Salisu v Secretary of State for Health [2011] UKFTT 1 (HESC)

FTT-HESC
Salisu v Secretary of State for Health
[2011] UKFTT 1 (HESC)
[1]In this case the parties had pursuant to an order of this Tribunal agreed a statement of facts which set out the material facts, which led to the Applicant being placed on the PoVA and PoCA lists. These agreed facts we set out below.[2]As a result the Respondent did not seek to lead any evidence before us.[3]The Applicant accepted that he had been guilty of “misconduct” within the meaning of Section 86(7) (a) Care Standards Act.[4]As a result the sole issue for us to decide was whether the Applicant was unsuitable to work with vulnerable adults and children under 86(7) (b) of that Act. The agreed facts[5]On the 17th of November, 2008 the Applicant was convicted at Newport (Gwent) Crown Court, following trial, of wilfully neglecting patient AS, contrary to section 127 (1) of the Mental Health Act 1983: he was conditionally discharged for 12 months. An appeal against conviction was dismissed by the Court of Appeal on 8 December, 2009 Facts on which conviction was based Background[6]The Applicant is a registered nurse working at the material time at Mountleigh Care home in Newbridge, a care home in which AS had been resident since August 2002.[7]AS suffered from front lobe dementia and exhibited challenging behaviour.[8]From about November 2002 the local authority assessed AS as needing one to one care (i.e. a carer with him at all times) for 12 hours per day, in the light of his challenging behaviour, which put himself and others at risk: this was then put in place and funded.[9]On or about the 13th of September, 2004 the local authority agreed to fund 24 hour 1 to 1 care, that was then implemented; this requirement is again, based on AS' challenging behaviour (which had deteriorated) and not any medical need.[10]The Applicant was aware of the 24 hour 1 to 1 care requirement, having been involved himself in caring for the patient and in the assessment of AS at the home, which had led to the increased 1 to 1 care in September, an increase which he, himself, had suggested as appropriate.[11]The understanding was that the carers would spend an hour each with AS, according to a written rota. The shift in question[12]The Applicant was the sole qualified (i.e. registered nurse) member of the staff on duty on the shift starting at 8.00 pm 26th of September 2004 - 8.00 am 27th. There were also four carers on duty: RJ, WK, Mike L, Margaret L. Two would be stationed upstairs and two downstairs (where AS was).[13]As the sole qualified member of staff, the Applicant was responsible for implementing and enforcing the care regime (including the 1 to 1 rota, which had been drawn up by others).[14]At approximately 4 am Mr RJ went into AS’ room, in order to start her hour’s shift on the rota to find him; there was conflicting evidence at trial as to whether another carer (WK) was present in the room at the time she started her observations. She called the Applicant, who found that AS had no pulse and appeared not to be breathing.[15]At trial, there was conflicting evidence from the pathologist experts as to the time of death. There was no evidence to suggest that AS' death was caused or contributed to by the failure of the supervision regime.[16]The evidence at trial suggested that AS was left unsupervised for a period leading up to his being found, as set out above: there was inconsistent evidence about the length of that period.[17]The case against the Applicant (as summarised by the judge) was that he had "basically left the carers to sort out the rota system themselves." The oral evidence[18]First we heard oral evidence from the Applicant and read his written statement, which he affirmed to us was true. His evidence showed that he qualified as a general nurse in Nigeria in 1987 and qualified there as a psychiatric nurse in 2001. He came to the UK in 2004 and went his adaptation at Triley Court nursing home and became registered with the Nursing and Midwifery Council in 2004.[19]He started to work at the Mountleigh nursing home in on the 15th of March 2004 and worked there until he gave in his notice in May 2005 in order to work at the Royal Glamorgan Hospital. His reference from Triley Court was satisfactory save some concerns were expressed as to his need for some supervision given that he had just completed his adaptation.