JM v Secretary of State [2009] UKFTT 12 (HESC)

FTT-HESC

JM v Secretary of State

[2009] UKFTT 12 (HESC) · 2009-01-30

[1]JM v Secretary of State

[2009] UKFTT 12 (HESC)

(30 January 2009) Schedule 5 cases: Protection of Vulnerable Adults list - Inclusion on PoVA list CARE STANDARDS TRIBUNAL J. M. Appellant v Secretary of State Respondent [2008] 1222 PVA [2008] 1246.PC Before: Mr Stewart Hunter (Nominated Chairman) Mrs Linda Elliot Mr Peter Sarll Decision Heard at Wolverhampton Magistrates Court, North Street, Wolverhampton on the 26 th November 2008. Representation The Appellant appeared in person. The Respondent was represented by Ms Zoe Leventhal of Counsel. Appeal These are appeals by J. M, firstly under Section 86 (1) of the Care Standards Act 2000 against his inclusion on the list kept by the Secretary of State under Section 81 of the Care Standards Act 2000 of individuals who are considered unsuitable to work with vulnerable adults, the "POVA" list. Secondly, an appeal under Section 4 of the Protection of Children Act 1999 against his inclusion on the list kept by the Secretary of State under Section 1 of the Protection of Children Act 1999 of individuals who are considered to be unsuitable to work with children, the "POCA" list. Preliminary matters

[2]The Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 came into force on 3 rd November 2008.

[3]The Transfer of Tribunal Functions Order 2008, Schedule 4, 3(3) states as follows:

"The First-tier Tribunal or Upper Tribunal as the case may be, may give any direction to ensure that proceedings are dealt with fairly and in particular may; (a) apply any provision in procedural rules which applied in proceedings before 3 rd November 2008 or (b) disapply provisions of Tribunal Procedure Rules."

In view of the fact that this appeal relates to decisions taken in 2007 and given the directions that have been made to date have been made under the Protection of Children and Vulnerable Adults and Care Standards Regulations 2001 ("the regulations,) in order to ensure that proceedings are dealt with fairly, we direct pursuant to The Transfer of Tribunal Functions Order 2008, that the issue of whether or not there should be a restricted reporting order application will be dealt with under Regulation 18 the regulations. The Tribunal made a restricted reporting order prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify any vulnerable adults and the Appellant. The evidence 4. The evidence of Ms Ruth Butler, registered manager at OH was that OH is a registered mental health nursing home for over 18's with mental health problems, and over 65's who have mental health problems or dementia. It is registered for 38 residents and currently has 35 residents. There were said to be approximately 35 members of staff comprising Registered Mental Nurses, carers, cooks and cleaners.

[5]On the 13 th September 2005 the Appellant made a written application for a post at OH as a staff nurse. In his application form he indicated that he obtained 8 GCSE's and 3 A Levels from a high school in Zimbabwe. In October 2003 he had acquired a Dip HE Nursing from the University of Wolverhampton.

[6]The Appellant in his application form was asked to give details his of previous employment for the last 10 years. JM stated that he had been employed as a D grade staff nurse at Wexham Park Hospital, Berkshire from October 2003 to December 2003. The reason that he gave for leaving that employment was "moving to Birmingham". Between the 11 th August 2004 and the 13 th July 2005 he stated that he was employed as a Band 5 staff nurse at ICU, Queen Elizabeth Psychiatric Hospital, Edgbaston and the reason that he gave for leaving that employment was that he had "planned to settle in Leicester initially." JM's employment at the time of his application was stated by him to be at "The Green", Leicester, where he stated that he was employed as a staff nurse from the 14 th July 2005. He gave as the reason for wanting to leave that employment to be to "buy house in Wolverhampton".

[7]Section 3 of the application form asked the Appellant to: - "Please give the name and address of two referees, one of whom should be your present employer." This part of the form was completed by the Appellant, giving as his first referee, Mary Subbiah who was said to be the manager of The Green, Nursing Home. His second referee was Suzanne Jury, a Deputy Manager whose address was also given as The Green, Nursing Home.

