Secretary of State for Health, R (on the application of) v M [2009] EWHC 1279 (Admin)

[2009] EWHC 1279 (Admin)Case No CO/10854/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 8th May 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BEAN
Between
THE QUEEN ON THE APPLICATION OF SECRETARY OF STATE FOR HEALTHClaimantv
Between
MDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr L Gledhill (instructed by Treasury Solicitors) appeared for ClaimantMs K Olley (instructed by Treasury Solicitors) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BEAN: Mr Gledhill, Miss Olley, the Press representative who is present has asked whether these proceeding are anonymised and, if so, to what extent. The position below, that is before the Care Standards Tribunal, was that they made a restricted reporting order under their rules anonymising the individual, the respondent before me. Then not anything more than, for example, the identity of the nursing home is not protected from disclosure, nor are the names of witnesses. Is that correct?[2]MISS OLLEY: I am just looking at the directions order of 17th January 2007, because normally be one to cover vulnerable adults.[3]MR JUSTICE BEAN: The patient concerned is certainly protected and is protected in the judgment, I do not think I have seen his name anywhere. He can be referred to as "Mr D" or "patient A".[4]MISS OLLEY: There was a restricted reporting order in respect of appellant and the Tribunal did not take around when they issued the decision. There has not been, as I understand it, a formal application before this court. I am not sure if it was one that I would feel moved to oppose but I was surprised my Lord, to make an application.[5]MR JUSTICE BEAN: Mr Gledhill, you applied by implication, by a footnote in your skeleton argument, for me to direct that the same anonymity be extended to your client and no doubt to the patient here as was the case under the restricted reported order below.[6]MR GLEDHILL: My instructions are that Miss M would prefer not to be named.[7]MR JUSTICE BEAN: I understand. I am going to direct that the name of the respondent shall not be published in any report of this case and likewise the name of the patient. I do so because it is in my view correct practice that where an appellant or respondent has been granted anonymity in the order of the court or Tribunal below, the same anonymity should apply on this appeal. To take an example from a different appellate jurisdiction, a case in the Employment Appeal Tribunal about a transsexual, A v Chief Constable of West Yorkshire [2001] ICR 128, where A's identity had been protected by an order of the Tribunal below Lindsay J, on appeal, directed that the same anonymity should apply on appeal. That is that. I will now deal with the main judgment in the case.[8]MR JUSTICE BEAN: This is an appeal by the Secretary of State pursuant to section 9(6) of the Protection of Children Act 1999 against the decision of the Care Standards Tribunal, dated 7th November 2007, to allow the appeal of Miss M, the respondent before me, against her inclusion on the list maintained by the Secretary of State of those who are considered unsuitable to work with vulnerable adults, known as the PoVA List and also against her inclusion on a corresponding list relating to the protection of children, the PoCA List and List 99, relating to employment in schools. It is not suggested that the present Secretary of State or his predecessor has been personally involved in the proceedings.[9]Miss M had been employed as a registered nurse at a care home from January 2003 until her dismissal on 21st August for misconduct which occurred during the night of 19th to 20th August and which placed an elderly and vulnerable diabetic man in a life threatening situation.[10]The matter was referred by her employer to the Nursing and Midwifery Council ("the NMC") who, following a hearing in November 2004, decided that she should be struck off the Registrar of Nurses and Midwives and gave reasons for that decision in a letter of 14th December 2004.[11]The decision under appeal before the CST was not the decision of the NMC to strike Miss M off the register: that was not, as I understand it, the subject of any appeal. It was against her inclusion on the lists to which I have referred.[12]Section 86(3) of the Care Standards Act 2000 sets out the Tribunal's powers on appeal in the following terms:
"If on an appeal or determination under the 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 duties) 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."
