NJ v The Secretary of State for Health [2006] EWCST 727(PVA) (27 March 2008)

NJ

-v-

Secretary of State for Health
[2006] 727.PVA
[2006] 728.PC

Before:

Mr A Lindqvist (Nominated Chairman)
Mrs C Trencher MBE
Mr T Greenacre

DECISION

Heard on the 4th, 5th and 6th March 2008

For the Appellant:  Mr. David Pittaway Q.C. with Mr. Jamie Carpenter, instructed by Mrs. Susan Hotchin, Royal College of Nursing,

For the Respondent:  Mr. Alexander Ruck Keene instructed by Mona Fawaz, Treasury Solicitor.

1.   The appellant (NJ) appeals against a decision of the Secretary of State made on the 30th of March 2006 to include his name 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 he be prohibited from teaching or working with children (List 99).

2.   NJ is a care worker of some 34 years standing with, until the events giving rise to this appeal, an unblemished record.  In March 2004 he was the manager of a small home in the West Midlands for four adult men with severe learning difficulties.  On the evening of the 26th of March, one of those four residents (hereinafter ‘A’) made communications largely by gesture suggestive of a sexual assault by NJ.  He was suspended forthwith and interviewed by police on the 28th of March and bailed.  The Crown Prosecution Service decided that there was insufficient evidence to prosecute NJ, a disciplinary hearing took place on the 8th November 2004 and the 7th December 2004; the decision was to dismiss NJ.  In April 2005 his appeal against dismissal was rejected.  Six weeks earlier, NJ's employer had made the reference to the Secretary of State, and in May 2005 the Secretary of State provisionally included NJ's name on the three lists.  NJ appealed to the Employment Tribunal against his dismissal.  After a hearing in November 2005 that appeal was dismissed in February 2006.  An appeal to the Employment Appeal Tribunal also failed.  NJ's appeal against the Secretary of State's decision was made on the 20th of June 2006.

Directions

3.   Directions were given on the 8th and 15th September 2006 leading to a Preliminary Hearing on the 25th of October 2006.  It was then directed that the appellant have liberty to instruct a neuro-psychiatrist and a physician, that disclosure be made by the parties and by NJ’s employers, that witness statements being exchanged, a bundle be prepared and that the appeal be heard in March 2007.  Further delay ensued, further directions were given on the 20th of April 2007 and again on the 25th of June 2007, the latter for extensive third-party disclosure and for a hearing in December 2007.  Again, it was not to be, further directions for disclosure were given on the 24th of October 2007 and the hearing date was put back to March 2008.

A restricted reporting order was made on the 25th October 2006 to preclude identification of any vulnerable adult or of the appellant, such order to be reconsidered by the Tribunal at the conclusion of the hearing.

Evidence

4.   The Tribunal heard oral evidence for the respondent of the consultant psychiatrist who had treated A, the vulnerable adult concerned, for some 12 years, of  S, one of the two care workers S and T, with whom A had attempted to communicate on the evening of the 25th March 2004.  The Tribunal did not hear from T - she was unwell and unable to attend; the respondent’s application for an adjournment so that she could attend was refused shortly before the hearing. However, the Tribunal read the statement of T, it also heard the evidence of a A’s key worker, U, and of an operations manager, V.

5.   For the Appellant, the Tribunal heard the oral evidence of the appellant himself and evidence from the police surgeon who had examined A and from B, a nurse who had been much involved in A’s care from 1987 to 1990. The Tribunal viewed a DVD of A’s interview by two police officers, in the presence of U. 

6.   The Tribunal was impressed by the witnesses who gave oral evidence; each recounted what he or she had observed or heard without attempting to add any gloss or to make points favourable to his or her ‘side’. There were inevitably, minor discrepancies, but they were of little significance. The Tribunal had no hesitation in accepting the evidence of all the witnesses.

Burden and Standard of Proof

7.   No issue arose as to the burden of proof, Counsel agreed that the burden was on the respondent to show both misconduct and unsuitability and it is clear from the wording of the Acts (“ if the Tribunal is not satisfied of either……… misconduct and…… that the individual is unsuitable…….. the Tribunal shall allow the appeal”) that that is where the burden lies.

