Brooklyn House Ltd v Commission for Social Care Inspection [2006] EWHC 1165 (Admin)

Case No CO/5534/2005[2006] EWHC 1165 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LL
25/05/2006
Before
LORD JUSTICE MAURICE KAYMR JUSTICE TUGENDHAT
Between
Brooklyn House LimitedClaimantCommission for Social Care InspectionDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Richard Kimblin appeared on behalf of ClaimantMr Vincent Nelson QC for Defendant
JudgmentMr Justice Tugendhat :Date 2006-05-25
[1]On 28th April 2005 the Appellant, Brooklyn House Ltd, was convicted of three offences, and acquitted of a fourth, following a trial before Deputy District Judge Dean at the Central Norfolk Magistrates Court sitting at Swaffham. Brooklyn House is a care home for the elderly which is operated by the Appellant company, a wholly owned subsidiary of Caring Homes Limited, which owns and operates a number of other care homes in southern and eastern England. The Appellant is the registered person in respect of the care home in question. The offences are created by the Care Standards Act 2000 and the regulations made thereunder, the Care Homes Regulations 2001 SI 2001 Number 3965.[2]The first of the three offences of which the Appellant was convicted related to the period between 17th November 2003 and 1st March 2004. According to the Information, prescribed medicines were not available for administration at the prescribed time, contrary to regulation 12(1). The Appellant was acquitted of a similar alleged offence in respect of the period 25th August 2003 to 2nd October 2003. The other two offences were contraventions of regulation 13(2). One relates to the period 25th August 2003 to 2nd October 2003 and the other to the period 17th November 2003 to 1st March 2004. According to the Informations, the Appellant: “Did fail to make arrangements for the recording, handling, safe keeping and safe administration and disposal of medicines received into the care home in that the defendant failed to make arrangements for the safe administration of medicines by keeping accurate records of the administration of medicines and by putting in place a system whereby procedures were known, understood and fully adhered to by staff in respect of the administration of medicines as detailed in statutory requirement notice dated 25th July 2003”.[3]In accordance with Section 25 of the 2000 Act, regulation 43 (1) provides that a contravention or failure to comply with any of the provisions of certain regulations, including regulations 12(1) and 13(2), shall be an offence. Section 25(2) of the 2000 Act provides that a person guilty of such an offence shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale. Regulation 43(2) provides that the Commission for Social Care Inspection shall not bring proceedings unless a notice has been given under regulation 43(3). No point is taken in the present case on the form or content of the notice that was served.[4]Part III of the Regulations is headed Conduct of Care Homes. Regulation 12 relates to Health and Welfare of Service Users (that being the expression used to refer to those receiving care at the home: see reg 2(1)). Regulation 13 is headed Further Requirements as to Health and Welfare. The gist of the remaining regulations in this Part appears from the headings. Regulation 14 is headed Assessment of Service Users, regulation 15 is headed Service Users Plan, regulation 16 is headed Facilities and Services, regulation 17 is headed Records, regulation 18 is headed Staffing, regulation 19 is headed Fitness of Workers, and so on. Part IV of the Regulations relates to the premises themselves.[5]The terms of regulations 12 and 13 are as follows:
“12 Health and welfare of service users (1) The registered person shall ensure that the care home is conducted so as— (a) to promote and make proper provision for the health and welfare of service users; (b) to make proper provision for the care and, where appropriate, treatment, education and supervision of service users. (2) The registered person shall so far as practicable enable service users to make decisions with respect to the care they are to receive and their health and welfare…. 13 Further requirements as to health and welfare (1) The registered person shall make arrangements for service users— (a) to be registered with a general practitioner of their choice; and (b) to receive where necessary, treatment, advice and other services from any health care professional. (2) The registered person shall make arrangements for the recording, handling, safekeeping, safe administration and disposal of medicines received into the care home. (3) The registered person shall make suitable arrangements to prevent infection, toxic conditions and the spread of infection at the care home. (4) The registered person shall ensure that— (a) all parts of the home to which service users have access are so far as reasonably practicable free from hazards to their safety; (b) any activities in which service users participate are so far as reasonably practicable free from avoidable risks; and (c) unnecessary risks to the health or safety of service users are identified and so far as possible eliminated, and shall make suitable arrangements for the training of staff in first aid. (5)...” (1) The registered person shall ensure that the care home is conducted so as— (a) to promote and make proper provision for the health and welfare of service users; (b) to make proper provision for the care and, where appropriate, treatment, education and supervision of service users. (2) The registered person shall so far as practicable enable service users to make decisions with respect to the care they are to receive and their health and welfare…. (1) The registered person shall make arrangements for service users— (a) to be registered with a general practitioner of their choice; and (b) to receive where necessary, treatment, advice and other services from any health care professional. (2) The registered person shall make arrangements for the recording, handling, safekeeping, safe administration and disposal of medicines received into the care home. (3) The registered person shall make suitable arrangements to prevent infection, toxic conditions and the spread of infection at the care home. (4) The registered person shall ensure that— (a) all parts of the home to which service users have access are so far as reasonably practicable free from hazards to their safety; (b) any activities in which service users participate are so far as reasonably practicable free from avoidable risks; and (c) unnecessary risks to the health or safety of service users are identified and so far as possible eliminated, and shall make suitable arrangements for the training of staff in first aid. (5)...”