[8]The Appellant was interviewed by the then owners of OH, Mr and Mrs A. Their notes of the interview with the Appellant on the 12 th September 2005 were enclosed with the Tribunal papers. The Appellant is recorded as saying that he was currently working in a nursing home. He was asked during the course of the interview about his health, and he is reported as saying that he had had one day of sickness since last year and: - "When ill, taken to the hospital by police under Section 2."

[9]On the 14 th September 2005 Mrs A wrote to Ms Mary Subbiah and Ms Suzanne Jury as the Appellant's referees, asking them about his suitability for the post for which he had applied. The letters state that a reference form was enclosed for the referees' completion. The Tribunal were shown a reference form said to have been completed by Mary Subbiah dated the 6 th October 2005, which stated that the Appellant had been working at The Green for three months in 2005. In the section headed: - "Please make any further comments about the applicant below." The following comment was endorsed: - "I do not see why he should not be considered for employment with you. I recommend him."

[10]There was also included within the Tribunal papers a reference form said to have been completed by Ms Suzanne Jury also dated the 6 th October 2005. The reference indicated that the Appellant had been employed for three months at The Green, and under further comments the following endorsement was included: - "I have no reservations about recommending JM."

[11]Ms Ruth Butler as well as giving a written witness statement in these proceedings dated the 2 nd October 2008, also gave oral evidence at the Tribunal hearing. In her written statement Ms Butler said that she had been working at OH since 1995, after the birth of her first child in June 2001 this had been on a part time basis, as a RMN. That one of the proprietors Mr A had died in March 2005 shortly before Ms Butler was due to give birth to her second child. Mrs A was said to have found it difficult to cope thereafter trying to run OH by herself.

[12]Around the same time an inspection of OH was carried out by the Commission for Social Care Inspection ("CSCI") and that the inspection had identified 42 failures. Ms Butler agreed to go back to work as a Registered Manager at OH on a job share basis with Ms Judith Salmon, in order to try and address the failures that had been highlighted in the CSCI report.

[13]Ms Butler gave evidence to say that she had become aware that the Appellant had experienced an incident of mental illness in the past. She had seen the Appellant's initial CRB check in January 2004, which contained references to an incident that had occurred when the Appellant was suffering from TB. Ms Butler told the Tribunal that she had always found the Appellant to be a pleasant person, who was professional whilst on duty; she had had no issues about his work performance. Any issues that she had raised with him he took on board.

[14]Ms Butler stated that as part of her remit to address the failures noted by CSCI, she and her colleague had carried out an audit of staff files. During this process it was discovered that the Appellant, who was from Zimbabwe, did not have a valid work permit. Ms Butler had taken advice from CSCI who had told her that the Appellant's employment should be terminated pending receipt of a valid work permit. On the 26 th May Ms Butler wrote to the Appellant, stating that as OH had received confirmation from the Home Office that the Appellant did not possess the correct work permit, and could therefore not legally work in the United Kingdom, they had no alternative but to terminate his employment with immediate effect.

[15]An application was made for a work permit for the Appellant, which was granted on the 19 th May 2006, giving OH permission to employ the Appellant for 36 months. As a result OH asked the Appellant to make a new application form to be employed at OH and also to complete a new CRB form. The Appellant was subsequently re-employed as an RMN at OH, following an informal interview, and pending the result of his CRB check.

[16]An enhanced CRB disclosure was received by OH dated the 18 th October 2006 a copy of which was included within the Tribunal papers. The enhanced disclosure contained an entry from West Midlands Police which read as follows: - "Received by West Midlands Police from the NHS, family members were allegedly involved in gaining employment, or attempting to gain employment, with a number of NHS Trusts, using fraudulent and forged references. The NHS Counter Fraud Team who obtained evidence confirming that a reference used by the applicants' wife was forged by Mr M and are waiting to interview Mr M in relation to his offence." There were no entries regarding previous convictions, cautions, reprimands or final warnings nor was there any information relating to the Protection of Vulnerable Adults list. The enhanced disclosure also referred to an incident on the 28 th January 2004 when West Midlands Police had received a report of a man causing a disturbance.

