McNish v Secretary of State for Health & Anor [2006] EWCST 646(PVA) (06 December 2006)  

Noel Lee McNish
v
 (1) Secretary of State for Health
(2)Secretary of State for Education and Skills

Before:
 Miss Maureen Roberts Chairman
Miss Marilyn Adolphe
Mr Paul Thompson

[2006] 0646.PVA
[2006] 0647.PC

Heard on the 27 and 28 November 2006 at the Care Standards Tribunal, 18 Pocock Street, London.

The Appellant appeared in person. We heard evidence from the Appellant.

The Respondent was represented by Mr. Robert Palmer of Counsel instructed by Ms Helen Mc Connell of the Treasury Solicitor. The Respondent called four witnesses, Ms Jeanette Moore the Deputy Manager at Stafford Road Residential Care Home (Stafford Road), Ms Rhoda Bailey a care assistant at Stafford Road, Mrs. C the mother of one of the clients cared for by the Appellant and Ms Penny Streeter the managing director of the company, Ambition 24 a nursing agency that provides registered nurses and care assistant staff for temporary placement and which employed the Appellant. 

The decision

1.	The Appellant appeals against the two decisions of the Respondent contained in a letter to the Appellant dated the 6th January 2006 (the decision letter); firstly (the first appeal ) to confirm him on the Protection of  Vulnerable Adult's 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 section 142 of the Education Act 2002 applies and that his name had been added to the Education Act List. 
3.	At the Directions hearing on 13 June 2006 a restricted reporting order under Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal. Regulations 2002 (the Regulations), was made to prevent the identification of the vulnerable adults who were the complainants in this matter. It was also ordered under Regulation 19 that the press and public be excluded from the hearing so as to safeguard the welfare of any vulnerable adult and any non professional witness. We continue those orders.

The background

4.	The Appellant is a married man, now aged fifty who has worked in the care profession since the mid 1990s. He joined the agency Ambition 24 (the agency) in July 1998.
5.	The Appellant completed an application form for the agency on 28 June1998. That form requested information about any previous convictions and stated that the post was exempt from the Rehabilitation of Offenders Act. The Appellant who had a number of previous convictions did not disclose these convictions. The PNC record as of 26/05/05 is attached at the appendix to this decision. (The impending prosecution relates to the incident with ST and did not proceed; see below). He was employed by the agency. The agency at that time had an arrangement with the local health authority to obtain police checks. When the police check came into the office some six to nine months later the Appellant was called in and interviewed about his non disclosure. He stated that this was in his past and that he had turned over a new leaf. On this basis and because he had been a good worker the agency agreed to let him continue in their employment.
6.	On 3 January 2005, the agency received notification that there had been an allegation against the appellant concerning a possible sexual assault by him on a resident (MF) at Stafford Road. The agency terminated the appellant’s employment by a letter dated 5 January 2005. The agency attended various PoVA strategy meetings concerning the allegation. At one of these meetings, on 7 January 2005, the agency was told that there had been another allegation, in October 2004, of sexual assault by the Appellant on a client (ST) at another location namely Hadley Cottage. The agency stated it had no knowledge of this allegation. 
7.	Both incidents were investigated by the respective Police forces. The Tribunal saw the witness statements of Peter Dorley and Beverley Kinsey in respect of the ST incident. We saw the police video interviews of both the complainants. In both cases no prosecution was brought. The reasons for this were that both complainants had learning difficulties; they would not be able to give evidence in court; there were no independent witnesses to the alleged incidents; no corroborating forensic evidence had been found and the Appellant had denied both allegations in police interview. We noted that there had been no intimate examination of MF because of the distress it would have caused her and only a limited examination of ST for the same reason.
8.	The Appellant was referred by his employer to the Respondent in a letter dated 11 March 2005. The Respondent, having considered the information, provisionally listed the Appellant and informed him of this listing by a letter dated 19 July 2005. The Respondent having considered all the information available confirmed the listing in a letter to the Appellant dated 6 January 2006.
The law
9.	The first appeal (the PoVA Appeal) is brought under section 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.
10.	The second appeal (the PoCA appeal) is brought under section 4 (3) of the Protection of Children Act 1999 (POCA 1999), which is in similar terms to the CSA 2000 section 86 (3) except that unsuitability to work with Vulnerable Adults is replaced under the terms of section 4 (3) of  P0CA 1999 with unsuitability to work with children.
11.	In both appeals the burden of proof rests on the Respondent. The standard of proof is the civil standard namely on the balance of probabilities as stated in re H [1996] A C 563.

The Evidence

12.	We read the statements provided and heard from the witnesses listed above. We have dealt with the three main allegations in turn and recorded the evidence and our findings on each allegation. These are, the allegation regarding MF at Stafford Road. The allegation regarding ST at Hadley Cottage. The three allegations of non disclosure: of the Appellant’s previous convictions i.e. prior to 1998 when he commenced employment with the agency; of the conviction in 2001 at a time when the Appellant was employed by the agency and of the investigation in October 2004, of the allegation of sexual assault.

