Jackson v Secretary of State for Health [2006] EWCST 693(PVA) (19 June 2006)

Kathleen Jackson
-v-
The Secretary of State for Health
[2005] 623.PVA
[2005] 624.PC 
Before:
 Miss M Roberts (nominated chairman)
Mrs J Lowcock
Mr R  Radley

Heard on 5th June and 6th 2006 at Darlington County Court, 4 Coniscliffe Road Darlington.

The Appellant appeared in person and was assisted by her husband Mr Jackson.
Mr R Palmer of Counsel appeared for the Respondent instructed by the Treasury Solicitor.

Decision

1.	The Appellant appeals against the two decisions of the Respondent contained in a letter to the Appellant dated the 28th September 2005 (the decision letter); firstly ( the first appeal ) to confirm her on the Protection of  Vulnerable Adult's List  (the PoVA List) and secondly (the second appeal) to confirm her 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 her name had been added to the Education Act List. 
3.	The Tribunal makes a restricted reporting order under Regulation 18 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal. Regulations 2002 (the Regulations), restricting the reporting of the names of residents involved in the case and directing that reference to them shall be by the initials EC and MW so as to protect their private lives.
4.	The Tribunal heard evidence on behalf of the Respondent from Mrs June Longstaff a care assistant who worked at North Park home from July 2003 until she retired in 2005, Mrs Ann Wood a senior care assistant who worked at North Park home from July 2003 and continues to work there and Ms Carol Turpie a qualified nurse who is employed as a home manager by Barchester Healthcare Company and who acted as the manager for North Park home from 17th December 2004 until March 2005.
5.	The Appellant gave evidence. In her Further Information Form, she listed five witnesses and attached statements from them. In the week before the hearing the Tribunal office was informed that none of these witnesses was willing to attend the hearing and that the Appellant was reluctant to request witness summonses to compel them to attend. Bearing in mind that the Appellant was acting in person, the statements produced did not bear the required declaration of truth and that there were some important matters of fact to be determined, the nominated chairman, under Regulation 16, issued witness summons to the five witnesses named by the Appellant. In the event three attended and two did not. The summonses to the two non attendees were withdrawn at the end of the proceedings  as one was unwell and one away on holiday.
6.	Of the five witnesses listed by the Appellant, the Tribunal heard from Mrs Knight a care assistant who had worked with the Appellant at North Park home but who no longer works there. Mrs Donna Jackson part time care assistant who worked at North Park home with the Appellant and is still employed there and Mrs Parkin a neighbour and friend of the Appellant. We also saw testimonials from Miss Carolann Weir, P Cooper, S Diaper all care assistants at North Park home and from Mrs Gorman, A Lowe and Ms Lord who were relatives of residents or had worked with the Appellant in other establishments.
7.	The Tribunal and the parties had two bundles of papers prepared by the Respondent including relevant case law and legislation. In addition the Tribunal called for and considered the care records for two residents of North Park home M W and E C. The Tribunal also saw a duty rota for the week beginning 15th December 2003.

The law
8.	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.
9.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.
10.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.
 
Background
11.	The Appellant is a mature married woman who has worked in the care sector for some 17 years; firstly as a care assistant and then after a number of training courses including  a NVQ 3 as a senior carer. When the North Park residential home opened in the July 2003 the Appellant applied for a job at the home and was appointed as one of nine new senior carers. She started work on 17th July 2003.
12.	The property,North Park home, is a purpose-built home which was owned by a company called Gary Lewis Care Company (GLCC). North Park is registered for 60 residents. The residents were divided between three floors. On the ground floor were 8 of the more able residents, on the second floor were 26 residents and on the third floor were 22 EMI (Elderly Mentally Ill) residents. The company owned several other homes in the area. In the summer of 2004 the Gary Lewis company properties, including North park home, were all sold to a company called Barchester Healthcare.
13.	From 16 March 2004 there were a number of complaints and concerns about abuse of residents by staff members at North Park. These were investigated by the Commission for Social Care Inspection (CSCI) and the local Social Services Department. The Tribunal saw some of the statements (some anonymous) given to CSCI as part of its investigation and the summary notes of the strategy meetings held on the 1st and 17th December 2004. The allegations of abuse of residents, were, for example, that they were ‘doped up’ by staff to give staff an easy time.  Three senior carers were identified. The Appellant was one of these and the allegation against her was that she had force fed two residents.
14.	 On the 17th December 2004, the date of the second strategy meeting, CSCI were about to close the home. Ms Turpie  was brought in by Barchester Healthcare from another of their  homes locally to act as the temporary manager. It appears that CSCI accepted that the provision of an experienced manager (who was a qualified nurse), the presence of a senior manager at all times and daily inspections were sufficient to allow the home to remain open for the time being. On the same date, 17th December 2004, the Appellant had been suspended following allegations that she had been force feeding residents, putting residents to bed early, and allowing members of staff on her shift to leave work early.
15.	In early December 2004 two other senior care workers had been suspended. They were, in due course, dismissed and referred to the PoVA list. These decisions to suspend members of staff were not made by Ms Turpie, but she was the manager who then investigated the allegations against the Appellant and, after taking advice from her legal department, deciding that the Appellant should be dismissed. There was an internal appeal heard by a senior regional manager and the dismissal was upheld. This then led to the Appellant's name being placed on the PoVA and PoCA lists. 