[13]It is apparent from that provision that a Tribunal has to consider: firstly, was the individual guilty of misconduct? Secondly: did that individual harm or place at risk of harm a vulnerable adult? Thirdly: is the individual unsuitable to work with vulnerable adults?[14]Neither of the first two matters was in issue before the CST. In this case what they had to decide is whether, looking at the matter at the date of the hearing, Miss M was unsuitable to work with vulnerable adults and likewise with children. (There has been no suggestion that there should be any distinction between the two statutory regimes and the procedure and tests to be applied are the same, save for the reference in one case to vulnerable adults and in the other to children.)[15]The Tribunal heard evidence and submissions on 15th and 16th October 2007. The Secretary of State was represented by Miss Kate Olley, and Miss M by Mr Lee Gledhill; both have also appeared before me.[16]In its decision, promulgated on 7th November 2007, the Tribunal allowed Miss M's appeal against both decisions, that is to say the inclusion of her name on the PoVA List and the PoCA List respectively.[17]The Tribunal's decision sets out the evidence which was before them, partly in the form of written statements and partly in the form of oral evidence from Miss Low, the matron of the nursing home at the relevant time; Miss Sharpe, the night sister whose responsibilities included the area where the respondent had been working on the night in question; the respondent herself, and a character witness for her, Miss DM.[18]The findings of the Tribunal relating to the night in question say this:
"There was never any question about the Appellant's misconduct in relation to the failure to attend properly to the concerns about Mr D's condition on the night of 19/20 August 2003. The Appellant admitted it from the beginning and although she did not give any explanation of her behaviour, she clearly regretted what had happened and felt that she had been punished by being struck off the nursing register. She had also made several efforts to update her training on the treatment of diabetes and in first aid. She had been working as a cleaner since being put on the PoVA and PoCA lists."
I will not in this judgment set out in full the Tribunal's recital of the factual evidence. Suffice it to say that the patient concerned, Mr D, had recently returned from hospital following surgery. He was elderly, frail and diabetic. When Miss Low arrived on duty at 7.00 am on the 20th August, she was told by the respondent that the patient was "a bit chesty" and that Miss Low should keep an eye on him, but was told by a care assistant that the assistant was worried about the patient. Miss Low checked him herself and concluded that he was deeply unconscious and severely hypoglycaemic. He was taken to hospital for treatment. Miss Low made enquiries of the other staff on duty and was told that they had said several times to Miss M that the patient did not seem to be responding. This produced no response from Miss M Miss Low considered that Miss M's failure to respond to requests from the care assistants amounted to a deliberate decision not to go to care for a resident over a period of about 6 hours. Miss Low said that Mr D could have died as a result of the hypoglycaemic coma and, in her view, Miss M would not learn from the mistake which she had obviously made.[19]The Tribunal recited section 86(3) of the 2000 Act, stated correctly that the burden of proof was on the Secretary of State to satisfy the Tribunal to the civil standard that the appellant was unsuitable to work with vulnerable adults (and similarly under PoCA with children), and said in their conclusions:
"A. In considering whether or not the 'suitability' test has been satisfied we accepted the seriousness of the misconduct and the need to protect the public and retain public confidence. B. However, we considered that there were some mitigation factors surrounding the misconduct. i) It was four years ago; the Appellant was remorseful, had never denied her error and had made genuine attempts to update her knowledge. ii) It would have been helpful to hear evidence direct from the care assistants; there had apparently been some ill-feeling between some of them and the Appellant and we did not know what effect that may have had on the Appellant's actions. iii) The misconduct was an isolated incident in a nursing career that had spanned 14 years and appeared to have been a one-off event for which the Appellant had paid a necessarily high price. iv) The appellant had clearly learnt from her mistake and genuinely wanted to use her undoubted skills in the caring profession; that was currently denied. C. So far as suitability was concerned, the level of professional care required as a carer was considerably less than that required as a registered nurse. If the Appellant were allowed to work as a carer, she would always be supervised until she had undertaken further training for higher qualifications. She would need to start at a low level that would not be easy for her. D. We weighed very carefully the risk to vulnerable adults by allowing the Appellant to work as a carer and concluded that on the balance of probabilities she was 'suitable' to be so employed for the reasons given above. She would be very well aware of the penalty should any further misconduct occur but we felt that she should be given this further chance. Clearly something had not been right at The Beeches after the initial probationary period; the Appellant told us she was a private and proud person and there may have been unresolved cultural issues which were not fully appreciated by the other staff. In no way does this mitigate the seriousness of the misconduct but it may serve as some explanation. E. It is true that no individual has a right to work in a particular profession but at the same time we believe that in the Appellant's case the risks posed to vulnerable adults at the level of working as a carer are not such as to render her unsuitable for such work. We therefore determined to allow her appeal and remove her name from the PoVA List. F. So far as the PoCA List is concerned, we have no evidence to indicate any greater risk to children and we believe that the Appellant should also be removed from the PoCA List and List 99. It is extremely unlikely that she will be working unsupervised for some time and we would hope that in time she might feel able to apply for reinstatement as a registered nurse."