[6]By section 23 of the 2000 Act the Minister is empowered to prepare and publish statements of national minimum standards which are to be taken into account in various proceedings, including any proceedings for an offence under the Regulations.[7]Section 29 of the 2000 Act provides as follows:
“29 Proceedings for offences (1) Proceedings in respect of an offence under this Part or regulations made under it shall not, without the written consent of the Attorney General, be taken by any person other than— (a) the CHAI or the CSCI (as appropriate) or, in relation to any functions of either the CHAI or the CSCI which the Secretary of State is by virtue of section 113 for the time being discharging, the Secretary of State; … .”
[8]At the trial the Judge heard evidence from a Mr Andrews, a Pharmacist Inspector, on behalf of the Prosecution. He also heard evidence on behalf of the Appellant from Ms Jeffery a director of the Appellant and the Operations Director, Ms Goodwin and Ms Scott who had each been Regional Manager of Caring Homes Limited, respectively before and after January 2004.[9]The Judge found that the Appellant had responsibility for forty vulnerable elderly people. The Care Homes for Older People National Minimum Standards issued by the Department of Health are standards within the meaning of s.23 of the 200 Act. They include the following, parts of which the Judge quoted: “9.1 The registered person ensures that there is a policy and staff adhere to procedures, for the receipt, recording, storage, handling, administration and disposal of medicines… 9.3 Records are kept of all medicines received, administered and leaving the home or disposed of to ensure that there is no mishandling. A record is maintained of current medication for each service user (including those self administering). 9.4 Medicines in the custody of the home are handled according to the requirements of the Medicines Act 1968, guidelines from the Royal Pharmaceutical Society,… and nursing staff abide by the UKCS Standards for the administration of medicines”.[10]Relevant passages from paragraphs 2 and 3 the guidelines of the Royal Pharmaceutical Society are summarised by the Judge as follows: “… record keeping for which the registered person is responsible must provide a complete audit trail of medication… Within the system of record keeping the Medicine Administration Record (‘MAR chart’) is the working document adopted by the Applicant for recording the medicines administered by staff to service users. Full and accurate MAR charts are integral to safe administration of medicines. It must be an immediate clear and accurate record at the time of administration of medication. It is essential the MAR chart records all medicines administered; it is to be dated when medicines are administered; and it must identify the person who administered the medication and the time it was administered”.[11]The facts as found by the Judge include the following. On the 2nd October 2003 Mr Andrews attended the home to conduct an announced inspection and medication audit. On that occasion in relation to eight service users there were instances of inaccurate records in relation to the administration of medicines. In relation to one person a line had been drawn through the relevant section of the MAR Chart, suggesting that the prescribed medication had not been administered. The Judge accepted that it was possible that the medicine had not been available for administration on the relevant dates, but the records were not sufficient to establish with certainty why the medicines had not been administered.[12]On 1st March 2004 an unannounced inspection and medication audit was undertaken by Mr Andrews. This resulted in thirty eight instances of omissions in MAR Charts where it was not possible to determine if prescribed medicines had been administered, seven instances of discrepancies between entries in MAR Charts suggesting medication had been administered, but which did not correspond with the medicines remaining in the “monitored dosage system” of blister packs, six occasions where there were omissions in the recording of the prescribed variable dosage of medicines, fourteen instances of inaccuracies in the recorded time of administration of medicines (specifically, the medicines which by reference to MAR Charts had been due for administration at 10am had already been administered prior to commencement of the inspection at 8.10 am), eighteen examples of MAR Chart entries that had been deleted without recorded explanatory information on the Chart, four examples of omissions in the recording of the receipt of medicines at the home, three examples of discrepancies where it was not possible to account for medicines on the MAR Charts, and nine instances of incomplete records for the non-administration of prescribed medicines. In addition there were five instances of prescribed medicine being unavailable for administration to four service users.