[17]Ms Butler said that JM in his new application form had not provided previous employment reference details, and as a result Ms Butler had gone back to look at his initial application form with a view to contacting the referees named in that form. At paragraph 20 of her witness statement Ms Butler stated as follows: - "We tried to telephone the Appellant's references at The Green, Nursing Home and to contact places in the Leicester area such as local medical surgeries, but were unable to make contact or find anyone who had any knowledge of The Green."

[18]The Appellant was then suspended by OH so that a full investigation could take place. The Appellant did not attend an investigatory meeting called by OH, but did attend a disciplinary hearing held by OH on the 10 th November 2006.

[19]The minutes of the disciplinary meeting recorded that in relation to the issue of writing work references for his ex wife the Appellant had said that there were circumstances as to why he had written the references in question. "He explained that he came to England as a result of joining Project 2000, and whilst he was completing his nurse training, his wife enrolled on to a computer science degree. He stated that his wife did not like the course and shortly after starting it she fell pregnant, they both agreed that it would be better at that time for her to apply to work for an NHS Trust and at a later stage she could apply to be seconded for other training. Mr M admitted that it was wrong and stupid of him to write the references himself, which ultimately contributed to his wife being offered the position she had applied for." An investigation had taken place into the writing of his wife's reference and the Appellant stated at the disciplinary meeting that he had admitted to the investigators that he had written the reference. He had then resigned before the Queen Elizabeth could take him through their disciplinary and grievance procedure.

[20]The Appellant was also asked at the disciplinary meeting about the referees that he had supplied in his original job application for OH. The Appellant is recorded as saying that a friend had given him two names to use and he had not actually met them. The friend had been intending to open a mental health nursing home in Leicester known as The Green, where JM was hoping to work but the Appellant had stated that he did not know whether his friend had contacted CSCI or the local authority regarding the registration or opening of the home. In regard to the provision of references by JM for the OH vacancy the minutes of the disciplinary meeting record as follows: - "Mr M at this point admitted this was cheating and said honesty and working hard does not always pay and the period that he had had the mental illness was painful."

[21]On the 30 th November 2006 Ms Butler wrote to JM following the disciplinary hearing indicating that his actions amounted to gross misconduct and he was dismissed. Following the Appellant's dismissal OH had referred the matter to the POVA team at the Department of Health, to CSCI and to the Nursing and Midwifery Council ("NMC").

[22]At paragraph 26 of her witness statement Ms Butler referred to text messages that she stated she had received from the Appellant on her mobile phone on the 18 th April 2007, following the POVA referral. Ms Butler regarded the text messages as abusive and threatening, and had reported the matter to the police on the following day. The police log in relation to Mrs Butler's complaint was produced as well as a letter from the West Midlands Police to the Treasury solicitors dated the 21 st October 2008 in which it was stated as follows: - "As the log clearly shows that no offence had been committed the police took no action in this matter and there are no other related papers."

[23]The NMC brought four charges against JM and alleged as a result of the behaviour set out in those charges that JM's fitness to practice was impaired, by reason of his misconduct. The four charges were as follows: - "1. On or around the 8 th May 2004 knowingly and dishonestly providing details of false references in your application form to join the Nurses Bank at South Birmingham Primary Care Trust; 2. On or around the 3 rd November 2004 forged a reference on Birmingham and Solihull Mental Health Trust letterhead for your wife's (CM) application to join the Nurse Bank at South Birmingham Primary Care Trust; 3. On or around the 13 th September 2005 knowingly and dishonestly providing false information in your application to OH Nursing Home, in that you: -a. Stated that your current and most recent employer was the Green Nursing Home, even though by your own admission you were not working for any such organisation at the time of your application.

b. Gave false and or misleading details of references. 4. On the 18 th April 2007 you sent 3 abusive text messages to Ruth Butler the manager of O H Nursing Home. AND in light of the above your fitness to practice is impaired by reason of your misconduct." The Conduct and Competence Committee of the NMC found all 4 charges proven at a meeting on the 8 th August 2008. The panel went on to find that the Appellant's actions amounted to misconduct and his fitness to practice was impaired. The panel ordered JM to be struck off the NMC register.

