Linda Johnston
v
Secretary of State for Health

[2007] 1064.PC/1065.PVA

BEFORE
Mr Laurence J Bennett (Chairman)
Ms Denise Rabbetts
Mr Graham Harper

On
19 and 20 December 2007

At
Liverpool City Magistrates Court, Victoria Street, Liverpool

Representation

1.	The Appellant, Mrs Linda Johnston was represented by Mr Steven Ball, a Barrister instructed by EAD Solicitors.  Evidence was given at the hearing by Mrs Johnston and her witnesses, Ms Karen Lafferty and Ms Paula Prescott.  

2.	The Respondent Secretary of State was represented by Ms Sarah Jane Davies, a Barrister instructed by the Treasury Solicitor.   Evidence was given at the hearing on behalf of the Secretary of State by Mr Gary Sheehan, Mrs Sandra Cunnah, Ms Lauren Culshaw and Mrs Lisa Smith.

Appeal 

3.	Mrs Johnston appeals under Section 86(1)(a) of the Care Standards Act 2000 against the decision of the Secretary of State for Health under Section 81 of that Act to include her in the list of individuals who are considered unsuitable to work with vulnerable adults (POVA List).

4.	Mrs Johnston appeals under Section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State under Section 1 of that Act to include her in the list of individuals who are considered unsuitable to work with children (POCA List).

Preliminary 

5.	At the start of the hearing the Tribunal made an order under paragraph 18(1) of the Protection of Children & Vulnerable Adults and Care Standards Regulations 2002 (the Regulations):  There be a Restricted Reporting Order under Regulation 18(1) prohibiting 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 any service user, such Order to continue in force until the conclusion of the hearing and the Tribunal to consider its continuation at that time.

6.	In accordance with directions made prior to the hearing the Respondent submitted a consolidated bundle this included the Appellant's documents and statements of each party's witnesses.   

Evidence and submissions

7.	The Secretary of State's decision to include Mrs Johnston on the POVA and POCA Lists was based on the misconduct scheduled as:

ITEM	DATE	ALLEGATION	
1	7 October 2005	Making colleague LS put service user MC’s “comfort stick” back on the dining room floor and insisting he retrieve it.	
2	16 October 2005	Forcing service user MC to retrieve his “comfort stick” from the toilet and/or flushing the toilet while his hand was in it retrieving the stick.	
3	21 October 2005	Knowingly sending service user JC to bed without any evening meal.	
4	22 October 2005	Suggesting to colleagues that JC would look like a “slaughtered pig” when menstruating.	
5	22 October 2005	Not assisting service users to get out of bed until the afternoon.	
6	27 November 2005	Not assisting service users to get out of bed until 2.00pm.	
7	27 November 2005	Referring to service user MH as “fat bastard” in the presence of service user JC.	
8	27 November 2005	Failing to administer diabetes medicine to service user MH with food as required.	
9	27 November 2005	Telling service user JC “you haven’t got the brains to get out of bed yourself.”	
10	27 November 2005	Deliberately wetting service user JC with the shower.	
11	27 November 2005	Instructing junior colleague LC to put the wrong times in the service users’ diary entries.	
12	In or about September or October 2005	With reference to attendance at the Hycap disco for people with disabilities asking colleague LC “why do you want to hang out with them mongs?”	
  
	Each of the allegations arose from information provided by Mrs Smith and Ms Culshaw.

8.	In June 2003 Mrs Johnston joined Alternative Futures, a Domiciliary Care Agency as a Care Support Worker.  She became part of a team managed by Mrs Jayne Rawlinson supporting three Service Users, tenants in a supported living arrangement in a house in Wellbrow Road, Huyton near Liverpool.  Each service user MC, MH and JC has significant core requirements arising from learning difficulties and mental health difficulties.  MC also has a visual impairment and tendency to self-harm, MH has diabetes.  

9.	Mrs Johnston explained that she met by chance Mrs Prescott, a support worker with whom she worked at Hillside Nursing Home some years previously.  This meeting led her to consider working in a support rather than care setting.  She stated that she got to know the tenants well and considered that the team was successful in meeting their needs.