[20]Miss Olley, in her skeleton argument on behalf of the Secretary of State, has referred to a number of decisions of the Care Standards Tribunal, which set out the proper approach. None of them was in dispute before me. In the case of EK v Secretary of State [2006] 0766 PVA, the Tribunal held that:
"Not all those found guilty of misconduct will be held to be unsuitable to work with vulnerable adults or children. A finding of misconduct of a less serious nature will not generally lead to a finding of unsuitability without more. Conversely, an individual guilty of relatively trivial misconduct can be shown to be wholly unsuitable. Each case must be looked on its on facts and context is very important."
The Tribunal referred to similar observations in two other cases, the cases of MB and of Barnes.[21]In Mairs v Secretary of State for Education and Skills [2004] 269 PC, the Tribunal held that on the issue of unsuitability to work with children and similarly with vulnerable adults, the Tribunal may have regard to:
"(a) the number of incidents constituting the misconduct; (b) the gravity of that misconduct; (c) the time that has elapsed since the misconduct; (d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the 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. This should not be regarded as an exclusive list. The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad."
Returning to the decision in EK, the Tribunal said:
"61. In deciding whether an individual is unsuitable, the Secretary of State, or on appeal, the Tribunal, must undertake an assessment of risk."
They went on in paragraph 62 to say that Parliament's clear intention was that the Tribunal should have regard not only to the degree of risk posed by the appellant but also to the issue of public confidence.[22]As to that, I agree with Munby J, who in the recent case of Secretary of State for Children School and Families v BP [2009] EWHC 866 (Admin) said that the Tribunal is "plainly right ... in stressing the vital importance of the issue of public confidence. This does not mean, of course, that the Tribunal is simply to pander to the unreasoned baying of the mob, but it does mean it is entitled to have regard to matters which are likely to be of concern to ordinary sensible people."[23]Miss Olley challenges the reasoning and conclusion of the Tribunal on a number of grounds. In considering those, I bear in mind cases such as English v Emery Reimbold & Strick [2002] 1 WLR 2409. A decision of a statutory tribunal is not of course expected to be an extended and profound essay such as one might expect from speeches in the House of Lords. But it does have to make it clear to the parties what the essential reasons were for the decision and why the submissions on the most important points were accepted or rejected.[24]I will begin by mentioning briefly two issues raised in Miss Olley's skeleton argument, which she did not raise in oral argument in my view quite rightly, because I do not consider the points have any merit. One is in relation to the Tribunal's treatment or portrayal of the evidence of Miss DM, who gave testimonial evidence for the appellant and was then questioned about her view of the seriousness of the misconduct. A point is also raised about the Tribunal's approach to three other incidents, not the subject of any formal charge of misconduct. I will simply say that I consider that the way the Tribunal dealt with the evidence of Miss DM and with the other incidents was entirely proper.[25]I turn to the submissions which were at the heart of Miss Olley's oral argument this morning. The Tribunal's reasoning under conclusions (a) to (f) is, as Miss Olley said, very brief. That is not necessarily a vice but it does mean that there is not a great deal to go on. The crucial conclusion comes at the beginning of section (d) where the Tribunal conclude that, on the balance of probabilities Miss M was suitable to be employed as a carer "for the reasons given above". One then looks at what the reasons given above were. Section (a) of the conclusions records that the Tribunal "... accepted the seriousness of the misconduct and the need to protect the public and retain public confidence." Section (b) sets out four points in mitigation. One of them, namely the second, is a little puzzling. That, as already indicated, says that it would have been helpful to hear evidence direct from the care assistants. The Tribunal observed that:
"...there had apparently been some ill-feeling between some of them and the Appellant and we did not know what effect that may have had on the Appellant's actions."