[24]As far as the reference to POVA was concerned the Protection of Vulnerable Adults team at the Department of Health wrote to the Appellant on the 22 nd February 2007, indicating that he had been provisionally included on the POVA list, because his former employer had informed them that he had been dismissed for falsifying references to secure a post with OH Nursing Home. A decision had also been made to provisionally include the Appellant on the POCA list. The Appellant responded by letter on the 8 th March 2007. Included in his letter was the following: - "I am ashamed of the whole thing I have never stopped apologising from day one when I was confronted. I knew I was taking a risk when I wrote a reference for my wife." And later in the same letter: - "I apologised to O H for falsifying my references. I mistakenly thought I would have a clean slate, a new start, a new beginning. My desire to prove myself was too strong. It was a mistake. I went before the managers and offered a grovelling apology."

[25]The Appellant made further representations to the POVA team, after having been passed documents from Ms Butler. In a letter dated the 10 th April 2007 the Appellant included the following – "Whilst I can't stand up and clear myself from this mess I feel I do not need to hide my head in the sand in shame. I literally saved lives at O H because the psychiatric nursing for people who are so severely ill were shambolic."

[26]On the 21 st November 2007 the POVA team at the Department of Health wrote to the Appellant to confirm his inclusion on the POVA list. The Secretary of State having concluded 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 your use of false references and incorrect work history which denied your employer the opportunity to make a fully informed decision about your suitability to work with vulnerable adults in the future; and (b) that you are considered unsuitable to work with vulnerable adults due to the above misconduct allied to your admittance that you previously provided a false reference in order for your wife to gain employment in a hospital." The Secretary of State also confirmed the Appellant's inclusion on the Protection of Children Act list.

[27]The Appellant then appealed to this Tribunal. In his appeal form the Appellant stated that he never ceased to apologise for using fake references to obtain employment. He said that 10 years was too much time on the POVA/POCA list, he had been sacked in October 2007 and had not worked since. Despite having suffered from severe mental illness in the past he had worked hard to continue to be ambitious and aspire to be professional and to live an independent, respectable and dignified life.

[28]In 2006 he had become a witness for the Crown Prosecution Service in an unrelated case concerning an attack on a 62 year old Asian man, and that without his testimony no one would have pointed out the responsible person, and there would have been no conviction. The Appellant did not consider this to be the action of a man who would harm elderly people. He had never put an adult or child at risk of harm with his behaviour. He was now trying to fashion a career for himself which would taken him away from vulnerable adults. In September 2007 he had started studying occupational health, safety and environmental management (BSC) at North East Wales Institute in Wrexham. He was a member of Life Christian University in Florida. The Appellant produced letters from the CPS regarding his role as a prosecution witness also a letter from the Life Christian University.

[29]In support of his appeal the Appellant submitted a witness statement on the 8 th July 2008. In that statement the Appellant gave details of incidents which he described as episodes of mental illness. A further witness statement was submitted by the Appellant dated the 12 th November 2008. In that statement he included the following: - "Let me quickly point out that my ex wife who I wrote the false reference for was experienced in the job I wrote the reference for, and the other reference she used was genuine, written by a nurse from Raeside Hospital, which was checked and verified. So again, I chose in her case to write a fake reference when she could have easily found many nurses to recommend her. I did not recommend someone who was unsuitable for the job, neither was I unsuitable for the job when I used false references for myself."

[30]In the same statement of the 12 th November 2008 the Appellant made reference to text messages to Ms Butler and in particular the allegations he had made regarding the care of certain residents at OH. He had also made allegations regarding the qualifications of certain members of staff at OH. The Appellant stated as follows: - "Which brings me to the point that Mrs Ruth Butler made that I text her abusive text messages. What I wrote was pleading with her that she is taking drastic measures with effects that could ruin my entire life. I was of the impression that she was using a hatchet when a scalpel could have done the job. My name has since been struck from the nursing register; I can re-apply after 5 years. Any rational person without an agenda or maliciousness can see that I have received sufficient and tough punishment for my offences of using fraudulent references. After all, I was a qualified nurse and not making up my qualifications, but my work experience."

