Oluku v CQC [2012] UKFTT 275 (17 May 2012)
Schedule 1 cases: Establishments and Agencies
Cancellation of registration (proprietor/manager)
First Tier Tribunal [2011]
1913.EA
Health Education and Social Care Chamber
Care Standards Jurisdiction
Before:
Judge
John Aitken
Deputy
Chamber President (HESC)
Ms
G Matthison Specialist Member
Ms
Claire Trencher
Ms
Blessing Oluku
v
Care
Quality Commission
Decision
- An interim
order was made prohibiting the publication of material which could lead to
the identification of service users under rule 14(1) of the Tribunal
Procedure (First-tier Tribunal) (Health Education and Social Care Chamber)
Rules 2008. That order was expressed to last until the hearing of this
matter. We have now further considered the position and the order will
continue indefinitely.
- Slawomira
Kowalkowska commenced work as a carer at the Dormers Wells Lodge residential
home in the summer of 2010. She was very unhappy with the way residents
were being treated and drew this to the attention of a charitable
organisation named Elder Protection. They arranged for her to wear a
concealed video camera to record conditions, in fact once given the idea
she bought one herself. Between 30th August and 12th
September 2010 she wore a camera, those recordings which showed a number
of instances of poor care, indeed abuse, led to the suspension of 8 staff,
the prosecution of three and the conviction of two for offences under Section
44 of the Mental Capacity Act 2005, they received medium band community
sentences.
- The video
footage was given to the Care Quality Commission and they shared it with
the London Borough of Ealing, they considered that there was evidence of
widespread abuse and a number of residents were removed after review.
There were inspections by the Care Quality Commission reports
by independent assessors and on 8th June 2011 the Care Quality
Commission issued a notice of proposal to cancel the registration of the
appellant. They identified a number of reasons for this decision.
- Firstly under
regulation 6(2)(b) of the Health and Social Care Act 2008 (Regulated
Activities) Regulations 2010 that the appellant should have her
registration cancelled because she did not qualify under 2(b):
“(2) M is not fit to be a registered manager in respect of a regulated
activity unless M is-
(b) physically and mentally fit to carry on the regulated activity and
has the necessary skills and experience to do so.”
- Secondly that
she had failed to comply with Regulation 8 of the same regulations,
thirdly that she had failed to ensure the welfare of the service users by
failing to ensure appropriate care and the welfare and safety of the service
users. In particular it was alleged that she had permitted shouting at
service users and allowed some to be locked in their rooms when she ought
not to have done so.
- Fourthly it
was alleged that she had contravened regulation 11 by failing to safeguard
users from abuse, failing to have service users referred to doctors and
failing to report an instance of sexual abuse. Fifthly it was
alleged that the appellant had not properly managed medicines in that she
had allowed them to be given at the wrong times for the convenience of
staff rather than the good health of the residents. Sixthly that she had
contravened regulation 17 by failing to involve and respect service users,
generally it was alleged there were insufficient meaningful activities for
Dementia sufferers and they were put to bed at inappropriate times
restrained by removing cushions from seats and on occasion allowed to
wander and shout, irrespective of their safety or needs.
- Lastly she had
contravened regulation 22 requiring adequate staff, which had led to the
staff putting residents to bed by 7:30pm as the only means of being able
to run the home on limited numbers.
- The appellant
responded by a letter prepared by solicitors rejecting all of the
allegations, explaining that the social services department of Ealing had
not performed assessments, that the pressure upon the appellant because of
not having an assistant manager and the suspension of 8 staff following
the video allegations had led to some understandable difficulties but in
general what lapses there may have been, were not attributable to the
appellant. Notwithstanding the representations a decision was made to
cancel the appellant’s registration on 24th August 2011. The
appellant filed an appeal against that decision on 31st August
2011.
- That is the
appeal which appears before us, we remind ourselves that it is for the
respondent to establish on a balance of probabilities the facts upon which
they rely in establishing that the registration of the appellant should be
cancelled.