10.	Around September 2005 Ms Culshaw and Mrs Smith were employed by Alternative Futures to work at the house.  Although Mrs Smith had experience in social services work and both had personal experience relating to members of their own families, neither had worked within a similar supported living arrangement.  On joining they started LDAF training and were expected to shadow more experienced members of the team as a supernumerary for a week.  Thereafter they continued to shadow but as a member of the team.  Consequently, Mrs Johnston was often on duty with one other, either Mrs Smith or Ms Culshaw.  Mrs Johnston stated at the hearing that as they were inexperienced she felt as if she was looking after four people, not just the three tenants. She said she was not confident to leave them alone particularly when tenants were challenging.

11.	On two occasions during October 2005 Mrs Smith observed incidents relating to MC's comfort stick which caused her concern.  She mentioned them to Mrs Rawlinson but was not aware of action being taken.  On 24 October 2005 she contacted Mr Kevin Walters, a member of Alternative Futures staff stating that she was so concerned she wanted to resign.  She informed Mrs Rawlinson who asked her to reconsider.  Her complaints in essence related to Mrs Johnston's conduct.  She was assured by Mrs Rawlinson that she would not be asked to work on shifts with Mrs Johnston although she has since twice.

12.	On 2 December 2005 Mrs Smith had a one to one supervision meeting with Mrs Rawlinson.  During the meeting mention was made by Mrs Rawlinson of other incidents notified by Ms Culshaw.  Mrs Smith then gave Mrs Rawlinson further details.  Mrs Rawlinson informed Mr Kevin Maher, the Service Manager.  Mrs Johnston was subsequently suspended.

13.	Following an investigation disciplinary action was taken by Alternative Futures which resulted in the termination of Mrs Johnston's employment.  The disciplinary process included a hearing which took place on 2 June 2006.  A letter containing the decision dated 7 June 2006 includes: "After careful consideration of all the evidence presented at this hearing, the panel found that the allegation was proven for the following reasons:
•	You physically abused a service user with a visual impairment by flushing the toilet whilst he was retrieving a stick from the toilet
•	You verbally abused service users by making derogatory remarks to the service user and staff about a service user and disabled people in general
•	You abused a service user by neglecting to meet her dietary and personal care needs
•	You breached the code of conduct for social care workers 
The out come of this hearing is that you are summarily dismissed from your employment with Alternative Futures.  This dismissal is effective immediately and without notice."

14.	Mrs Johnston appealed against this decision and was provided an opportunity to submit character references. Alternative Futures confirmed its decision.  The parties advised that a subsequent Employment Tribunal Claim brought by Mrs Johnston was settled without admissions.

	Schedule allegations 1 and 2
15.	MC has a 'comfort stick' which is a short upvc stick which he likes to hold.  On 2 October 2005 Mrs Smith saw that MC had dropped the stick whilst at the dining table.  She picked it up and brought it to the kitchen to wash.  Mrs Johnston seeing this told her to put it back on the floor and not to give it to him stating he had to find it himself.  Mrs Johnston said his care plan did not require this and he could learn how to find his own stick.  A letter from Alternative Futures dated 21 August 2006 includes 'Alternative Futures is satisfied that it was reasonable for Mrs Johnston to ask the service user to pick up his stick when he dropped it." Ms Davies on behalf of the Secretary of State submitted that this was disrespectful and undignified action.  

16.	It is agreed that on 16 October 2005 MC dropped his comfort stick into the toilet pan.  Mrs Johnston stated at the hearing that although she did not know why and regretted it, she asked him to put his hand in the toilet to retrieve it and put it in the sink.  She flushed the toilet first to make sure the stick was clean before MC retrieved it.  Mrs Smith understood although she could not directly see that the toilet was flushed whilst MC was retrieving his stick, this is denied by Mrs Johnston.  Mrs Smith stated that "Linda noticed that MC did not have his stick and asked me to check MC's bedroom.  I could not find a stick in his bedroom and returned to the bathroom.  Linda stated 'I know where it is.'  Linda pulled MC up from the toilet and pushed down to a kneeling position in front of the toilet.  She pushed MC's hand down the toilet and flushed it while MC was still looking for his stick.  I was stood at the door while she did this.  After MC had retrieved the stick Linda supported him in washing his hands but did not wash the stick."  

