CW v Secretary of State for Health [2007] EWCST 1182(PC) (07 May 2008)

CW

-v-

SECRETARY OF STATE FOR HEALTH
[2007] 1182.PVA
[2007] 1223.PC

Before

MS M E LEWIS
(Nominated Chairman)
MR MICHAEL FLYNN
MS MICHELE TYNAN

DECISION

Heard on 23 April 2008 at the Care Standards Tribunal, 18 Pocock Street, London, SE1 0BW.

For the Appellant:		Not represented
For the Respondent:	Ms Kate Olley, instructed Jade Allan, Treasury Solicitor

1.	The Appellant, CW appeals against the decision of the Secretary of State made on 26 June 2007 to include her name kept on lists kept  (a) under Section 81 (1) of the Care Standards Act 2000 of individuals considered unsuitable to work with vulnerable adults, (the PoVA List) and (b) under Section 1 of the Protection of Children Act 1999 of individuals considered unsuitable to work with children (the PoCA List) and to direct under Section 142 of the Education Act 2002 that she be prohibited from teaching or working with children (List 99).

2.	   Although some of the documentation, in particular the appeal application referred only to ‘the PoVA list’, it was agreed at the start of the hearing that the appeal was against her inclusion in all three lists (‘the PoVA list’, ‘the PoCA list’ and ‘List 99’).

Directions

3.	Directions were given on 6 February 2008, 17 March 2008 and on 26 March 2008 a witness summons was issued against MO, who was a reluctant witness due to threats from CW.  On 6 February 2008 a restricted order was made to preclude identification of any vulnerable adult or the Appellant, such order to be reconsidered by the Tribunal at the conclusion of the hearing. Ms. Olly having raised no objection, we direct that the restricted reporting Order shall continue indefinitely. 

4.	In determining this appeal we have had regard to all the written evidence and the oral evidence of the Appellant CW, her manager SH and two care workers MM and MO. 

The Background

5.	 Before commencing employment with Jewish Care, a CSCI registered domiciliary care agency, as a Home Care assistant providing personal care to vulnerable adults, CW had previously been employed since 1995, by another agency in a similar capacity.

6.	Jewish Care referred the Appellant to PoVA in August 2006. They had employed the Appellant for 5 years as a home care assistant providing personal care to vulnerable adults, all elderly frail people living in their own homes. Concerns arose about her care of Mrs. E, Mrs. G, Mrs. S and Mr.B.  The allegations relating to Mrs. E were the most numerous and serious. In June 2006 the Appellant was suspended from duty after another home care assistant who worked with her (MM) reported she witnessed the Appellant repeatedly standing on the foot of Mrs E (a service user), instead of using her foot as a brake in front of Mrs. E’s paralysed leg as she had been trained to do. Mrs E required 2 carers to lift her because she was paralysed due to a stroke and MM witnessed this on approximately 14 occasions when working with CW. The Appellant's manner was aggressive, she would tell Mrs E to behave and would tell her to do things she knew she was incapable of such as moving her paralysed leg. Once when Mrs E once tried to hit out at the Appellant, she had raised her hand to Mrs E.

7.	MM reported that CW would disregard Mrs E's dignity, ignoring her wishes about not raising her nightdress until she reached the bathroom and humiliating Mrs E by stating that she had terrible skin and that she would not touch her as her skin was oozing .

8.	The Appellant was rude to another service user's wife Mrs B telling her to ring the office if she wished to find out what care her husband had just received, rather than going through it with her herself as to what she had just done, which was a requirement of Mr B's care plan. 

9.	Further, when assisting a service user (Mrs S) to bathe, Mrs S reported to MO that she had fallen as a result of the Appellant's improper handling techniques. 

10.	Mrs G was an elderly woman who required care morning and evening to get her to and from bed.  She complained about the Appellant’s manner over a period of time and did not want her to care for her again. 

11.	The Appellant filed only limited Grounds of Appeal. We clarified that she denied all the allegations, which she said were motivated by her fellow workers seeking to get back at her, although she didn't suggest any reason. She did suggest that it might be for reasons of ethnicity. Essentially she didn't know why the witnesses would speak against her. 

The Evidence 

12.	We first heard the evidence of SH, Home Care Manager at Jewish Care since November 2005. Mrs Hill has over 24 years' experience in the care sector, having trained as a nursing sister. Her attention was initially alerted to the Appellant during the hand-over period as she had 7 exclusions or requests from clients that she did not work with them. As the service only looked after 35 clients, that appeared very high. Because it was a small service SH knew all the carers and made on the spot visits to observe. The Appellant questioned her about the changes in contract, suggesting that she had been treated unfairly. SH agreed that this meant her contract hours were reduced but the Appellant was offered a core 10 hours per week and was treated no differently than other carers. There was no basis for saying that there was any favouritism or discrimination on ethnic lines in the way that the work was allocated. We clarified that the Appellant had never raised any concerns about the allocation of the work with SH. 

