JS v Disclosure and Barring Service (Safeguarding vulnerable groups : Adults' barred list) [2014] UKUT 355 (AAC)

UKUT-AAC
JS v Disclosure and Barring Service (Safeguarding vulnerable groups : Adults' barred list)
[2014] UKUT 355 (AAC) · 2014-07-31
[1]Undue weight given to disciplinary and Employment Tribunal decisions We now turn to consider each of the Grounds of Appeal set out in paragraph 5 above. JS alleges that the DBS accorded undue weight to the findings of the internal disciplinary hearing, subsequent appeal, the decision of the Employment Tribunal. He insinuates collusion between the DBS and the Trust:
“ I believe the deal the DBS and my former employer have is that I be barred under any terms which is evidence from the documents and reasons in question ”
. In response the DBS says that it is entitled to take into account, and accord appropriate weight, to internal disciplinary proceedings and judgments of the Employment Tribunal in its ascertainment of the relevant facts. However, the DBS makes its own independent findings of facts, and decides whether in the light of those facts the person in question should appropriately be included in a barred list. JS further alleges that undue weight was given to the disciplinary and Employment Tribunal decisions because a key witness, Mr Ali, subsequently “ admitted to lying about the Appellant and states that staff members had also done so; these lies being to the Appellant’s detriment ”. The DBS say that this is false. In support of this point, JS relies upon a purported transcript of the meeting, titled “ Investigatory Notes of the meeting with Ken Ali on the 7 th September 2010 at 13:00 ”. Mr Ali allegedly signed this document on 9 th September 2010, one week after the Employment Tribunal hearing and over a year after JS had been dismissed. In the document, Mr Ali is recorded as admitting that his evidence to the Tribunal against JS was false. The DBS say that this document is a forgery, prepared by JS in an attempt to support his case. It was not provided to the DBS when representations were invited. The DBS say that it has been created by JS in a misguided attempt to bolster his appeal to the Upper Tribunal. It indicates why it was entirely appropriate to place JS on both the Adults’ and Children’s Barred Lists. Our conclusion on this point is that the transcript of the meeting on 7 th September 2010 is a forgery. We heard from KA about that document and he confirmed that he had never been at such a meeting and had never said what he is purporting to have said. Because this is a forgery, we cannot accept JS’s argument that undue weight was given to the disciplinary and Tribunal decisions since KA had not lied. The fault here lies entirely with JS who fabricated a document to support his case. As the DBS argue, it is open to them, as it is to us, to consider all the evidence that is available and that has to include disciplinary and Employment Tribunal hearings. We are satisfied that DBS did not give undue weight to these hearings. As the Employment Tribunal made findings about false documents, plagiarism and fake qualifications (the PGGrad) it was appropriate for them to be considered by DBS. As there is such a volume of false documents and attacks on those at Harefield Hospital, the reality is that the earlier hearings form only part of the case against JS. This criticism is dismissed.[2]Plagiarism JS was accused of plagiarism: he used work done by others to complete his training log book. When initially interviewed, he admitted his conduct and confirmed this in a meeting on 13 th May 2009 (“ [Lynda Turnball] stated that when she met with [JS] during the suspension meeting JS told her that he blagged his logbook. JS confirmed that he had said that to LT ). At the same meeting JS admitted both to forging 6-7 assessments which did not take place but also to using others work as his own. JS also falsified and made up results for his BSc dissertation. He would pass off the work of other Cardiac Physiologists as his own, in order to get his training signed off. His assessor (MO) refused to continue to work with him, because of this troubling conduct. DBS say that Middlesex University (the degree awarding institution for the City of Westminster College) initially found JS guilty of plagiarism in academic disciplinary proceedings. However, his appeal was allowed on 24 th August 2010 solely because the falsified logbook had not been submitted for assessment. This does not alter the fact that JS was prepared to plagiarise entries in his training log, recording that he had gained experience that he had not. DBS say that although JS did not in fact submit the logbook to Middlesex University, the fact he was prepared to fabricate entries in it is very troubling. When viewed together with JS’s repeated practice of forging other documents, it indicates that he cannot be trusted with a responsible clinical role, whether caring for vulnerable adults or for children. It comes as no surprise to discover that JS made a complaint against Middlesex University to the Office of the Independent Adjudicator for Higher Education. JS says that the DBS placed undue weight on “ the mere existence of the [plagiarised] document as opposed to the fact that it was never submitted by [JS] ”. Having considered the evidence we find that there is evidence of plagiarism. JS’s point that they were never submitted is not the point. The point, as made by the DBS, is that JS was prepared to fabricate entries in logbooks. We accept the evidence of MO and KA that JS would regularly change the name of the operator who had taken