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	First-tier Tribunal (Health Education and Social Care Chamber)
You are here: BAILII >> Databases >> First-tier Tribunal (Health Education and Social Care Chamber) >> Joyce v Secretary of State for Health [2009] UKFTT 4 (HESC) (30 January 2009) URL: http://www.bailii.org/uk/cases/UKFTT/HESC/2009/4.html Cite as: [2009] UKFTT 4 (HESC)

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IN THE FIRST TIER TRIBUNAL (CARE STANDARDS)

[2006] 813.PVA

[2006] 814.PC

BETWEEN:

SINI JOYCE

Appellant

-and-

SECRETARY OF STATE FOR HEALTH

Respondent

Heard on 8^th, 9^th and 10^th December 2008 at Reedley Magistrates Court, Lancashire, before:

Mrs Carolyn Singleton

Mrs Susan Last

Mr. Ron Radley

Representation

1. The Appellant was represented by Miss Price of counsel and the Respondent was represented by Miss Patry-Hoskins of counsel.

Burden of Proof

2. The burden of proof lies with the Respondent to prove misconduct in this case which harmed or placed at risk of harm a vulnerable adult. If misconduct is proved, the burden of proof switches to the Appellant to prove her suitability.

Standard of Proof

3. The standard of proof is on the balance of probabilities.

The Appeal

4. This appeal is against the Appellant's inclusion on the PoVA and PoCA lists. Appeal against inclusion on the PoVA list lies under s86(3) of the Care Standards Act 2000 which states;

"If on an appeal….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 shall allow the appeal or determine the issue in the individual's favour and ……direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list."

Similar requirements apply to the Appellant's inclusion on the PoCA list, save for the fact that the word "child" should be read for "vulnerable adult" and the appeal lies under s 4(3) of the Protection of Children Act 1999.

History of the Case

5. In September 2005, the Appellant was employed as a Registered General Nurse (RGN) by BUPA Care Homes. She worked at Bankhouse Care Home, Poulton-le-Fylde, Lancashire. On the evening of 27^th and morning of 28^th September 2005, she was working at the care home as the nurse in charge when an unannounced inspection took place. As a result of that inspection, several matters which the Respondent alleges to be misconduct were found. Precise details of the alleged misconduct appear later in this decision but, suffice it to say, the Appellant was required to attend an internal disciplinary hearing on 5^th October 2005, following which she was dismissed on 11^th October 2005.
6. On 28^th October 2005 she was referred to the Secretary of State for provisional inclusion on the PoVA and PoCA lists.
7. On 8^th August 2006 her inclusion on those lists was confirmed
8. On 1^st October 2006, she issued her notice of appeal to this tribunal.
9. Legal representatives for the Appellant took issue with the interpretation of s 86(3) of the Care Standards Act 2000. In a decision handed down on 1^st August 2008, Mr. Justice Goldring stated that, in essence, the Tribunal can consider any matters alleged up to and including the date of the hearing.

Allegations of Misconduct

10. The allegations of misconduct relied upon by the Respondent appear on page 38 of bundle A of the scheduled evidence, save for the fact that allegation 4 was specifically excluded by counsel for the Respondent in her opening statement at the hearing.
11. The allegations are:

(1) The Appellant took her shoes off, put her feet up, covered herself with her cardigan, put a blanket over her legs and went to sleep on two chairs, with her colleague, in the lounge of the Home, leaving the residents of the Home uncared for and neglected and rendering her unable to immediately respond to any of the residents' needs or any emergencies;

(2) The Appellant failed to untie and/or unblock the doors to the lounge from the main corridor, resulting in the barring of that exit route to the three residents inside the lounge and the barring of that entry route to the residents outside the lounge;

(3) The Appellant failed to unblock the alternative doors to the lounge from the back corridor, resulting in the barring of that exit route to the three residents inside the lounge and the barring of that entry route to the residents outside the lounge;

(5) The Appellant failed to secure medication ( an Imodium tablet), leaving it on a shelf in the lounge of the Home where it was accessible to other residents and endangering those who could have taken the medication;