13.	On 15 June 2006, AA the Operations Co-ordinator told SH that MM had spoken to her about concerns about the care CW was giving.  SH carried out a supervision with MM on the same day and recorded her observations.  On the same day Mrs G had phoned to say that she didn’t want CW to visit her again as she did not like her manner.  

14.	On 21 June 2006 CW attended a meeting with AM the Service Manager. She has always denied the allegations, save that if she had stood on Mrs. E’S foot it was by accident. In her statement AM set out that in 2004 work concerns had been raised about CW's working practices. There were a number of complaints from clients requesting that she didn't visit them. Shadowing was put in place as well as regular supervision with reflection accounts and mentoring discussions with a manager. Three areas were identified for support, which were the need for understanding of issues faced by elderly clients in the community, greater understanding of the importance of effective communication and training in communication skills and dementia. There was a training programme showing that the Appellant had carried out a number of courses and an action plan was put in place and carried out over a 6 week period. 

15.	In 2005 there were a number of complaints that CW was rude, didn’t provide assistance to clients as requested and had an abrupt manner with little patience. Again regular supervision was undertaken to help her improve her practice. 

16.	In relation to the concerns raised by MM, AM lead led the investigation. She visited Mrs G on Monday 19 June 2006 following her complaint regarding the Appellant. She said that she had asked her to carry out a number of tasks and that she had refused.  Mrs G also informed that there had been problems over the years and she didn't know how to complain. She said the Appellant hadn't treated her well because she was old. 

17.	AM interviewed MM who made specific allegations that she had witnessed from April 2006, as set out in paragraph 6 above.  MO, the other care assistant from whom we heard evidence was approached and said that she had witnessed the Appellant standing on Mrs E's foot on one occasion which caused her distress and observed that she had been reluctant to carry out care for Mrs E as Mrs E indicated, by not letting Mrs E have a night dress down and not wanting to wait whilst Mrs E prepared to try to stand herself. She behaved aggressively. MO had challenged the Appellant, but was so upset by her behaviour that she asked not to work with her again. On occasions when they did she made sure that she took the lead on care. MO had also observed CW being rude to Mr B's wife by ignoring her and not wanting to give Mr B's wife information. Again she had not liked that and challenged the Appellant. 

18.	The disciplinary hearing was held in 2 parts. The first hearing was on August 2006 with HJ Service Manager in the chair and KK the Human Resources Advisor in attendance. AM, the Investigating Manager attended as did MO and SH as witnesses. MM was not available that day as she was ill and that was the reason for the hearing going part heard.  As with each stage of the process, a full transcript was recorded and included in the bundle.  AM set out the history of training and supervision with CW but said 'But there was always a feeling we hadn't got through to her.’ The HR Manager queried whether there was any mental problem. AM said she didn’t think that was the case because CW had shown that she could improve even if only for a short period. The HR Manager was concerned that CW hadn't fully understood the implications of the meeting and he wanted her to be represented. He fetched SC a representative of a union. He confirmed that he had spoken to the Appellant and she understood the rights and processes. She didn't wish to question AM but she had concerns that she was also the investigating officer and her Service Manager for the Jewish Home Care group. The Appellant added to that point before us, saying that AM was a friend of her second manager who preceded SH and with whom she had not got on.

19.	MO gave her evidence to the disciplinary hearing on the first occasion it met. MO agreed that CW had corrected her foot position immediately but disagreed about the whole care plan. She wanted to do things her way. We noted that the HR representative made a number of suggestions to CW about matters she might want to question about such as care plans and management styles etc. He also suggested that she might want to question MM who was on holiday. 

20.	At the reconvened hearing MM was still not available to attend.  The Appellant   said she didn't get on with MM.. It was put to the Appellant that the accounts of MO and MM were the same. The Appellant said that they were friends. She did however agree that she didn't talk to Mrs B, not because she was rude, but because she was worried about being misinterpreted.' 

