In the First-Tier Tribunal (Health, Education and Social Care)

Between	M K

-V-

SECRETARY OF STATE FOR HEALTH

[2008] 1424.PVA 1425 PC

Before
Maureen Roberts (Nominated Tribunal Judge)
Graham Harper (Specialist member)
Jim Lim (Specialist member)

Heard on 28th and 29th May 2009 at the Asylum and Immigration Tribunal Manchester  
The Appellant represented herself with assistance from her parish priest Father Peter Morgan.  The Appellant gave evidence. Father Morgan and Ms M Kane gave character and background evidence on behalf of the Appellant. 
Mr T Holloway of Counsel appeared for the Respondent, instructed by Ms H McConnell, Treasury Solicitor.  Ms D Wake, Registered Manager at the residential home  Ms J Brown deputy manager at the home, and Ms L Shoko, Ms S Smethurst and Ms M Dirwai all care assistants at the home gave evidence for the Respondent. 
Decision
1.     The Appellant appeals against the two decisions of the Respondent contained in a letter to the Appellant dated the 9th September 2008 (the decision letter); firstly (the first appeal) to confirm her on the Protection of Vulnerable Adults List (the PoVA List) and secondly (the second appeal) to confirm her on the Protection of Children Act List (the PoCA List).
2.     The decision letter also notified the Appellant that the effect of inclusion on the PoCA list also meant that the Appellant would not be able to carry out work to which section 142 of the Education Act 2002 applies and that her name had been added to the Education Act List.
3.      The Tribunal makes a restricted reporting order under Rule 14 (1) (b) of the  Tribunal Procedure(First tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the Rules), prohibiting the disclosure or publication of the names of the Appellant or clients involved in the case and directing that reference to them shall be by their initials so as to protect their private lives.   
The background
4.      The Appellant is currently 40 years old. She was born and brought up Uganda where she went to University and obtained a degree in Economics. She married a fellow Ugandan, who was a doctor. In August 2000 her husband came to Liverpool School of Tropical medicine to start a PhD. The Appellant joined him a year later in August 2001. Some three months later her husband left her. At this point she had a child aged 5, a baby and was expecting another child. She had a visa for three years and she started working for R Home an EMI residential care Home in October 2001.
5.        R Home is an EMI residential Care home for 51 residents all of whom have dementia to some degree. The home is on two levels and was divided into colour named areas. Each unit had one member of staff on duty at night and two during the day. There was a variation on one of the larger units. At the time of the incident the Appellant was working on her own on the pink unit caring for eight residents. She was on the first floor of the unit and on the same floor was the terracotta unit with another night carer also looking after eight residents. Both the Appellant and the carer on terracotta had NVQ 2 qualifications.
6.    The home had been acquired by another private company  in 2004. The system of work involved staff working either a 12 hour day shift from 8-00am to 8-00pm or a 12 hour night shift from 8-00pm to 8-00am. 
7.      There was no dispute about what had happened. On the morning of 25th January 2008 the Appellant faced an emergency situation where she had to clean a resident, who had soiled herself, in one of the rooms. Another resident (EA) was in the room at the time and had been hindering her work. At some time between 7-10 am and 7-30 am she tied EA into a chair in the residents lounge using a sweater or fleece. Due to pressure of work and needing to leave for child care commitments she forgot to tell the day staff what she had done before she went off duty and the resident was found soon after at 8-00am. She was promptly released by SS, Care Assistant who found her. EA had not suffered any physical injury and did not appear to have been psychologically affected by what had happened.
8.      As soon as the incident was discovered the Appellant was telephoned at home and told that she was suspended. The care home reported the matter to the Police and on 6th February 2008 she was interviewed without legal representation. She admitted tying EA into a chair and that she forgot to tell the day staff about it. She said that she had done it for the safety of EA who was inclined to wander and would undress herself. She was also concerned that EA would get into a sluice room and hurt herself. The Appellant was offered a caution for the offence of false imprisonment and accepted this as she had admitted tying EA into the chair.
9.      Following this there was a disciplinary hearing on the 6th March 2008 and the Appellant was summarily dismissed. The matter was reported to the Secretary of State who provisionally listed her on the 11 March 2008. The listings were confirmed on 9th September 2008. The letter stated “that; (a) Your former employer reasonably considered you to be guilty of misconduct which harmed or placed at risk of harm a vulnerable adult by being convicted of an offence which makes you unsuitable to work with vulnerable adults , and (b) that you are considered unsuitable to work with vulnerable adults because of the nature of the misconduct. Consequently having considered all of the information available he has decided to confirm your inclusion on the PoVA list.” The letter went on to explain that she was also included on the PoCA list and List 99.
