AB v The Secretary of State  for Education and Skills [2007] EWCST 946(PVA) (5 December 2007) 

Between						 Case    Nos. [2007] 0946.PVA/ 0947. PC

A.B. - Appellant
And
The Secretary of State for Education and Skills - Respondent
Between						Case Nos. [2007] 0948.PVA/ 0949.PC
R.B. - Appellant
And
The Secretary of State for Education and Skills - Respondent

Before:
 Miss Maureen Roberts (nominated chairman)
Mr Michael Jobbins
Mr Christopher Wakefield

Hearing on 26th to 30th November and 3rd to 5th December 2007 at Stourbridge County Court Stourbridge West Midlands.

The Appellants appeared in person.
Mr Jonathan Auburn of Counsel appeared for the Respondent instructed by the Treasury Solicitor. The tribunal heard evidence from the following witnesses on behalf of the Respondent:
From the local PCT: Ann Rouine Locality Matron, Sally Gallagher District Nurse, both from Sandwell Primary Care Trust formerly Oldbury/Smethwick PCT, Elaine Elwell District Nurse Tipton and Rowley PCT and from September 2003 to March 2005  a District Nurse with Oldbury/Smethwick PCT.
From the Local authorities: Parvinder Uppal a Contracts and Monitoring Officer, in the Purchasing section of the Adult and Community Department, Beverley Hellend Service Improvement Manager within Adult and Community Services Department Older people’s services, Rebecca Thomas Acting Operational manager in Adult and Community services and in 2004 an adult practitioner all  employed by Sandwell Metropolitan Borough Council and David Marsden employed by Sandwell Social Inclusion and Health as a Community Care officer. 
From CSCI: Amanda Hennessy Regulation Inspector, Jon Potts Regulation Inspector, Deborah Sharman Regulation Inspector, Mike Gerrard Regulation Manager, Louise Lawton now a Service Inspector and in 2004 a Business Relationship Manager. Mike Kirton now a forensic social worker in Birmingham and in 2004 an Inspector with CSCI 

Decision
1.The Appellants appeal against the two decisions of the Respondent contained in  letters to the Appellants dated the 1st December 2006 (the decision letters); firstly ( the first appeal ) to confirm them on the Protection of  Vulnerable Adult's List  (the PoVA List) and secondly (the second appeal) to confirm them on the Protection of Children Act List (the PoCA List).
2. The decision letter also notified the Appellants that the effect of inclusion on the PoCA list also meant that the Appellants would not be able to carry out work to which section 142 of the Education Act 2002 applies and that their names had been added to the Education Act List.
 
3. The referral and subsequent listing arose following the closure of Silverlands Care Home where the Appellants were joint proprietors. The closure had been by way of an emergency cancellation order. The letter of listing to each Appellant stated that the Respondent had concluded –
(a) The CSCI reasonably considered you to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult, by failing to deliver the care required and, acting in a way that posed a serious risk to the welfare of vulnerable adults in your care.
(b) that you are considered unsuitable to work with vulnerable adults because you failed to met the needs of vulnerable dependent service users in receipt of the service and failed to be pro-active and robust in management and supervision.

4. 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 their initials so as to protect their private lives. We further order under Regulation 19 that the hearing be in private, and that the decision be published in an anonymised form, under Regulation 27 to protect the private life of the Appellants. 

 5. The Tribunal and the parties had three lever arch files of papers prepared by the Respondent including the papers requested to be submitted by the Appellants. We noted that the Appellants had initiated an appeal to the tribunal against cancellation of their registration. There were eleven lever arch files prepared for that appeal however that appeal was not pursued by the Appellants.

The law 
6. 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.

7.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.