a test to his own during the time that the test was still open and unconfirmed. Once checked and signed off by a doctor the records could not be changed. There is further evidence of plagiarism. First KA told us that when JS showed him his dissertation on T Wave Alternans, KA said that it was copied (and pasted) from the work of Dr Tony Choir and could not proceed. JS said that it was only the abstract which was shown. We accept KA’s evidence in preference to JS’s and that he was shown the dissertation not the abstract. KA said that he knew that JS’s work was plagiarised because he had recently read the academic paper which JS was using and that he also knew the author personally. On 15 th April 2009 KA wrote an email to JR confirming his concerns about JS’s work for his dissertation. We know that this email is valid because KA has countersigned it. JS told us that he based his dissertation on 12 tests. We were told by KA and JR that there were never that number of tests undertaken and this is confirmed by KA both in his evidence to us and in the 15 th April email. This can only mean that JS fabricated some test results. The DBS were right to rely on this as part of their case as it has serious implications. We reject JS’s suggestion that undue weight was placed on it. The weight given to this by DBS was entirely proportionate.[3]Falsified reference DBS say that JS dishonestly falsified a reference from Mr Ali. According to Mr Ali:
“ I state firmly that Exhibit KA9 dated 7 July 2009 is a forgery. The manuscript writing is not my own. The signature is not my own. The comments and boxes ticked suggesting that JS was an excellent employee are not my own. I did not write this reference. ”
In addition, the DBS rely on the fact that before the Employment Tribunal, JS conceded that the reference was a forgery: “ On 7 July 2009 a reference purporting to be from Mr Ken Ali Senior Cardiac Physiologist was sent to an employment agency with whom [JS] had registered. The reference can only be described as extremely favourable and [JS] is described as being in the top category in all the criteria set out in the pro-forma reference supplied. Mr Ali told the tribunal that this reference was not written by him and this does not appear to be challenged. On 20 July Mr Ali did send a reference to the same agency but this reference was qualified and the person receiving [the] reference was referred to the HR Department. This was not such a favourable reference…” … We then have a reference from Mr Ali which was accepted as being a fake reference. The DBS say that JS falsified the reference in an attempt to conceal his misconduct whilst working at Harefield Hospital. This allegation does not appear to be denied in the Grounds of Appeal, save that “ insufficient weight ” is given to Mr Ali’s alleged recantation in the form of an email. The DBS assert that even that document is false. JS does not deny falsifying the reference. He contends the DBS places insufficient weight on subsequent evidence from Mr Ali. We find that the reference is false. JS asserted that at KA’s request he paid him £100 for this false reference. JS produced a bank statement for June 2009 from HSBC which, he claimed, showed the payment going from his account. He was asked a number of times if the bank statement was genuine and had been produced by his bank. Each time he answered yes. Sadly for JS, the statement showed that it covered between 1 st and 31 st June 2009. JS appeared not to be aware that there are only 30 days in June – indeed he suggested that in 2009 June may have had 31 days in it! We have both the reference that JS forged and the genuine one prepared by KA. The latter one asks the reader to contact Human Resources and gives a number (so that the fact that JS was dismissed could be explained) unlike the apparently glowing reference produced by JS. We also note that the genuine reference has the hospital stamp on it whereas the forged one has no stamp. We are satisfied that JS falsified his own bank account to support his contention that the glowing reference was real. We accept the evidence we heard from KA that he had prepared the ‘refer to HR’ reference and not the glowing reference. Although JS does not deny he falsified the reference, in case at a later time he tries to suggest that he did not falsify it, it is clear to us that he did create the glowing reference and tried to justify it by saying that KA demanded payment for it. Clearly the DBS were entirely right to rely on this as part of their barring decision. Indeed, in our opinion, this false reference is enough on its own to debar JS. It goes to the very core of his credibility. If he lied and forged a reference and a bank statement, what else did he forge?[4]Qualifications JS used the acronym ASCST (Associate of the Society for Cardiological Science and Technology), the professional body for Cardiac Physiologists. We find that JS was not qualified or authorised to do so, because he had not passed Part 2 of his exams. He was well aware of this fact. JS’s explanation that he thought it was acceptable to use this qualification because he was part-qualified is obviously wrong. He said in evidence that “everyone else was using it so I thought I would”. Despite his lack of qualifications and trainee status, he was unwilling to comply with the limitations placed on his practice for reasons of patient safety. JS also claimed to have the qualification ‘PGGrad’. This qualification does not exist. We find that this is a deliberate attempt to appear more qualified than he was and, as a consequence, in so doing he could have