21.	The decision letter was sent on the same day.. The Chair concluded that :-

(a)	You work inflexibility. For instance, you are unable to change the way you wash Mrs E, even when asked, or depart from routine when asked by Mrs G. One of the fundamental principles of home care is making a client feel comfortable, safe and knowing that their needs are met. On the evidence, we believe that your inflexible way of working caused distress to the clients including Mrs S and the relative Mrs B.
(b)	The way you speak and the words you have used to explain how you work with clients, suggest to me that your clients would feel uncomfortable being cared for by you and that in my opinion does amount to verbal aggression.
(c)	You have illustrated on 2 August and again today how you lifted Mrs E. On both days I could see how you stepped on Mrs E's foot which matches up with the statements from the 2 carers. One of these incidents was in November and the other during the period April to June 2006. This leads me to believe that there is a pattern of behaviour, which leads to physical abuse.

22.	The Appellant was dismissed without notice or payment in lieu in accordance with Jewish Care's disciplinary procedures. They referred the case to the Department of Health. On 18 September 2006 a letter was sent to the Appellant stating that she had been provisionally included on the PoVA list and making her aware of the options.

23.	Before us MM gave an account that was wholly consistent with her previous account to AM. She demonstrated the lifting technique, which we had also been shown by SH. This was the first time that the Appellant had the opportunity to cross-examine MM. MM agreed when questioned by the Appellant that she had given her advice and that she had shared personal issues with her. They got on well and chatted as they worked. MM, when the Appellant put it to her that she would have to live with her conscience emphasised that she had no personal malice to the Appellant but having witnessed her behaviour over a period of time said that she would have felt guilty if she had not spoken out.  She did not want the Appellant to loose her job but her PoVA training had emphasised that she must take such concerns to her manager, which is what she had done. She had on occasions drawn her concerns to the attention of the Appellant but she did to want to listen.

24.	Similarly the account of MO was wholly consistent with her previous account to AM and the disciplinary tribunal. . She had not wanted to attend due to a personal commitment and the Appellant’s behaviour to her when they had met by chance on 4 occasions after the Appellant was dismissed. The Appellant similarly complained of her behaviour to her on these chance meetings. On the key issues that were investigated, MO was clear that she was only saying what she had seen and had no personal grudge against the Appellant.   The Appellant did not dispute that MO had spoken to her about aspects of her care at the time, once they were out of the hearing of the client but said that it was not true or criticism was not justified.   

25.	When she gave evidence to us the Appellant confirmed that she denied the allegations.   She agreed that she had not actively challenged the disciplinary proceedings and would have left but had a car loan through her employer, which made it difficult to walk out. She emphasised that she had been a carer for a long time. We asked the Appellant why the witnesses were saying what they were and she said she did not know.  We encouraged the Appellant with our help to put her case, which with MM was that she had offered her personal advice, which she may not have liked. With MO she denied that she had acted as claimed.  She said that she had not been a member of the union so could not be represented although she accepted that been offered the services of SC. She said that he told her to get representation elsewhere but we clarified that she had not actively perused this, saying that it was very difficult.

26.	When cross examined by Ms. Olly the Appellant was asked to confirm that she had attended a number of training courses including course in 2004 and 2005 to improve her performance. She did not dispute that.  

The Law

27.	Under section 86(3) of the 2000 Act, if the Tribunal is not satisfied that the individual applicant (a) was guilty of misconduct (whether or not in the course of his or her duties) which harmed a vulnerable adult or placed a vulnerable adult at risk of harm and (b) is unsuitable to work with vulnerable adults, it must allow the appeal.  If the Tribunal is so satisfied, it must dismiss the appeal.

28.	The decision to place the applicant on the POCA list was as a result of her inclusion on the POVA list.  Section 92(4) of the 2000 Act provides that proof of misconduct relating to a vulnerable adult satisfies the requirement of misconduct relating to a child for the purposes of the POCA list.  However, the issue of unsuitability to work with children falls to be considered separately.

Burden and Standard of Proof

29.	Section 86 of the 2000 Act and section 4 of the 1999 Act place the burden of proof on the Secretary of State. The standard of proof required, in order to be satisfied as to the matters set out in section 86(3) of the 2000 Act, is that described in the decision of the House of Lords in Re H and others (minors) (sexual abuse: standard of proof) [1996] AC 563; [1996] 1 All ER 1 [1996] 1 FLR 80,  that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. 

Misconduct

30.	Miss Olly submitted that the Tribunal should be guided in this area by the observations made by the Tribunal in the case of Mairs v Secretary of State [2004] 269.PC.  The Tribunal accepted that submission. Inclusion in the list kept under section 81 of the 2000 Act is not intended to stigmatise, discipline or punish. The misconduct triggers consideration of the second criterion for inclusion - unsuitability to work with vulnerable adults.  