There is a similar reference towards the end of section (d).[26]The Tribunal do not explain why this is relevant to the issue of suitability to be employed as a carer. As Miss Olley rightly said, the public is entitled to expect that people employed as nurses, carers and doctors will not let personal difficulties arising between them and colleagues affect the standard of care which they give to patients. The public is not entitled to expect that everybody working in a care home or hospital will necessarily get on well or even like each other but they should be able to put aside personal issues in the interests of the patient.[27]Going onto section (c) of the conclusions, that deals with the vital issue of suitability. The Tribunal say: "...the level of professional care required as a carer was considerably less than required by a register as a register nurse." (I think the fifth word of that passage should read 'skill' so that it is a reference to the level of professional skill.)[28]Miss Olley accepted that, as a general proposition, the level of professional skill required from a carer may well be considerably less than that required from a registered nurse. But, she argues, that is irrelevant to the present case. The matters which were found to be faults on the part of Miss M were, she submits, obvious faults going to the suitability of Miss M to work as a carer, just as much as to her suitability, (on which the NMC had decided) to work as a nurse.[29]I am not concluding, and Miss Olley does not ask me to conclude, that Miss M was plainly unsuitable to work as a carer. That will be a matter for the Tribunal in due course. But I do not find assistance from that sentence in understanding how the Tribunal reached their conclusion.[30]The next sentences read:
"If the Appellant were allowed to work as a carer, she would always be supervised until she had undertaken further training for higher qualifications. She would need to start at a low level that would not be easy for her."
[31]It is common ground between Miss Olley and Mr Gledhill that as a statement of what the position would be if Miss M was to be removed from the list of prescribed persons, this was simply incorrect. As matters stand, since the decision of the Tribunal, Miss M is, as a matter of law, free to work as a carer. She cannot, of course, work as or held herself out to be a nurse: that follows from the NMC's decision striking her off. But she is allowed to work as a carer. That includes caring for an individual in that individual's home, without supervision.[32]When the Tribunal go on to reach their conclusion that, on the balance of probabilities, Miss M was suitable to be employed as a carer "for the reasons given above", it is not clear what those reasons are. In particular, the proposition that she would always be supervised is not sustainable.[33]The remainder of the Tribunal's conclusions do not give reassurance that this error is not a serious one vitiating their decision. They go on to deal with the personal difficulties and possible cultural issues with the other staff. They say that this does not mitigate the seriousness of the misconduct but it may serve as some explanation. Then, at (e) they say, effectively repeating the conclusion at the beginning of (d) that they believe that in the appellant's case the risks posed to vulnerable adults at the level of work as a carer are not such as to render her unsuitable for such work. These conclusions do not indicate to me a chain of reasoning, including a proper risk assessment, leading to a logical conclusion.[34]I emphasise once again, I am not saying that Miss M is unsuitable to work as a carer. That is a matter for the Tribunal. Miss Olley quite rightly did not seek to say that I should allow the Secretary of State's appeal and simply reinstate the original decision to place Miss M on the relevant lists.[35]It seems to me therefore, subject to Mr Gledhill's human rights argument, to which I shall come in a moment, that the decision of the Care Standards Tribunal must be quashed, and the case remitted to a freshly constituted Tribunal to consider Miss M's appeal.[36]The Human Rights Act argument is an interesting one and I am probably not doing justice to Mr Gledhill's lengthy and carefully written skeleton argument on the subject by summarising it. He argues that the scheme of the legislation, the scheme of the PoVA and PoCA lists and the legislation permitting their existence is non compliant with the human rights of the individuals involved. In particular, it creates what Mr Gledhill described as a binary decision process. The Care Standards Tribunal is forced either to allow an individual to work as a carer for, say, vulnerable adults in all circumstances, or to prohibit them in all the circumstances by allowing their names to remain on the PoVA list.[37]There ought, Mr Gledhill submits to be a third way (to use an overworked phrase) namely a provision under which an individual can be prohibited from working in the relevant profession except under supervision.