	Schedule allegation 3
17.	On 21 October 2005 JC a service user arrived at the house at about 8.45pm having been with Mrs Smith to Hycap Club.  Mrs Johnston said that she asked JC whether she had eaten anything at the club and was told that she had a can of coke, Mars bar and some crisps.  Mrs Johnston stated she was worried because JC returned much later than expected.  This was because Mrs Smith who was still shadowing joined transport for the next door house rather than accompany JC on her own in a taxi.  Mrs Johnston said that JC did not ask for food and that she considered it appropriate that she went to bed without the usual snack supper.  Mrs Smith considers that JC was distressed and wanted some food and that Mrs Johnston used a 'nasty' tone of voice and pushed JC upstairs.

	Schedule allegations 4 and 5
18.	The following day Mrs Johnston and Mrs Smith were on duty.  Mrs Smith stated that "The next day, 22 October 2005, Linda and I were on the day shift and were responsible for supporting the service users out of bed as they were not capable of doing this unsupported.  Linda told me not to assist the service users get out of bed at the normal time 9.00am and 10.00am.  MC was got up at 12pm.  MC suffers from incontinence at night and would have been wet.  MH was got up at 1.30pm.  MH is a diabetic and it is important that she receives her medication and food at the right times.  Lastly at 2.00pm, JC got up.  On this day JC was menstruating, something that makes her very anxious and she does not like it at all.  When I commented that we would need to get JC up because of this, Linda said she would 'look a pig being slaughtered.'  JC's last drink would have been at 7.00pm the previous day, some 17 hours earlier.  Linda was responsible for filling in the daily diaries of the service users and did not record the time that they were actually taken out of bed.  I witnessed Linda filling in the incorrect times on the Daily Diaries (9.30-11) for all 3 service users."

19.	Mrs Johnston denies that service users were got up from bed late and stated she witnessed Mrs Smith fill in incorrect times in the diary.  She said that whilst there were insufficient staff to perform all necessary duties, service users were got up in time.  She denied that she used the words 'slaughtered pig' and said this was not her expression but was used by another support worker, Ms Rachel Billington.  Mrs Smith was mistaken in attributing it to her.  Mrs Johnston stated that all service users were capable of getting themselves out of bed but did not do so unless told.  

	Schedule allegations 6 - 11
20. 	On 27 November 2005 Ms Culshaw was on duty with Mrs Johnston.  Ms Culshaw stated that JC was not helped out of bed until around 1.10pm.  Her statement includes:  "MH was to be picked up by her sister in the afternoon and so at about 12.15pm Lind told me to help her get MH out of bed.  It was not until 1.10pm that JC was helped out of bed.  As JC was helped into the bath she said to Linda, 'you left me in bed.'  Linda responded, 'you haven't even got the brains to get up yourself.'  Linda told me to record in the service users' daily diaries times that they had been supported out of bed between 9.00am and 9.30am.  As Linda was in charge I did as she told me to do.  I regret doing so now but I felt intimidated by Linda."  Mrs Johnston denies that this occurred referring to the number and experience of staff and her need to carry out most of the work herself because others were merely shadows.

21.	Ms Culshaw stated that after her bath JC was in the bathroom drying herself whilst Mrs Johnston was cleaning the bath with the shower.  JC left the bathroom but returned.  Ms Culshaw stated that although she was in the office adjacent to the bathroom she saw JC jump back and went to see why.  Her statement includes "JC said to Linda 'you wet me.'  I asked Linda 'Have you just soaked JC?'  Linda said 'It slipped.'  Linda seemed to find the situation funny and laughed about it.  At no point did she apologise to JC."  Ms Culshaw said she observed that JC was wet on her chest and legs.  

