SM v Secretary of State [2007] EWCST 1006(PVA) (07 November 2007)

SM

V

SECRETARY OF STATE
[2007] 1006 PVA 

Before

Mr Laurence J Bennett (Nominated Chairman)
Ms Susan Gilhespie
Mr Tim Greenacre

Hearing 
Pontefract County Court
1 November 2007

Representation 

SM (the Appellant) appeared in person.  

The Respondent, Secretary of State for Health was represented by Mr David Blundell of Counsel instructed by Mr Duncan Brown for the Treasury Solicitor.

Appeal

1.	SM appeals under section 86(1) of the Care Standards Act 2000 (the Act) against her inclusion in the List kept by the Secretary of State under section 81(1) of the Act of individuals who are considered unsuitable to work with vulnerable adults.

Restricted Reported Order
 
2.	On 27 September 2007 the President of the Tribunal His Honour Judge Pearl made a direction under Regulation 19(1) of the Protection of Children & Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations) in the following terms.  "I make a Restricted Reporting Order under Regulation 18(1).  This Order prohibits the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify the Appellant.  This Order continues in force until the conclusion of the hearing and the Tribunal shall consider its continuation at the hearing itself."

3.	Taking into account the nature of the information in this appeal and the invitation of Counsel for the Respondent we conclude it appropriate that the Restricted Reporting Order continues beyond the hearing and we make such order in the terms set out in paragraph 2 save that the Order shall continue in force indefinitely and shall also prohibit any matter likely to lead members of the public to identify any vulnerable adult.

Evidence and Findings

4.	On 23 September 2002 SM began work as a part-time home carer for Wakefield Metropolitan District Council (Wakefield).  Her employment required that she visited service user's homes to provide a range of personal and domestic support services.  She was required in that capacity to attend the home of Mrs JT who has Multiple Sclerosis.

5.	Between 28 and 30 August 2004 a sum of money, £240, was stolen from Mrs JT's home.  This was reported to Wakefield on 31 August 2004 and to the Police on 1 September 2004.  On 19 April 2005 the money was found in an envelope delivered to Mrs JT's home with an anonymous note apologising for the theft.      

6.	Following investigation by Wakefield, SM was interviewed by management on 14 June 2005 in the presence of her husband.  During the interview she admitted she had taken the money stating: "It's just that I took some money off Mrs JT but I returned it to her house with a note." During that interview Mr M stated: "I have only just found out about this.  This has uncovered other issues within our family, there are consequences within our marriage and this has certainly cost us some friends and family members."  She accepted a Police caution for the incident.  SM mentioned at the hearing two incidents when she took money from family members, since returned.

7.	In a letter dated 14 June 2005 addressed to Mrs JT, SM stated: "I would just like to say how deeply sorry I am that I had stole from Mrs JT, ever since I had done this my conscience has not allowed me to rest.  Because of the distress I must have caused Mrs JT and the trouble I have caused the council, I feel deeply ashamed of my behaviour.
"It is because of this I returned the money with a note, hoping that this in some way would make amends.  I have come here today to see how I can further make amends for my actions and put matters to rest to the satisfaction of all concerned."

8.	SM continues to receive medication for depression and for Schizophrenia.  She advised that she has to take it twice during mornings and once at night; if she forgets, her symptoms become worse.  She said that since childhood she has heard voices.  This is set out in a letter dated 24 July 2007 addressed to the Tribunal which states: "I committed this crime" and mentions her medication and depression and her feelings of "conscience" which led her to return the money.  It includes "I am continuing to visit my doctor and psythist (sic) and taking medication.  My health is improving slowly and I am still hearing voice's in my head telling me to take money.
"At the age of 8-9 years old I stated to hearing voices telling me to take money all the time and I can be tempted to take it.  I am a shame of what I did and am sorry to have put Mrs JT through this.
"I am now asking for another chance to prove that I am sorry."

9.	When SM applied for her position with Wakefield she submitted an application form on 8 July 2002 which requested details of convictions or cautions to which she responded "None."  She explained that whilst she has a number of convictions they were some time ago and she did not consider them relevant to the position sought.  A CRB check was subsequently initiated which she said was returned clear.  Mr Blundell advised that Wakefield no longer has a copy of the outcome of that check and could not comment.  A CRB disclosure record dated 17 October 2005 reveals convictions during the period 28 October 1975 to 16 January 1990.  Mr Blundell indicated those upon which the Respondent sought to rely; three fraud and kindred offences in 1986 and six theft and kindred offences in 1975 – 1990.  SM acknowledged those offences and explained elements of their background including pressures from former boyfriends, threats of violence, her personal circumstances and health.