The Specific
Allegations relating to the appellant’s direct behaviour towards service users
- The second
allegation, that of failure to comply with regulation 8 simply requires
that all regulations 9 to 24 are complied with. In respect of the care and
welfare of service users, the third allegation, the respondent relies upon
three matters, the appellant raising her voice to service users,
sanctioning the locking in of dementia patients to manage them and failing
to offer meaningful activities.
- In respect of
raising her voice to service users, we heard evidence of an argument in
the garden of the home between the appellant and a Mr Ford who was
visiting. We did not hear from Mr Ford, there were certainly raised voices
according to Mr P a resident and Maniben Patel a domestic assistant
and both described it. However in contrast we also heard from Kasthuri
Logeswaran a former care worker now registered Nurse who accepted that the
appellant had once come out to see what raised voices were in the corridor
thinking that the witness was shouting at a service user, she had been
told not to, and this strikes us as good evidence that the appellant did
not consider shouting at service users to be appropriate, and supports her
case generally on this point. Since we have no evidence from Mr Ford who
was said to be the visitor at the centre of this, it may be any raised
voice was directed at him. The appellant claims that the service user was
an alcoholic who was being given alcohol by his visitor, certainly there
was a shouting incident, but we do not find that the appellant has been
established to have been shouting at a service user.
- We heard that
no dementia patient should be locked in without an assessment called a
“Deprivation of Liberty” being authorised. The appellant claimed to have
applied for them in respect of those patients, however she was unable to
point to any record of that having been done. We consider that the
appellant did not seek Deprivation of Liberty authorities in respect of
the patients in her care. We have considered her claim that much of the
paperwork has gone missing and we accept that this may be the case, but we
note there are records of meetings with Ealing Local Authority, who were
responsible for the issuing of such an authority after the time when she
claimed to have made the requests, and whilst an absence of review is
spoken of no mention is made in the surviving documents of any Deprivation
of Liberty requests, we consider it likely there would have been. In
addition it was the plain evidence of Mr Mountain that no such request had
been made, whilst it might be said that he may have an interest in denying
such a matter he was frank in admitting that reviews had not been carried
out on time and we consider that the appellant, extremely busy as she was,
had simply failed to make this application, perhaps expecting it would be
dealt with on the review of each patient’s care, which was overdue. Whilst
Ealing are at fault for not conducting the reviews it is our finding that
the appellant knew that a Deprivation of Liberty was required for some of
her service users but she made no application for them. In those
circumstances it is also plain that she was likely to be aware that the
patients were being detained. However there has been no evidence to
indicate that this was not an appropriate way to deal with these service
users, and whilst the paperwork was inadequate that does not establish
that it was causing any harm to the service users. We therefore consider
that the particular allegations made under this heading are not
established.
- In respect of
the fourth allegation as we have indicated the necessary paperwork was not
present in the form of a Deprivation of Liberty for a number of service
users, and in that respect the appellant did not have suitable
arrangements in place to protect service users against the risk of such
control or restraint being unlawful or otherwise excessive as required
under regulation 11(2), since proper assessment and recording was not
being carried out. The assessment for deprivation of liberty was a
separate application and is identifiably separate from the general care
package reviews which were overdue as a result of Ealing failing to
schedule them. Had the appellant been a registered manager this would have
been a breach of the regulations, however she was not registered as
required because of a backlog by the Care Quality Commission, Mr Janisch
has suggested that the inevitability of her being registered indicates she
should be treated as a registered person, we disagree, she could for
example have withdrawn her application before registration but after the
incidents complained of, the breaches are only committed by a registered
person and the appellant was not registered until October 2010, therefore
we find that on this technical point no breach has occurred, the
circumstances are however relevant for considering under regulation 6(2)
whether the appellant has the necessary skills to manage a care home.