8. In this appeal the burden of proof rests on the Respondent. The standard of proof is the civil standard namely on the balance of probabilities. We noted the case of C v Secretary of State for Health (CA) and looked at the case of R (on the application of N) v Mental Health Review tribunal (Northern Region) [2006] 4 All ER 194 where all the recent cases on the standard of proof were considered.  In this case Richards LJ said” Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities.”
9. The appeals for both Appellants were heard at the same time as the facts were common to both appeals. The Tribunal was mindful that the two Appellants had different roles in the running of the home and considered each Appellant individually in making its decision.
Chronology and Background
 10. The Appellants were the joint registered proprietors of Silverlands Care Home (the home), a home for the elderly. Appellant RB is a state Registered Nurse and she was the registered manager. They ran the home from 1990 until its registration was cancelled in November 2004.
11. From 1990 to 2002 the home was inspected by the local social services. From April 2002 the home was inspected by NCSC and then CSCI. We noted from a historical summary of matters relevant to the home that there were four occasions when the local authority had expressed concern about the home and taken enforcement action; this included two proposals to cancel their registration which the Appellants had successfully contested.
12. After April 2002 there were a series of inspections, some announced, some unannounced and some in response to complaints. CSCI also made a decision, in Autumn 2003, to vary the registration permitting half the beds to be registered for EMI (Elderly Mentally Ill) residents. The chronology leading to the emergency cancellation was follows:
(i) 19 June 2002 Jon Potts received a complaint about a delay in seeking medical help after a resident had fallen. He found the complaint partly made out but the complainant did not wish to pursue the matter.
(ii) 11/12 September 2002 Jon Potts with two colleagues made an announced inspection and 33 statutory requirements were identified as either partly met or not met. In addition Mr Potts issued an Immediate Requirement Notice on 12 September 2002 ‘that the home was to ensure that any potential pressure areas, breaks in sores are reported to the appropriate GP or District Nursing Service with immediate effect.’
(iii) On 5 March 2003 Mr Potts received an application from the Appellants’ for a variation to the home’s registration from elderly persons to an ‘EMI’ home.  
(iv) On 31 March 2003 Mr Potts carried out an unannounced inspection. He particularly looked at the progress on the action plan supplied by the Appellants after the previous inspection. He found that only a small number of the statutory requirements had been addressed; namely 7 requirements had been complied with. Mr Potts also raised concerns about the staffing levels on the day he did his inspection in that there were three staff and the proprietor on the duty rota for eighteen residents. In fact the proprietor AB was not on site and one member of staff was cooking.
(v) On 24th June 2003 CSCI received a compliant about the lack of activities restricted menus and lack of choice about bed times. This was partly upheld. 
(vi) On 20/21 August 2003 Mr Potts and Ms Sharman carried out an announced inspection. The inspectors concluded that while the home was providing a service which met many of the service user’s expectations and had committed staff, there were many areas which required attention. Many of the statutory requirements dating back to September 2002 had not been met. Thirty seven requirements were highlighted. In addition Mr Potts issued an Immediate Notice stating that, “ the home must maintain regular contact between the GP and service users according to their health needs and that all visits by healthcare professionals are documented.” This was due to the health of one resident (DP) having deteriorated in the period prior to inspection.
(vii) On 30th October 2003 Louise Lawton wrote to the Appellants stating that CSCI proposed to register the home in the category of ‘PC care home providing personal care for 13 older people and 13 older people with dementia’. Conditions were attached including a requirement for additional staff on the dementia unit and training for staff in the care of persons with dementia. After some correspondence with the Appellants the revised registration was agreed with the additional requirements. In particular on staffing: ‘The dementia unit to have a minimum of 2 care staff on duty at all times during the waking day, with an additional member of staff available at peak times. During the night, there should be a minimum of 1 working care staff in the dementia unit and 1 waking care staff in the older persons unit, with the third waking care staff available on site.’
(viii)  On 10 February 2004 Mr Potts made an unannounced inspection with one colleague. There were 31 requirements not met or partly met. In addition six statutory requirements were made; in particular that risk assessments should be carried out for all residents and that the registered provider must ensure that the information required in Schedule 2 of the Care Homes regulations was obtained and kept at the home for all staff. An Immediate Requirement Notice was also issued regarding staff lifting practice and requiring footrests to be used on wheelchairs
(ix) On 11 April 2004 Mr Potts received a complaint from the daughter of DA, 
(x) As a result of the complaint Mr Potts undertook an unannounced inspection on the 6th May 2004 with Ms Sharman. Thirty two requirements were either not met or partly met. Sixteen further requirements were identified. Only one member of staff was on duty in the residential side (one member of staff was with the GP) and two members on the dementia unit when there should have been three. RB had gone to a meeting and AB was across the road doing repairs to a shed roof at his property. Mr Potts issued an Immediate Requirement notice in respect of staffing, risk assessment of the use of cot sides, the home to cease using joss sticks in the building, hoist and moving training to be provided to staff and personal toiletries to be stored safely in the dementia unit.
(xi) Mr Potts visited the home on 9th July 2004 following concerns from the Anne Rouine. He reported that a service user had walked out of the home, residents were being transferred to the home’s GP unnecessarily and there was no staff rota in place for the coming weekend. Shortly afterwards Mr Potts went on sick leave and was not involved with the home again.
(xii) On the 6th and 13th October Parvinder Uppal visited the home in her capacity of monitoring the contracts. She had previously visited in April and November 2003.She was concerned about the lack of information on the residents’ files and that the rota did not match the staff on duty on the day of the visit. She also carried out a staff survey the results of which are noted later. On the 21st October 2004 placements by the local authority were suspended.
(xiii) On 22nd October 2004 Mike Kirton and Amanda Hennessey carried out an unannounced inspection following concerns raised by the District Nurses about staffing levels, a complaint that a resident KH was sleeping on the floor possibly due to overbooking and about the care of another service user SH who had died in the early hours of the 21st October; this inspection was followed by letter of serious concerns. This highlighted; no duty rota available for the week commencing 18 October, the Accident book was not appropriate and did not record all the accidents, no records for KH at the home, there were no nutritional assessments for 7 residents and no weight recording for 10 residents, staffing levels did not met the needs of the residents and evidence was needed that there was sufficient domestic and cooking cover. A response was requested by return of post .This was not received. 
(xiv) The same CSCI officers carried out a follow up inspection on 27th October 2004. While an accident book had been acquired none of the other concerns had been addressed and other issues of concern were noted.
(xv) On the same day 27th October 2004 there was a VAPP (Vulnerable Adults Protection Panel) Strategy meeting. This considered the issues of the medical care of the residents the death of SH the non recording of occurrences in the home and the level of staffing.
(xvi) On 28th October there was an emergency meeting at the CSCI offices between the Appellants and officers of CSCI including Louise Lawton and Mike Kirton
(xvii) At an inspection on the 1 November by Mike Kirton and Mike Gerrard, there were concerns noted about the absence of risk assessments and the administration of medication.
(xviii) There was a further visit on the 3rd November 2004 by Mike Kirton with Amanda Hennessy. In particular there were serious concerns about the administration of medication and about staff records. Later that day there was a meeting with the Appellants. The Appellants acknowledged many of the shortcomings in the running of the home. The Appellants made enquiries to try and obtain the services of a consultant/ management team to take over the running of the home. In the meantime the local authority put in a team of managers to run the home. The existing care staff remained in post.
(xix) On 4th November 2004 Ann Rouine, Locality matron assessed every resident and together with other professionals from social services determined what kind of placement i.e. residential, or nursing home, was suitable for each resident. All the residents had been moved within a fortnight.

