Oluku v CQC [2012] UKFTT 275

UKFTT
Oluku v CQC
[2012] UKFTT 275 · 2012-05-17
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 30 th August and 12 th 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 8 th 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 24 th August 2011. The appellant filed an appeal against that decision on 31 st 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 usersThe 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 15 th 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 needsThe 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 1 st 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