[13]The prosecution alleged that the non-availability of prescribed medicines gave rise to a breach of regulation 12 and the other matters gave rise to a breach of regulation 13.[14]As to the non-availability of medicines it was submitted on behalf of the Appellant that there had been difficulties in obtaining prescriptions from GPs, particularly in relation to small quantities and for those who had been newly admitted to the home. As to the other matters it was submitted that the required arrangements had in fact been made. As summarised by the Judge in paragraph 6 of the Case Stated, these were: i) employment of professionally qualified nurses who were subjected to competence assessment and who were “warned” in relation to MAR Chart errors and, in appropriate cases, subject to disciplinary proceedings; ii) a staff training session on “drugs awareness” had been conducted on 16th October 2003; iii) the home used MDS blister packs and MAR Charts and provided staff with written procedures governing the administration and control of medicines; iv) the Appellant had instigated a “daily medication audit” amounting to a daily “review” of the MAR Charts; v) a weekly Brooklyn House Audit was instigated to overcome the shortcomings that had been identified on inspection. This amounted to an “audit of the audit”.[15]It was accepted on behalf of the Appellant that there had been shortcomings in the performance of the Care Home Manager and a high staff turnover, but no complaints had been made by general practitioners relating to the care and treatment of service users.[16]It was further submitted for the Appellant that the mental element in respect of the alleged offences was not clear. The Regulations did not create offences of strict liability subject to a defence of due diligence. It would be wrong to find that the Appellants were vicariously liable for the errors or omissions of the qualified nursing staff. Any uncertainty in construing the Regulations should be resolved in favour of the Appellant.[17]On behalf of the prosecution it was submitted that there was no evidence of ongoing staff training over and above the session of 16th October (the Appellant explained that this was the only training session that happened to take place in a period covered by the Informations). The implementation of a daily medication audit and the Brooklyn House Audit were not capable of remedying defects in the MAR Charts. It was not accepted that the shortage of prescribed medicines was due to the refusal of general practitioners to provide prescriptions.[18]As to the law, the prosecution submitted that there was a dual responsibility lying on both nurses and the home for the safe administration of medicines and accuracy of record keeping. Mr Nelson QC, who appeared for the CSCI before the Judge, as he did before us, cautioned against concluding that the offences were ones of strict liability. He suggested that it was necessary to import the necessary mental element of the offences by reference to an objective test. The test he suggested was: are the facts such that they would indicate to a reasonable person that the registered person is not ensuring that the procedures for the safe administration of medicines are being adhered to?[19]In addition to these points going to the merits, the Appellant had raised an entirely separate point under section 29 of the 2000 Act. Its solicitors wrote a letter dated 18th November 2004 explaining the point. It was headed “Commission for Social Care Inspection v Brooklyn House Limited”, and addressed to the CSCI’s solicitors. It included the following paragraph:
“It is clear from the advance information in this case that an employee of the Commission has inspected the defendant’s premises. What is not clear and what the defendant requires to be proved is whether the decision to institute the proceedings was taken at or around the level of employees who inspected or whether the decision was taken by the Commissioners. If the proceedings were commenced without the Commissioners’ authority there is no authority to prosecute and the proceedings are vitiated.”