22.	Ms Culshaw stated that on 27 November whilst service users were in bed at about 11.00am they went to give their medication.  After giving JC her medication she stated that Mrs Johnston said "let's go and give the other fat bastard hers" referring to MH. Ms Culshaw understood the medication should be given with food.  Mrs Johnston stated this is not a requirement, MH's care plan does not mention this and that it was generally given with a drink, not least because breakfast was ready for service users as soon as they went downstairs.

23. 	Mrs Johnston stated she did not call JC to the bathroom but JC ran at her from the bedroom, she thought she was going to attack her and turned round whilst holding the shower; this wet her legs.  She does not consider this more than a minor incident.  She stated service users were capable of getting themselves up and running their own baths.  Service users' support plans indicate that they can get up themselves and run their own bath.

	Schedule allegation 12
24.	Lauren Culshaw reported that she had heard Mrs Johnston use derogatory terms on several occasions.  Her statement includes:  "This was not the first time that I had heard Linda use derogatory terms in relation to disabled people.  On a previous occasion I had asked Linda if I could take JC to the Hycap disco, a disco for physically and mentally disabled people and she had replied, 'why do you want to go there with them mongs?'"  Mrs Johnston said that she did not refer to anyone or use those words.

	General
25.	Mrs Johnston stated that there were staffing difficulties at the home not least because Ms Culshaw and Mrs Smith were appointed simultaneously and as soon as they were shadowing became part of the staffing rota.  Despite their previous experience caring for family members, care  of the elderly and in social care contexts they had not previously supported people who had particularly challenging behaviour and complex requirements.  She found they were not able to provide the support necessary for the duties involved and that she ended up carrying out most of the activities; they merely watched and were of little help.  She said she mentioned this to Mrs Rawlinson and to senior Alternative Futures management.  She stated Ms Culshaw was lazy and spent a lot of time on her mobile phone, Mrs Smith was timid.  She mentioned an occasion when Ms Culshaw was clearly suffering from the effects of a party the night before.  Mrs Johnston had arrived at work late to find her asleep.  Ms Culshaw had cut her foot and Mrs Johnston sent her to hospital for treatment.  Her foot had become infected and she was off sick for a few days.  On this occasion and others Mrs Johnston was required to do back to back shifts.  She considers Ms Culshaw may well have made allegations because of resentment arising from this.  Ms Culshaw stated she was glad to be sent home and appreciated it because she had not realised her foot had become infected.

26.	Mrs Johnston considers Mrs Smith not to have sufficient presence or authority to support service users and cope with people with challenging behaviour.  She considers she does not appreciate the techniques necessary and may have misinterpreted what happened.  Mrs Johnston emphasised that the house was known as the "heavy house" because of the demands of the service users.

27. 	Mrs Johnston stated that staff did not have sufficient training, particularly in relation to restraint and control and techniques to reassure and divert attention to diffuse situations.  They were given only a two day course.  She believes that these service users require people who have had the full five day training.  She believes that Alternative Futures cut back on staffing for budgetary reasons and did not provide resources necessary to properly meet service users' needs, particularly during periods of particularly bad behaviour.  She used terms at the hearing such as "JC had been on one – she was just crazy and we PRN'd her."

28.	Mrs Johnston gave examples of difficult behaviour particularly an occasion when advice was obtained from Mrs Cunnah by telephone during an incident relating to JC.  She stated that Mrs Cunnah told her that she should be taken to "the lock up" a reference to the local psychiatric assessment unit.  That incident escalated to the point that MH ran out and bit Mrs Johnston who went to hospital for injections.  This was not noted in either an incident form or accident book.

29.	Mrs Johnston stated that Alternative Futures regarded her as a trouble maker and whistleblower because she drew attention to deficiencies she found in the service.  She considers management attitude to her was coloured by this.