13. As a result of continuing concerns about various aspects of the running of the home, on 4th November 2004 CSCI applied to the Warley Magistrates Court under section 20(1)(a)(i) care Standards Act 2000 for orders that the Appellants registration under the Act should be cancelled on the grounds that there would be a serious risk to the life health or well being of a person unless the order was made. The matter was heard from the afternoon of the 4th November through to the early hours of the 5th November by a bench of three magistrates.

14. The magistrates court made an order for the cancellation of the Appellant’s registration on the basis that they had found, beyond reasonable doubt, that there would be a serious risk to the life, health or well being of a person unless the orders were made. We saw the note of the reasons made by the magistrates court and noted the following findings of fact:
(i). there were insufficient care records;
(ii). there were insufficient records of drugs administered; 
(iii). drugs were administered by untrained staff;
(iv). there was insufficient management control and supervision;
(v). there were inadequate recruitment and induction processes;
(vi). there were inadequate checks for employing staff;
(vii). staff records were not kept up to date;
(viii). the accident book was not kept up to date;
(ix). risk assessments were of a poor standard;
(x). there was inadequate provision for cleanliness;
(xi). there was insufficient liaison with medical health professionals or other agencies.

15. The Tribunal appreciates that an emergency cancellation hearing is a difficult situation for both the Appellants and the inspecting authority. Having said that, there was clearly a long hearing about the matter with the court sitting until the early hours of the 5th November 2004. Evidence was given by CSCI and the Appellants. The test applied by the magistrates’ court is one of ‘serious risk to life, health or well being if an order was not made’. The Magistrates so found, and we noted that their findings were made to the higher standard of proof of ‘beyond reasonable doubt’.

16. We took the view that the findings of the Magistrates court were not to be re-opened. Inevitably we read and heard evidence on many of the same issues. The tribunal sought to look at the issues of misconduct and suitability. We were mindful of the findings of the Magistrates Court.

17. The decision of the Magistrates’ court is open to appeal to the Care Standards tribunal. The Appellants commenced such an appeal which was listed to be heard in October 2005. They withdrew their appeal shortly before it was to be heard.

The evidence and the tribunal findings
18. We read all the papers submitted and heard evidence about a wide range of matters. We have summarised below the evidence and our findings on the key issues. All dates are 2004 unless otherwise indicated.

 Credibility of witnesses.  
19. The witnesses we heard from fell into distinct groups. Firstly we heard from the district nurses Elaine Elwell Sally Gallagher and Anne Rouine the locality matron in charge of the district nurses. We heard from two Social Services staff who had placed clients at Silverlands, Rebecca Thomas, David Marsden and from the Contracts and monitoring Officer Pavinder Uppal, and a Social Services manager, Beverley Hellend, put into Silverlands to manage it after the court order. Lastly we heard from the CSCI officers Amanda Hennessey, Mike Kirton , Jonathan Potts, Deborah Sharman Mike Gerrard and Louise Lawton.

20. We noted that the Appellants had requested that Louise Lawton, Michael Gerrard Jon Potts Amanda Hennessey Michael Kirton, Anne Rouine Sally Gallagher and Elaine Elwell to be summoned to the hearing.

21. AB and RB gave evidence. They stated on their Further In formation Form that they did not intend to call witnesses. By way of explanation they said that they did not want to go back to members of staff or relatives to ask them to attend because there had been such a lapse of time between the home closing and this hearing.

22. We heard the witnesses and it was plain that the Appellants’ relationship with the District Nurses was strained. From the beginning of 2004, the nurses had been increasingly concerned about many of the service users. Some of these concerns had been reported to CSCI. The Appellants considered that the nurses were complaining because of their increased workload at the home, and financial pressures on their budget. They complained that the nurses did not speak to them but to carers. They also felt that nurses were deliberately trying to move residents to nursing homes and out of the Appellant’s home when, in their view, that was not necessary or what the resident wanted to happen.

23. On this issue we conclude that the nurses were acting professionally. They were not motivated by workload or finances but were concerned for the well being of the residents. We could see that there were difficulties between the nurses and the Appellants but that did not incline us to doubt the evidence of the nursing staff.

24. The Appellants had less objection to the other professional witnesses. We find that all the professional witnesses presented as competent and truthful. All of the reports and documents that they were referring to were contemporaneous with the events. Their initial statements were prepared for the Tribunal hearing scheduled in 2005 and confirmed in statements prepared for this Tribunal. 

25. In addition we had written evidence from relatives which raised genuine complaints. RB at one point suggested that one of the complaints might not be genuine but we find that there was no evidence that this was the case.

26. In October 2004 Ms Uppal conducted a survey of the home’s staff. Notably the staff raised the following issues:
•	Staff did not have basic training
•	Staff supervision not carried out
•	No activities in the dementia unit
•	Lounge and bedrooms were cold in the dementia unit
•	The food in the home had the use by dates removed or was out of date
•	The food in the dementia unit was of poor quality or insufficient
•	There were not enough staff on the dementia unit
•	Residents were having falls and these were not recorded in the accident book or the daily records sheets
•	Medication was not labelled when left in the medication cupboard
•	On two days there were 14 residents at the home instead of the 13 the home as registered to accept.
Again there was no reason to doubt the responses that Ms Uppal had received.