[20]He left Mountleigh home with a good reference despite the incident giving rise to his conviction. There was no investigation of that incident until the Applicant was contacted by the police in 2006 as part of a large general inquiry into a number of nursing homes in South Wales. Because of this investigation he was suspended by his then employer pending the outcome of the criminal proceedings. At the Royal Glamorgan hospital he was working in the acute unit dealing with patients aged 18 to 65. The unit is a secure one with patients with challenging behaviour and the Applicant took part in all aspects of client care.[21]Following his conviction he was dismissed from his post at the Royal Glamorgan Hospital but that hospital it is clear from other evidence to which we refer that that the Applicant was a well-regarded member of the team and it had no concern whatsoever about his work or his ability to work with vulnerable adults. Since then the Applicant has worked as a cleaner within the NHS. He has continued, however, to attend training and produced evidence to us of the courses he had attended.[22]Having reflected on the events that led to his conviction he told us that he recognized that he had a duty to ensure that those who worked for him and for whom he was responsible were complying with their instructions and he said the events had made him appreciate the crucial importance of ensuring that all procedures are properly followed and documented.[23]Under cross examination it was apparent that the Applicant still struggles with having been found guilty of the offence. He denied that he had done anything wrong. He said he had supervised and told all staff at the handover about the 1:1. He said that the rota was prepared by senior management and not himself but he accepted he had allowed the staff to sort the rota out.[24]We also heard oral evidence from MS C Ngubane who had also signed a written statement which was before us. Her evidence showed that she had worked with the Applicant at three different care homes and in one home had supervised him. She described the Applicant as being a very conscientious staff nurse who was very pleasant and a very caring person both to service users and staff. She said she had no concerns at all about his ability to work with vulnerable adults. The written evidence.[25]In addition to the oral evidence we had before us written statements of Sarah Price who was the Applicant’s line manager at the Royal Glamorgan Hospital. She said that the Applicant throughout the time at the hospital was a “ conscientious, dedicated member of the team who consistently worked to the best of his ability to ensure that the level of care the patients received was of the highest standard possible. He was always polite, respectful and courteous to his peers, superiors and his patients. His professionalism was never questionable”. She found him to be very thorough in his work.[26]She went on to say that the Applicant was always focused on the patients’ best interests and spent long periods of time on the ward ensuring that they felt they were being listened to or to reduce their anxiety levels.[27]Mr. Lewis, a senior nurse at the hospital, said that the Applicant was a good reliable worker, who carried out all tasks required at all times to a satisfactory level. The hospital would have no hesitation in recommending him to any company wishing to employ him.[28]We also had before us an interim order of the Investigating Committee of the Nursing and Midwifery Council of the 9 th July 2009 and its final decision dated 3 rd June 2010. In its interim order, which imposed conditions of practice upon the Applicant, the committee made it clear that it was not necessary to impose an interim suspension order upon the Applicant and that the conditions were a proportionate response.[29]In its final decision the committee it decided the Applicant had “no case to answer”. The conditions were revoked. There was no “prospect of finding that the Applicant’s fitness to practice was impaired as the allegation was a one off incident in an other wise long and unblemished career”.[30]We also have had the advantage of having various transcripts of the summing up and sentencing proceedings in the Crown Court.

The judge in his sentencing said:

“ You will already have picked up from that which I have said that where a carer or a nurse deliberately ill-treats a patient by physically harming them, by not feeding them, by not changing them, by not turning them, I'd take, and do take a very serious view of that. But in respect of (the Applicant) the situation is a million miles away from the one I have just referred to. In the case of the Applicant, not properly implementing the system which had been introduced.”