put patients at risk. In addition, at a meeting on 17 th April 2009, JR commented that JS “thinks he knows more than his capabilities, he failed his basic ECG exam”. JS says that the DBS acted irrationally and unreasonably in concluding that JS intended to provide incorrect and misleading information as to his qualifications. We reject this contention out of hand. Having found that JS DID try to mislead and provide incorrect information about his qualifications, we cannot see how the DBS can be said to have acted either irrationally or unreasonably. Indeed, we find that their concerns were well founded as it has become apparent that since DBS placed JS on the Barred Lists he has on at least 2 occasions held himself out to be a fully qualified Cardiac Physiologist: for a month at The Royal Free Hospital in London and then a longer period at Northwick Park Hospital. We have seen a number of applications by JS for jobs (including a Senior Cardiac Physiologist at Chelsea and Westminster) in May 2012 and it is clear that he positively asserted that he was working “as a Cardiac Physiologist doing pacing, ECGs, Exercise stress tests (the very test he admitted doing when not qualified to do), analysing 24 hour tapes…..” Studying the application form for the Chelsea and Westminster job, for example, shows that JS lied in answer to the question about whether he had been referred to ISA Adult Barred list (he said no but knew he was barred from 2011). He may not have been on the Children Barred list at that time but he knew that there was a ‘Minded to Bar’ letter so should have answered that further question Yes rather than No. His previous employment history set out in the application form shows exaggerated previous work, for example at Heathrow Airport. He says that he was employed by Heathrow Airport but was an immigration and drugs official enforcing warrants. Given that this work is undertaken by a Home Office Department (formerly UKBA) and is highly specialist and requires considerable training it is highly unlikely that he was actually a part-time customs official from the age of 18 years and 2 weeks as he is claiming. Needless to say that is just another further example of JS’s ability to see himself as more qualified than he really is. Another concern we had was that it was clear that JS did not use the normal channels for booking training courses. He would do the booking himself and this meant that he put himself on courses above his qualification and training levels, thereby passing himself off as more qualified than he was. For example, as JR said in evidence, he did an ICD course which was beyond his capability, particularly when he could not notice a change of rhythm on an ECG. For the avoidance of any doubt, we make it clear that since JS did not complete his course at Harefield and Westminster he is NOT a qualified Cardiac Physiologist. There is no such thing as a partly qualified cardiac physiologist. You are either qualified or not. And he is NOT.[5]Medical procedures and test results JS admits that he commenced one cardiac stress test without authorisation or supervision and he also gave out test results to patients. Both activities are strictly prohibited. In particular, a cardiac stress test is potentially dangerous because there is a risk of cardiac arrest during the procedure. Such assessments need to be supervised and monitored by a more senior member of staff. JS’s response is that he was not being properly supervised or trained, so errors were not his fault. The evidence collated by the DBS, and put before the Employment Tribunal indicates otherwise. DBS say that the real difficulty is that JS was unwilling to accept limitations on his practice, and that he did not recognise that he was a trainee with limited experience, or the seriousness of a mistake on the life and health of his patients. He had been informed of his mistakes, but continued to make them. When viewed together with his repeated dishonest conduct, this is a matter of considerable concern. JS denies there were multiple instances of commencing tests without authorisation, and notes that he did not have proper support. We note that JS admitted that he had undertaken a test when he was not qualified to do so. There may have been other occasions when he did other tests without supervision. We will never know. Given that JS went on courses that were at levels higher than his training there is the fear that if he had not been stopped when he was he could have performed procedures far above his ability levels. This is particularly so given that we know from JR that JS was not that competent a trainee. As JR told us, JS made a number of mistakes when performing an ECG on transplant patients in that he either copied the previous reading onto the trend sheet or failed to see and then report changes in rates. The changes in rhythm and voltage are important as they are early indicators of rejection. JS was permitted to do this work as he was well into his training by then and they should have been easy for him. However, he failed to do them properly. We agree with the DBS submissions that JS was unwilling to accept limitations on his practice and that he did not recognise that he was a trainee with limited experience. We agree that when viewed together with his repeated dishonest conduct, this is a matter of considerable concern and would merit being barred on this ground alone.