It was pointed out to the tribunal that the Appellant had not been convicted but had accepted a caution. However the effect of the caution in these proceedings is outlined below.
The Law
10.     As confirmation of the listings is prior to the 20 January 2009 the law relating to the appeals is as follows. The first appeal (the PoVA appeal) is brought under section 86(3) of the Care Standards Act 2000 (CSA 2000) which states:
“if on an appeal or determination under this section the tribunal is not satisfied of either of the following namely:
a)  that the individual was guilty of misconduct (whether or not in the course of his duty) which harmed or placed at risk of harm a vulnerable adult;  and
b) that the individual is unsuitable to work with vulnerable adults,
the tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list;  otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.”
11.     The second appeal (the PoCA appeal) is brought under section 4(3) of the Protection of Children Act 1999 (POCA 1999), which is in similar terms to the CSA 2000 section 86(3) except that unsuitability to work with Vulnerable Adults is replaced under the terms of section 4(3) of POCA 1999 with unsuitability to work with children.
12.      In this case as set out above the Appellant was cautioned for False Imprisonment contrary to Common law. This amounts to the equivalent of a conviction. By s. 86(4) Care Standards Act 2000;
‘Where an individual has been convicted of an offence involving misconduct (whether or not in the course of employment) which harmed or placed at risk of harm a vulnerable adult, no finding of fact on which the conviction must be taken to have been based shall be challenged on appeal or determination’
13.     In this case with the existence of the caution and the admission to the tribunal by the Appellant there is no doubt in our mind that the first limb of the test enumerated above is satisfied; namely misconduct and likely harm to EA. Furthermore we accept that the effect of the Caution is as set out in the previous Tribunal decision of Kalchev [2005] 589 PVA, namely 
           “We consider that the caution satisfies the first two limbs that we have to consider on appeal. Furthermore we consider that given the presence of the caution the onus in the case switches and it is for Mr Kalchev to satisfy us in the circumstances that he is a suitable person to work with Vulnerable People (and Children) in the case of the POCA listing.”  
It is, therefore for the Appellant to satisfy us as to her suitability.
Evidence to the Tribunal
14.     We heard evidence from three carers who continue to work at the home including the carer who found EA. We heard from the Manager and deputy manager. 
15.      All the witnesses agreed that EA was a frail elderly woman of a gentle nature who did wander and was inclined to undress. The managers stated that the home had a policy of allowing residents to wander freely around. With reference to the Appellant’s assertion that she had acted to protect EA, the witnesses for the Respondent agreed that while EA might wander and take her clothes off, she was easily settled too and could be led to a chair and be occupied with a book or magazine. They did not consider that she could get into a sluice room which had a bolt on the top unless it had been left open. The Appellant had said that she was concerned that EA might suffer from hyperthermia if she undressed. It was said to us that the home was always warm and that this was unlikely.
16.    When the manager, DW had taken over the management of the home in April 2005 there were a number of requirements by the inspectors. These had been addressed and procedures and policies satisfactorily put in place.
17.     With respect to staffing, the home’s staff levels were in compliance with the guidelines. The evidence to the tribunal was that the two sets of shift workers, i.e. night and day, only did their own shifts. They rarely changed over for any prolonged period or met each other, except briefly on hand over and there was no overlap. 
18.    The tribunal saw the written reports for the unit and the individual residents for the date in question. They did not record any concerns about EA. 
19.       The tribunal saw the training book for the NVQ which the Appellant had completed in the previous October although it was not finally signed off until early 2008. There was a module on the subject of abuse and the Appellant said that she had covered it but by the nature of the training it was not clear how far this had been explained or explored.
20.     We saw the restraint documentation of the home. It was not clear when it had been introduced; the manager was not sure too. All the Respondent’s witnesses said that restraint was never used and that this was ‘common knowledge’. The deputy manager said that no member of staff was trained in restraint techniques and that restraint was not used. The Appellant said in her evidence that other members of the care staff had used straps in wheelchairs (which had happened in the past) and also tied residents with dressing gown cords; this was denied by the Respondent’s witnesses.