10.	SM emphasised that she is deeply sorry for what has happened.  She has not sought at any time to deny what she did.  She and her husband have since become Jehovah's Witnesses which has helped her understand the position.  She stated there have not been complaints about her work and asked for another chance to prove herself saying that she has "learned from her mistakes and it will not happen again."  She has not taken employment in breach of her restrictions, despite her husband running a home for adults with learning difficulties.  She has not been able to find employment since these events and this has caused financial strains.

Submissions

11.	Mr Blundell submitted his analysis of the issues which he addressed as relating to misconduct, harm, risk of repeat, isolation of the event and suitability. He adopted the case set out in a skeleton argument presented to SM and the Tribunal prior to the hearing which concludes: "It is the Respondent's case, therefore, that there are four particular factors that make SM unsuitable to work with vulnerable adults.  First, the very fact of the theft from a vulnerable adult in her care.  Secondly, the particular circumstances of the theft.  Thirdly, this would not appear to be an isolated incident.  Fourthly, the risk of further incidents remains very real."  Counsel drew attention to the reasoning of the Tribunal in cases with similar elements D G & Secretary of State [2006] 824.PVA.  KM & Secretary of State [2006] 675.PVA.

12	SM submitted that she deserved another chance that she was deeply sorry and she would not normally act like this.  

The Law

13.	The appeal is made under Schedule 5 of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 and Section 86(1) of the Care Standards Act 2000. The conditions required to be met before an individual is included on the Protection of Vulnerable Adults list are set out in section 82 of the 2000 Act. As set out in section 86(3) of the 2000 Act, the Tribunal needs to be satisfied both that the individual was guilty of misconduct and that the individual is unsuitable to work with vulnerable adults. If it is not, it shall allow the appeal or determine it in the individual’s favour.

14.	In the case of Kalchev v Secretary of State for Education And Skills [2005] 589.PVA, the Tribunal held (at paragraph 17) that the duty to satisfy the Tribunal as to suitability switches to the appellant if the Tribunal is satisfied that the person has been guilty of misconduct. We agree, and adopt that approach.

Conclusions

(a)	SM was straightforward in giving evidence and did not seek to deny or blame away the theft of money from Mrs JT.  She did not deny that Mrs JT is a vulnerable adult and that her misconduct harmed Mrs JT.  We conclude from the evidence of the events that Mrs JT was harmed by SM's actions.  We have no doubt it would have had effect on her wellbeing and would have caused anxiety, not least in her ability to trust those who necessarily had to come into her home.  It was a breach of the trust of a person dependent on others for daily living by a person whose employment is for their welfare.  We have concerns that this will also have brought suspicion on others and a general anxiety in relation to the services provided by Wakefield, who had ultimate responsibility.  The harm was more than the risk of harm; we find that actual harm occurred.

(b)	Following a. it is necessary for us to determine whether SM is unsuitable to work with vulnerable adults.  SM, upon whom the burden of proof rests, acknowledged that she is guilty of thefts from Mrs JT and those disclosed in her record of previous convictions and referred to in interview.  She did not deny her dishonesty and gave some detail of underlying motivation including her medical difficulties.  She expressed her sorrow.  We accept that she deeply regrets what has happened and note that she has returned monies both to Mrs JT and her family members.

(c)	We have balanced SM's contrition against the events and circumstances she acknowledged.  We find it clear from her description of the reasons for the thefts and explanation of her failure to disclose her record of convictions that she is able to rationalise her conduct and this may lead her more easily to believe that this conduct is behind her.  We do not consider she is now out of risk; we are not satisfied that she would act differently in the future should a similar combination of circumstances arise.

(d)	Taking into account our conclusions about the serious nature and effects of SM's theft from a vulnerable adult and our conclusion relating to the risk of recurrence, we conclude that she is unsuitable to work with vulnerable adults and should remain on the list maintained by the Secretary of State.

(e)	In summary we have concluded that:
•	SM was guilty of misconduct which harmed Mrs JT
•	SM is unsuitable to work with vulnerable adults
Our unanimous decision is that her appeal cannot succeed.

Order

SM's appeal is dismissed.

Mr Laurence J Bennett (Nominated Chairman)
Ms Susan Gilhespie
Mr Tim Greenacre

Date:	7th November 2007