[20]The point was the subject of a number of letters and submissions in the skeleton arguments. At the trial no evidence was adduced by either side on the point. Counsel for the Appellant referred to the authority point in his closing submission. The Judge questioned the timing of that submission. He pointed out that he was about to retire to consider the issues of fact and that counsel was advancing this point in the course of his closing speech. In response to an enquiry from the Judge, Counsel submitted, firstly, that he had feared a ruling by the judge at the close of the prosecution case in his favour would have resulted in an appeal by the Respondent, and secondly, he wished on behalf of his client to win the case “on merit”.[21]After a short adjournment and some research into the law the Judge returned and expressed the conclusion that he would not permit the Appellant to seek to argue that point of law at that stage. There had at one stage been fixed for 10th December 2004 a hearing to argue the point whether the proceedings had been properly authorised by the CSCI. On 2nd December solicitors for the Respondent had lodged a witness statement from Ms Guss, the head of Legal Services for the CSCI, confirming that she had authorised the prosecution jointly with relevant Regional Directors. As a result of points made in skeleton arguments that hearing date had been vacated. The Judge ruled that the challenge was too late.[22]On the substantive points his decision is expressed as follows in the Case Stated: “(iii) That regulations 12 and 13 of the Care Home Regulations 2001, required the registered person to put in place an ‘effective’ system whereby procedures were known, understood and fully adhered to by staff in respect of the administration of medicine. That the ‘effectiveness’ of such a system should be judged objectively as it has been in this case by the Inspection and Medication Audits that had been conducted. The measures referred to at paragraph 6 [of the Case Stated] contributed to the problems identified by the Inspection and Medication Audit. The [Applicant] failed to have proper regard to the importance of ensuring the accuracy of the MAR Charts themselves. There was not effective management on the part of the [Applicant] in ensuring that procedures in respect of the MAR Charts were adhered to. (iv) There had been no substantive dispute on the findings of the Inspection and Medication Audit but that the Applicant handled the matter in a highly contentious manner resulting in a three day contested hearing. In the light of my findings on Informations 2, 3 and 4 (the Applicant having declined an invitation to address me as to means) it was appropriate to make an order that the Applicant pay £25,000 towards the costs of the Prosecution reasonably and necessarily incurred (having reduced that sum from the £28,383 sought to reflect the dismissal of the first information and the additional costs occasioned by the uncontested application to amend the information\summons) ”.[23]The questions for determination by this court are:
“a. Was the Judge correct in law in refusing to allow the Applicant to submit in the course of a closing speech that the Respondent had not proved that the prosecution was properly authorised? b. What, if any, is the mental element required to prove offences contrary to Regulations 12(1)(b) and 13(2) of the Care Homes Regulations 2001? c. Did the Judge err in law in making an order for prosecution costs of £25,000 having made an order that the Applicant pay a total fine of £4,000?”
The First Question – Authorisation of the prosecution.[24]This question turns on the wording of section 29 of the 2000 Act, which is set out above. There is no dispute that it is the CSCI which is named as prosecutor in these proceedings. On the face of it, the requirements of section 29 have been satisfied: proceedings in respect of the offences have been taken by the CSCI. This is to be contrasted with the alternative envisaged by Section 29(1)(a), namely that proceedings might be brought by some other person, although not without consent of the Attorney General. The section does not therefore require proof of the consent of the CSCI. The CSCI is the prosecutor.[25]In the closing submissions the point is taken on behalf of the Appellant by reference to the skeleton argument which had been served and was dated 5th October 2004. The argument there set out is as follows. It is accepted that the CSCI is a body corporate established by statute on 1st January 2004 under Section 42 of the Health and Social Care (Community Health and Standards) Act 2003. What the Appellant required to be proved was that the CSCI has properly authorised the prosecution and laid the information via an officer of the CSCI who had that task delegated to him by the CSCI. The alternatives which are set out are that the CSCI might have resolved to prosecute the Defendant, in which case the resolution should be produced, alternatively it may have delegated its functions to an officer of the body corporate, in which case the instrument by which the officer was authorised to take decisions to prosecute and to commence proceedings should be produced.[26]In my judgment this argument is misconceived. The prosecution has been brought by the CSCI. It has not been brought by a delegate or anyone else. The Appellant has not raised any issue as to the bringing of the prosecution which results in the CSCI having anything to prove. A prosecuting authority does not normally have to prove the internal procedures by which the decision of the authority to prosecute was reached. We do not need to consider the answer to the first question.