8.   Such clear simplicity did not, alas, extend to the question of the standard of proof.  Common ground extended little further than the silence of the regulatory provisions on the matter.

9.   Mr Pittaway, for the appellant, advocated the criminal standard or, failing that, a heightened civil standard and amounting effectively to the same thing.  For the respondent, Mr Ruck Keene accepted a heightened civil standard, but not, either directly or indirectly, the criminal standard.  The last piece of common ground between the parties’ advocates was that the so-called heightened civil standard does not represent a third level somewhere between ' balance of probability', and 'beyond reasonable doubt ' (to use the old-fashioned term). The heightened civil standard is one of proof on the balance of probability but with the caveat that the cogency and probative value of the evidence must be commensurate with the nature (including probability) of the finding sought and the gravity of the consequences of such a finding.

10.   Mr Pittaway, unable to point to any instance in which a Care Standards Tribunal had applied the criminal standard, argued thus.  The allegation against the appellant was a very serious one with grave consequences, if proved.  In the cases of R(Doshi) v. Southend-on-Sea PCT [2007] EWHC 1361 (Admin) and the earlier case of R(McCann et.al) v. Manchester Crown Court [2003] 1 AC 787, the criminal standard was held to be appropriate (in the former case.  ' it was unwise of the tribunal '  not to adopt it).  That was a case of serious sexual allegations against a doctor.  The case of McCann, concerned anti-social behaviour orders - again potentially serious in their eventual outcome.  In Re a Solicitor [1993] QB 69, a divisional Court held that the criminal standard was appropriate to a complaint of misconduct by a solicitor, at least where the alleged misconduct was tantamount to a criminal offence (as it was in the case of NJ).  A lower standard, Mr Pittaway suggested, might result in Tribunals being used to secure findings, where there was insufficient evidence for prosecution.  Mr Pittaway’s reserve position was that if the criminal standard were not appropriate, the appropriate standard was the heightened civil standard, which is effectively the same thing.  For that he relied on the dicta of Lord Nicholls of Birkenhead, in Re H (Minors) Sexual Abuse: Standard of Proof [1996] AC 563 at p. 586 D-H and of Lord Hope of Craighead in McCann's case at p. 826 E, that the heightened standard could for all practical purposes be indistinguishable from the criminal standard.

11.   Mr Ruck Keene resisted with some force, the outright application of the criminal standard, pointing out that no Care Standards Tribunal had followed that course.  He said that the facts of Doshi’s case were exceptional, and that only such exceptional facts warranted the criminal standard.  As tribunal proceedings were civil in character rather than criminal, the starting point must be the civil standard, which, he accepted, could be heightened as far, effectively, as the criminal standard, but it took an exceptional case to justify the outright application of the criminal standard.  In  Angella Mairs v.  Secretary of State for Education and Skills [2004] 269PC, the Care Standards Tribunal drew a distinction between criminal proceedings and inclusion in the list in respect of which NJ appealed, the purpose of the latter being not to stigmatise, discipline or punish but to contain the risk of harm.  Mr Ruck Keene commended the adoption by the Care Standards Tribunal (McNish v. Secretary of State for Health and Secretary of State for Education and Skills [2006] 0646PVA and 0647PC) of 'the civil standard, namely on the balance of probabilities, as stated in Re H [1996] AC 523’.  In Re H, Lord Lloyd of Berwick at p. 578B, commends a simple balance of probabilities, but recognizes that the cogency of the evidence is a factor.  He rejects any attempt to define the requisite cogency, preferring ' to leave the rest to the good sense of judges and magistrates’, having observed that the particular provision in question (section 31 (2) of the Children Act 1989 does not require a degree of probability commensurate with the seriousness of the allegation.