[31]In the case of the Applicant the Judge said it was clear that he was dedicated nurse who had worked hard and long in the profession for many years. He went on “I think in the case of the Applicant the appropriate sentence is one of a conditional discharge. Whether the nursing authorities choose to impose a permanent ban is of course a matter for them but speaking for myself I'd have thought that the qualities that the Applicant has as an experienced nurse should count very much in his favour.” The Respondent’s submissions[32]This is an appeal pursuant to section 86 of the Care Standards Act 2000 in relation to the Applicant’s listing on the PoVA List and section 4 of the Protection of Children Act 2000 (“the Act”) in relation to his listing on the PoCA List.[33]The Act provides 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 vulnerable adults; 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 to the individual’s inclusion on the list.”[34]If the Applicant is successful in appealing his PoVA listing, the PoCA listing and the direction under section 142 of the Education Act 2002 preventing him from carrying out work relating to providing education will cease to have effect. If the Applicant is not successful in appealing his PoVA listing, the Tribunal must then consider whether the secondary PoCA listing should remain (see MB v Secretary of State [2005] 512.PC [2005] 513.PVA (A2(3) p49) for the converse position involving a primary POCA listing). Each case before the Tribunal must be looked at on its own facts. The question then for the Tribunal to consider is whether the continuation of the name of the Applicant on the PoVA list also makes him unsuitable to work with children. Misconduct[35]The Applicant worked as a registered nurse at Mountleigh Care Home in Newbridge, Gwent, between March 2004 and June 2005. In the early hours of 27 th September 2004, a patient at the home, AS died. He suffered from frontal lobe dementia and required continuing arms’ length one to one supervision. This was to prevent accidental harm to himself or another because of his lack of personal and spatial awareness. A staff rota was put in place to ensure he was not left unattended at any time. The rota was not implemented by Mr Salisu, or supervised on the night of 27 th September and AS had been left alone for some time before his body was discovered at 4.00am.[36]The Applicant faced trial at Newport Crown Court in November 2008 for an offence under s127(1)(a) of the Mental Health Act 1983 for wilfully neglecting a patient. On 17 th November 2008 he was convicted and was conditionally discharged for 12 months.[37]It is not disputed by the Applicant that by virtue of this conviction he is guilty of misconduct and that that misconduct has harmed or placed at risk of harm a vulnerable adult. In addition, no finding of fact on which the conviction must be taken to have been based (and accepted by the Court of Criminal Appeal) shall be challenged on appeal, ( s86(4) of the Care Standards Act 2000 ).[38]The Agreed Statement of Facts which sets out the brief facts upon which his conviction was based is found at A1 pp1-3. The wider allegations against the Applicant and others are set out in the Statement of Case by prosecution counsel for the criminal trial at D4 pp917-937. The evidence as it stood at the close of the trial is summarised in the Learned Judge’s summing-up found in the transcripts at D5(a) and (b) pp938-1021. Burden of Proof in relation to Suitability[39]The issue that falls to be considered by the Tribunal is one of suitability. Under Section 86 of the Care Standards Act 2000 the burden of proof rests with the Respondent to satisfy the Tribunal of misconduct and that the Applicant is not suitable to work with vulnerable adults (and children). If the Tribunal is not so satisfied it shall allow the appeal. However, the Respondent argues that there is a practical and evidential burden that falls to the Applicant where misconduct has been proved. In Kalchev v Secretary of State [2005] 589.PVA [2005] 590.PC at para17 (A2(6) p72) the Applicant had been cautioned for an offence under s127 of the Mental Health Act which involved taking obscene and humiliating pictures of an elderly man in a care home. The caution was an admission of guilt and equivalent to a conviction. The Tribunal found:[40]“[17] There is no doubt in our mind that the Caution involved misconduct and actual or likely harm to Mr CG. We consider that the caution satisfies the first two limbs that we have to consider on Appeal. Furthermore we consider that given the presence of the caution the onus [evidential burden] in the case switches and it is for Mr Kalchev to satisfy us in the circumstances that he is a suitable person to work with vulnerable people (and children in the case of the POCA listing).”