(6) The Appellant failed to secure the security door to the dementia unit, thereby endangering the lives of the residents who may have left the unit by this door; and

(7) The Appellant failed to ensure that the unit was maintained in a state complying with the requisite standards of health and hygiene, as demonstrated by the fact that;

A. the lounge was in an untidy state;

B. an incontinence pad was present on the dining room floor;

C. the small tables in the lounge were not wiped down; and

D. a chair had been left outside and was soaked with rain water.

Evidence for the Respondent

12. Heidi McNally is a Registered General Nurse ("RGN") who has worked for BUPA since 1999. Her statement appears at page 87 of bundle A. At the time of the alleged incidents she was an acting Home Manager at another BUPA home and was asked to investigate the matter as an independent Home Manager.
13. The investigatory hearing was attended by her and the Appellant, together with Marion Hopkins who was an independent Dementia Unit Manager. Ms. Hopkins took notes of the hearing, which were subsequently typed. Ms. McNally states they are an accurate account of what was said.
14. She told the Tribunal that sleeping whilst on duty is considered by BUPA to be gross misconduct. It is stated in the working guide as such and, on induction, it is made clear that it is a waking shift. It is gross misconduct because staff are dealing with vulnerable residents and, therefore, need to be alert and ready to deal with an emergency if needed.
15. Page 195 of Bundle A is part of the Resident Care Manual. Paragraph 4 refers to sleeping whilst on duty being a disciplinary offence. Members of staff would be shown where this manual is kept during their induction. They are not specifically told to read it but they need to know it is there.
16. Ms. McNally was asked about the taking of breaks during a night shift. She told the Tribunal that BUPA's practice is for there to be a 30 minute break for a meal and a further 15 minute break for a drink. This is explained during the induction process.
17. She considered the blocking of the doors to the lounge to be one of the most serious incidents she had ever come across. Service users on a dementia unit are unpredictable and you need to be able to maintain their safety. Although they all have call buttons, they may not use them or, indeed, be aware that they need help.
18. Her personal opinion was that the allegations of misconduct were extremely serious and that the tying of doors and the blocking of exits was, in effect, an abuse of service users.
19. In cross-examination, the case for the Appellant was put to her. She agreed that she had not been aware that there had been two residents still in the lounge at 1.30 am., nor had she appreciated that those residents GH and MD, had each been assessed as displaying particularly challenging behaviour. She had not known that, having found the Imodium capsule on the floor, the Appellant had heard a commotion in another service user's bedroom, B, and had run immediately to calm him down. The commotion had in fact been created by GH and MD who had both gone into B's room and awakened him. She accepted that it was reasonable for the Appellant to go and calm B, rather than taking the Imodium capsule to the medicine room, but stated that she should have placed the capsule in a medicine pot and put it in her pocket rather than placing the pot on a shelf. She could not recall where the shelf was. She accepted that Imodium, if taken inappropriately, could cause discomfort but would not be life-threatening.
20. She had been unaware that the Appellant had asked her colleague, VT, to sit with 3 residents who were in the lounge. She had not known that the Appellant had then gone to the nurse's station to deal with the Cardex and that VT had cried out for help. She was unaware that, when the Appellant arrived in the lounge, GH was kicking and hitting VT and had been trying to get on to the corridor. VT had tied the doors with a plastic apron to try and prevent GH from wandering. Ms. McNally stated that she had asked the Appellant why the doors were tied and she had said that it was to stop GH leaving. She had not asked the Appellant why she had not untied the doors.
21. Ms. McNally agreed that it was reasonable for the Appellant's first instinct to be to calm GH. She had not known that she had persuaded GH to sit in a chair and that the Appellant had sat next to her and held her hand. One resident, PM, was now sleeping but another, MD, was still wandering around the lounge. She had not known that GH had not slept throughout the Appellant's shift. She agreed that it would have been a priority to persuade GH to go to sleep.
22. It was put to Ms. McNally that the Appellant admitted that she put her feet on a chair and nodded off to sleep. She said that the Appellant had told her that she had dislocated her knees and they were aching. She accepted that the Appellant had told her that she and her colleague had not had a break but she had not pursued it because she thought it was just an excuse. She had not spoken to the Home Manager about them not taking a break as detailed in the Home's staff induction manual.
