his employers would be entitled to expect from any experienced care worker .and therefore amount to misconduct. The Appellant’s extenuating personal circumstances though pertinent as to why he felt the need to lie repeatedly do not justify, excuse or extinguish the breach of trust to his employer and such behaviour cannot be ignored. An employer when investigating an allegation of ill treatment of a resident is entitled to expect its employees to tell the truth.

33.	The legislation requires that the misconduct either caused harm or placed at risk of harm a vulnerable adult.  The Tribunal heard different, sometimes conflicting accounts from Ms Aller ,Ms Thorpe and Mr Wing, of the possible physical damage to R’s groin and scrotum area arising from the mis- handling of R.

A medical examination by a G.P. on May 26 th 2004 indicated that there were no lasting physical signs of injury.   The question of the redness and soreness to the groin area was further complicated by a pre-existing tendency for the groin to suffer from excoriation.   The Tribunal finds that the evidence of physical damage to R’s groin area was inconclusive and that if any damage did occur it was limited.

34.	Nevertheless the Tribunal did  take note of  R’s comment   in the Police Video   that the manoeuvring did cause him physical pain and caused him to state that “he was cut in two” when the Appellant had moved  him by his  underpants. The Tribunal therefore finds that there was actual pain caused to R by the inappropriate handling by Appellant but it accepts that that no long term physical damage was caused to R. 

35.	The Tribunal further finds that by moving someone of R’s size by his underpants the Appellant had placed R at risk of harm.

36.	The Tribunal did not accept as proven the allegation that the Appellant had dragged R across the floor by his underpants.  The Appellant firmly denied this allegation both in his witness statement and in his oral evidence and this was accepted by the Tribunal.

37.	The Tribunal must also consider whether the Appellant is unsuitable to work with vulnerable adults.   The Tribunal  was referred to and has considered  various Tribunal decisions including the Angela  Mairs decision [2004] 269PC and  C N –v- The Secretary of State 2004 also  Quallo [2003]213 PC and  Alabi [2004] 339PC , the latter two cases  being  helpfully reviewed in  the recent decision  in  MB [2005]512PC .However  ultimately  as  highlighted  by the President  of the CST in the decision  in MB[2005]512 PC  Para 21  “each case  to come  before the Tribunal  must be looked at  on its own facts. Context will be all important”

 38. The Tribunal accepts that the training provided to the Appellant fell short of what should have been provided and that the Appellant was new to this country and likely to be influenced by his work colleagues.

However, the Appellant had at least six years previous experience of moving and handling elderly people in a residential care setting in Singapore involving elderly people and he should not have needed training to highlight the risk of moving a 20 stone man   by his underpants.   

39.	The Appellant was employed as a senior carer but he admitted that he had never read R’s care plan and that he had relied on Ms Catulong to write up any details of the fall in R’s progress and evaluation record.  This approach contrasted with the evidence given by Mr Wing, who was also a senior care worker, who stated that care workers would be expected to make entries in the progress and evaluation record for each of the residents and that he would record if a fall had taken place and then arrange for it to be countersigned by the RGN on duty.
 
40.	There may have been omissions in the Appellant’s moving and handling training but it is the lack of awareness of the risk that he was taking and in his failure to be aware of the need to even read R’s records which causes the Tribunal concern. 
Furthermore, the Appellant appears to have been unaware of the indignity and discomfort which was caused to R.

41.	 As previously stated the  Appellant claimed in  his witness statement ( Tribunal Bundle p 161 para 7)  that  although  the RGN M Catulong was present “ I was not given any guidance or told that  I was using  the incorrect  procedure “ 

The  Tribunal does not accept that  the Appellant,  an experienced care worker should have  required  guidance  from an RGN  to  be aware  that  he  was  moving  R in a totally unacceptable manner. The Appellant’s   need to rely on  or blame others  for his  own  poor decision    despite  his  previous  experience   leads  the  Tribunal to   be  concerned  whether  faced  with  a different  challenging  situation   the Appellant would   be  capable  of  making  the right   decision or would  instead   rely on others whatever the consequences      

42.	R was entitled to be handled correctly and to be treated with dignity and respect. The Tribunal accepts the Appellant did not intend to maliciously cause harm to R but the Appellant did not demonstrate any noticeable concern  about  how R  might have  felt about  the  way he was handled and still  suggested that R might be lying about the fall itself  in  a written observation  to the  Respondent dated  October 24th 2004  following  his provisional listing  on the POVA list ( see Tribunal Bundle page 57).

 “ The Appellant  in his witness statement    ( Tribunal  bundle page page161 para6) states  that  “ I never  received any complaint  from the patient  concerned and I  do not believe  that I ever  caused him any distress other wise there would have been a previous complaint”. The Tribunal  does  not accept that   the absence  of  any previous formal   complaints  about the way  the Appellant moved  R  indicates that  R  had previously suffered  no distress.  R had  indicated  directly  to the Appellant that   it caused him pain ( Tribunal bundle page 95 “ It cut me in two I told him it hurt”) when he was moved  by his underpants .     

  Even  later in  the Appellant’s witness statement dated January 15th 2006  ( Tribunal bundle page 161 para 6)  the Appellant  states  that any injury  caused to R’s  groin   might have been  caused by R  himself   if he had  struck the  wheelchair  as he  fell .The Tribunal  did not  find this  explanation  plausible ; it also  demonstrates  that  the Appellant  was still willing to  try  to shift the  blame or responsibility   to R . 

43.	The Tribunal is very aware that there were other parties involved in the events leading to this Appeal who have not given evidence, most notably Ms Catulong and Ms Arenas.

The Tribunal was also surprised that Mr K Williams and the Manager of the home did not provide any evidence. The exact   manner in which  R was manoeuvred  is  still  unclear  and  the Tribunal  cannot be  certain  about  the  extent and manner   to which    Ms Catulong  or  Ms Arenas  were involved in the  movement  of R .

44.	Nevertheless at the heart of this issue is a vulnerable adult who was moved in a wholly inappropriate way which   could have had serious consequences, i.e. if R had been dropped or fallen against his wheelchair or the sink as a result of this risky manoeuvre serious injury might have occurred.

45.	It is the Appellant’s inability to recognise the high risk he took in manoeuvring R in that manner and his willingness to deny on more than one occasion R had fallen in order to safeguard his own personal position that has caused the Tribunal to conclude that he is unsuitable to work with vulnerable adults.  The training  the Appellant  received from  his employer was less than ideal but as an experienced   senior  care worker  he should have known that  he was  taking an unacceptable risk  in  moving R in such a manner .     The Tribunal does not feel confident that faced with a different set of circumstances which might threaten his employment status that he would not seek to protect his own personal position rather than protect the vulnerable adult.

46. It is not inevitable that   if the Appeal is dismissed under S86 of the CSA 2000 an appeal under POCA 1999 S4 must also be dismissed. However   the Tribunal taking into  account  all the evidence   does   consider that  the continuation  of the name of the  Appellant  on the  POVA  list does  make him unsuitable  to work with children.

47. Accordingly, it is our unanimous decision that both appeals be dismissed.

 Miss H Clarke (Nominated Chairman)
Mr M Flynn
Mrs C Wiggin 
Dated March 13th 2006