[6]Unreasonableness JS contends that even on the findings of fact made by the DBS, it was unreasonable and irrational to bar JS from working with vulnerable adults. The DBS disagrees. Where a medical professional, who carries out important and potentially dangerous procedures on vulnerable adults:a. passes off assessments of others as his own;b. does not recognise his own lack of professional skills; andc. forges multiple documents in an attempt to pass the blame onto others and secures new employment with vulnerable adults it is reasonable for the DBS to conclude that it is not appropriate for him to continue working with vulnerable adults in a health care setting. JS has shown that he cannot be trusted on issues of honesty, integrity and patient safety. Even after being dismissed, he forged a reference to try and get him back into similar work. Nothing short of placing JS on the barred lists to prevent him working with vulnerable adults and children will be sufficient to protect the public. The DBS’s Decisions to this effect were rational, and contain no error of law. We agree and have nothing to add to the last paragraph. It is a clear and fair summary of the case against JS and the reasons it was both rational and reasonable (and we would say necessary) to bar JS. We also emphasise (as we say in paragraph 116 below) that people are vulnerable because they are in the health system.[7]Disproportionality Although phrased as a further challenge to the Adults’ Barring Decision on the basis of the unreasonableness of the Decision, JS also contends that the Decision is disproportionate. He states that “ the decision to deem it appropriate to bar a junior, yet to be qualified cardiac physiologist from working with vulnerable adults in any setting is both unreasonable and irrational ”. JS is effectively contending that an absolute bar against working with vulnerable adults is disproportionate. The DBS submits that it has no power to include a person only partially on a barred list. Rather, it must decide between either including, or not including a person. In making this determination, the DBS says that it must engage in a careful decision-making exercise as to whether it is “ appropriate ” to include the person. This determination is only open to review or reconsideration by us in the Upper Tribunal on the grounds it is so irrational or disproportionate as to amount to an error of law: B v Independent Safeguarding Authority [2013] 1 WLR 308 , per Maurice Kay LJ at 315C. The DBS say that the Adults’ Barring Decision evinces careful thought and reasoning. The DBS considered representations made by JS, accepting that plagiarised work was not submitted to the college for assessment. Ultimately, on the basis of its factual findings, the DBS concluded that it was appropriate to include JS on the Adults’ Barred List because of JS’s “ exploitative attitudes, a suspicious angry vengeful style of relating to others and irresponsible and reckless attitude were central to [his] behaviour and that there is a significant risk that similar behaviour would lead to harmful actions in the future. ” This is an entirely proportionate Decision. We agree. The Decision was entirely proportionate and could have been taken on only one of the above grounds, let alone the combination of all 5.[8]Forgery and fabrication Although the Employment Tribunal found that JS created a Facebook page, internet blogs, a letter purportedly from a police officer (see paragraph 36a above) he denies that it was him or that he submitted falsified documents to the Upper Tribunal. However, the Facebook page, internet blogs and the letter purportedly from a police officer were matters that the Employment Tribunal considered, and ruled upon. It held that these were forgeries created by JS. In its Judgment on JS’s Application to Review, the Employment Tribunal stated:
“ It is correct that the tribunal did conclude that the documents listed in their decision were created by [JS]. It is correct that the tribunal rejected his case that these documents were created as a part of an extensive and subtle conspiracy by the [Trust]. The tribunal did so not only on the basis of these documents individually but of all the questioned documents collectively. ”
The falsified documents that JS provided to the Upper Tribunal comprise investigatory notes of meeting dated 7 th September 2010, and three emails. The meeting note is a forgery. The DBS says that the emails are likewise forgeries. We agree. The forged meeting notes were submitted to us on the basis that they had been omitted from a fax dated 14 th March 2011 from Beachcroft LLP (solicitors acting for the hospital trust in the Employment Tribunal case) to the Employment Tribunal. We were told that the notes of the meeting were the missing pages 11 and 12 of that fax but we do not accept that is true. It means that there has been a very deliberate effort by JS to create the impression that the 2 pages of the forged meeting notes were faxed as they have details (such as the date, the fax number and the page number) along the top of the document which, to all intents and purposes, gives the impression that they were part of that fax. It is a methodical and sophisticated forgery. We add that these forged documents are only a fraction of those created by JS. Indeed, such is the extent of the forging that we are satisfied that unless someone can vouch for their authenticity, most of the documents put forward to support JS and his case were forgeries created by him. One of his ‘signatures’ was that in writing a letter he would sign off not “Yours sincerely” but “Yours Sincerely”, for example in his letter of 29 th October 2010 addressed to ISA. This happened on the forgeries he created which purported to be written by others. By writing ‘Sincerely’ this way on the forgeries he gave himself away as their author. Another ‘signature’ was JS’s inability to spell Principal. Throughout the papers (including in forged documents and applications) he spelt it Principle. Perhaps the most surprising lie was told in respect of his own HSBC bank statement of June 2009, as mentioned above. It was produced to support JS’s claim that he had paid KA £100 for a reference (which in fact JS had forged). If JS is capable of forging his own bank statement so that it looks like a real one (save for the date) JS is capable of forging any other document. There are so many forged and fabricated documents that it is difficult to know were to draw the line. For ease we have identified in the schedule attached a list of known forgeries. We are sure that these are not all, however. An example of how a forgery by JS caused distress concerns Mr Findlayson, a young person from Leicester. A letter was forged by JS and sent to the family concerning possible treatment at Harefield, even though the person was not on Harefield’s system. The family and the GP knew nothing about it and contacted the hospital. The family were reported to be both upset and distressed by the matter. JS accused GB of forging it. It caused considerable difficulties for JR – no doubt exactly what JS intended and why he sent it. Another example of how JS would use a document to cause problems to others can be seen in the letter he forged dated 15 th February 2008 and purporting to come from Mary Etheridge. It was designed to cause problems for Jackie Deamer because she had been critical of JS. Her statement of April sets out a number of small but very annoying incidents (missing cardigan, clogs and lunch). As that letter seemed to provoke no response he resent it to JR in October 2008. JR replied but JS was clearly not satisfied with the outcome because he sent a letter seemingly from Mary Etheridge’s daughter, Carol in February 2009. The fact that it was all a forgery came to light because it transpired that Mary Etheridge (although a real patient) did not have a daughter. JS appears to have forged a letter from Jacqui Howard, Honorary Registrar of the Registration Council of Clinical Physiologists (RCCP) as it is critical of MO. He also forged a statement from Heather Stanborough, a former colleague who moved to Australia. The forgery only came to light after JR checked directly with Ms Stanborough as to whether she had written it. One line of forgeries which was not known about by DBS and so postdates the two barring decisions was the false email addresses and names used to obtain Freedom of Information requests in respect of MO’s employment with Christchurch Canterbury and several health trusts. JS made these requests in the name of Andrew Morley. This line of enquiry was to try to imply that the contracts were given preferentially (including an allegation that JR’s sister-in-law had given MO a contract because of the link). Sadly for JS the fact that the emails “came into my hands” and seemed only to redact his name and details showed us not that they were genuine documents but that, yet again, he was the author of forged requests. We assume, but cannot be sure, that the replies were genuine. “Andrew Morley” was, apparently, the Assistant Director of HR at Hillingdon Hospital. It was a surprise, therefore, to find Mr Morley using a hotmail rather than NHS email account for his work – another ‘signature’ of JS. In fact “Andrew Morley” is a composite name. Andrew is Mr Howlett’s first name and Morley is the surname of his PA. Not content with all of these forgeries, JS also made a false complaint against KA – accusing him of cheating in his exams for membership of the International Board of Heart Rhythm Examiners. The letter from IBHRE is dated 30 th September 2013. It is a body based in Washington DC in the USA and is highly regarded. Fortunately the Board found no wrong-doing but the fact that JS was prepared to go to the lengths of making complaints to such a body shows us the extent and lengths to which he is prepared to go to pursue his vendetta.[9]Harassment and job applications whilst barred JS admits that he was charged with two counts of harassment, and that he applied for regulated jobs whilst he was barred. He questions the relevance of these matters. He contends he did not intend to apply for the positions and, in any event, he did not thereby put children at risk. With respect to the two counts of harassment, the DBS say that JS suggests these are irrelevant because they do not amount to a conviction or caution. This demonstrates a misunderstanding of the framework of the SVGA. A relevant conviction or caution would require the DBS to include JS automatically on a barred list by reason of Schedule 3, paragraphs 3 and 7, SVGA. A charge, like all other information, may be taken into account by the DBS insofar as it is relevant in the exercise of its discretionary powers to include a person on a barred list. It is entirely proper for it to do so. JS also applied for regulated jobs whilst barred, particularly at the John Radcliffe Hospital in Oxford. He claims that he had not intended to apply for the positions and, in any event, he did not thereby put children at risk of harm. However, JS was aware at the time the applications were made between 29 March 2011 and 14 April 2011 that he was unable to apply for these positions having received in February 2011 a refusal for a position of a Cardiac Physiologist on the basis of being barred from working with vulnerable adults. We understand that he is to stand trial for these matters at