12.   The authorities before the Tribunal (in a special bundle helpfully prepared jointly by the parties’ solicitors), range over a wide area of legal endeavour from the protection of children and immigration to the restraint of anti-social behaviour.  It is therefore not surprising that it is difficult to extract from them any principle of wide application, except perhaps a ' principle of no principle '.  Confining the criminal standard to exceptional cases and declining to invent new intermediate standards leads inexorably to the general application of the civil standard -- the balance of probability.  It is for the Court or Tribunal to decide in the case before it, what evidence it regards as sufficiently probative.  In the picturesque words of Lord Hoffmann in Home Secretary v. Rehman [2003] 1 AC 153 at p. 194A, ' it would need more cogent evidence to satisfy one that the creature seen walking in Regent's Park was more likely than not to have been a lioness than to be satisfied to the same standard of probability that it was an Alsatian’.

13.   The Tribunal therefore adopted the civil standard of proof, but kept in mind the nature of the alleged conduct, its gravity, probability and consequences if proved.  On that basis, the tribunal needed cogent evidence of high probative value to satisfy it that NJ was more likely than not to have behaved as alleged. In the event, as will be seen, the question of standard of proof proved to be largely academic.

The Law

14.   So far as vulnerable adults are concerned, section 81 of the Care Standards Act 2000 requires the Secretary of State to keep a list of individuals considered unsuitable to work with vulnerable adults (“the PoVA list”). NJ was referred to the Secretary of State under section 82 and included in the list as a result. His appeal arises under section 86, which provides that if the Tribunal is not satisfied that the appellant is guilty of misconduct and that he is unsuitable to work with vulnerable adults, it shall allow his appeal.

15.   There are identical provisions in relation to children in the Protection of Children Act 1999; section 1 provides for the keeping of the list (“the PoCA list”), section 2C for the referral and section 4 for the appeal.

16.   So far as “List 99” is concerned, it is created by section 142 of the Education Act 2002. Subsections (5) and (7) give the Secretary of State power to make regulations. The Education (Prohibition from Teaching or Working with Children) Regulations 2003 were made, inter alia, under those powers. Regulation 8(1) provides that, if certain conditions are met (conditions A – F), the regulation applies. Conditions A – F  are set out in Schedule 2 to the regulations. Part 1, condition A is that the individual is included in the list kept by the Secretary of State under section 1 of the Protection of Children Act 1999 (the PoCA list). If the Secretary of State is satisfied that the regulation applies to a person, he must give a direction under section 142, i.e. include his name in “List 99”.

Background

17.   NJ had been a care worker for nearly thirty years when, in April 2002 he became manager of a home in the West Midlands for four adult men with severe learning difficulties. He was initially attracted to the nursing profession because of a niece with Downs’s Syndrome and became a cadet nurse at the age of seventeen. According to all the witnesses who were able to testify as to his career, NJ was a devoted, conscientious and sympathetic carer. None was aware of any previous complaint or allegation about NJ or even of any rumour to his detriment.

18.   The home is a semi-detached three-bedroom house. On the ground floor is living accommodation and a garage converted into an extra bedroom. Upstairs are three bedrooms, a large one, partitioned and shared by A with another resident, a medium one, occupied by one resident and a small one wherein staff slept when on the “sleep-over” shift. The residents, of course, could never be left wholly unattended but staff did not have to maintain a constant watch and could sleep once the residents were in bed for the night.

A’s previous history

19.   A went to live at the home in the spring of 1998. He suffered from cerebral palsy and had lived in institutions since the age of nine, for the first thirty years or so at a relatively large hospital. B, who gave evidence, was a student nurse at this hospital from 1984 and remained there when she qualified until 1990. From her arrival at the hospital she had extensive involvement with A, whom she regarded as one of the brightest patients, though he had no verbal communication. He used a communication board, pointing to symbols on it and was able to attend a programme of adult education – basic cooking, personal hygiene and the like. Although he had a sense of humour and could be helpful, B found that A could also be very demanding, attention seeking and aggressive.

20.   At the hospital the male and female patients were segregated, one consequence of which was the formation of same-sex relationships. The staff were aware that physical same-sex relationships were pursued in the hospital’s large wooded grounds. On the whole such relationships were not discouraged provided that staff were satisfied that they were consensual with no element of compulsion or abuse.