21.     We heard conflicting evidence about the expectations on night staff in respect of their responsibility to get residents up and ready in the morning. The managers and staff agreed that the policy was to get ready those residents who were awake and that if a resident wished to stay in bed a bit longer then that person would be left for the day staff to get ready. However it was the evidence of the Appellant, and to some extent the other carers, that there was pressure on them to get as many residents as possible ready and to complete the cleaning and changing of residents. They also said that there were grumbles from the day staff if this was not done. 
22.    It was the management’s view that if an emergency arose or there was a job which required two people then all carers knew that they could call on one of their colleagues to help them. They denied that there had been a serious issue between day and night staff about getting patients ready. One care Assistant admitted that she had been bullied. It did not appear that this had been dealt with by the management.
23.      The carer who had discovered EA tied in an easy chair appeared distressed by what she found. She stated that she had come on to the day shift and found EA in the upstairs lounge tied by a ’mint green sweater’. She said the knot was tight and behind the chair. She further said that EA was wriggling to get out of the tie and appeared frustrated. She immediately untied the knot and got EA out of the chair.
24.     The Appellant as was noted above gave safety issues as her reason for what she did, in her police interview. In addition, in her statement for the tribunal she said that EA found sleep difficult and would wander about and that she would take her clothes off and enter other residents rooms. On the morning in question the Appellant said that the situation was difficult in that she had to get four out of her eight residents up. One resident had had diarrhoea during the night and she needed cleaning and her room also needed to be cleaned. EA had taken her clothes off on a number of occasions and then followed the Appellant into the other resident’s room. This meant that she was getting behind with her duties and she was worried that she would be told off if she did not get everything done and that she must leave at 8-00am in order to be home in time for her children’s preparation for school.
25.     The Appellant said that her thoughts were that EA would be safe in the chair with a fleece tied around her and this meant that she could get on with her work. She said that she went in to check her a few times in the last half hour. At the end of her shift she went downstairs with the soiled laundry and wrote up the night record and then hurried to complete everything and go home. In the process she forgot to untie EA and the next she knew was a phone call from the home telling her that she had been suspended.
26.     The Appellant said that she realised that she alone was responsible for the act and that she was very sorry for what she had done and would do nothing like it again. She was concerned to think that she might have cause distress to the lady herself. The Appellant has not worked since the incident. She would very much like to work in community projects and, has been approached about such work but has not been able to accept such a post while she is listed. She said to the tribunal that she very much wished to give something back to the community.
27.      The two character witnesses gave us a clear picture of a woman totally devoted to her children who has struggled emotionally and financially with her situation. One of the witnesses has helped the Appellant considerably financially to ensure that she and her children did not suffer. We realise that the Appellant worked without a visa after 2004 which made her position precarious. She applied to have the Visa extended but this only happened, ironically after the incident which led to these proceedings.
Suitability
28.       In this case as we noted above the issue for us was one of suitability.  In Angella Mairs [2004] 269 PC the Tribunal set out a number of principles that we have adopted, namely:Once misconduct has been established the consideration is whether the Appellant is unsuitable to work with vulnerable adults or with children. Not all those found guilty of misconduct will be held to be unsuitable to work with vulnerable adults or children.  Each case must be looked at on its own fact, context is very important and, as stated in Mairs, 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 education from past performances, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm.”(In this case a vulnerable adult)
29.        This requires consideration of at least, and not exclusively, the following matters:
a)  the number of incidents constituting the misconduct established;
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 potential to harm;
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.
           It also requires an assessment of risk.
30.       The test of suitability is not an evidential test in itself, but an exercise of discretion by the Tribunal applying its experience to the evidential matters it has considered previously.  Moreover, the Tribunal must consider unsuitability as at the date of the hearing before it. 
Findings and conclusions