23. She had made no enquiries as to the induction process that the Appellant had undergone. She would have expected her to have spent a week working alongside a qualified nurse but had not enquired and had, therefore, been unaware that this had, in fact, not happened. Neither had she appreciated that the Home Manager at the time had never met the Appellant. She had not been aware that the Appellant had received no training in working with patients with dementia but did not consider that relevant since, in her view, the tying of the doors was unacceptable in any event. She had not asked about training in restraint and confrontation management because she had not appreciated that there had been an incident which required de-escalation. She accepted that she had formed her opinion without knowing about the service users or what had happened that night. Nevertheless, she felt that her conclusion would remain the same because her job had been to carry out an investigation to ascertain whether or not there should be a disciplinary hearing. Having had the Appellant's case put to her, she still was of the view that a disciplinary hearing should have taken place. She did, however, accept that she should have probed more.
24. Alasdair Swan is the General Manager of a children's hospice. At the time in question he was a Home Manager for BUPA. He carried out the disciplinary hearing for the Appellant. His statement is at page 96 of Bundle A. He told the Tribunal that, prior to the disciplinary hearing taking place, he had been provided with the minutes of the investigatory hearing and had been satisfied that there had been no choice but to proceed to a disciplinary hearing.
25. He did not feel it essential for people caring for patients with dementia to be a Registered Mental Nurse.
26. He has worked for BUPA for 5 years and it is made very clear to all employees that they do not sleep whilst on duty. A working guide is issued to all employees. It is not necessary for people to have a sleep to remain effective. There is a lot of "down time" on a dementia unit when staff can sit down and take a break.. He confirmed that people working a night shift would be entitled to breaks and would know through guidance given to them, working with other staff and the Home Manager. He would be very surprised if a member of staff were to say that they never had a break.
27. A the conclusion of the disciplinary hearing, he had been satisfied that the Appellant had been the nurse in charge on that night, she had been aware that the doors had been tied together and had constructed an environment in the lounge conducive to going to sleep. There had been no justification for tying the doors. In his view, the behaviour of the residents in the lounge had not merited it. It is a form of restraint and other residents were left unsupervised. He did not think it necessary for him to know of the residents' medical condition in order to ascertain whether the incident had been sufficiently serious to warrant the Appellant's dismissal. He said, both the Appellant and her colleague had had a choice. It was not dependent on the residents' medical conditions. What most concerned him was that the level of supervision their dementia required was denied to them.
28. In cross-examination, Mr. Swan acknowledged that the Appellant's first language is not English. He had been aware that GH and MD had gone to B's room and woken him up but he was not aware that VT had subsequently called out for help from the Appellant and that GH had been very aggressive towards VT. He maintained that it was irrelevant because, in any circumstances, the tying of door handles is unacceptable.
29. He was referred to the BUPA "Resolution of Confrontation and Management of Aggression" policy which is at document 458 of Bundle B. This provides, inter alia, that training will be provided on confrontation management and breakaway skills. He had not been aware that the Appellant had received no such training but said that the majority of staff did not have it.
30. He was referred to the care plan for GH in the bundle and agreed that it should have been more extensive. It did not give sufficient guidance for dealing with aggressive service users. The care plan in the bundle postdates the incident by at least 6 months.
31. Mr. Swan said that he had formed the opinion that the actions of the Appellant had been deliberate. She and VT had created an environment where they could both fall asleep. Both had been sitting down when they were disturbed.
32. He had not pursued the allegation that they had not taken a break because he did not believe them.