[41]Kalchev was followed in DG v Secretary of State [2006] 824.PVA (A2(5) p64). In that case the Applicant entered a guilty plea to a charge of theft in October 2004 from an elderly resident of a care home and at para 5 (p65) the Tribunal agreed with and adopted the approach set out above. Suitability and Public Confidence[42]The Respondent argues that there are two aspects to suitability in this case. Firstly there is a public confidence argument and secondly there are those matters set out in Mairs v Secretary of State for Education and Skills [2004] 269 PC at para 111 (A2(1) p26).[43]Unsuitability must be judged by the Tribunal at the date of the hearing. The judgment will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm. The Tribunal may have regard to:(a) the number of incidents constituting the misconduct established for the purposes of section 4 (3)(a) of the Act;(b) the gravity of the misconduct;(c) the time that has elapsed since that misconduct;(d) the timing and degree of recognition by the Applicant that the conduct constituted misconduct and that it had potential to harm a child;(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”[44]“ The public confidence jurisprudence has been developed from the judgment in the case of CN v Secretary of State [2004] 398 PC; [2004] 399 PVA as follows:
“[29] We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in its widest possible context. It may well be, as the Tribunal has said before (e.g. BR [2003] 205 PC ) that it is unfortunate that the 1999 Act does not enable the Secretary of State or a Tribunal to prohibit a person from being employed by a child care organisation in some positions while allowing him or her to be employed in others, in the way the Education Act 2002 does. It is our view that it is the clear intention of Parliament that the language of the Act requires us to take a broad view having regard to the degree of risk posed by the Applicant, but also to acknowledge that the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children “in a child care position” are beyond reproach.”
[45]The Respondent argues that the same reasoning applies to those who are entrusted with the care of vulnerable adults. CN was followed in MB v Secretary of State [2005] 512.PC [2005] 513.PVA see paras 26-29 (A2(3)) and more recently in the High Court in Secretary of State for Children, Schools and Families v BP [2009] EWHC 866 Admin at paragraphs 20-24 and para 34 where Mr Justice Munby found that “the Tribunal seems simply not to have addressed what, on the jurisprudence, was always going to be a key and very possibly decisive issue: the question of public confidence.”[46]The Applicant, in his statement at D pp873-875 avers that he is a competent nurse who has learned from his mistake and relies upon the evidence of those he has worked with at D pp876-880. He further relies upon the training certificates prior to and post conviction at D1 p881 and onwards and the other references and testimonials at D2 p898 onwards to argue in support of his suitability to continue to be able to work with vulnerable adults.[47]The Respondent relies upon the submission that the conviction in the circumstances of the case involving the Applicant is so serious that public confidence would be undermined if the appeal were to be allowed. Section 127 of the Mental Health Act 1983 is set out as follows; “127 Ill-treatment of patients(1) It shall be an offence for any person who is an officer on the staff of or otherwise employed in, or who is one of the managers of, a hospital [independent hospital or care home]— (a) to ill-treat or wilfully to neglect a patient for the time being receiving treatment for mental disorder as an in-patient in that hospital or home; or (b) to ill-treat or wilfully to neglect, on the premises of which the hospital or home forms part, a patient for the time being receiving such treatment there as an out-patient.(2) It shall be an offence for any individual to ill-treat or wilfully to neglect a mentally disordered patient who is for the time being subject to his guardianship under this Act or otherwise in his custody or care (whether by virtue of any legal or moral obligation or otherwise). [(2A) . . .](3) Any person guilty of an offence under this section shall be liable— (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; (b) on conviction on indictment, to imprisonment for a term not exceeding [five years] or to a fine of any amount, or to both.(4) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions.[48]The Learned Judge directed the jury (D5(a) p 942) that the offence required an act or failure to act which amounted to neglect done intentionally or recklessly. In effect, the Respondent argues that knowing of the one to one care regime and that it was his responsibility to supervise AS’s care on that night shift the Applicant failed to direct and supervise as he should have done knowing of the risk to AS’s welfare.