- As to the
specific allegation that the appellant had had reported to her in early
September 2010 an incident of sexual abuse between residents we find that
there is no evidence that the appellant was notified of the incident, the
witness Joke Olubokun clarified her statement indicating that it was the
supervisor who was told not the appellant, and she could not recall who
the supervisor was, the appellant denies it was reported to her.
- In respect of
the fifth allegation, that of improperly managing medicines, the principle
evidence of this was that on an unannounced night visit to the home by
Care Quality Commission staff on 15th November 2010 service
users were found to have been given their night medication by 7:30pm, in
effect shortly after tea rather than later in the evening as had been
prescribed. The inspecting staff Ms Rekha Bhardwa and Ms Fay Bennett also
noted that the record of giving the medicines had already been completed
as if the medicine had been given at 9pm. Ms Undine Williams a care worker
on the night shift explained that she believed that the appellant had
administered the medicine. The appellant denies this she indicated that it
was her belief that the night shift must have done so and it was
associated with a further finding of the inspection team that the clock in
the lounge had been advanced two hours, to enable service users to be told
it was later than it actually was and that it was now time for medicine
and bed. We note there is no direct evidence that the appellant gave the
medicines, that she is recorded as leaving the home at 6:30pm, and whilst
of course records can be falsified and were for the medicines we do not
understand why the record of leaving would be advanced.
- Looking at all
of the evidence on this point we conclude that the respondent has not
established that it was the appellant who advanced the clocks and gave the
medicine, although plainly someone at the home did so.
- The last
allegation is that the appellant had arranged insufficient staff to
safeguard the users, as evidenced by the giving of medicines early and the
“putting to bed” early of the service users. The appellant attributes this
behaviour not to a shortage of staff such as to make the home unsafe,
rather to the staff being unwilling to multi task and preferring to become
more comfortable at night about favourite duties. There were three care
workers in the home when the unannounced inspection took place, one Ms
Undine Williams was qualified to administer medication, but told us she
lacked the experience to do so. The appellant in her evidence said that
she had taken Ms Williams through the procedure that tea time to ensure
she knew what to do. We note that Ms Williams did arrive early for work
that evening, and although Ms Williams indicated that this was simply her
habit, we find the explanation of the appellant that it was to see how
medicines were issued to be more plausible. In those circumstances we do
not find that there was no one qualified to administer medicines. We note
also that there is no suggested level of staffing which is given by the
inspectors that night, and we are unable to find that it has been
established that service users were placed at risk or their care
compromised by the staffing level present.
The indirect
allegations
- The indirect
allegations are that the appellant was running the home in effect for the
benefit of efficiency on the part of staffing and bureaucracy rather than
to provide the necessary caring environment. Plainly there is a spectrum
of solutions to the inevitable problems that accompany running a care
home, there are within that spectrum, those solutions which are acceptable
and those which are not. A care home is a dynamic environment and what is
needed may change from day to day or even minute by minute. Minor
transgressions or mistakes with regard to regulations are perhaps
inevitable, however regulation 9 places specific duties upon the manager :
“9.—(1) The registered person must take proper
steps to ensure that each service user is protected against the risks of
receiving care or treatment that is inappropriate or unsafe ..”
- In addition
Regulation (9)(b) has this to say:
(b)the planning and delivery of care and, where appropriate, treatment
in such a way as to—
(i)meet the service user’s individual needs,
(ii)ensure the welfare and safety of the service user,
(iii)reflect, where appropriate, published research evidence and guidance
issued by the appropriate professional and expert bodies as to good
practice in relation to such care and treatment, and
(iv)avoid unlawful discrimination including, where applicable, by
providing for the making of reasonable adjustments in service provision to
meet the service user’s individual needs
- The appellant
joined Dormers Wells Lodge as a Manager in September 2004 following a
career in the Care sector which began as a carer, but trained to do NVQ in
care management then NVQ4 in health care management, she left her
employers Lambeth as they did not have a suitable managerial post. She
then did agency work for experience in 2003, she worked with Anchor Care
for a year, she wanted to use her skills, although she was a manager in
charge of domiciliary care, with 300
staff, she was still looking for a permanent post. She had plainly done
well in her previous roles and was well thought of. She described to us
that following her interview for the vacant post of manager at Dormers
Wells Lodge she was telephoned to offer her the post before she arrived
home.