27. As noted above we did not hear from staff at the home but we had the staff comments collected by Ms Uppal. We also had a contemporaneous note of a remark by the deputy manager Bobbi Kakkad in July 2004 that there should be an unannounced inspection and that ‘the place needs to be closed down’.

28. We had a statement from Ms Gold, a registered general nurse and a visiting manager of a nursing home who came to assess a resident BM with a view to taking her as a resident in her home. Miss Gold made observations about the home and the state of BM which were critical of the standards of the home and the Appellants. We had no reason to doubt the truth of what she was saying. 

29. For the most part the Appellants either denied that something had happened or blamed someone else. They suggested that the staff were making remarks to be mischievious. AB came across as genuine but out of his depth in the situation. For example he said in his written statement that he had trained staff but in his evidence he sought to qualify that statement and maintained that he ‘just’ refreshed staff training on certain matters. He claimed that he was on the premises a lot of the time and was working up to 105 hours a week doing maintenance jobs and being a carer. Despite this amount of time he did not seem to have a grasp of the seriousness of the situation and his role and responsibility in it. RB found it difficult to give straight forward answers to questions. Both Appellants said that they felt unsupported by the professionals.  

The roles of AB and RB
30. AB and RB were joint proprietors of the home and RB was the registered manager. Both of them ‘lived’ in the home a great deal of the time, only going home to sleep in their own accommodation. For most of the time they were in the home.

31. AB had given up a secure job in the insurance business to help his wife RB in the running of the home. He carried out a maintenance role although the home also employed a handyman. He carried out practical jobs, he printed off the staff rotas and acted as a carer. He was shown as a carer on the rotas. He also monitored CSCI responses and checked written policy documents. He deputised for his wife when she was away and took charge of the home on these occasions; he would make a decision in an emergency in her absence. He would stand in for staff if they did not come to work without notice. RB said in evidence that Care homes generally had difficulty recruiting suitable staff and that she did not like using agency staff as she considered that they did not provide continuity.

32. RB as a nurse and the registered manager was in overall charge of the home and ran it on a day to day basis. We noted that her status as a ’qualified nurse and has been qualified for approximately 30 years and is currently registered with the UKCC’ was placed on the brochure given to residents and their families. As the manager she was responsible for staff recruitment, rotas, arranging training and in overall charge of resident care. Again she was on the staff rota herself. She said that she enjoyed being ‘on the floor’ and would also stand in if staff failed to come to work at short notice.

The treatment of residents

WP
33. This resident was a single man aged 77 in 2004 who had been at the home with his sister (BP) for four years. On the 8th March 2004 District Nurse Elwell attended the home with a student nurse to carry out a routine patient assessment of WP. We saw the PCT Patient assessment form completed on that day and it was clear that WP had not been referred by the home or any other agency.

34. The nurse found that WP was in a poor state, bed bound, not eating, doubly incontinent with a pressure sore on his sacrum and bilateral necrotic heels. He had oral thrush and there was no record of his diet or fluid intake. The nurse discussed the appropriateness of his placement in the home with RB who said ‘it was best that WP be allowed to go naturally’. RB denied that she had made such a remark. 

35. The District nurse was concerned that WP was at high risk of dehydration and his pressure sores deteriorating. She completed a Clinical Incident/Hazard Form regarding his condition and made an assessment that he should be moved to a nursing home. RB said that WP would not want this as it would be difficult to keep WP together with his sister, who also resided in the home, if he was moved. He did not move to a nursing home.

36. The nurse placed an order for an air mattress back rest and cot sides (this last item was supplied by the home though it is not clear if WP ever had cot sides.) and the nursing service put in an intensive care programme for him.
 
37. The Tribunal noted that by the 4th August 2004 it was reported that WP was much better and able to get around. When the home was closed he and his sister were moved to another home together.

DN
38. This woman aged 80 had been admitted to the home earlier in the year, in January. On examination by Ann Rouine on 4th November she found that DN had cold hands, several small bruises to her right hand and right wrist,a red big toe and redness on a small toe her toe nails were very long and overhanging and she had debris between her toes and a discharge from her eye. Ann Rouine completed a VAPP form (Adult Abuse Notification form) regarding the condition of this woman.

39. DN was seen the next day by the chiropodist who trimmed her nails. He wrote a letter to report what he had done. We note he did not mention debris between the toes or note the redness. However he did say that when he went to take DN’s socks off she said ‘Don’t hit me ‘to him. 

40. RB said that if what was being reported about DN then it was unsatisfactory. However she said that DN had refused to go to the chiropodist and that you could not force her. She felt that DN was confused and that she was the one likely to hit out. RB had not seen anyone hit DN.
 
 EN
41. This resident was a woman aged 73. On 23 September 2004 Sally Gallagher one of the District Nurses came to the home to change Mrs EN’s dressing. The time was about 9-15am and EN could not be found. The nurse and staff looked for her in the lounge in her bed room. Some one said not to worry she must be around and that she could not leave the building because of the locks. Some 10 minutes later she was found lying on the floor behind her bed. She was a very slight woman and had fallen out of her bed and was lying between her bed and the wall. Her bed clothes were wrapped around her. The district nurse described her as frightened and scared. She appeared uninjured and the nurse advised that she should be checked in hospital.