The evidence 
16.	Mrs June Longstaff gave us evidence of incidents in relation to the force-feeding of the residents. She told us that she had witnessed the Appellant forcing a resident, EC, to eat a burger when he did not want to eat it and of putting food into the mouth of a resident MW when she had said that she was finished.
17.	 Mr EC was an elderly resident. We have read through his records. In September 2003 it is stated that he enjoys his meals, he is to be encouraged to take additional drinks and that he needs supervision when eating to avoid choking. All the witnesses who had known him agreed that he was to have a soft diet and that he did not eat meat. 
18.	Mrs Longstaff said that on one occasion, which she thought was sometime in 2004, EC was sitting in a window seat looking down the road. It was a meal time.  He had asked for a beef burger and this had been given to him. Mrs Longstaff noticed him with the burger uneaten in front of him and asked him if he wanted to change it for something else as it was not appropriate food for him but he told her to leave it there, so she did. Mrs Longstaff said EC was still sitting with the burger in front of him when the Appellant came in and told him to eat the burger. EC said that he did not want it and the Appellant picked up the burger and tried to push it into his mouth; some of the burger went into his mouth. Mrs Longstaff said that EC said ‘no no’ and put his hands up to his mouth. She saw his head moving backwards away from the Appellant to try and avoid the food. She went on to say that when the Appellant saw that she was being observed by Mrs Longstaff, she stopped and said ‘oh he must have a sore mouth’ and she said that she would get a colleague to ask the GP to look at his mouth. 
19.	The Tribunal saw in the care records for EC that the GP had been called to see him on 17th December 2003 and that he had examined him to see if he had a sore mouth. The note reads ‘Dr Shaw (or Shan) visited re E sore mouth and gums could (not) see anything wrong just to encourage fluids’. We noted from the staff rota for 16th December that both Mrs Longstaff and the Appellant had been on duty late that day and therefore could have been present together at the evening meal time on the day before the GP attended to see EC.
20.	 We also looked at the records of another elderly resident MW, whom it was said the Appellant had forced to eat. The records for this frail resident who was in her 90s stated in November 2003, that her eating was to be reviewed and that she weighed 4 stone 7 pounds. In July 2004 it was noted that ‘she may need feeding at times and was to be encouraged’. She was registered blind and hard of hearing. All the care witnesses who had known this woman agreed that she was frail and a poor eater though she particularly liked sweets and sweet food like puddings. Mrs Longstaff said that on many occasions MW was given food by the Appellant even when she said she did not want it. She said that the Appellant would stand over MW and put the food in her mouth e.g. with a fork, even when M W said that she had finished and did not want any more.
21.	Mrs Longstaff  gave evidence that the Appellant allowed members of staff to go home early when they were working on the late shift i.e 2-15pm to 9-00pm. She said that the Appellant had told her on one occasion that she could go early but that she had declined to go early. She said that she had complained about all these matters to the management of the home but that nothing had been done about them.
22.	Mrs Ann Wood had not seen the incident involving Mr EC and the burger but she said that she had seen the Appellant standing over M W and putting food into her mouth after MW had said she did not want it. She said that this happened on many occasions. She also stated that the Appellant allowed staff to go early  when they were on the late shift.
23.	With respect to the evidence of Mrs Longstaff and Mrs Wood there was a suggestion made to the Tribunal that there had been ill feeling between the Appellant and these two witnesses. Mrs Longstaff and Mrs Wood accepted that they did not like the Appellant or get on with her however both stated that this was not the reason they were giving their evidence and that what they were saying was not maliciously motivated. They had never worked with the Appellant until they all started at the North Park home.
24.	 Ms Turpie gave evidence of coming to North Park home on 17th December 2004 as an emergency measure to manage the home. One of the first duties she had to perform was to investigate and make a decision about the allegations being made regarding the Appellant. 
25.	There was an investigatory meeting on the 30th December 2004 attended by the Appellant, MrsTurpie and Mrs Orrin (the home manager). We saw the contemporaneous hand written note of that meeting. In it the Appellant says in relation to MW that ’she gives her a forkful each time she passes when giving out medication – given supplements if intake is poor’. Asked if her manner could have been interpreted as “brusque” she replied “possibly”. She said she was not aware of any allegations about the treatment of EC. She denied putting residents to bed early. The Appellant said at the interview that Mrs Longstaff and Mrs Wood both disliked her. 