- Dormers Wells
Lodge was not doing well when the appellant arrived, and others have
confirmed that she radically improved a home which was rather leaderless
having had no manager and a committee that were not capable of either managing
the home themselves or finding someone suitable for an extended period.
The appellant gave examples of poor care in the period before she arrived,
including residents being left soaked in urine and faeces, missing meals
and generally she gave us the impression that when she arrived if a
resident indicated an unwillingness to eat or indeed do anything the staff
had got to the point of regarding that as a good thing because they did
not then have to bother, seeking to persuade as a means of support had
been lost. Given the support for her point of view from witnesses such as
the resident Mr P, both in his evidence and documented in residents meetings
we accept that the home was in a poor state on her arrival and that she
radically improved matters. Mr P went on, however, to say this “When
she took up her post care did not come into it control was all it was
about”
- On arrival
however it was not just the operation of the home which needed to be dealt
with, and the appellant told us of her struggles to establish authority,
how staff would consider it proper to complain about her decisions to both
residents and the management committee without making any attempt at
following a proper procedure of taking the matter up with her. At a
meeting with the then chairman of the management committee she heard some
members of the management committee say there was no need to be hard she
said this “I said it was my responsibility, to ensure the care is met
at all times. Internal and external training was arranged, in the first
year most of the older ones [care staff] left, many because it was too
strenuous.”
- She also had
arguments with a GP who was both receiving a payment for attendance at the
home and was on the management committee, they disagreed over how often he
should attend and in what circumstances. The appellant also had
difficulties with the Care Inspection regime, she told us that she
considered that they were difficult to deal with and in particular the
inspector responsible for the home from mid May 2006 until mid 2008. The appellant
has suggested that the Inspector, Ms Collisson has a conflict of interest
because she had a great aunt resident at the home for a short period in
2002. Ms Collisson rejects that and so do we, it does not explain why Ms
Collisson would be interested in anything other than the best for the
residents, nor why she might harbour any animosity to the new manager in
2006. The appellant has suggested that Ms Collisson was inconsistent, and
particularly points to an incident where she insisted on a carpet being
replaced despite having made the same demand shortly before, Ms Collisson explained
that on the second visit the carpet smelled of urine, and if the smell
could not be removed whatever the age of the carpet it had to be replaced.
We do not find there was any bias or conflict of interest apparent in Ms Collisson
Mr P perhaps described the appellant’s variable responses to people best when
he commented in evidence “Ms Blessing was always demanding more from
them they could not make a complaint she would not accept them, Blessing
was verbally aggressive and severe with the staff always pulling them up,
if they got up at mealtimes they were told to get back sharply. A
different personality turned up for relatives, it was all very welcoming.
You just got used to the routine that was going on, she was two faced. I
got on very well with her, she would do anything I asked, I had no
complaints on that score, it was how she behaved to others”
- It did not
always go well with relatives however and we heard from Ms McHugh of a
very tense relationship, over placement of her father, the dates were
confused and for that reason we do not attach a great deal of significance
to the evidence on this point. It was clear, however, that having decided
that the home could not accommodate him after a trial period, the appellant
gave no real thought to how someone in that position could be moved immediately
and the consequences for him.
- What the
situation meant overall, however, was that the appellant felt unsupported
in general by the management committee, felt the staff were poor, not well
motivated, in bad habits and on occasion mutinous when given reasonable
instructions, externally she felt the inspector was also biased against
her. She told us of many disciplinary actions which she had to take to
control the staff, and of a successful Employment Tribunal when her
decision was upheld, but the management committee’s process criticised.
Overall in a difficult situation she was able to enforce her will and
improve standards, but she was not able to persuade significant numbers of
staff or residents that she was acting in everyone’s best interests.