42. On 27th October 2004 EN was found saturated in urine with tide marks on the bed clothes and a wet dressing on her heel. This was seen by Nurse Blair who spoke to RB about it. The member of staff said that there was only one carer on duty at the time and asked the nurse not to inform RB that she had told her about the staffing. 

43. When RB was asked about this incident she said she remembered EN having a wet pad but did not see a wet dressing. 

BS
44. This man was on the residential unit. He had a colostomy and therefore required colostomy bags and cream. It was found that he was cleaning his stoma with dettol and not using the right size colostomy bags. . Ann Rouine raised this on 4th November at her review, a Clinical Hazard/Incident Form about the man’s treatment. He was later reviewed by the stoma nurse. 

45. RB said that this resident was very compos mentis and was a very private man. He organised his own supply of what he needed for his colostomy. She said that she would never instruct someone to use dettol in these circumstances. However she did consider that it was right for this man to do what he could himself .

 RG
46. On 17 June 2004 the District nurse attended at the home to dress a wound on RG’s leg. She found that the dressing had been changed and was told that RG had fallen and been taken to hospital where steri-strips had been applied to the second wound. The wound was infected and RG was in pain. The nurse said that RG should have antibiotics and then found that RG was not registered with a local GP. RG had come to the home, possibly for respite care, at the beginning of June. The nursing notes for RG could not be found, her injuries were not noted in her care plan and the hospital visit was not recorded.

47. Mrs RB said that RG had come in for respite care and had been taken to hospital after she harmed herself. She said that RG did not want to stay in the home and was deliberately harming herself so that her son would move her out of the home.

AB
48. On the 30th September 2004 this resident was seen by the District Nurse. She had a grade 3 pressure sore registering 20 on the Walsall test. The nurse noted she was bed bound and at high risk and considered that she would be more appropriately cared for in a nursing home. She suggested this to the family but believed that RB had spoken to the family to dissuade them. 

49. RB said that AB was compos mentis and knew where she wanted to be. AB had friends in the home and did not want to move. An air mattress was ordered for her.

 KH
50. On the morning of the 6th October 2004 the District Nurse Sally Gallagher called at the home in the morning, 9-00am. She saw a resident KH sleeping on the floor in the lounge. One of the care assistants, TH, said that KH liked sleeping on the floor and the nurse noted another carer trying to get him up off the floor. The nurse completed a Clinical Incident/ Hazard form about the matter and made with a nurse colleague, a complaint to CSCI which was entered on a Complaint Form 700. This was recorded on the 6th October.

51. When the nurse completed her Clinical Incident form she noted that on 20th October the care assistant TH had said to her that the reason KH was on the floor was ’there was no bed available for him that RB had overbooked’. 

52. Initially in their statements the Appellants had said that KH liked sleeping on the floor and that he would ‘try to pick the flowers off the pattern of the carpet’. When asked about this in evidence both AB and RB said that KH should have gone to hospital on the 5th October. They had waited all day for an ambulance and it had not arrived. Another resident was due to come in and therefore there was no bed for KH on the night of the 5th October. They also said that he slept in a chair on that night.

 SH
53. This woman who from records had limited mobility and was partially sighted had come to the home on 6th September 2004. 

54. On 20th October the District Nurses Elaine Elwell and Sally Gallagher were doing some incontinence assessments at the home when a carer TH asked them if she would come and look at SH. The carer was worried and upset about SH. The nurses went into see SH and found that she was obviously extremely poorly. Her mouth was open and very dry. She was cyanotic to extremities and dehydrated. The nurses asked how long she had been ill and whether the GP had been called. They were told that the GP had visited a week ago. In the week that SH had been confined to bed no request had been made to the nurses for an assessment or pressure relieving aids. This was the first time that they had been asked to see her. (She may have been in the lounge a week before when the district nurses called to administer flu injections).

55. The nurses advised that the GP should be called to see SH and that she should be transferred to a nursing home or hospital. The next day Nurse Elwell called at the home and went to check on SH. She found the door locked and was told by RB that SH had died at 5-00am that morning. When Nurse Elwell asked if the GP had called she was told that he had not.

56. From extracts from SH’s care notes at the home it shows that she was up and about to start with and was eating and drinking well. However from approximately 26th September she started having pain and this caused a deterioration in her sleep and for the following three weeks she had very little sleep and for 13 of those nights was described as ‘either up all night and crying or screaming in pain’. She also had ‘very heavy diarrhoea’. The GP saw her on the 16th October when she was recorded as ‘not eating, is not de-hydrated’. The GP said that the staff should try and give her fluids and that she would not be admitted to hospital because she was not dehydrated.  He was not contacted again until the visit of the District Nurse. 

57. RB when asked about SH did say, ‘much much much apologies, we could have done things better’. She stressed that initially SH seemed to be doing well. She also said that she had been told not to call an ambulance in such circumstances.

Resident BM
58. This elderly woman had been admitted earlier in the year and was on the EMI part of the home. On 11 October a VAPP form was completed for her noting that she had ’Dark bruising to the left orbital area’ that is under her left eye.

59. A short time later RB gave her family a week’s notice (shorter than required by the contract) to move BM. On 27th October a Ms Gold the registered manager of a nursing home came to Silverlands to assess BM. She made an appointment to see RB but when she arrived RB was not available and she waited in a lounge with 15 residents and one carer for 45 minutes. During that time the carer left the lounge for approximately 15 minutes leaving the residents unattended. Ms Gold noticed that ‘the lounge was very dirty, with food on the floor, and that the lounge was fragranced by joss sticks’.