26.	On the 27th January 2005 there was a disciplinary meeting. The same persons were present with the addition of C A Weir a senior care assistant at North Park who attended to support the Appellant. There was a further discussion about MW and her care plan was looked at. The hand written note  of the meeting, records inter alia, ” Discussed why she (Appellant) continued to put food in clients mouth even when she said she had had enough – said she was trying to get her to eat a bit more. Admitted that client was able to make own mind up and state if she had eaten enough. Client was prescribed calogen and supplement drinks – advised Kath these provide more nutrition than a few more ‘forkfuls’ When client say no we have to respect their wishes and not continue trying to force food on them. Appropriate care plan should have been drawn up. Kath apologised – thought she was doing the right thing”. 
27.	Following that meeting all the evidence was reviewed and legal advice taken. As a result the Appellant was dismissed for gross misconduct. Ms Turpie said that she had read the file, all the statements received from CSCI, and those obtained by the home. She had conducted the interviews and concluded that the Appellant on her own admission had force fed MW. This was wrong and fell short of the standards expected of a professional care worker. It was serious enough to warrant dismissal. In addition the Appellant was a senior carer and therefore responsible for other carers and advising them.
28.	 In a subsequent internal appeal on 23rd February 2005 the Appellant’s dismissal was upheld and this was confirmed in a letter dated the 29th February, 2005. The fact of the dismissal was referred to the PoVA list.
29.	The Appellant, in her evidence to us, denied doing any of the things that she was accused of. She did not consider that the witnesses for the Respondent could have seen her helping with any feeding in the dining room as they would have been involved in other duties. She explained that she would sit beside M W and assist her with her eating. She said that M W could make up her own mind about what she wanted to eat and how much e.g. MW was very fond of puddings and sweets. She denied that she had ever stood over M W or put a fork or spoon into her mouth.
30.	The Appellant went on to deny the incident involving EC when it was alleged that a beef burger was pushed into his a mouth. She said that this had never happened
31.	 When she was asked why she had apologised and mentioned that she would undertake more training she said that she felt she had been misinterpreted and rather over-zealous in her caring. She acknowledged in one of the interview notes that her manner might appear brusque to outsiders but she described herself to us as a quiet and shy person who was very patient.
32.	Mrs Parkin who came to give evidence on behalf of the Appellant spoke highly of the Appellant’s caring nature both towards her children and her parents particularly her father, when he was terminally ill. She said that the district nurse involved with the care of her father had described the Appellant as an excellent carer.
33.	Mrs Knight had worked with the Appellant from September 2003 until November 2004. She mainly worked on the third floor whereas the Appellant worked on the second floor. She said that she had never seen the Appellant force a resident to eat and, in fact, all the residents were able to feed themselves and to say what they wanted to eat or not eat.
34.	Finally we heard from Mrs D Jackson who was not related to the Appellant. She had started working at North Park in July 2003 and continues to work there. She mainly worked on the middle and top floors and told us that she preferred working on the top floor, which was not the Appellant’s normal area of work. She said that while she had worked with the Appellant she had seen her encourage residents to eat but she had not seen the Appellant force residents to eat. 
35.	She said that she regarded the Appellant as a strong woman, very professional and a good carer. If she wanted something done she would make sure it happened. In addition she confirmed that, on occasion, the Appellant had sent people home early. She knew this because on one particular evening when the Appellant had allowed two members of staff to leave a late shift early, the consequence was that somebody from another floor had to go and do an extra duty, and cover for the missing members of staff. She remembered this because she was angry at the time and the incident stuck in her memory.
36.	 She gave us a vivid description of the state of the home in those months before December 2004. She said that it was “horrible and messed up there was power struggles and fighting between the seniors and that senior carers ran the place; there was bullying of staff and so both staff and residents were affected”.
37.	All the carer witnesses agreed that the atmosphere in the home in the first 18 months or so ‘was appalling’ with the various senior carers doing things their own way. One witness said the senior carers ‘ran’ the home as there was no consistent input from managers of the home who were often off sick or not present.