[38]Mr Gledhill claims support for that argument from the recent decision of the House of Lords in R (On the application of Wright) v Secretary of State for Health [2009] 2 WLR 267 in which Baroness Hale of Richmond gave the substantive speech with which the remainder of their Lordships agreed. Wright is, of course, a case of the greatest importance relating to the procedure for provisional listing under PoVA and PoCA, but it does not, in my opinion, come anywhere near proving the proposition for which Mr Gledhill contends. The basis of the Wright decision, in my view, is that no one should be condemned unheard. That the inclusion of an individual on a provisional list, effectively stopping him or her from pursuing the relevant profession, is an interference with the individual's Article 8 rights of a degree which fully engages Article 6. The individual concerned must be given an opportunity, which the PoVA and PoCA provisional lists schemes did not provide, to challenge his or her inclusion on the list. This tells me nothing about the "binary" issue which Mr Gledhill seeks to raise. The status quo for Miss M is that she is not on any of the lists and has not been since about the end of 2007. If the second Tribunal come to the same conclusion as the first Tribunal, then subject to any appeal that position will remain. On the other hand, it is possible that the second Tribunal will conclude that Miss M is unsuitable to work as a carer and would be unsuitable to do so whether supervised or not. In that event, again, the human rights point will not arise.[39]It is only if the second Tribunal were to come to the conclusion, based on proper reasoning, that Miss M would be suitable to work as a carer under supervision though not unsupervised, that the point raised by Mr Gledhill would arise. I am not willing to decide it at this stage because it is hypothetical. I bear in mind also that whether or not I acceded to Mr Gledhill's arguments, my ruling on the issue would no doubt go to at least the Court of Appeal, if not the House of Lords and this might involve enormous delay in the final determination of the dispute between the Secretary of State and Miss M. I therefore leave this point to be decided by another judge in another case. I allow the Secretary of State's appeal and remit the case for determination by a freshly constituted Care Standards Tribunal.[40]MISS OLLEY: My Lord, I am grateful. I have no consequential applications. However may I clarify one matter with your Lordship? It seems to me sensible that the freshly constituted Tribunal consider only the issue of suitability and will not be required to call the witnesses again.[41]MR JUSTICE BEAN: It must be right, Mr Gledhill, that the Tribunal on the second hearing need not consider whether there was misconduct placing a patient at risk of harm, but they may wish to consider how serious the incident was. I do not think it has ever been in dispute that this was misconduct placing a patient at risk of harm.[42]MR GLEDHILL: Indeed. Can I explore what the suggestion Miss Olley makes would mean in practice. Does that mean the transcripts would stand of the evidence that was heard the first time round complemented by submissions, or submissions and further evidence?[43]MR JUSTICE BEAN: I think, if I may suggest it, that I ought to break off and give the two of you the opportunity to agree what is to happen. I would be diffident about giving directions to the Tribunal unless the two of you are agreed as to what they should be. But it would be very much in everyone's interests I would have thought if the two of you can agree on what procedure you will be asking the Tribunal to follow, what evidence needs to be called and so forth. Shall we resume the discussion later if necessary?[44]MISS OLLEY: I am not sure we need to trouble your Lordship with that. I think probably it follows from your Lordship's judgment. I note in the BP case, the decision of Munby J to which your Lordship referred, paragraph 38, the decision was the matter would be remitted and the question determined on the basis of factual findings made and such additional evidence in relation to BP's suitability to work as the Tribunal considers it appropriate to hear. Obviously, it will be open to Miss M to adduce further evidence as to suitability because the Tribunal would be deciding the matter as at date of the hearing. It does not seem there needs to be a re-opening of the facts. I think it is a matter of applying logic and we need not trouble your Lordship.[45]MR JUSTICE BEAN: It should be for the Tribunal to decide how to proceed but if the two of you can agree a document to be sent to the Tribunal that will obviate the need for unnecessary interlocutory hearings or applications. It does need to be very clearly spelt out what the agreement is. For example, taking the evidence of Miss Low, does she have to be called again? If not, is the opinion that she expressed last time to be taken into account by the Tribunal; and so forth. I do not want to discourage you. These are not easy matters but they are really for the Tribunal, not for me, I think. Shall we leave it there?[46]MR GLEDHILL: If Miss Olley and I find ourselves in difficulties, do we have permission to approach the court or to revisit this? I do not anticipate there will be an issue but your Lordship is giving some very helpful advice. I am not saying it has to be today, I am not saying we will get in difficulties. My concern is that I do not want a guillotine.[47]MR JUSTICE BEAN: If you want further input from me, Mr Gledhill, I am very happy to give it but I think it ought to be this afternoon rather than in the indefinite future. I am only in this building for another week and then I am at a succession of Crown Courts where you could get in touch in writing but by that time, I think I really would be saying you must go to the Tribunal. Shall I say this. If at 2.30 pm today or thereabouts, you would like to see me again, just put a phone message through to my clerk, and I will come back and be of what help I can. Equally, if you think that either you have agreed everything, or it is all too difficult and there is nothing more I can usefully say then let me know. Thank you both very much for your very considerable assistance.[48]MR GLEDHILL: My Lord, I am to invite the usual costs order in relation to Legal Services Commission funded assessment.[49]MR JUSTICE BEAN: Yes, you may certainly have the order for assessment. I make no other order. (There was no further application about the terms of the order.)

Cited in 1 later judgment