60. After 45 minutes a carer brought BM to her and RB also came in and said ’you won’t take this lady’ and advised that she did not want service users like her in the home. Ms Gold could not have a private conversation with BM but was directed to the upstairs lounge where there were other people around. 

61. Ms Gold went on to say “I found it very difficult to assess BM in the lounge. I noted that she was wearing a dirty jumper, had dirty hands and had faeces under her fingernails. She had a very sore eye which was streaming pus.” Ms Gold asked for her nursing/care notes and was told by RB that she could not get into the office to get them. She asked to read BM ‘s profile and this request was ignored. 

62. Ms Gold said that she would take BM as a resident to the home she managed. BM was transferred on 28th October with an empty medicine cassette and 6 ventolin inhalers. She only had a hand written note of her drugs and had to contact the chemist to get the correct prescription. Ms Gold noted that she had been taking risperidone, a drug contraindicated in a person who has had a stroke such as BM. Finally BM came to the new home with 4 sets of full dentures comprising one top and three bottom sets; only one of the bottom set belonged to her. Ms Gold reported her concerns to the GP and CSCI.

Residents clothing
63. One of the matters in the initial complaint about DA was that her clothes had gone missing. ‘Clothes started to go missing that very first week; vest, pants and bras, completely vanished. By day 5-6 she was not dressed correctly at all, she had no underwear on, the only underwear she was wearing was her pants, this went on for 3- 4 days, I informed the care assistant. ..the underwear never materialised’. 

64. This matter was put to RB who said that families put name tags on clothing and if needs be the home would put name tags on clothing. She denied there was a problem with residents clothing getting mixed up.

Communal toiletries, wheel chairs, walking sticks, dentures.
65. As noted above there was an instance of dentures being mixed up. One of the observations from Ms Sharman who inspected on August 2003 and May 2004 was that wheelchairs and walking sticks were shared on a ‘one size fits all’ basis and that this was not good practice.

66. Similarly she noted that communal toiletries were purchased and used for the residents; again in her view this was not good practice.

67. RB acknowledged that this was the case but said that often the relatives did not buy the required items for residents and so the home had to purchase them for the residents.

Food and heating
68. The Tribunal noted the comments in the staff feed back collated by Ms Uppal about the sell by dates on food and its adequacy. This matter was expanded by Ms Hellend who led the team put in to manage the home on the 3rd November. The terms of the intervention were that the Appellants were still responsible for the provision of food (and for example staff wages) She went into the kitchen at midday on the 5th November to check the meals for lunch time and over the weekend. The cook showed her two fridge freezers one for the Appellants and one for the residents. The latter contained a lot of frozen food with green Asda woops stickers which indicate that the item is near to its expiry date. The cook said the food was purchased with these labels and then put into the freezer. We also noted that one set of relatives had been told not to visit at meal times.

69. The cook then got out the pies and fish for lunch and Ms Hellend noted that there was not enough to go round the residents. When she asked the cook about this the cook said that she was told to cut the pies and fish into four. Ms Hellend arranged for additional fish portions to be brought from another residential unit to ensure that the residents had enough for lunch. Additional food was brought from council own food supplies for the weekend meals. 

70. On the 7th and 8th November RB did bring some items of shopping. However Ms Hellend notes that when she and a colleague were helping her to unpack the items from her car , when her colleague went to take a bunch of bananas from the car RB said ‘ No those are not for them’  which raised concerns about what Ms Hellend felt was a lack of empathy and respect for residents. 

71. RB and in particular AB denied that inadequate food as given to residents or that there had been instruction to cut up portions. AB referred to the food as sumptuous.

72. There were a number of complaints by relatives and observations by inspectors that the residents bed rooms were cold. The complaint about DA for example stated that DA was wrapped in blankets  and that the radiator in her room did not work and was not mended for three days.

Hygiene and odours
73. Every witness who had been to the home said that there was an odour in the home. Others mentioned that joss sticks were being burnt which witnesses considered was to mask the smell and was a fire hazard in the home especially when on one occasion the joss stick had been stuck in a box of live matches. Despite repeated request not to use joss sticks we noted that on 27th October on Ms Gold’s visit joss sticks were still being used.

74. The Appellants said that the problem had only started when two residents who were heavily incontinent persistently took off their incontinence pads and that despite cleaning the carpets it was difficult to get rid of the odour. AB brought a piece of the Wilton carpet that they had used on the unit to show that it was good quality but with a Hessian back and therefore liquid was seeping through to the floor boards. He acknowledged that it was the wrong type of carpet for an EMI unit.

75. Overall we conclude that there was a shortage of domestic hours, residents, some of whom were incontinent, were not being regularly bathed. There was an odour in the home and that the burning of joss sticks were an attempt to conceal this.

The administration and recording of medication
76. The Appellants stated that the medication was prescribed by the GP and delivered by the pharmacist once a week in Nomad containers for each resident. Other medication such as p.r.n., liquid or creams would come in a container with the residents name on it. Each resident appeared to have a medication administration record form known as a MARS sheet. There were a number of entries on the sheets which showed that AB had received and checked the medication.

77. AB said in his statement that he had trained staff in the administration of medication but when he came to give his evidence he said that he did refresher training on medication. RB said that she had shown care staff how to administer and record medication. She took the view that it was not necessary for care staff giving medication to know what medication they were giving or the possible side effects.