[31]The Appellant in his November 2008 statement referred to what he described as episodes of mental illness, under the sub heading "third episode??" the Appellant included the following: - "I started work at Queen Elizabeth Psychiatric Hospital in August 2004, I had no choice, my wife had stopped working and my baby was so little. After I had started work at QE, even though I had got my job using correct references which were genuine, I joined their nurse bank and used fake references. I can't even find an explanation in my head why I did that. I obviously had several people who could give me references from the University of Wolverhampton but I guess I had become so bitter and angry at being labelled mentally ill…"

[32]Also in the same witness statement, the Appellant stated as follows: - "The next job I took at OH, I was on the verge of dying of hunger and mounting bills. Whether I faked references one more time, took another chance, or whether I just waited years and years to go away. one way or another, I was going to die.. seriously. You can never imagine the poverty you face if you don't go to work 3 months. Mary Elliffe wasn't going to give me any references because I had resigned."

[33]In oral evidence the Appellant confirmed that he had never worked at the Green Nursing Home and he had never met the two people that he had given as referees in his application form to OH. He had not written the references himself, they were sent direct to OH by people that he had never met. The Appellant accepted that the reason he had given in his application form for leaving Queen Elizabeth Psychiatric Hospital was not the real reason, similarly the reason that he had given for leaving Wexham Park Hospital namely moving to Birmingham was not the full picture. The Appellant accepted that he had written a reference for his wife, and for himself when he applied to be a bank nurse. His financial position had been threatened and he was unable to access any benefits. He stated that he was still trying to find an answer why he falsified references, he had known what he was doing, but he didn't know what role his illness had played in his situation. He accepted that he should not have falsified the references and he did not consider that his actions related to any mental health problems.

[34]Ms Leventhal in her submissions indicated that the Respondent relied on three separate allegations of misconduct, firstly the falsification of two references in the job application to OH, the falsification of his previous employment at The Green and the falsification for his reason for leaving the Queen Elizabeth Hospital. Secondly, the falsification of a reference for his then wife at Queen Elizabeth Hospital in November 2004 and thirdly the falsification of a reference for himself at Queen Elizabeth Hospital to work at the Queen Elizabeth Nursing Bank. Ms Leventhal accepted that the allegation relating to the falsification of a reference for himself for the nursing bank had not been before the Secretary of State when a decision had been taken to place the Appellant on the POVA list. However she relied on the case of Sini Joyce and Secretary of State for Health

2008 EWHC 1891

(admin) in support of the proposition that the Tribunal had discretion to consider misconduct other than that which was originally referred to the Respondent.

[35]There was a significant risk of harm by the Appellant's actions to vulnerable adults. The Appellant's actions were premeditated in nature, were inherently dishonest and had been repeated on a number of occasions. He had also sent abusive text messages to Ms Butler and had a lack of understanding as to why the falsification of the references and his work history, was wrong. The explanation that he had given was inadequate. There were serious ongoing concerns regarding his honesty and there was a risk that he would do it again. There had already been a finding against him by the NMC. He had maintained a hostile and aggressive attitude to Ms Butler and had sought to blame others for what had happened. Although the Appellant had made reference to his mental illness, no medical evidence of any ongoing concern had been produced. In any event he had been accepted onto his present university course without there apparently being any issue in this regard. The Appellant had accepted that any illness he had had was not a reason for what he had done in terms of falsifying references and his work history.

[36]The Respondent relied on the same matters in relation to the Appellant's suitability to work with vulnerable adults. In particular his serious dishonest conduct which had been repeated, as evidence of his inability to distinguish from right and wrong and accordingly not only was he unsuitable to work with vulnerable adults, he was also unsuitable to work with children.