[49]The police interviews of the Applicant at C(2) (a)-(n) pp179-872 indicate that he did not accept misconduct two years after the offence had taken place. He did not accept misconduct at trial in 2008, nor at the appeal to the Court of Appeal in 2009. The Applicant’s case now in 2010 is that he does accept misconduct. The Respondent seeks to test the Applicant’s case. The evidence relied upon by the Applicant contrasts with information set out in the witness statements of Julia Hayhoe and Trudy Powell taken by the Police in the criminal investigation at C pp119-134 which are supported at C(1) p163 in the police interview of Michael Lurvey. In brief there were concerns about the Applicant’s communication skills and his ability to supervise and manage others. APPLICANT’S SKELETON All references to page numbers are to those in the bundle[50]This is an appeal under Section 86 of the Care Standards Act 2000 against the confirmed listing of the Applicant in the PoVA and PoCA lists, arising from his conviction on 17 th November 2008 for neglect of a patient (“AS”) in September 2004 (under S 127(1)(a) Mental Health Act 1983): he was conditionally discharged for 12 months.[51]There is an agreed statement of facts and chronology, appearing at PP 1-4; the detail will not be repeated here.[52]The issues:a. Misconduct : whether the Applicant was [reasonably considered by the provider to be] guilty of misconduct which harmed or placed at risk of harm a vulnerable adult: (S 86(7)(a));b. Suitability : whether the Applicant is unsuitable to work with vulnerable adults (and children): (S 86(7)(b)).[53]Misconduct. It is accepted that the conduct set out in the agreed statement of facts is capable of amounting to misconduct. The Applicant concedes this (witness statement, paragraph 18 P 875).[54]Misconduct is a low “threshold requirement”:
“It is neither necessary nor appropriate to limit the scope of the regime by adopting a restricted definition of ‘misconduct’. The misconduct triggers consideration of the second criterion for inclusion – unsuitability to work with children. Not all of those found guilty of misconduct will be held unsuitable to work with 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 could be shown to be wholly unsuitable to work with children.”
Mairs v Secretary of State for Education and Skills P 24[55]Unsuitability. It is submitted that there is no basis for holding that the Applicant is unsuitable to work with vulnerable adults, for the reasons appearing below.[56]Non-exhaustive criteria were set out in Mairs : these includea. The number of incidents constituting the misconduct: in this case it is a single failure on one shift to supervise a rota;b. The gravity of that misconduct: it is submitted that it is an act of omission; there is no suggestion that the patient in fact sustained harm as a result of the omission , although it is accepted that it had the potential to cause some harm: at trial, the judge clearly took the view that the error was a one-off error at the lowest end of the scale (see sentencing remarks at P 1030).c. The time that has elapsed since that misconduct; in this case, over 6 years;d. The timing and degree of recognition that the conduct constituted misconduct and that it had the potential to harm. In this case, the main issue was the Applicant’s knowledge: he has never argued that the supervision of the resident was less than important; indeed he had stressed the need himself (see agreed statement of facts, and summing up at P 988 A-F).e. Steps taken to minimise the possibility of there being a recurrence of that or like misconduct: the Applicant has reflected on these matters; see his statement at P 873-5. Furthermore, in spite of the fact that he has been unable to nurse for nearly 5 years, he has tried to refresh his knowledge: see certificates at PP 893-897 including (importantly) a recent course on effective delegation.[57]This is the only time that the Applicant has faced disciplinary proceedings in his entire nursing career (since qualification in 1987). His record is exemplary (both before and since): see references 898-913. It should be noted that he left the nursing home where the events occurred with a good reference, subsequently practising in the NHS without incident until suspended pending the criminal trial.[58]The Respondent is calling no evidence to undermine these propositions. It has tendered in the bundle (section C) two witness statements (Hayhoe and Powell) and an interview (Lurvey) which contain controversial assertions about the Applicant’s practice. These allegations were disputed at trial, when other witnesses spoke of the Applicant’s excellent nursing qualities (as reflected in the summing up). It will be submitted at the hearing that, in the absence of direct oral evidence from these witnesses, their statements/interview can carry no real weight.[59]In the light of the above it is submitted that there is no basis for holding that the Applicant is “unsuitable” to work with vulnerable adults (or children) and the appeal should be allowed. The Law[60]We have given consideration both to the provisions of The Care Standards Act and the authorities to which we have been referred by counsel in the submissions set out above. Tribunal’s conclusions with reasons[61]We accept the submissions made by the Respondent on the law set out in paragraphs 42-45 above. We do not accept however the submissions made as to how applying the authorities and propositions relied on the appeal should be dismissed.