78. On 3rd November Ms Hennessey, a registered nurse, checked the medication in the home. She found a number of examples of poor practice, and we note some of them below:
•	Alendronic acid a medication only to be given once a week was signed for on every day by RB. If the medication was not given there were very specific instructions for the resident – not to lie down and to take a glass of milk and contact your doctor immediately.
•	A care assistant ST who had no previous care experience and no CRB check was acting senior carer and administering the drugs together with two members of staff one with no CRB check and one with a check which revealed a caution for common assault.
•	Medication was not signed for as it was given and it was not possible to correlate the drugs dispensed with the drugs given.
•	The was a bottle of medication with the name changed.
•	Eye drops were open with no indication when they had been opened. In evidence Ms Henessey said that eye drops should be discarded after 28days.
•	There were three boxes of co-codamol dispensed on 28th September totalling 100 tablets, only 8 remained though the service user was prescribed one tablet a day. A further two boxes were dated 5 October totalling 224 tablets which seemed an excessive quantity.

79. RB said that she had given training and, in the week that Ms Hennessey had inspected, it had been a very difficult week but that the staff administering the medication had sufficient training to do the job. In the case of the Alendronic acid where she had signed each day for it she said that was to show that she had checked the drug and that she knew that it was only to be given once a week. We also noted that AB had signed to receive 14 Alendronic tablets; from what we were told about the medication this should have been 4 tablets.

Staffing and employment
80. No CRB checks were produced to the inspectors. The Appellants said that they were done but acknowledged that they had not been produced to the inspectors. There was an issue about their storage. The Appellants said that they were in a safe but this did not explain why they were not produced. The Tribunal saw the checks for most of the staff though there were three still missing and three checks showed that staff had cautions or convictions for assault. 
81. A number of the CRB checks were received after the home had closed. One check had only been applied for three months after the member of staff had started work. The Appellants explained that there had been a backlog with the CRB office and that that explained the delays. 

82. The Tribunal could not tell except, in two cases, whether the staff had been asked to declare any previous convictions. 

83. We did not see any application forms completed by staff.

84. AB stated that he had no role in the employment of staff though he did assist with training. RB was in charge of employment and conducted interviews usually with her deputy Bobbi  Kakkad. RB stated that it was difficult to recruit staff and there was one instance where she had taken on a member of staff because they were known to her personally and she had obtained a verbal reference. The Tribunal saw a large number of training certificates for staff for matters such as manual handling.

85. It was evident that there was a continuing concern throughout the inspections about the level of staffing at the home. We have noted above times when visitors and inspectors noted staffing below the required levels. Mr Potts makes four separate references to staff shortages.

86. We note that concern about poor staffing levels was reported by all of the professional witnesses and Ms Gold in her visit on 27 October.

87. The rota provided to the inspectors did not always reflect accurately who was on duty nor did they show who was in charge. One example of this is the unannounced inspection on the 6th May 2004 when AB was listed on duty but was away from the site carrying out repairs to a roof. He accepted that this had been the case. He acknowledged that he should not have been off site and that there had been a potential risk to residents. 

Residents records
88. RB stated that all residents had an assessment before admission. The Tribunal did not see any of these assessments. The home kept records for the residents. We saw three examples of resident files; the ones we saw had the details of the next of kin address and details of the placing authority and the medication chart. We did not see any risk assessment for the residents. The Appellants said on some occasions they had done risk assessment on some issues but they were not recorded.

89. We noted above the fact that Ms Gold could not get the records or assessment for a resident when she called. Ms Uppal noted that ‘due to the numerous gaps in the records it was difficult for my colleagues and I to see what level of care was needed for the residents and if their care needs were being met’. Her staff survey noted that residents were having falls and these were not recorded in the accident book or daily record sheets.

90. The Accident books were not completed for every accident. We noted one example where 10 June 2004, a resident GT, fell down stairs AB asked the District Nurse to check him and she raised a clinical hazard/ incident report. There was no entry in the Accident book. Subsequently on 10th July 2004 GT had sustained a cut; this was recorded in the accident book and it was noted that he was taken to hospital. 

91. The Appellants produced bathing records for the residents. They maintained that residents were regularly bathed. Against this the District Nurses maintained that the bathrooms did not look used and we had evidence of residents being dirty. The records which we saw were for the residential unit and tracing two residents that had been mentioned to us WP and JT it seemed apparent that at best they had been bathed once every 10 days.

Insufficient liaison with health professionals
92. As is noted above there was a requirement for such liaison made in the very first inspection by CSCI in September 2002. It was raised again in the August 2003 report after concern about the health of one resident. It was evident from the review report of Anne Rouine that many of the resident needed medical assessment in November 2004. In the reports on individual residents outlined above there are a number of occasions when medical or nursing help was not requested when it should have been. We noted that the District Nurses stopped leaving their notes in the home as they said they would go missing.

93. The Appellants said that they had a good relationship with the local GP practice. The system was that the GP visited once a week and could be called more often if he was needed. 

CSCI requirements
94. The Appellants put to us that many of the homes in the Sandwell area were having difficulties complying with the National minimum standards and that they were in a similar position. AB had included reports from many other homes and bar charts showing that Silverlands was no worse and in some cases better than other homes in the area. In particular the Appellants considered that the report of the 10 February 2004 had been quite favourable and encouraging; despite the fact that it recorded 31 requirements not met or partly met. In fairness we noted that the report had commended the Appellants on the progress that they had made. The Tribunal had a copy of this report in the original documents. The Appellants sent another highlighted copy after the hearing had concluded.