[37]The Appellant in his final submissions stated that he was not a risk and had never harmed anyone. As far as the text messages that he had sent to Ms Butler were concerned, he had never had a chance to say sorry, they had been sent at a time when he did not know fully what he was doing. He had been punished enough already and the effect of him remaining on the POVA list would be that he could not work even as a nursing assistant. He apologised for what he had done. The findings of the Tribunal on the evidence

[38]The Appellant applied for a position at OH as a staff nurse in September 2005 and completed a written application form. In that form he gave a work history which included details of what he stated to be his three previous employers and the reasons for leaving those jobs. In the same application form he gave details of two referees, both of whom were said to be from his previous employment. In due course references were subsequently submitted in the name of each of those two referees.

[39]It was only by chance, when enquiries were made regarding the Appellant having a work permit that it came to light that the information given by the Appellant was not true. At his subsequent disciplinary hearing at OH the Appellant admitted that he had not given the true reason for leaving the Queen Elizabeth Hospital and that he had not worked at "The Green" nursing home as he had stated, the names of the referees had in fact been given to him by a friend and he had never actually met the people in question.

[40]As part of the process of the Appellant having to re-apply for his job at OH, it came to light through a renewed CRB check, that the West Midlands Police had received information from the NHS that a reference used by the Appellant's then wife had been forged by the Appellant. Again at the disciplinary hearing held in November 2006 the Appellant admitted that he had written the reference. He also admitted that there had been an investigation by the Queen Elizabeth Hospital into the matter, he had resigned before they could take him through their disciplinary and grievance procedure.

[41]As a result of these matters the Appellant lost his job at OH, and following a referral to the POVA team has been placed on the POVA list. A referral was also made to the NMC who instigated proceedings against him. As well as forging a reference for his then wife and giving false information to OH, the Appellant was also charged by the NMC that in May 2004 he had provided details of false references in an application form to join the Nurses bank at South Birmingham Primary Care Trust. All the allegations made against the Appellant were found proven by the NMC following a hearing on the 8 th August 2008. The Appellant did not dispute that he had indeed provided a false reference to join the Nurses Bank and indeed he has not disputed it in these proceedings. In the written witness statement submitted on the 12 th November 2008 the Appellant stated as follows: - " After I started work at QE, even though I got my job using correct references which were genuine, I joined their nurse's bank and used fake references."

[42]Although this allegation was not before the Secretary of State, we nevertheless consider that we are entitled to consider it. We were referred by Miss Leventhal to the decision in Sini Joyce v Secretary of State, in particular paragraph 69 of that decision where Mr Justice Goldring stated as follows: - " 69. Tenth, and again it follows from what I have said, it does seem to me that the tribunal in exercising this jurisdiction under section 86 (2) is performing a different function to that performed by the Secretary of State under section 82 (7). That follows from the wording of the Act. Provided when performing its function the tribunal acts fairly, it is in my view entitled to consider allegations of misconduct not considered by the Secretary of State."

[43]In conclusion we find all the allegations against the Appellant, which were not disputed by him in any event, to have been proven. The law

[44]Section 86 (1) of the Care Standards Act 2000 ("The Act") states as follows: - "An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under section 81 may appeal to the Tribunal against: - (a) The decision to include him in the list;…" Section 86 (3) states that: - "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 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 should 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."

[45]The standard of proof to be applied is "the balance of probability" which in essence means that a Tribunal is to be satisfied that an event occurred, if the Tribunal considers that on the evidence, the occurrence of the event was more likely than not. Conclusions

[46]As indicated in section 86 (3) above the reaching of the decision in this case is a two part process. Firstly we need to consider whether or not the Appellant was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult. The misconduct alleged by the Respondent was as follows: -(i) Falsification of two references at OH by the Appellant during the application process, namely falsification of his prior employment at The Green and falsification of the reasons for leaving the Queen Elizabeth Hospital and

(ii) Falsification of references for his then wife at the Queen Elizabeth Hospital in November 2004

(iii) Falsification of references for himself at Queen Elizabeth Hospital in order to work at the Queen Elizabeth Hospital Nursing Bank. We find for the reasons given above, that all of these acts were committed by the Appellant indeed he admitted he was responsible. We find that in each case this amounted to misconduct given the dishonesty and deception that was used by the Appellant.