30.	Mr Sheehan, Regional Director with Alternative Futures Group gave details of the organisation and his overall responsibilities.  He described the procedure followed after the allegations about Mrs Johnston had been made.  He stated that the house was one of some seventy under his responsibility and he did not have direct knowledge of the events.  He denied that treatment of Mrs Johnston had been coloured by any view that she was a whistleblower.  He agreed that scheduled allegations 1, 5 and 10 had not been upheld during the disciplinary hearing as there was confusion about two similar incidents and the exact circumstances had not become clear until after the investigation.  Further, the benefit of doubt was given in relation to uncorroborated allegations.  It was appropriate to rely on other allegations where there was a weight of evidence.  He explained the induction and training received by new staff and denied "cutting corners."  He acknowledged that Alternative Futures did not carry out an investigation following Mrs Johnston's injury occasioned by MH, this had not come to his attention until the disciplinary hearing and even then only as "a fly away remark."  He stated that if a manager requires more staff he would expect to hear from her.

31.	Mrs Cunnah, the Locality Manager with Alternative Futures responsible for seven supported living accommodations oversees daily running of the houses in particular 9, Wellbrow Road.  She gave details of training for support workers and tailored training around individual service users appropriate for challenging behaviour.  She did not consider there was a need for physical intervention in the particular house.  Techniques for diversion and diffusion were appropriate.  The appropriate staff ratio was two on duty supporting three people.  Although there are now sleep shifts at night, at the relevant time, there were waking night shifts.  She considers the staffing levels in the house adequate as assessed by herself, senior management and Social Services and did not find a need to apply for more support.  This was not requested either by Mrs Rawlinson or Mrs Johnston.

32. 	Mrs Cunnah acknowledged that JC was going through a "stressful time" and her mental health was deteriorating.  She stated it was usual practice for new inexperienced supporters to be supernumerary for one week then subject to manager's consideration then to shadow whilst gaining experience.  Mrs Rawlinson was on duty between 9.00am and 5.00pm for five days each week operating supernumerary hours.  The shift pattern was 7.30am – 3.00pm; 2.45pm – 10.15pm each with two staff and an individual waking night member of staff between 10.00pm and 7.00am.  She was not aware of any conversations which indicate that the staff at Wellbrow Road did not get on or that there was tension.  She also explained that there is another house immediately adjacent, that is the other half of the semi-detached which constitutes 9 Wellbrow Road.  Between them there were always four staff on duty.  She stated that her organisation ensures that people whistleblow, it is encouraged. Mrs Johnston did not bring concerns either related to the allegations or deficiencies.

33.	Mrs Lafferty a qualified RGN Nurse worked with Mrs Johnston during the period to 2003 at Hillside Nursing Home which had a young disabled unit for people with challenging behaviour.  She found her to be a caring and approachable, open, capable and self motivated.  She is surprised by the allegations and had not known about them prior to the hearing.

34.	Mrs Prescott also met Mrs Johnston at Hillside Nursing Home prior to 2003.  She currently works for Alternative Futures elsewhere.  She spoke highly of Mrs Johnston who guided her when she first joined Alternative Futures and was her mentor for two weeks when she joined.  She found her patient, understanding, caring and supportive of residents and staff.   She considers she is conscientious and works hard.  She was not aware of the full details of the allegations prior to the hearing.

	Submissions
35.	Ms Davies on behalf of Secretary of State submitted that many of the facts comprising the misconduct were not challenged.  No cogent reasons had emerged for doubting the Secretary of State's witnesses.  Significant or material differences had not emerged during questioning.  Suggestions that Ms Culshaw might have a motive for misrepresenting the truth had not been mentioned before, the present hearing was some two years after the event.  Neither she nor Mrs Smith had any reason to put themselves through the ordeal of the hearing at this stage.

36.	Ms Davies drew attention to the denial that Mrs Johnston was considered a whistleblower and that the evidence did not support the suggestion that staffing levels were inadequate.  This had not been identified by a supervisor or CSCI.  

37.	Ms Davies commented on the individual allegations of misconduct but accepted in relation to allegation 8 – the failure to administer diabetes medicine to MH Hull with food that there was no clear evidence in the care plan that this was a requirement.

38.	Ms Davies submitted that the misconduct caused harm to the service users at the very least distress, concern, anxiety and upset.  The harm arose from actions which were not as a result of a lack of experience or training and if accepted were without an acknowledgement of wrongdoing, contrition or insight. There could be no confidence that such misconduct would not be repeated.