95. We accept the evidence of the inspecting officers that by and large the other homes were all making a sustained effort at improvement and making progress. The Inspectors evidence was that Silverlands did not sustain its improvements and on each inspection certain areas of concern e.g. staffing levels and checks were repeated and on every inspection shortfalls were found. 

Conclusions
96. In view of the evidence the Tribunal heard we concur with the findings of the Magistrates court.  The Appellants’ failed: to comply with CSCI’s immediate requirement notices, to keep proper records for residents, drug charts and staff employment, and, in their treatment of residents in that they did not liaise appropriately with health care professionals. We noted 7 Clinical Incident/Hazard Forms and 4 Suspected Adult Abuse reports in the first ten months of 2004 before the home was closed.

97. Looking at the whole history of the home we conclude that there is a picture of a residential home struggling to meet the requirements of the inspecting authorities. At best it was homely but disorganised. At worst by November 2004 it was found by the Magistrates Court to be ‘a serious risk to life health or well being’ of the residents. In November 2003 the Appellants obtained their EMI residential status for half their beds. The District nurse witnesses, clearly considered that the decline in care and organisation got worse from that time; they reported to CSCI ‘the home displayed total disorganisation’. Two witnesses, Deborah Sharman and Parvinder Uppal who had known the home for some time say that it was disorganised; for example records were not complete or not kept and could not be found.

98. AB accepted responsibility for overall administration, monitoring CSCI requirements and staff records. RB was responsible for resident records. We find that none of this record keeping was satisfactory.

Misconduct causing harm to a vulnerable adult
99. We were referred to the case of Mairs in our consideration of misconduct in this case. We note that misconduct can be by acts of omission as well as commission, it does not necessarily connote moral censure, for example, a person can be guilty of misconduct without acting dishonestly or disgracefully.

100. In this case both Appellants repeatedly professed to care about the residents and said that running the home had been their life. They were upset and indignant about the allegations which they denied. However the weight of evidence particularly the contemporaneous evidence of inspections, forms and notes is overwhelming. 

101. We consider that the evidence we have recorded above make findings of misconduct against both Appellants inevitable. We have the clear findings of the magistrates’ court. We know that in this POVA hearing there are different considerations but we bear in mind the earlier findings. We heard a great deal of live evidence. One witness, Mr Potts referred to the document ‘No Secrets’ published in March 2002 and to the definition of institutional abuse contained in it. The Appellants believed that they had seen the document. Para 2.9 of ‘No Secrets’ states,‘Neglect, and poor professional practice also need to be taken into account. This may take the form of isolated incidents of poor or unsatisfactory professional practice, at one end of the spectrum, through to pervasive ill treatment or gross misconduct at the other. Repeated instances of poor care may be an indication of more serious problems and this is sometimes referred to as institutional abuse.’
 
102. We conclude that both Appellants have done acts of omission and /or commission that amount to misconduct that has harmed vulnerable adults.

Inappropriateness to work with vulnerable adults
103. This leads us to consider then the issue of suitability. Again this issue was addressed by the Mairs case. In that the Tribunal stated that ‘Unsuitability must be judged by the Tribunal at the date of the hearing. The judgement will involve consideration of the character disposition capacity and ability of the individual concerned including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgement will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed or placed at risk of harm a child.’ In this case the reference is to a vulnerable adult. The Tribunal went on the say that the Tribunal may have regard to: the number of the incidents constituting the misconduct, the gravity of the misconduct, the time that has elapsed since the misconduct, the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child(in this case vulnerable adult), the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct and extenuating circumstances surrounding the misconduct.

104. We found that to be helpful guidance. We have to say that there are a considerable number of matters of misconduct. The Appellants were not straight forward in their evidence. They did not appear to have understanding or insight into the seriousness of what had occurred. They both apologised for some of the incidents and shortcomings.

105. The Appellants had been running the home since 1990. They had 14 years of experience of such work and the inspection services. RB, had, for many years been on the executive committee of the West Midlands Care Homes Association. We appreciate that the inspecting body changed in 2002 but the minimum standards and the requirements following inspection were available to the Appellants.

106. We believe that the change in status of half the beds to EMI put a great strain on an already difficult situation. The Appellants did not seem to appreciate the additional requirements that would be needed for these vulnerable elderly residents with mental health issues and physical problems. We note that they had spent a lot of money on the buildings over the years and they wanted to run the care home. AB was misguided and short sighted in his approach often denying he had involvement with many matters. RB lacked insight commensurate with her nurse training, she also tended to deny matters and blame others. Both Appellants said that CSCI did not regulate properly or help enough.

107. We have considered AB’s position as he was less involved in the day to day care of residents. However we find that he was deeply involved in the running of the home, he was there a great deal of the time and must have known of much that was happening, he did not take action to stop poor practices and has to accept his share of personal responsibility for the failings in the home.

108. We find that both Appellants are unsuitable to work with vulnerable adults.

PoCA appeal
109. 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 extensive misconduct which, in the view of the Tribunal, amounted to institutional abuse. The tribunal taking into account all the evidence does consider that the continuation of the name of the Appellants on the PoVA list does make them unsuitable to work with children.

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

Miss M Roberts (nominated chairman)
Mr Michael Jobbins
Mr Christopher Wakefield