21.   A had such a relationship with an older man on a different ward and, within his communication skills, openly discussed with staff his sexual activities with his partner. According to B, A would, in the context of these discussions, indicate penetration by making a circle with the thumb and fingers of one hand and putting a finger or fingers of his other hand through it.

22.   It was apparent to staff at the home, as it had been at the hospital, that A’s understanding was at a considerably higher level than his communication. His inability to convey ideas in his mind clearly caused A very real frustration and could be the cause of an aggressive outburst, as could his not getting his own way. It is apparent from the various sources of opinion about A, not at all surprisingly, that relatively trivial matters could seem very important to him and presumably, vice versa. He had no concept of a moral code but recognised wrong as that for which he was reprimanded or punished and right as that for which he was praised or rewarded.

The events of March 2004

23.   The week beginning on Sunday 21st March 2004 was a disturbed week at the home. On Monday 22nd NJ told A that he would not be able to go to college on the following day; the reason was financial but A would not have understood that and may have seen deprivation of college as some kind of punishment. It had apparently been used in that way by a previous manager of the home. The news provoked an outburst by A in which he hit a staff member with a chair. 

24.   On the morning of Tuesday 23rd A assaulted the staff member on the “sleep-over” shift so that she had to call for assistance. On the 24th A went to college but caused a disturbance on his return and would not let staff sit down at table for the evening meal. NJ, concerned at the deterioration in A’s behaviour, arranged for him to see the consultant psychiatrist who had looked after him for some twelve years. A little earlier, plans had been made to change A’s medication from Chlorpromazine to Risperidone, because of the possible side-effects of the former. The change involved reducing the dose of Chlorpromazine before the Risperidone was introduced and it may be that that reduction contributed to A’s disturbed behaviour. It may also be that autistic characteristics, observed in A without formal diagnosis, made any change of routine upsetting for him.

25.   On the night of Thursday 25th March, it was NJ who was on the “sleep-over” shift. NJ reported nothing unusual, he said in his witness statement and in his oral evidence that A had a bath on the morning of the 26th, but notes (made by S) record that A had assistance with a shower. He dressed in a new jumper and had gel in his hair. At all events A and another resident went off to college with NJ. In the evening of the 26th, A had a bath, assisted by S. According to the note made by T, “(A) enjoyed his dinner, later he had a bath, he seem (sic) to be trying to tell me something about the shower. I asked (S) if she could understand but I’m still not sure if we could understand him.” T did not give oral evidence to the Tribunal because she was unwell. The account of S in her oral evidence has their roles reversed, she said it was she who was assisting A and was the person with whom he first tried to communicate and it was she, S, who asked T if she could understand what A was indicating.

26.   S’s account was as follows. She was helping A with his bath at about 7 p.m. on the evening of the 26th. He undressed and got into the bath, but he seemed subdued so S asked him if he was alright. By way of reply A held his penis in his left hand, rolled partly onto his left side and gestured towards his bottom with his clenched right fist, in a kind of punching movement. Uncertain of what A meant, S called T in and A repeated exactly his gestures. At this time the staff of the home were not aware of A’s previous sexual experience, they all thought him to be sexually naïve, which no doubt added to the alarm of S and T. They asked him if he had done what they took him to be indicating to someone else and he made a vigorous denial. Asked if someone had done it to him, he indicated an affirmative. When asked who, A pointed to his temple with his right forefinger, twisting the finger in a gesture which staff recognised to mean NJ. At some point A put his finger to his lips as though to indicate a desire for secrecy.

27.   S and T asked where it had happened. A got out of his bath, put on his pyjamas and took them to the staff bedroom on the first floor. T said something about the lack of space and A went down on his hands and knees. Asked what happened next, A took them into the bathroom and gestured with the shower to indicate a washing of his bottom. He was upset and repeatedly put his finger to his lips and said “cool”, which he used to mean school or college.

28.   T’s account, not tested in cross-examination, has similar events but in a slightly different order. She says that the demonstration with the shower came before the going on all fours in the staff bedroom but she agrees with S that A was upset, put his finger to his lips and mentioned school.