Isleworth Crown Court on 3 rd August 2014. He raises a series of excuses for applying for the jobs: that this was done “ … by accident ”; “ the jobs did not state ‘regulated’ or ‘unregulated’ ”; and that his “ NHS jobs account …was automatically applying for the roles in question ”. The DBS invited us to conclude that each of these explanations are implausible, and we do. The 2011 applications were followed by those in the bundles from 2012, relying on the 2011 jobs! To apply by accident once is improbable (at least) but to continue to apply in 2012 (as mentioned above) and rely on these jobs is not only implausible, it is both impossible and unbelievable. As to harassment, we note that JS claimed during the hearing before us that he did not know about the High Court injunction granted by Mr Justice Green and that he had not attended the hearing. Of course, not attending is not the same as not knowing. We are satisfied that JS was and is fully aware of the terms and existence of the injunction because it was referred to at a directions hearing before HH Judge Oliver in June. The DBS told Judge Oliver in JS’s hearing of their intention to include all the paperwork relating to the injunction in the trial bundle. JS did not say at that point that he was unaware of the injunction. The harassment is not confined to the magistrates’ court case. JR said that there were peaks and troughs in the harassment, with it tending to increase as one got towards a hearing. We are fully satisfied that JS created the Facebook page and the internet blog. We rely not only on the comprehensive findings we have made against JS about his forgery and deceit about everything but also because both paint him in a ‘noble’ light – the hero fighting against the evil forces at work in the hospital. In addition, the details contained in the blog and Facebook pages are known to only a few (of whom JS is one) and some detail is known only to him (such as the letter from ISA). It is a surprise if these accounts were created by KA, MO, GB and JR that they should so kindly and generously remove his name and details whilst pouring vitriol on themselves. JS asserts that he was the victim of a conspiracy. That is utterly unbelievable. One might have thought that all of this was enough, but not for JS. The day before the hearing he posted 17 tweets supposedly from GB which had links to the blog pages and Facebook pages. To do that and think that it would not be referred to suggests that JS is either supremely arrogant or very stupid.[10]Other matters Whilst we have considered all the evidence relating to the nine grounds of appeal, we believe that there are other matters which need to be considered and upon which we need to make findings. The first matter is the evidence of Andrei Tinine. Although not relied upon by the DBS for its decision making and as part of their case, it is evidence we can consider. We note that Mr Tinine was able to look at the internet use of some of the sites that the emails purporting to be from people like MO and others came from. This evidence is in the form of a statement of 12 th March 2014 and was not available to ISA/DBS when the two barring decisions were made. We are satisfied that despite JS trying to persuade us that no email use could be traced back to him as many appeared to come from Eastern European countries, the evidence in Mr Tinine’s statement and report shows that he was the author of these messages. We are aware of a programme called TOR which enables the user to hide the place from which an email was sent by sending the message via several internet service providers (ISPs) before sending it. It is almost certain that JS used this programme to cover his tracks and was able to claim that it was not him sending them messages as several came from ISPs located abroad. We noted during the hearing that JS twisted everything to his own ends and transferred allegations made against him onto others. Every time he was accused of doing something wrong it would just so happen that one of his victims was later accused of doing the same thing. Two examples amongst many are first that JS referred some of his victims to ISA after he had been referred to ISA/DBS. ISA had to investigate the referrals, of course, and it took them (ISA) some time to realise that these were all vindictive. A second example is the offensive and completely untrue Internet postings about GB that appeared once JS's dismissal from the Trust had been confirmed. Likewise, any criticism was reflected back. It is partly for this reason that we are entirely satisfied that JS was the creator of the blogs as it contained much of what he was accused of. Perhaps the worst example of JS reflecting his own behaviour on others was when he accused 2 outstanding students, James and Rebecca, of cheating by making false entries in their log books. They were entirely innocent, had done nothing to harm JS and were not in the department when JS was there. Although they survived it well, the consequence for them had JS’s false accusations that they had been cheating not have come to light would have been the end of their careers. Although JS denies his involvement in any of the blogs and Facebook pages, we are satisfied that he was the author of them all. Indeed, we note that the contents of at least one blog were found on a memory stick in JS’s possession when he was arrested for the magistrates’ offence. Every document had far too much detail and knowledge of JS’s situation and the campaign he was waging for it to be anyone other than him. His allegation that he was the victim of a campaign by everyone