39.	Mr Ball submitted on behalf of Mrs Johnston that the hearing had been "cathartic" for her.  It was her first opportunity two years after the event to provide her side of the story as the employment proceedings had been settled.  She had not had to meet the allegations before.  He drew attention to the allegations that had not been accepted at the employer's disciplinary proceedings and that there had been insufficient evidence for the Police to take matters further.

40.	Mr Ball submitted that if Mrs Johnston was prone to this sort of misconduct he expected it would not have been isolated to the few days in October and November 2003 and if over a longer period no evidence was produced.  He emphasised that all the Secretary of State witnesses still worked for Alternative Futures and had the benefit of hindsight.
41.	Mr Ball submitted that Mrs Cunnah was defensive and guarded about training given to Mrs Smith and Ms Culshaw and that Ms Culshaw was particularly young and inexperienced, all her allegations related to one day when there was tension in the air because of her previous night's activities.  The allegation of abusive names was not in her first account.  He submitted that Mrs Smith was continually threatening to leave the house but did not.

42.	Mr Ball drew attention to Mrs Johnston's expression of regret over the retrieval of MC's stick from the toilet.  He stated this shows that she has insight and has learned and acknowledged a mistake.

Findings of the Tribunal on the evidence

	Schedule allegations 1 and 2
43.	From the evidence provided and lack of dispute about the underlying facts we conclude that the incidents giving rise to these allegations took place.  Taking into account the nature of the incidents, whether or not there was a genuinely held view that MC should find his own comfort stick, bearing in mind the placing on the floor was contrived and the connotation of retrieval from the toilet, we consider that both incidents amount to misconduct and should not have taken place.  We find Mrs Johnston was responsible in each case for that misconduct.  There is no dispute that the stick provides comfort to MC.

	Schedule allegation 3
44.	The underlying facts are not disputed, JC went to bed without an evening meal after she had returned to the house.  Her return was after supper time and neither party disputes that she had had something to eat at the club.  On balance of probabilities we do not find that misconduct is established.  The circumstances nevertheless illustrate a regime followed by Mrs Johnson where little scope for flexibility was tolerated or encouraged.  Her acknowledged frustration at this departure from routine was obvious.

	Schedule allegation 4
45.	It is clear that the expression "slaughtered pig" is something that was used at the house by staff.  Mrs Johnston's evidence confirms this to be the case.  While she stated she herself did not use it, we note that Mrs Smith who had joined the house a matter of weeks before would unlikely have experienced JC's previous menstruation.  Taking into account Mrs Johnston's familiarity with the phrase and lack of prior opportunity for Mrs Smith's exposure, on balance of probabilities we conclude that Mrs Johnston did use the phrase.  The phrase is offensive and in our view particularly inappropriate for a service user relating to her personal functions and in circumstances where it was known by Mrs Johnston that she was sensitive to this bodily function.  We find this was misconduct which would have caused distress.

	Schedule allegations 5 and 6
46.	These allegations were made by different people on different occasions.  We note from Mr Sheehan's evidence that the full facts did not emerge until after the initial investigation.  Taking into account the evidence we have, we accept there were two occasions and in the light of the evidence of Ms Culshaw that house records were falsified by her during a shift with Mrs Johnston that these incidents occurred.  They form a pattern.  Mrs Johnston referred to lack of staff and her increased workload because of her perceived lack of help.  This is consistent with what happened but does not excuse it.  Whilst it was stated that service users could get themselves out of bed, it is obvious they did not do so unless called upon, that was the routine imposed.  We find that the failure on these two occasions to assist service users was misconduct which obviously affected the quality of their day and caused them harm.

	Schedule allegations 7, 8, 9, 10 and 12
47. 	Bearing in mind the nature of the evidence we do not find these allegations established.  The information we have does not on the appropriate balance of probabilities support a finding. Whilst we accept the credibility of the Secretary of State's witnesses and understand their impression of events, we have taken into account their experience and knowledge of service users requirements and their assumptions of elements of the events which they could not have seen.  There is insufficient evidence to corroborate each of the elements required to find these incidents took place as alleged.