29.   S and T, disturbed by what they had seen, were not sure what to do. Their operations manager, to whom such things should be reported, was male and lived in Cambridge, some way away. Both felt some embarrassment at the prospect of explaining to a man what they had seen, so they decided to telephone V, a female and more local operations manager, though she was not responsible for the home.

30.   V gave, in her evidence, a full account of the telephone call; she telephoned back on receipt of a message left by T. V spoke with S who described to her what A had indicated to her and T. Some discrepancies have crept in, according to V, S said that A simulated sexual intercourse in the staff bedroom. V said in her statement to the police that S had said A was bent over the bed as he did so. Assured that S and T were coping, V decided to go to the home on the following morning and to contact the home’s operations manager in the meantime.

The events of Saturday 27th March 2004

31.   V arrived at the home at about 7.30 a.m. She met A and S. A was upset and apologised frequently, clearly thinking that he was in trouble. V did her best to reassure him. The first to arrive was U, A’s key worker. A was unusually unsettled at the sound of the door-bell and U had to spend some time calming him. A then saw NJ’s car pull up outside and ran to lock the door to deny NJ admittance. Things calmed down after NJ came in; there was a time when V was making coffee and A and NJ were alone in the room together, it passed without incident. A took U into the kitchen to show him his broken lunch-box. U asked A if that was what it was all about and A replied “Yes”. Asked if the broken lunch-box were the cause of his upset, A again replied “Yes”. U, who has more experience of dealing with A than anyone currently involved, thought that the broken lunch-box probably was the cause of A’s upset.

32.   Later, A fiddled with the top of his trousers, lifting up his plastic apron in order to do so, he also made a “sleep” sign (both hands held together and held to one side of his face).

33.   As she was bound to, V suspended NJ. He never returned to the home. When he was later told of NJ’s departure, A fetched a holiday photograph of himself and NJ from his bedroom wall and ripped it up. A was interviewed by police officers and examined by a police surgeon later in the day.

The police interview

34.   A’s interview by two police officers was very severely restricted by his lack of verbal communication. The only effective means of obtaining information from him was to ask a leading question, requiring a ‘Yes’ or ‘No’ answer. However, it was not always clear that A had understood the question. U, A’s key worker was present at the interview but even he was not able to offer much by way of interpretative assistance. On a number of occasions equivocal answers by A were taken as indicating the answer sought. This was particularly noticeable in relation to colours, A’s response of an indeterminate vowel sound preceded by a plosive ‘b’ or ‘p’ was interpreted as blue or brown as the occasion demanded. On a number of occasions A made gestures which no-one could interpret, for example when he repeatedly banged the wall with his fist, possibly to indicate hardness or resistance; his meaning was never clear.

The police surgeon’s examination

35.   A report had crept into the evidence that the police surgeon had found A to have a loose anal passage with evidence of penetration. However, this emanated not from the record of the doctor’s findings but from a tick-box record of information given to him prior to the examination – an indication of what he was to look for rather than what he found. The very experienced police surgeon actually found no relevant abnormality at all, in particular no evidence that anal intercourse had occurred. His evidence was that consensual (in the sense of not resisted) anal intercourse could not be totally excluded, but none of a variety of usual indicia (e.g bruising, tearing) was present.

The appellant’s evidence

36.   Throughout all the proceedings arising out of the events of the 26th March, NJ maintained a denial of any sexual impropriety. He was interviewed by police on the 28th October 2004; in an extensive interview he said that he was a homosexual but denied any assault on A, as he did in his oral evidence to the Tribunal.

The Tribunal’s conclusions

37.   In his concluding submissions, Mr. Pittaway pointed to an incident in June 2003 when A had held a knife to his stomach in a threatening manner in order to achieve what he wanted and another occasion when A picked up a knife and wiped the blade on his chest, saying that he was “only joking” (how A conveyed that is not clear). That, said Mr. Pittaway, showed A to be capable of manipulation; the sexual allegation against NJ was probably by way of retribution for being denied school – hence the repeated mention of school to S and T.