else is simply preposterous and unbelievable. Those involved have suffered up to 7 years of appalling harassment by JS – why on earth would they do that to themselves simply to get JS barred? If he thinks that everyone is doing all this just to get at him he has a very big ego. Another feature of JS which we found surprising was that, for some reason, everyone seemed to confide in him or complain about colleagues to him. If that is true (which we do not accept) their confidence was badly misplaced as JS would then use any information he had been told to his own advantage. It was of considerable concern to us that, on a number of occasions, JS would effectively put words into the mouths of witnesses we heard. In questioning the witnesses and in talking to us JS would assert that X had made a statement when we had heard different evidence. For example, he told us that JR had accepted that he had done one stress test unsupervised when in fact she said, in reply to JS’s assertion that there had been only one unsupervised test, that if there had been one unsupervised stress test, it was one too many. JS also misquoted KA and MO on at least 2 occasions. We came to the conclusion, therefore, that when JS stated that someone had said something, particularly when it put him in a favourable light, we could not accept it at face value. This misrepresentation carried on throughout the hearing, even after the Chairman had drawn it to JS’s attention on at least 2 occasions. We were very concerned to note that JS has had a racist attitude, particularly in respect of KA. He refused to accept that Mr Ali’s given name is Ken. Both in emails and letters and at the hearing, JS called KA Mohammed and referred to him on a number of occasions as ‘coconut’, a deeply offensive term meaning that someone is black on the outside and white on the inside. JS accused KA him of sucking up to the hierarchy of the hospital to gain promotion whereas JS felt that KA should have been fighting the establishment because he was an ethnic minority employee. There was no need for this abuse which JS continued during his questions to KA. We find that this says much about JS’s attitude in general and how he sees himself. We could not fail to notice that JS's cross examination of all the witnesses was hostile. When questioned about this JS finally admitted that he blamed each one of them for all his woes, even though it is clear that he is the author of his own misfortunes. It was remarkable how they all retained their composure and dignity even though we believe that it was almost abusive in the way he made them re-live their experiences. Damages JS has submitted a claim for damages. This submission is misconceived. The Upper Tribunal has no power to make an award of damages in the present case. Section 57 SVGA provides:
“ 57 Damages (1) No claim for damages lies in respect of any loss or damage suffered by any person in consequence of – (a) the fact that an individual is included in a barred list; … (3) Nothing in this Act affects section 8 of the Human Rights Act 1998 (c. 42) as it relates to the power of a court to award damages in respect of an unlawful act of a public authority (within the meaning of that Act). ”
Conclusion At the end of the day, we are satisfied that, given the evidence above, JS cannot be trusted on any matter. If he is not barred we are of the opinion that everyone who is vulnerable is at risk – if he is prepared to start procedures without supervision, issues results he was not permitted to, falsify his records by taking the work of others as his own and apply for jobs after he had been barred not only knowing he was not permitted to but holding himself out as being qualified when he was not, the risk to individuals’ wellbeing is immense. People are vulnerable because they are in the health system. JS has exploited that vulnerability by letting them believe that he was qualified and in a position he was not. Further, if JS has been prepared to lie and to fabricate as much as he has, how can we ever be certain that he will not lie about or fabricate results/diagnosis in the future and thereby put people at risk? JS pursued a course of vilification and destruction of people’s characters and lives simply because they dared to stand up to him or he perceived that they crossed him or challenged him and refused to allow him to get away with his behaviour. Whilst we have been dealing with the most serious matters in this hearing, in her evidence JR said that there were a number of smaller incidents (such as hiding shoes and cardigans and taking cakes from other departments) early on and although they may be thought of as trivial by comparison to what subsequently happened, they add together to form a picture of a dangerous man. JS stopped at nothing to pursue his vendetta. He set up false email accounts, made spurious applications using vile email addresses (particularly against MO) and even pursued Freedom of Information requests (using false email accounts and names, of course) to find out what external contracts people had and how much they were being paid. JS even obtained returns sent to Companies House in relation to businesses owned by MO. Throughout the case JS has failed to understand that putting a child at risk is NOT always about sexual offending. We hope that paragraph 12 above now make that clear. Whilst this is not a finding against JS, we cannot leave this case without commenting on the harassment case in the magistrates’ court. Given that it took over 6 months to complete (with 7 hearings between 19 th June 2012 and 22 nd January 2013) we fail