JF v Secretary of State [2005] EWCST 591(PVA) (01 November 2006)

J F
-v-
The Secretary of State

[2005] 591.PVA. 
[2005] 592.PC

-Before-

Mr Anthony Wadling (Chairman)
Ms Jenny Cross
Ms Denise Rabbetts

Heard at the Care Standards Tribunal on 8 to 12 May 
and 11 to 13 September 2006

For the Appellant: Mr Paul Spencer of Counsel

For the Respondent: Ms Sarah Jane Davies of Counsel

1.	The Appellant appealed against the decisions of the Respondent dated 28 September 2005 to confirm that her name be placed on the Protection of Children Act list (the PoCA list) and the Protection of Vulnerable Adults list (the PoVA list) as a result of a referral made by her previous employer WHL.
2.	A restricted reporting order was made under Regulation 18(1) at a preliminary hearing and this order not to identify any vulnerable adult was continued by the Tribunal following the reasoning in CN -v-Secretary of State [2004] 398.PC.
3.	JF is a Registered Mental Nurse (RMN), who has considerable experience in the provision of care.  She has worked in both the public and private sectors from 1988 until 2004.  During this period JF managed a 24 bed EMI Home and also became manager of a group of four Care Homes with responsibility for overseeing the recruitment of nurses.  On 21 May 2001 JF became the Registered Manager of “AH”, a Care Home.
4.	At the material time AH had 64 beds and provided general nursing care for up 32 frail older people and 32 older people having dementia or related disorders.  Following complaints concerning the care of residents in March 2004, JF was suspended from duty and she resigned from the company on 6 May 2004.  
5.	The Respondent’s case was that during the time that JF was the Registered Manager she variously misconducted herself and had in consequence harmed a vulnerable adult or placed a vulnerable adult at risk of harm (CSA 2000 section 86).  
6.	We took evidence from a number of witnesses with expertise in residential care whose evidence dealt both generally as to residential care and specifically with their contact with the Appellant.  Two of these witnesses, Isobel Pratt and Irene Wilde, both of whom have substantial experience of managing a residential care home were impressive witnesses.  In mid March 2004 they went to AH to run the Home temporarily at the request of the Appellant who was going on holiday.  On arrival they undertook what amounted to an informal review of AH.  Their recorded findings of fact and professional opinions were of considerable assistance to us in reaching our decision.
7.	The Respondent’s case relied on seven specific allegations and one generally worded catch all.  Initially all these allegations were disputed.  In an additional statement dated 11 September 2006 the Appellant made admissions to a number of the allegations in whole or in part but only within the period of September 2003 to 12 March 2004 and only in respect of “my failings in my role as a manager, not as a nurse or carer”.  
8.	The first complaint is that the Appellant “failed adequately to monitor, supervise and/or provide training to staff members in their administration of care and/or provide training to staff members in their administration of care and/or to document these matters.”  The Appellant accepts this complaint but says that the Deputy Manager and the Heads of Unit were supposed to carry out staff training.  She also says that she repeatedly tried to obtain the services of the Tissue Viability Nurse to provide training but she failed to respond.  We accept that for a period of time (from October 2003) there was no Deputy Manager in post.  However, this highly important matter was evidently not addressed adequately despite the matter being raised in NCSC Inspections and by Rose McGowan, (the Appellant’s line manager).  On 8 March 2004 when Mrs Pratt went to AH she looked at the Care Profiles with particular reference to the recording of pressure sores.  She concluded that “The Care Profile documentation overall was very poor and there was an appalling lack of evidence that any proper reviewing of care profiles had taken place.”  
9.	The second complaint is that the Appellant failed to ensure that adequate and proper staffing was in place.  The Respondent relies on three specific matters: (1) failing to ensure that there was at least one UK registered RMN in the EMI Unit; (2) failing to ensure that the EMI Head of Unit was adequately skilled and trained in the provision of care to elderly mentally persons, and (3) failing to take reasonable steps to ensure that there were working at all times a sufficient number of staff with the appropriate range of skills to meet the residents’ needs.
10.	The Appellant does not admit any of these three matters.  As to (1) there is no regulatory requirement that there be a member of staff in the EMI Unit who is a RMN.  There was at this time a shortage of RMNs.  The Appellant says that she had to compete for RMN staff with “the neighbouring facility that paid higher wages.”  However, she did not ask for any financial or other assistance from her manager or elsewhere within the company to meet this serious problem.  As to (2) no explanation is given as to why. 
11.	As to (2) and (3) the view of Isobel Pratt (with which we agree) was that “AH was not short staffed.  It was rather about the way the staff were utilised and managed.”    “The staff was large enough for the number of residents there, but was not properly supervised and utilised by the heads of Unit and overall by the Appellant herself.”  This view is supported by Irene Wild.  “In my view,.. a lot of the problems at the Home were directly linked to the lack of proper management of the Home.  I include in this not only the Appellant’s management, but the management by and of the two Heads of Unit that she herself appointed.  It seemed to me that there was a distinct lack of leadership and training, and in some instances I found what little training was being undertaken was totally inadequate and ineffective.”