38.   The Tribunal doubted that A was capable of ‘framing’ NJ in that way. There were recorded instances of A becoming upset and annoyed when frustrated by communication problems or denied his own way. There were other instances when he had indulged a simple sense of humour by stuffing another resident’s shoes with newspaper or by hiding something to enjoy watching its owner search for it. But in the latter case the level of sophistication was such that, if the owner’s search did not commence within a short time, A would draw his attention to the absence of the missing item. There were no recorded instances of A trying to deflect blame onto another person or of him fabricating an incident to get someone else into trouble. The Tribunal considered it very unlikely that A had fabricated an allegation against NJ.

39.   In the Tribunal’s view, there was very considerable doubt about whether there had been anal penetration of A by NJ. The police surgeon found no evidence at all to support it. It was not at all clear that that was what A was trying to communicate. Two factors seemed to the Tribunal to be of considerable importance in the interpretation of A’s gestures. The first is that they were for a long time interpreted under a misapprehension that A was sexually naïve whereas B’s evidence showed him to have considerable experience. If A had been sexually naïve prior to the end of March 2004, his use of gestures with sexual content might well have been strong evidence of a recent sexual incident – where else could his knowledge of such matters come from?  Such gestures by a sexually experienced man have a far less specific meaning, they may have their origins in the recollection of some past incident.
The second is that the unmistakeable gesture used by A in the past to indicate penetration (fingers of one hand through a circle formed by the thumb and finger/s of the other) was totally absent both from his revelations to S and T and from his interview with the police officers. It seemed probable to the Tribunal that if that is what A was trying to communicate, that gesture would have appeared at some stage.

40.   The Tribunal’s reservations about the police interview, its doubts about A’s revelations and the evidence of the police surgeon left the Tribunal unconvinced that A had ever been subjected to anal intercourse by NJ or by anyone else at the end of March 2004. Even if there had been evidence of such intercourse, the Tribunal would have felt difficulty in identifying NJ as the perpetrator solely on the basis of A’s sign. A’s behaviour on the morning of Saturday 27th March was most likely to have been a consequence of the broken lunch-box; it has to be borne in mind that A does not have an accurate perception of what is serious and what is relatively trivial. Although the Tribunal did not put great weight on the point, it is slightly odd that A should have behaved quite normally on the day after the alleged incident until his evening bath. The Tribunal doubted that he could have hidden his feelings to that extent; one of his main characteristics is spontaneity.

41.   For all those reasons the Tribunal was not satisfied that NJ perpetrated any sexual assault on A. Placing in the evidential balance NJ’s not only unblemished but wholly creditable record as a nurse and carer for over thirty years made it impossible to be satisfied even to the unheightened civil standard of simple balance of probability that NJ was guilty of any misconduct of the sort alleged.

42.   As that misconduct is the only ground on which it is said that A is unsuitable to work with vulnerable adults, it follows that there can be no finding of unsuitability either.

43.   The Tribunal therefore unanimously allows A’s appeal and the Secretary of State is directed to remove his name from all the three lists, the PoVA list, the PoCA list and List 99.

44.   It was agreed by Counsel at the conclusion of the hearing that the restricted reporting order should continue whatever the outcome of the appeal; the Tribunal so directs. 

45.   By way of post-script it is appropriate to add a short explanation for any non-lawyer who may read this decision. It could be seen as anomalous that NJ who was suspended and dismissed for misconduct, lost an appeal against his dismissal, lost before an Employment Tribunal and lost his appeal against that Tribunal’s decision  should now after those four defeats, succeed before the Care Standards Tribunal on the basis that no misconduct is proved against him. The reason for the apparent anomaly is that employment law demands only that an employer who dismisses an employee has a reasonable suspicion amounting to a belief that the employee is guilty of misconduct. A Care Standards Tribunal has to be satisfied to a standard which, at the lowest possible level (the simple civil standard of balance of probability) is appreciably higher than reasonable suspicion. NJ, although not shown by the evidence to be guilty of misconduct, could not prove that his employer’s suspicions were unreasonable.

APPEALS ALLOWED

Andrew Lindqvist
Claire Trencher
Timothy Greenacre
Date: 27th March 2008