to understand why the CPS did not sort out the two statements of continuity of documents and why the District Judge (Magistrates Court) refused to allow a bad character application to be made, even if it was made outside the statutory time limit. Whilst it is pure speculation now, had JS been found guilty at that time it is just possible that a lot of what subsequently happened would have been avoided. We have had the benefit of an overview of the last 7 years and have seen the whole picture unlike others who have seen only parts because some things had not occurred at the time of their involvement. For example, whilst the Employment Tribunal was able to determine that some forgery had gone on, we are now clear as to the extent of it. Likewise we have been able to see the growing intensity of the campaign against KA, GB, MO and JR. It was an outstanding piece of bravura or cheek or stupidity, for example, to send 17 tweets purporting to come from GB with links to the abusive blogs the day before our hearing started. After the hearing but before the written decision was issued we had a written application from Kemp Little (solicitors) dated 4 th July 2014 on behalf of the applicants in the injunction proceedings in the High Court. On 18 th July 2014 we made an order that there be permission for a transcript of the proceedings before the Administrative Appeals Chamber of the Upper Tribunal between 23 rd and 26 th June 2014 to be obtained by Messrs Kemp Little (solicitors) at their cost and on behalf of their clients in the High Court injunction proceedings. We also ordered that any part of the transcript so obtained shall be disclosable as evidence into the High Court injunction proceedings and may be used as the applicants in those proceedings see fit. In addition, of our own motion we ordered that the solicitors for the applicant in the injunction proceedings shall be sent a redacted and (when published) unredacted copy of the Upper Tribunal’s decision and that too shall be disclosable into the High Court proceedings and may be used as thought fit. Having found the facts we have, for the reasons set out above, we are satisfied that the barring decisions were appropriate. We dismiss these appeals and confirm that JS is not suitable to work with children or vulnerable adults. The consequences of JS’s behaviour have had national ramifications. It has brought the Heart Unit at Harefield Hospital international reputation into disrepute. JR told us that she and others stopped attending conferences (or turned their badges around) as all anyone wanted to talk about was what was going on at the hospital. JS’s behaviour has caused skilled and innocent professionals to waste untold hours dealing with his complaints, false applications and malicious references to professional bodies. Every complaint he has made has been unfounded. Given JS’s sustained, unfounded and vitriolic campaign against KA, MO, GB and JS (and others) we recommend that the unredacted version of this decision is distributed as widely as possible throughout the NHS to ensure not only that KA, MO, GB and JS are exonerated and cleared of any lingering doubts that anyone may have about their integrity but also so that everyone who is aware of what has been happening can be left in no doubt that JS was the sole architect and mind behind the campaign. Finally, it will ensure that JS is not employed in a position where he can put any one at risk. Simon Oliver Janice Funnell Michael Flynn 31 st July 2014 ANNEXE We find that JS has forged at least the following documents: - A letter addressed to Dr Ilsley dated 9 th November 2007 from Emma Walker singing the praises of JS. - JS took a 2008 payslip belonging to a member of staff which, at a later date, he posted on the blog/website he had created - a letter apparently from Mary Etheridge to JR dated 15 th February 2008 together with a further letter from her and her non-existent daughter, Carol - a letter from “DS Blackburn” of the Metropolitan Police dated 26 th February 2010 The police officer does not exist. - record of a meeting attended by KA on 7 th September 2010 - a letter dated 14 th September 2011 from City of Westminster College - a reference for JS by KA and a HSBC bank statement ‘showing’ payment of £100 to KA for that reference - A letter from Jacqui Howard, the Honorary Registrar RCCP - A statement purporting to be from Heather Stanborough We find that JS has created the websites and/or blogs critical of Harefield Hospital as set out in Schedule A of the High Court Injunction Order and also mentioned in paragraph 41 above We find that JS has created false Linkedin pages in the names of JR and GB We find that JS has created false Facebook pages containing racist and homophobic comments and critical of Harefield Hospital We find that JS has made at least 578 false job applications between 30 th November 2012 and 14 th October 2013 in respect of MO using at least 17 abusive email addresses, 3 of which are referred to in paragraph 9 of Mr Justice Green’s judgment and set out in paragraph 29 above. We find that JS has created and operated the following false email addresses - Andrew Morley - About 17 purporting to be from MO We find that JS made several false complaints against people, including to IBHRE in respect of KA. We find that JS has made a false referrals to DBS/ISA in respect of - KA on 2 nd January 2011 using the names Frank Marriot and Mark Tuffey and in which he described himself as a Cardiac Physiologist and former line manager of KA. - JR at about the same time

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