[47]The Appellant has stated during the course of the proceedings on a number of occasions that he did not harm a vulnerable adult, and he found it difficult to understand how his misconduct could have placed a vulnerable adult at risk of harm. The Appellant's conduct in trying to mislead potential employers was in each case premeditated and intentional. In the case of OH the Appellant went to quite elaborate lengths to deceive his potential employers by creating bogus referees and providing references. It is vital in our view that employment procedures for all those working with vulnerable adults are robust and thorough, because of the nature of the work that they will be undertaking and the vulnerable adults that they will be working with. It is absolutely crucial that an employer is able to trust an applicant's past history and that the competencies put forward, in order that they can be satisfied that a person is in fact suitable to work with vulnerable adults. Where an applicant falsifies his past that clearly places vulnerable adults at risk because it brings into question their suitability and competence and it does not allow an employer to make an informed decision as to whether or not the person concerned is in fact suitable. We therefore conclude that the Appellant in this case was guilty of misconduct which placed at risk of harm a vulnerable adult.

[48]The second part of our decision making process is to consider whether the Appellant is unsuitable to work with vulnerable adults.

[49]We take into account that the Appellant has admitted all the allegations that have been made against him, and that he also admits having sent the text messages to Mrs Butler.

[50]The falsification of references and his work history were carried out by the Appellant for the personal gain of himself and his former wife. As already indicated the Appellant did this not on one occasion, but on three occasions. The falsification contained within his job application for the position at OH was a repetition of what the Appellant had done at Queen Elizabeth Hospital.

[51]In respect of the text messages sent in April 2007, a print out of which was produced as part of the evidence before the Tribunal, they were extremely abusive in nature and found to be so by the Conduct and Competence Committee of the NMC. Although the text messages in themselves did not form part of the allegations of misconduct, we accept the submission by Ms Leventhal that it is a matter that goes to the Appellant's suitability. The Appellant had ample opportunity to apologise to Ms Butler for the messages, but in fact did not do so until the very end of the Tribunal hearing.

[52]The Appellant in his submissions to the Tribunal concentrated on making the point that he had not in his view caused any actual harm to a vulnerable adult, as well as seeking to blame others for the predicament in which he finds himself, particularly Ms Butler's management of OH. There was no indication from the evidence that the Appellant gave at the hearing or that he had produced in advance, that he had learned anything from his conduct. He seemed to find it extremely difficult to understand how falsifying references and work history could place a vulnerable adult at risk and the importance of making sure such information provided to a potential employer was honest and accurate. There was no insight into the severity of his misconduct or anything that lead us to consider that the Appellant would not in similar circumstances behave in an identical way.

[53]The Appellant mentioned on a number of occasions that he may in the past have been suffering from some form of mental illness, but no medical evidence was produced to substantiate this, and moreover the Appellant himself accepted that any such illness was not a factor in the falsification of the information for which we have found him responsible. He also indicated that the lack of finances was a reason for his actions, but again no evidence was produced to support this, and in any event we do not consider that this was a relevant factor.

[54]Whilst we accept that the Appellant did not directly harm anyone, he did for the reasons already given, by his actions place vulnerable adults at risk. The Appellant has been unable to convince us that he has fully understood the implications of his conduct and as such we regard him as being unsuitable to work with vulnerable adults.

[55]As far as the POCA list and list 99 is concerned the falsification of references and other information, presents a similar risk of harm to children as it does to vulnerable adults and therefore we consider that the Appellant is not suitable to work with children and his name should remain on these lists.

[56]The Tribunal therefore decided to dismiss the appeals. ORDER The appeals are DISMISSED. Signed Mr Stewart Hunter (Nominated Chairman) Mrs Linda Elliot Mr Peter Sarll Dated the 12 th of February 2009