- The appellant
did her best to provide social functions which would lift everyone’s spirits,
we have heard of a barbecue which was an annual event and a great success,
but as a number of staff and Mr P a resident were to remark when shown
photographs by the appellant, that was one day, it was not how things were
generally. We accept their evidence, in particular we note that Mr P was
to say the home had improved on the appellant leaving, whilst accepting
that she had herself put in improvements when she arrived.
- We consider
that it is clear from the evidence we have heard and read that the
appellant became isolated from the staff and residents, in wishing to
ensure no resident was left in poor circumstances in their room or unfed
or unwashed she inculcated in the staff a belief that the process of
ensuring physical well being was more important than care or dignity.
Residents had choices removed from them, simple matters such as whether
they could take an afternoon nap, whether they wished to come down for
breakfast, as we saw on video whether they removed their teeth for washing
or it was done in place, whether they could stand up when they wished, by
removing cushions from chairs, whether they should sit on the toilet at a
particular time.
- The appellant
was to describe in her evidence to us how things improved for a couple of
years after she arrived, then were good, then the difficulties become more
pronounced. Our view on the evidence is that the techniques the appellant
had applied as a reforming new manager had a limited lifespan, and her
genuine desire to ensure good physical health in the residents became
corrupted into a lowering of standards of care and dignity. The instances
described and on video are so widespread and done so openly we consider that
the culture of the home must have been clear to a reasonable manager, indeed
the evidence of a number of witnesses including Kasthuri Logeswaran who
was a care worker and now a registered nurse and Mr P, was that they had
no personal problems with the appellant but that the atmosphere and care
in the home had dramatically improved on the appellant being replaced.
- We are careful
to bear in mind the difficult situation that any manager can face, they
cannot be present at all times, however the delivery of an unacceptable
standard of care had become pervasive at Dormers Wells Lodge and we find
that it was at least in part as a result of the appellant’s management
style and that she ought to have been aware of the care that the home was
giving and that it was not acceptable. We have born in mind the
appellant’s claim that she was not well supported by the management
committee, but it was her responsibility to ensure that she was able to do
the tasks required of her or report the situation herself to the Care
Quality Commission, not simply to report some problems, such as Ealing’s
failure to assess, but to warn that care was not adequate. If a Manager
cannot provide the necessary care that is her final duty, as she
recognised and explained to the committee.
- We find that
the appellant, despite her undoubted commitment and organisational abilities,
and enthusiasm and sense of responsibility does not have the necessary
skills required under regulation 6(2) because of a weakness in being able
to engender in her staff a culture of being able to deal with all of the
needs of the residents in a proportionate manner, and an inability to
ensure that they do so. Thus her skills were deficient in being able to
deliver all areas of individual care necessary and as outlined in
regulation 9. The appellant made suggestions of a number of witnesses
that they were in effect setting scores or were motivated by personal
dislike of her, we found no evidence of this at all, rather that the
appellant had difficult relationships with some staff to begin with and
had thereafter become suspicious and unbending to many leading to
generally poor working relationships. We therefore find that the
appellant is not fit to be registered as a Manager.
- The appellant
has argued that since the regulations under which it is sought to cancel
her registration did not come into force until October 2010, and the
incidents relied upon are before then the earlier regulations should
apply. We reject this in respect of the question of fitness. In relation
to regulation 6 any conduct alleged to demonstrate either the skill or
lack of skill may be drawn from any time in the past, its relevance of
course being affected by how long ago it is.
- As regards the
specific breach found and those alleged they relate to the period after 1st
April 2010 when the regulations came into force and as we have indicated
there can be no specific breach because she was not a registered person at
that time.
Decision
We dismiss the appeal, the
appellant not having the necessary skills to establish fitness under regulation
6(2) the decision is confirmed.
Judge John Aitken
Deputy Chamber
President
Health Education and
Social Care Chamber
17 May 2012