The allegation of a sexual assault by the Appellant on M.F.

13.	 M F is a resident at Stafford Road. The home is run by Care UK.  At the time of the allegation she had been there for four years. She is an older woman with moderate learning difficulties, described as friendly and chatty and who used a wheelchair to get around. She was able to transfer herself from the chair to the toilet and to bed. She was able to make herself understood.
14.	The Appellant worked the waking night shift on the night of the 2/3 January 2005.  On the morning of the 3 January M.F. spoke to Jeanette Moore. Her contemporaneous note reads ‘At 10-15 am on the 03.10.05 I went into MF‘s bedroom to assist her with her shower. M asked if I could come closer as she wanted to tell me something. I did as she asked. M told me that the man wearing the hat who was here last night touched her. I asked her what she meant M then pulled her nightie up and opened her legs a little and pointed to between her legs. She then said; he touched me there and then he gave me a biscuit. I asked M where she was at the time. M said she couldn’t remember’. Ms Moore in her evidence to the Tribunal made the point that MF was quite independent and usually got herself to her commode or the toilet without assistance and required no assistance with her personal care.
15.	MF repeated this information to another worker at the premises Adeniyi Taiwo. We had his written statement to this effect. Ms Moore gave evidence to us which confirmed her written statement. MF had identified the man as the man in the green hat. She said that MF was quite child like in her nature, very innocent and very truthful; that she had never made such allegations before or since. MF had been very distressed by the incident and for some time talked about having locks on her doors and had been wary of new members of staff.
16.	The Tribunal also heard from Ms Rhoda Bailey who at the time of the incident was MF’s key worker. She came on shift at 2-15pm on the 3 January 2005 and was told what had been said by MF. She did not raise the subject with MF but said that MF kept saying that she wanted to get bolts on her door, that ‘it was the man in the green hat’ who Ms Bailey took to mean the Appellant; that he kept turning the lights on and off; that he touched her ‘right down there’ and that he gave her a biscuit.
17.	The Appellant said that he did not question what MF had said and that in all probability she was referring to him when she talked about the man in the hat. He stated that it was the first and only time he had worked a waking night shift at Stafford Road. He had given a written statement at the time of the incident and we saw a copy of that. In that statement he had explained that on three occasions the client, M F had got up to go to the toilet and called him to help her get back to bed on each occasion. On the second and third occasion he had straightened the Kylie sheet (a protective sheet that is tucked in across the bed) because it had been pulled by the client and was crumpled. In doing this he had put his hands palm down under the client but denied that he had touched her in the way she said.
18.	There was some variation in his written account and the subsequent verbal account he gave to the tribunal. He told the tribunal that he accepted that MF had been upset and was disturbed to think that he had unintentionally hurt or upset MF in any way.
19.	There was a disagreement in evidence about how one would rectify a rumpled Kylie sheet. Ms Moore said you would get the client out of the bed, move the bed out and tuck the Kylie in properly on both sides. She would not have straightened the Kylie sheet with the client in the bed. If she had had to move the client she would have held her by the shoulder and hip. The Appellant said that as the client was already in bed that he straightened it without getting her out of the bed and by putting his hands underneath her.
20.	We do not consider that what happened to MF was a misunderstanding. We accept the evidence of MF and the staff at Stafford Road. They had no complaints about the Appellant’s work on other occasions. Their evidence was impartial. They had known MF for four years.  MF was a private and independent person who went to the toilet by herself and could make her likes and dislikes known.
21.	We find on the balance of probabilities that the Appellant did assault MF in the way she described.

The allegation of a sexual assault by the Appellant on S.T.  

22.	In the course of the meetings following the incident with MF it was reported that another allegation of assault, dating from 14 October 2004 was being investigated by the police involving the Appellant and a young woman aged 19, S.T. S.T. has epilepsy and a mental disability. She has a mental age of about 5 and has spent much of her life in specialist residential schools. She was moved to a home for two young clients, (Hadley Cottage) in June 2004 run by Independence Homes. 
23.	On the 14 October 2004 the Appellant worked the early shift at Hadley Cottage i.e. from 7-30 am until 2-30pm. In a written statement for the police, a fellow worker, Peter Dorling, who took over from him, reported that after the Appellant left ‘ I asked S what she would like to do. It was eventually decided that we would watch television. We went into the TV lounge. After approximately 10 minutes S said to me “I really like Lee, he’s funny. I really like him and he showed me his willy”. I said to S “what did you say?” She said “he showed me his willy”.’  ST repeated this allegation to another member of staff. The matter was reported to the manager of the home Abdul and to the police.
24.	The Tribunal saw the video of the police interview. We had the advantage of hearing from S’s mother who gave us a good deal of back ground information about her daughter and maintained that these kind of allegations were out of character for her. She said that S would make physical and verbal allegations but not allegations of a sexual nature. We had the police statements for Peter Dorley and Beverley Kinsey but neither they nor the manager Abdul could be located to come to the Tribunal to give evidence. 
25.	The Appellant denied categorically that any thing had happened while he was working the shift at Hadley Cottage. He said the allegation was totally unfounded and that ST was not as sexually innocent as had been portrayed. He said that he had been told at the time that allegations of a sexual nature had been made against him. Later he had been interviewed by the police.
26.	The Tribunal found it more difficult to weigh the evidence in respect of this allegation. What was clear was that the woman involved is young with learning disabilities and behavioural problems. We accept the evidence of what she first said “he showed me his willy”. We do not consider that we can, or need, to make a finding on the other allegations made in subsequent interviews given by her to the police. We accept the evidence from ST’s mother that her daughter was very upset by the incident and continued to talk about it for some considerable time afterwards.
27.	We find on the balance of probabilities that the Appellant did expose himself to ST.