[62]Dealing first deal with the criteria set out in Mairs, we accept all the submissions made by the Applicant in this respect. This was a single act of misconduct. We agree with the trial judge that the offence was at the lowest end of the scale. He had had the benefit of hearing some 5 weeks of evidence and in our view is the person most able to judge the seriousness of the offence.[63]A significant time has elapsed since the offence was committed. What is important is that between the date of the incident and the commencement of the investigation by the police the Applicant had received a good reference from the home on leaving, and had not been the subject of any disciplinary action arising from the matter. More importantly he had been employed in a large NHS hospital which was obliged to suspend him on the commencement of the investigation which through two senior nurses have given references to this tribunal in their statements which demonstrates that it held the Applicant’s abilities as a nurse in high regard and clearly had no concerns as to his suitability to work with vulnerable adults indeed to the contrary they praise his work with that patient group.[64]Much was made by the respondent as to the failure of the Applicant to recognise what he had failed to do amounted, to misconduct and to take responsibility for it. We do not accept that is the case. Given the inordinate delay from the time of the incident to the start of the police investigation and the seriousness of the charge against him, not surprisingly he pleaded not guilty and indeed then challenged his conviction. He clearly found it difficult to accept that the charge against him amounted to the fact that he had been reckless as compared with merely negligent. He clearly in our view does understand what he did wrong and has taken steps to attend training on supervision and delegation, which were at the heart of his failings. It appears to us that there is no prospect of any reoccurrence of this type of misconduct in the future.[65]The Respondent also reminds us of the importance of public confidence in the system and argues that the seriousness of the offence means the public would not expect the Applicant to be allowed to work with vulnerable adults again. We do not accept that argument. The trial judge was clear that “ the world would understand that we are a million miles away from that here” referring to the sentencing of those who are guilty of actual abuse of vulnerable adults.[66]Similarly the nursing and midwifery council clearly had public confidence in mind in their interim order when imposing conditions as they stated this was necessary for the “protection of the public, otherwise in the public interest...and to maintain confidence in the profession”. These concerns as to public confidence were clearly no longer of concern when they dismissed the case against the Applicant.[67]We agree with both trial Judge and the Nursing and Midwifery Council in their views about the Applicant’s suitability. Both were clearly saying having looked at great detail at the evidence that the Applicant is suitable to work with vulnerable adults and hence children. Both were also clearly of the view that a reasonable member of the public reading what the judge had said at sentencing would reach a conclusion that there was nothing which should prevent this Applicant continuing to work in his chosen profession.[68]In our view it was incorrect for the Secretary of State to have placed the Applicant on the PoVA and PoCA lists when he did. To do so was clearly disproportionate in our view given the facts of the case and the clear views expressed by the trial judge and the time which had lapsed since the date of the offence. We have a great deal of sympathy with counsel for the Applicant’s oral submission to us that the lists and the Act were not designed for this sort of event on the facts.[69]We are surprised also that the respondent has maintained its stance after the decision of the nursing and midwifery council that there was “no case to answer”.[70]Our duty is of course to look at the situation as at the date of the hearing. Even if we were wrong in our views expressed in the previous two paragraphs we have no hesitation 6 years after the event in deciding that the Applicant has satisfied us to a very high standard that he is not “unsuitable to work with vulnerable adults”.[71]For these reasons we uphold the appeal. Order Appeal allowed. The Applicant’s PoVA listing, the PoCA listing and the direction under section 142 of the Education Act 2002 preventing him from carrying out work relating to providing education will cease to have effect. 04 January 2011