12.	The third complaint is that the Respondent failed to check that references were provided for staff members working at the Home and to ensure they were satisfactory, including (a) failure to take up references at all; (b) reliance upon references provided by family members of members of staff.  These matters were not admitted.  Following the Respondent’s suspension in March 2004, Mrs Sedour reviewed a number of staff personnel files.  The file of Mohammed Zahid (Head of the EMI Unit) records that he started work at the Home as a Care Assistant on 9 September 2001.  There were no references on the file in support of his application and nor was there any application form.  In January 2002 he gained registration with the UKCC and obtained a contract to work at AH as a RGN.  In November 2002 he applied for the job of Head of the EMI Unit.  One of his referees was Mohammed Zubair (Head of the EF Unit).  At this time Mohammed Zahid was engaged to Mohammed Zubair’s sister.  According to Mrs Sedour this relationship was well known by 99% of the staff including the Appellant and Mrs Sedour herself.  This possible conflict of interest was apparently not regarded as a matter of any significance.  Also, the file contained no record of a reference from Mohammed Zahid’s previous employer.
13.	Mohammed Zubair began working as an RGN at the Home on 11 October 2001.  Four days later he applied for the post of Head of the EF Unit.  Two references were requested from his previous employer at a Care Home in Scotland.  After a second request, a reference was received from the Home Manager who said that Mohammed Zubair had been known to him for 5 months and that “Zubair will tell you why he left.”  The Appellant said that she phoned the Home but no further useful information was obtained.  Mohammed Zubair was subsequently appointed as head of the EF Unit.  In April 2003 Djameel Ahmed started work at AH as a RGN.  He had two references, one written by Mohammed Zahid and another from a Leonard Cheshire Home. On 8 August 2003 a further reference was put on Mohammed Zubair’s file by Djameel Ahmed.  The letter was a reference stating that he had known Zubair for 15 years as a colleague.  
14.	On 16 March 2004 further evidence of unsatisfactory references were found when Irene Wilde went to AH to help out when the Appellant went on holiday.  She found that some references were missing and others were unsatisfactory, as they had been written by family members of the staff.
15.	The fourth complaint was the failure of the Appellant to ensure that residents care files held all necessary information, that they were kept up to date and that staff received adequate training in the use of the files.  The Appellant accepts that she failed to monitor the use of care profiles and did not review the files to ensure they were updated.  The Appellant states that she relied on the two Unit Heads to ensure that all was well.  “However in hindsight I could have verified their statements more thoroughly”.  It is apparent from the evidence that the adequacy of the care records was the subject of concern to NCSC in 2003, although some improvement was noted by NCSC in 2004.  When Isobel Pratt and Irene Wild reviewed the records, it was apparent there were clear inadequacies in the Care Plans.  Risk assessments were inadequate and had not been updated.  The Care Profile documentation was very poor overall and there was an absence of any reviewing of Care Profiles.  The possible consequences of inadequate record keeping was demonstrated when Isobel Pratt came across a bed-ridden resident whose Care Profile recorded she had gone from taking paracetamol to being given strong painkiller patches.  “There was nothing in the care profile to explain why this change had taken place.”
16.	The fifth complaint is the failure to provide adequate wound care or ensure that this was done.  The Appellant admits that she “failed in part to ensure that adequate wound care was carried out.”
17.	Specific complaints;
(a) Failure to take reasonable steps to prevent residents from sustaining wounds or pressure sores or to ensure that such steps were taken;
The Appellant admits that she failed to provide additional training for qualified staff but claims she had tried to source training with the Tissue Viability Nurse.  She also states that the home provided equipment to manage pressure sores but is now aware that the equipment was not always functioning properly.  Also, there was a procedure for reporting maintenance issues which she was not aware was not being followed at the time.
(b) Failure to ensure that staff were properly trained in wound care and that wound care was provided;
The Appellant’s response is that she accepts responsibility but says that each nurse would have received wound care training as part of their professional training.
(c)Failure to have residents’ wounds or pressure sores checked by the Tissue Viability Nurse (TVN) when appropriate;
The Appellant claims that she tried to involve the TVN in training and she was not aware that “my staff were not calling her in for assistance”.  If she had been aware of the extent of pressure sores, she would have called the TVN.  
(d)Failure to properly monitor document and audit residents’ wounds or pressure sores or to ensure that they were so monitored, documented and audited.
The Appellant accepts that she “failed to monitor staff after I found out there was a problem with pressure sore care at AH”.  She states that she was given oral assurances by staff members as to the care being provided and believed that “staff members were documenting properly”.
18.	On 1 October 2003 the TVN wrote to the Appellant concerning a resident who had been referred to her by the then Deputy Manager.  On 20 March 2004,  the TVN had assessed the resident for treatment of her Grade 2 and 3 pressure sores.  On 30 May there was a further review.  The wound was recorded as having deteriorated and the resident was found sitting on a chair without a pressure relieving cushion.  Further visits by the TVN took place culminating in a visit on 26 September.  On this occasion it became apparent that the resident was not being given any analgesia when “she was unable to verbalise pain and discomfort”.  The TVN also noted that no record was being made of when the resident was turned, that the pressure relieving mattress was over inflated and that the pump necessary to adjust the pressure of the mattress was missing.  The bed elevator placed under the mattress was in a fixed position because the motor was broken which prevented the re-positioning of the resident.  The TVN concluded: “The extensive nature of the pressure sore could have been prevented if the faulty nature of the equipment, the correct setting on the mattress and a regime of positioning to reduce pressure loading…had been implemented.”