Findings
38.	There was a clear conflict of evidence between Mrs Longstaff, Mrs Wood and the Appellant. We noted that there possibly was some ill-feeling between the various senior carers. It is quite possible that the Appellant's motivation in respect of M W had been to encourage her to eat a little more. However we accept the evidence of Mrs Longstaff and Mrs Wood, even allowing for some exaggeration, that the Appellant forced food into MW’s mouth even when she did not want any more or there was food already in her mouth. This was also the finding of the investigation by Ms Turpie.
39.	 Further with respect to the incident involving EC we accept that this had happened in much the way that Mrs Longstaff had described. We were impressed by her description of what happened; she said she could see it ‘as if it had happened yesterday’ and she had clearly been upset by the Appellant’s treatment of EC. Her account was corroborated by the duty rota showing her at work on a late shift with the Appellant on the 16th December 2003 and the record of the GP attending to see EC on the 17th December 2003. Although she had said in her statement that she thought it happened in 2004 we concluded that the incident had happened in mid December 2003 and much as she described it.
40.	We were impressed by Ms Turpie’s  professionalism and that she came as an outsider to North Park. She had investigated the allegations and come to the conclusion that the allegations of force feeding were true and were such as to justify the Appellants dismissal.
41.	We note that in the original investigation and statements by the Appellant she does appear to be accepting that something had happened; that her actions had been misinterpreted. She is noted to be apologetic and she talks about being prepared to do further training. The Appellant holds an NVQ 3 certificate and she was a senior carer.  
42.	We conclude that the misconduct as alleged ie that the Appellant forced one resident EC to try and eat inappropriate food and that she tried to force feed another resident did take place. In addition the conduct did harm or place at risk of harm the residents concerned. With respect to the incident involving MW it was an abuse of her power to try and force food into her mouth when she was able to say when she had had enough. There were other appropriate ways to increase her nutritional intake. In the case of EC, quite apart from the indignity of having food pushed into his mouth, this was a man who had a poor swallow reflex and who could have choked if the food had been pushed any further into his mouth. We therefore find the grounds of misconduct made out.
43.	This leads us to consider the issue of suitability. We have considerable sympathy with the Appellant because she is a woman who has spent most of her working life in the care sector; she has gone to the trouble to get qualifications and she has achieved senior care status. However the very fact that she has had this training and was a senior carer and went on to behave the way she did raises questions about her suitability to work with vulnerable adults. In addition we note that originally when she was confronted with the allegations she did acknowledge that there might be some substance to them but when she came to the Tribunal she denied that anything at all that happened. 
44.	In addition, the issue about letting members of staff go home early concerned the Tribunal. This was not pursued in the original investigation. The Appellant denied that she done this but we find clear evidence that she had allowed care assistants to leave early on a late shift.  We heard that her motive was to help them catch a bus or relieve a baby sitter. However this practice could put a resident or residents at risk. Clearly if there were an emergency and members of staff had gone off shift early there might not be enough members of staff to deal with the situation. In addition the practice was dishonest.

 Conclusions.
45.	 We noted above our sympathy with the Appellant. In addition she was working in a newly opened home with eight other senior carers none of whom had worked together before. There was friction between them. The management at the home was totally ineffective and often absent. However this does not excuse the Appellant’s behaviour to the vulnerable adults in her care.   
46. 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] 512 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 was an exercise of control over vulnerable elderly persons which put them at physically disadvantageous position and was abusive. The Tribuna,l taking into account all the evidence, does consider that the continuation of the name of the Appellant on the PoVA list does make her unsuitable to work with children.
47.  Accordingly, it is our unanimous decision that both appeals be dismissed.

Miss M Roberts
Mrs J Lowcock
Mr R Radley

19th June 2006