Non disclosure of convictions prior to 1998, the conviction of 2001 and the investigation into the ST allegation: a copy of the Appellant’s convictions dated 26/05/05 is attached at the appendix to this decision 

28.	On he Appellant’s application form to the agency dated the 28 July 1998 he was required to disclose any previous convictions. He did not do so. He acknowledged that this was the case. He said in evidence that he had mentioned it verbally at the interview. Mrs. Streeter said that if he had done so it would have been marked on the form. It was not so marked and we conclude that the Appellant did not disclose his previous convictions either in writing or verbally. 
29.	Within six to nine months of his appointment to Ambition 24 they received a copy of his convictions and the Appellant was called for interview by Mrs. Streeter. He told her he was a changed person and asked to be given a chance to continue in work. She agreed to do this. We note her evidence to us that if she had known about the convictions at the time of the initial interview she would not have offered him a job In the first place.
30.	On the 17 July 2001 the Appellant received a conviction for driving whilst disqualified and driving with no insurance. His contract of employment states that he should inform ‘the Agency immediately if a complaint is brought by an institution or if an arrest/accusation is made of a criminal offence’. On his own admission the Appellant said that he had not told the Agency about this conviction for fear of losing his job. Mrs. Streeter said that if she had known about it she would have dismissed him as the conviction was an indication of his continuing irresponsibility.
31.	The investigation into the allegation by ST. This allegation was made on 14 October 2004 and investigated immediately. The Appellant was informed that an allegation of a sexual nature against him was being investigated. He told us that he made three phone calls after being told this by the police. One to his wife, one to the manager of Independence Homes who ran this home and one to the agency. He named the person that he spoke to at the agency and we raised this issue with Mrs. Streeter. We are satisfied from her evidence that if the nature of the allegation had been stated to her office they would have immediately stopped the Appellant from working until the police investigation was completed. We accept that the Appellant made the three phone calls but that he did not tell the Agency the reason why he would no longer be working for Independence Homes or nature of the allegations. He said that he had informed the agency in writing but had burnt the copy of the letter at a later date. We do not accept that the Appellant had written to the agency.  
32.	We looked at the Appellant’s list of convictions. He said to us that the offences had been committed as a young black man growing up in London. It is evident from the list that the Appellant has continued to offend when he was an older person with family and work responsibilities.  Further we weigh the convictions as serious by the level of penalties imposed upon the Appellant.  
33.	In explaining the background to some of the convictions the Appellant revealed that he had never passed a driving test, that he had found a driving licence (he was convicted of theft for this matter) and had proceeded to use the licence and the name on the licence as an alias to work as a mini cab driver during which time he was uninsured and held no licence to drive.

Conclusions.

34.	We read the bundle of documents. We listened to the Appellant carefully. He stated that he had always done his job well, cared for the clients and had never harmed anyone. However we do not accept the Appellant’s denial of the allegations or his explanation for his non disclosure of information. He sought to minimize the seriousness of his convictions. We find they are evidence of dishonest and untrustworthy behaviour by the Appellant as an adult. For example, in the mid 1990s he was working as a mini cab driver while having no licence or insurance.  
35.	Such information is required to be disclosed so that the issue of risk can be evaluated by the prospective employer of a person seeking employment in the caring professions. We find that the Appellant has harmed and placed at risk two vulnerable adults by his actions. In both cases there was an abuse of power by him of a person in a vulnerable position. Both victims were greatly distressed by the events. By those actions and his failure to disclose convictions both before and during his work and the investigation in October 2004 the Appellant is unsuitable to work with vulnerable adults.
36.	It is not inevitable that if the appeal is dismissed under section 86 of the CSA 2000 an appeal under PoCA 1999 section 4 must also be dismissed. We note the observations of the Tribunal in the case of MB v Secretary of State [2005] 512PC para 21 “each case to come before the Tribunal must be looked at on its own facts. Context will be all important”. We note the issue of public confidence where a person is confirmed on the PoVA List and consideration is then given to their inclusion on the PoCA list. In this case there were two instances of sexually inappropriate behaviour; one on an older vulnerable woman and in the other on a very young vulnerable woman.  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.
37.   Accordingly, it is our unanimous decision that both appeals be dismissed.

The appeals are dismissed. 

Miss Maureen Roberts Chairman
Miss Marilyn Adolphe
Mr. Paul Thompson
6th December 2006