31.        The Appellant had had nothing adverse said about her work; there were no previous complaints or incidents. It was noted by one witness that she was quite slow but that she did her work properly. It is therefore a single incident and out of character. The resident was not hurt though there was clearly a risk that she might have been. The GP called by the Home who examined EA after the incident reported that there were no marks or bruises found.
32.      There appears to have been a culture in the work place of a division between day and night staff. We accept that there was pressure on night staff to have a certain amount of work done. Residents, it would appear, had been secured into wheel chairs in the past. We accept that it was difficult in practice and in reality for one member of staff to ask another for help at a busy time in the early morning as the helping staff member will still have to complete the work involved in getting up her allocated residents.
33.       The appellant faced an unusual set of circumstances on the morning in question. She had to prioritise her work and deal with the resident who had soiled herself and her room and avoid EA also getting contaminated. She did so and managed the crisis and completed her work. 
34.       The management of the home appeared caring and had certainly worked hard to get policies and procedures correct and in place. However it seemed to the tribunal that in future there might be more thought given to addressing the working arrangements of the staff and staff development. For example the restraint policy was in place and there were the relevant forms to be completed if an incident of restraint took place. But we were told that restraint was not allowed and no one was trained to use restraint. Policies were signed for but no-one checked or could verify if they had been read. Staff came to work, did their shift and went home without any wider sense of ownership for service quality. There needs to be a sense of ‘quality for what happens to people in the service’ i.e. staff owning the quality of the service provided.
35.      Because of the division between day and night staff there was little sense of “team work” and there was supporting evidence that hand over was brief. 
36.     The Appellant had completed her NVQ2 but as we noted because of the way that it is learnt and only headline subject areas recorded it is difficult to establish how much of what was learnt was put into practice or seen as relevant to the job.
37.     With reference to what happened, we accept that the appellant had checked EA and did not seek to justify her failure to remember to untie her. She certainly showed remorse. We accept that her explanation had changed in emphasis by the time she came to the tribunal. While she still maintained that she acted in the interests of the resident’s safety it was apparent that the main motivation for what she did was the pressure that was on her that morning with an emergency situation and knowing that other members of staff would be busy and not free to come to help her. She put EA somewhere safe and where she could not interfere with the appellant’s work. The restraint was inexcusable. It does not help her even if it is the case as she maintained that she had seen other members of staff doing similar things. We accept that the decision to tie EA in a chair was not motivated by malice or done in an abusive way but in her anxiety to finish her work and get off duty on time.
38.      We consider that part of the emotion and upset felt by all concerned at what had happened to EA was because she was a very gentle quiet and loving resident. The carer who found her was upset to find her tied in to a chair.
39.       The Appellant has learnt a hard lesson and we note with concern that she gave the Police interview without the benefit of legal advice. At the time she was clearly worried about her visa status and found it difficult to get her thoughts together. It must be open to question as to whether she would have accepted a caution if she had had legal advice. It is plain that at the time she did not realise the consequences of what she was doing. To her credit she has not complained of this and has stated that she told the truth to the Police.
40.     The character witnesses on behalf of the Appellant spoke with deep concern about all that she had been through and still faces. Father Morgan remarked that ‘good things can come from bad events’. The Appellant herself was emphatic that such a thing would never happen again, that she had grown in insight and wanted to give something back to the community.
41.       It follows from what we have concluded that we do not see the Appellant as a risk to vulnerable persons in the future. The impact of the caution and the listing has been huge. The Appellant indicated she is not wishing to return to the care sector but if she were to do so we do not find her unsuitable. Bearing in mind the burden of proof on her we accept that she has demonstrated that she is not unsuitable to work with Vulnerable adults and children in the future.
DECISION
            Both the appeal against inclusion in the Protection of Vulnerable Adults List and the appeal against inclusion in the Protection of Children Act list are allowed.

Maureen Roberts
(Nominated First-Tier Tribunal Judge) 
Graham Harper
(Specialist Member) 
Jim Lim
(Specialist Member) 
Date: 10 June 2009