31.	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 a vulnerable adult or placed a vulnerable adult at risk of harm.  The Tribunal may have regard to:
(a)	the number of the incidents constituting the misconduct established for the purposes of section 86(3)(a) of the 2000 Act;
(b)	the gravity of that misconduct;
(c)	the time that has elapsed since that misconduct;
(d)	the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a vulnerable adult;
(e)	the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and
(f)	extenuating circumstances surrounding the misconduct.

This should not be regarded as an exclusive list.  The Tribunal may also
have regard to other admitted, undisputed or proved past conduct of the
applicant, whether good or bad.

The findings of the Tribunal on the evidence.

32.	The Tribunal has no hesitation in accepting as truthful all three witnesses who gave oral evidence. We are satisfied that each recounted what she had observed or heard impartially and accurately. We are satisfied that there was no 'side' to their evidence. Their evidence has been consistent throughout. 

33.	In reaching that conclusion we gave each piece of the evidence the most careful scrutiny.  The evidence of MM is key as she spent most time working alongside the Appellant and this hearing was the first opportunity for the Appellant to challenge her evidence.  Having heard MM we judged her to be a quieter character than MO, but equally firm in her recollections. She was less quick to challenge the Appellant but then did so and we are satisfied was eventually so concerned that she felt that she must speak to her line manager. We are wholly satisfied that in doing so, she was following her conscience and her training.  

34.	We judged MO to be, as she herself acknowledged a far more robust character and one of the more experienced carers. She immediately challenged the Appellant about her behaviour to Mrs. B and Mrs. E, which the Appellant agreed had happened. Mo was approached by her AM during her investigation and we are satisfied that she simply recounted what she had observed and said. 

35.	We carefully examined the reasons given by the Appellant for challenging the witnesses. The Appellant has not been consistent. We asked the Appellant on a number of occasions throughout the hearing in a number of ways to explain why her fellow care workers would speak against her. Contrary to what she had suggested in her written documentation she didn’t suggest that MM was being malicious. She simply stuck to the point that she wasn't telling the truth. . 

36.	The Appellant made vague and unspecified allegations that those who spoke against her were motivated by issues of ethnicity.  We are satisfied that those allegations, are not made out. Jewish Care had a number of carers from different ethnic backgrounds. Whilst the Appellant, along with all other workers had her contract of employment changed a few years ago she was in fact, we are satisfied offered extra hours commensurate with other workers. 

37.	The Appellant has raised no real objection to the investigation and disciplinary processes set in place by her employer, save that there was no independent investigator. In our view the investigation was thorough, not simply relying on what MM had said but checking out the information against other sources.  The Appellant has not established why an independent investigation would have made any difference.  It would not have changed what those who worked closely alongside her said. 

38.	The decision of the Disciplinary Tribunal, convened over 2 days is not decisive of the issues that we must decide. As an expert Tribunal, we may apply our own knowledge of disciplinary procedures. In our view the investigation was robust investigation, carried out at an early stage and fully documented. The hearing was convened within a reasonable period and the process was carefully explained to the Appellant. We noted that the Human Resources Manager was concerned that she did not always appear to appreciate the gravity of her position.  We had the same concerns and were concerned that the Appellant had we find, made no real effort to access advice and /or representation.  

39.	Having made our own independent investigation of the evidence we find no reasons not to adopt the findings of the Disciplinary Hearing set out in paragraph 22 above. We find that the Appellant was inflexible in her work and failed to respond to the needs and requests of her clients, thereby failing to respect their independence and dignity. We are satisfied that she was verbally aggressive. In particular she was on at lease 14 occasions physically abusive to Mrs. E. We are satisfied that the case of misconduct has been made out.

40.	We then look at suitability. It was striking that the Appellant offered no remorse for any pain or distress that she had caused the elderly or vulnerable people in her care. She showed no contrition. Quite simply she is not prepared to listen to any criticism of her. She simply relies on the fact that she has been a care worker for a number of years and fails to reflect upon her performance. 

41.	What is of particular concern in this case is that the Appellant would normally work alone. By definition she is working with frail, vulnerable and elderly people who may not be able to vocalise their wishes or concerns or be too frightened to do so.

42.	We are entirely satisfied that the Appellant was offered adequate training, supervision and management. In 2004 and 2005 specific pieces of training were put in place to help the Appellant address deficiencies in her performance, but any improvement was short term.  The Appellant's unwillingness to change has been a continuing pattern. As she does not accept the misconduct there can no reason to conclude that there is a reasonable prospect of change. 

Conclusions

43.	The Tribunal therefore concluded that the Appellant is unsuitable for work with vulnerable adults and children and confirms her inclusion on all three lists.  

44.	The decision of the Tribunal was unanimous. 

Signed

Melanie Lewis, Chair