	Schedule allegation 11
48.	There is no doubt from the records and admission of Mrs Johnston that the relevant diary entries were falsified.  Mrs Johnston acknowledged this to be the case but denies direct involvement.  It is clear from her evidence that she was in practice and considered herself to be the senior person in charge of the shift and those with her were shadows.  We do not find it credible that the shadow would have falsified these records on her own initiative.  Ms Culshaw has acknowledged her own involvement.  Notwithstanding a possible motive to mitigate her own responsibility we find that Mrs Johnston instigated the false entries and was additionally responsible for severe misconduct in that she caused a junior member of staff shadowing her to do this.  We find that she was guilty of misconduct in that regard and false records would have placed service users at risk of harm.  Accurate records are critical to their support.

The Law

49.	The Tribunal's procedure is governed by the Regulations.  

50.	Appeals against inclusion in the Protection of Vulnerable Adults List are governed by Section 86 of the Care Standards Act 2000.

51.	By Section 86(3)(a) if "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 duties) 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 ..…"

52.	We consider that Section 86(3)(b) relates to the present and the Appellant's current suitability at the date of the hearing is to be determined by the Tribunal.

53.	Under Section 1 of the Protection of Children Act 1999 the Secretary of State must 'keep a list of individuals who are considered unsuitable to work with children.  By Section 4(1) an individual who is included in the list may appeal to the Tribunal against the decision to include him in the list.

54.	By Section 4(3) if "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 duties) which harmed a child or placed a child at risk of harm, and (b) that the individual is unsuitable to work with children, the Tribunal shall allow the appeal and direct his removal from the list; otherwise it shall dismiss the appeal …"
55.	In Mrs Johnston's case the decision to place her on the POCA List was as a result of her inclusion in the POVA List.  In that case, Section 92(4) of the Care Standards Act 2000 provides that misconduct relating to a vulnerable adult for the purposes of the POCA List satisfies the requirement of misconduct relating to a child.  However, the issue of unsuitability to work with children falls to be considered separately.

56.	The burden of proof is upon the Secretary of State.  The standard of proof is the civil standard upon a balance of probabilities.

Conclusions with reasons

57.	Taking into account our findings we conclude that Mrs Johnston has been guilty of misconduct in the course of her duties which harmed a vulnerable adult or placed that vulnerable adult at risk of harm.

58.	We consider Mrs Johnston's misconduct consistent with a misguided perception of the role of a supporter in such an arrangement.  She appears to have operated a regime which centred upon the establishment of a strict and inflexible routine so that staff controlled the lifestyles and activities of the service users to a degree beyond that appropriate for their status as tenants.  The imposition of that regime led to a lack of flexibility or tolerance of change particularly when new staff were employed with fresh and different attitudes to their role.  Mrs Johnston clearly considers she had the experience of the service users and that her authority in that regard should not be challenged.  We do not agree.  We consider the misconduct that occurred showed her attitude was lacking and against service users' interests, it reduced their opportunities for independence in choice or action and in denying them such basic opportunities caused them harm.

59.	Mrs Johnston did not give us reason to consider she understands the consequences of how she conducted herself and consequences of her misconduct.  Her expression of regret in relation to the retrieval of the stick from the toilet does not indicate any greater insight.  We conclude that she is unsuitable to work with vulnerable adults and that her appeal cannot succeed. Taking into account the capabilities of service users and their reliance on their supporters we also conclude that Mrs Johnston should remain on the List maintained by the Secretary of State of persons prohibited from working with children.

Restricted Reporting Order

60.	We make order in the terms of the Restricted Reporting Order set out in paragraph 5 save that it shall continue indefinitely.

Order

Our unanimous decision is: 

Mrs Johnston's appeal is dismissed.

Mr Laurence J Bennett (Chairman)
Mrs Denise Rabbetts
Mr Graham Harper

Date:	7 January 2008