(b) and 13(2)

[27]In the Skeleton Argument for the Appellant, Mr Kimblin submits that the question which the Judge has posed shows that he has taken the wrong approach. The issue is not mens rea, it is the actus reus. The questions which the Appellant had asked to be included in the Case Stated were whether the Judge had erred in law in finding that the Appellant had breached each of regulations 12(1)(b) and 13(2). The question is what act or omission by the registered person incurs a criminal liability under the Regulations. The arrangements set out in paragraph 6 of the Case Stated were in place and were not the subject of criticism. Nor did the Prosecution allege that there was any element missing. The Judge was wrong to avoid any assessment of the arrangements, and was perverse to state that the measures referred to in paragraph 6 of the Case Stated contributed to the problems. In his oral submissions Mr Kimblin stated that the offence is created not by the standards, or by any notice (such as is referred to in the Information), but by the Regulations. He accepted that where arrangements are inadequate, or are not implemented, then they might not merit the name for the purposes of regulation 13(2). He contrasted the offence under regulation 13(2) with other offences created by the Regulations, some of which are qualified by words ‘so far as practicable’. He drew attention to the fact that the Regulations create specific offences in relation to the keeping of certain records, staffing and fitness of workers.[28]Before us Mr Nelson QC submitted that there is no mental element in the offences under regulations 12 and 13: they are offences of strict liability. It follows that both parties agree on the answer to the second question.[29]Mr Nelson QC addressed his submissions to the content of the obligation imposed by the Regulations. He submitted that the questions whether “proper provision” and “arrangements” have been made can be determined by looking at the outcome in any given case. So, if no effective or correct record of administration of medicine has been kept (or incomplete records) it cannot be said that the system in place provides an “arrangement” for the safe administration, handling and safekeeping of medicines. It is not enough that there should be arrangements, the arrangements must be effective. The over or under administration of medicines may cause death or serious injury, and if that occurred it should not be enough for the registered person to argue that it happened when arrangements were in place and that they do not have to be effective. Whether there is an offence in any given case is a matter of fact and degree.[30]In my judgment the parties are correct to agree that the offences created by regulations 12(1)(b) and 13(2) are offences of strict liability and that there is accordingly no mental element. Where a director or other individual acting as an officer of a body corporate is charged, then by section 30 of the 2000 Act, that person’s state of mind is relevant, but that is not this case.[31]The real issue between the parties was as to the nature of the actus reus. I accept the submission of Mr Nelson QC that it is proper for the Judge to look at the outcome to answer the questions whether “proper provision” and “arrangements” have been made. It does not follow that every failure will be an offence. What is “proper provision” and what are to count as “arrangements” may be judged by the standards in accordance with section 23. Where the recording, handling, safe keeping and safe administration and disposal of medicines received into a care home is found to be defective, it may in some cases be possible for the CSCI to identify what feature of, or omission from, the arrangements has caused or contributed to this failure. In other cases it may not be possible. But in my judgment it cannot be the case that there is no offence committed, however serious the outcome, unless the CSCI can attribute it to a defect in or omission from the arrangements.[32]There is some protection for a registered person from prosecution in the requirements of regulation 43 that there be a notice. Regulation 43(3)(d) provides for the registered person to have an opportunity to make representations to the CSCI about a notice served under that regulation.[33]Having accepted the submission that the Judge may look to the outcome in determining whether there has been an offence under either or both of regulations 12(1)(b) and 13(2), I hold that the issues between the parties that remain are ones of fact. Appeals on findings of fact are not available in the procedure applicable to this case.[34]Accordingly I would answer the second question by saying that the offences are ones of strict liability.

The Third Question – Costs

[35]The Appellant’s submission on this question is that the costs of £25,000 are grossly disproportionate to a penalty of £4,000, contrary to R v Northallerton Magistrates’ Court, ex parte Dove [2000] 1 Cr App R (S) 136. The Appellant refers to the fourth proposition set out by Lord Bingham CJ at p 142: “While there is no requirement that any sum ordered by justices to be paid to a prosecutor by way of costs should stand in any arithmetical relationship to any fine imposed, the costs ordered to be paid should not in the ordinary way be grossly disproportionate to the fine”.[36]The Appellant notes the limited scope of the issues, which did not include addressing the details of the arrangements in place.[37]The Judge found that there had been no substantive dispute on the findings of the Inspection and Medication Audit, but that Appellant “handled the matter in a highly contentious manner resulting in a three day contested hearing”.[38]There was no point taken for the Appellant before the Judge that the costs had not been incurred, or that they were unreasonable for the work done. The explanation for the high figure of costs is partly that there were extensive representations that needed to be considered and some time was spent on the issue of authority to prosecute. The latter point was one reason why leading counsel was instructed at first instance. This is not a case, as Northallerton was, where the defendant’s means were a relevant consideration.[39]Having regard to the explanation given by the Judge, I can see no error in the order for costs, I would answer the Third Question No.

Lord Justice Maurice Kay:

[40]I agree and would only add this. Describing offences as ones of “strict liability” is not the same as describing them as ones of “absolute liability”. In the present context it means that the proven facts establish the offence without regard to what was in the mind or imputed mind of the defendant. Outcome is relevant but not necessarily determinative. It is a question of fact and degree. In considering that question, the National Minimum Standards are relevant and must be taken into account. That does not mean, as Mr Kimblin submits, that the Standards are being allowed to create or define the offences. It simply means that, in deciding whether a statutorily defined offence has been committed, the court will take into account the statutorily enabled standards.[41]The questions posed by the Case Stated are answered as indicated by my Lord’s judgment. The appeal is therefore dismissed.