19.	When Isobel Pratt arrived at AH on 8 March 2004 she was told by the Appellant that she was about to go to a Pova meeting concerning a complaint that the TVN had made concerning the above matter.  She reviewed the resident’s care file and found there to be negligible documentation or recording on the file dealing with pressure sores and that the documentation was very poor.  
20.	Isabel Pratt had also asked to be present when a female resident’s wounds were to be examined.  The nurse, in a state of distress, told her that Mohammed Zubair (the Unit Head) had told her “not to call us to see the wounds”.  When they examined the resident the wounds were “severe, almost necrotic, dirty and very smelly.” It became apparent that she had been kept in bed for three months when there was no need for it.  Mr Zubair could not provide an answer as to why this situation had arisen.  The resident had developed pressure sores during this period because of a lack of care, being confined to bed with little or no turning.  Mr Zubair was asked if the TVN had been asked to see this resident.  The response was “no” because she was trouble and therefore they didn’t have her anymore.  There were no personal dressings available for anyone in the Unit.  A high proportion of the residents at AH had either pressure sores of varying grades, or pressure points areas which were very red and raw looking, and which were likely to develop into pressure sores if not looked after properly.  There was no adequate documentation to enable staff to give appropriate care to promote the healing of these wounds.  Shortly afterwards the two Heads of Unit were suspended and then resigned.
21.	Sixth complaint: Failure to monitor residents’ weight or to ensure it was done, including the failure to take reasonable steps including the carrying out of nutritional assessments where appropriate to prevent residents from losing weight or to ensure that such steps were taken;
22.	The Appellant admits that “I failed to ensure that residents’ weights were monitored according to good practice.  I was aware that nutritional assessments and monthly recordings of weights were being completed, although I did not check that these were done for every resident.  I believed what my staff were telling me.  In hindsight I could have checked.”  When Irene Wilde arrived at AH she undertook a walk around the Home “to get an overview”.  One of the first things that struck her was “why everyone was wearing clothes too big for them.  Later I found out that everyone was wearing their own clothes but they had lost considerable amounts of weight.”
23.	Seventh Complaint: Failures in regard to training of students in the Home; It is not accepted by the Appellant.  We make no finding in respect of this matter.
24.	Eighth Complaint:
(a) failing to provide adequate care for residents of the Home or to ensure that adequate care was provided for them to meet their health, personal and social needs; and/or
(b) neglecting residents.
The Appellant’s response is only in respect of the matters for which she has accepted responsibility and is that she “failed to ensure that adequate care was provided for residents of the Home to meet their health, personal and social care need needs” but does not accept that she neglected the residents.
25.	In addition to the evidence concerning the above matters, we received  evidence from witnesses who had employed or worked with the Appellant over a period of years.  We took this into account in addition to all the documentary and oral evidence put before us.  
26.	As to the standard and burden of proof and Misconduct, we adopt what was said on these matters in the decision of MB v Secretary of State [2005].512.PC and 513.PVA:
The standard of proof required, in order to be satisfied as to the matters set out in section 4(3) of the 1999 Act, is that described in the decisions of the House of Lords in Re H and others (minors) (sexual abuse: standard of proof) [1996] AC 563; [1996] 1 All ER 1 [1996] 1 FLR 80 and Secretary of State v. Rehman [2002] 1 All ER In the former case, Lord Nicholls of Birkenhead said:"[T]he standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.  The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability….Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation." In the latter case Lord Hoffman said: "It would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that he was an Alsatian. On this basis, cogent evidence is generally required to satisfy a civil tribunal that a person has behaved in some reprehensible manner. But the question is always whether the tribunal thinks it more probable than not Misconduct.

Misconduct is not defined in the 1999 Act nor is the term qualified by any adjective such as "serious" or "gross". In Mairs v. The Secretary of State [2004] 269 PC, the Tribunal held that, in principle, a single act of negligence could constitute misconduct 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 known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling.
27.	We find the seven complaints in which we have made findings as set out above  proved, and that in each case we find that a vulnerable adult was placed at risk of harm and that the Appellant is unsuitable to work with vulnerable adults.  It cannot be said that any child has been harmed or placed at risk of harm but we adopt the reasoning of the Tribunal in MB v Secretary of State [2005] 512.PC and 513.PVA at paragraph 28;
It is sufficient  to satisfy the test ….that she is unsuitable to work with children by virtue of the misconduct which placed at risk of harm a vulnerable adult.

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

APPEALS DISMISSED

Anthony Wadling
(Chairman)
Jenny Cross
Denise Rabbetts