33. He was asked about the door to Garden Court being ajar. He had not made enquiries as to how this had happened. He had been more concerned with the fact that other residents had been left unsupervised because the doors were tied. He did not think the allegation about the door being unlocked or the allegation surrounding the Imodium capsule was as critical as the allegation of sleeping and tying the doors. He also did not feel that the allegation of the lounge being untidy, the incontinence pad being on the floor, the small tables not being wiped and the chair being left outside had formed any part of his decision to dismiss the Appellant.
34. In re- examination he pointed out that restraint is never appropriate unless in extreme circumstances. Even if it is correct that the Appellant had undergone no training specifically for working with dementia patients, his view would not change. If the Appellant had felt inadequate in any way it was her responsibility to do something about it. It would be very irresponsible for her to continue to work.
35. In response to questions from the Tribunal he said that his understanding was that the Home Manager would always be available for contact by phone. Whilst RMN training is desirable in these circumstances, it is not essential, in his view, but he accepted that the ability to de-escalate a situation requires training and experience. He agreed that he would have expected a night care plan to have been drawn up for each service user but had not seen one in this case and accepted that there had been a lack of procedure to follow in this incident.
36. Marion Hopkins is the Senior Sister at Garden Court, the dementia care unit at Bankhouse. Her statement is at page 197 of Bundle A. She was not working at Bankhouse at the relevant time but has worked at BUPA care homes since 1995 and was able to give evidence as to BUPA procedures and policies and how BUPA homes are run. She accepted that she had not been involved with Bankhouse in September 2005 but that, since her appointment there as Senior Sister, a full induction course is carried out with specific dementia training.. She stated that all new staff are advised as to what breaks they can take.
37. She described what new staff are told to do in the event of an emergency and that the office has a list of the Home Manager's landline and mobile number. She was surprised that the Appellant had, in fact, never met the then Home Manager, Vivian Ogden.
38. The keypad door from the nursing unit into Garden Court can be seen from the corridor which contains some residents' bedrooms.
39. She was asked what she would have done about the Imodium capsule and said that she would have put it in her pocket. Her view of the whole incident was that it was very serious. However, insofar as the way the Appellant ultimately dealt with GH by sitting her down and holding her hand to try and get her to sleep, she thought this was exactly the way she should have acted.
40. In cross-examination she itemized the training she insists her staff undertake. She was referred to the Appellant's training/supervision file which is at page 386 of Bundle B. She agreed that this showed that the Appellant had not done an "Understanding Dementia" course or a course on dealing with challenging behaviour . Her practice is to agree personal objectives with each member of staff and those are recorded and kept in the personnel files. She pointed out that this is what happens now but she could not comment on what happened prior to her appointment.
41. Judith Angela Beaumont was the Operations Manager for BUPA responsible for 9 homes, including Bankhouse, at the relevant time. Her statement is at page 121 of Bundle A. She did not give oral evidence, due to ill health. Her statement details how she and Vivian Ogden carried out an unannounced inspection of Bankhouse in the early hours of the morning of 28^th September 2005. She sets out what they found on their arrival, the details of which form the allegations of misconduct set out earlier in this decision.
42. Similarly, Vivian Ogden, the Home Manager in September 2005 was unable to attend the hearing because of ill-health. Her statement is at page 131 of the bundle and sets out her findings of alleged misconduct. Both her statement and that of Mrs. Beaumont refer to easy chairs being against the doors.

Evidence for the Appellant.

43. Sini Joyce gave oral evidence. Her statements appear at pages 39, 51 and 83 of Bundle A. She confirmed that, on her arrival in the UK in 2002 she had worked as a care assistant. In 2004 she had moved to Argyles Nursing Home where she was nursing general medical patients. She had moved to Bankhouse in 2005 when her husband found work in Preston.
44. In cross-examination, she said that, on the night in question, it had been agreed between herself and VT that she should be the nurse in charge. When she was doing her 3 am check on the residents, she found an Imodium tablet on the floor in the room of Mrs. S, a service user. She put it in a medicine pot and her intention had been to take the pot to the medicine room, discard the capsule and complete the medication chart accordingly. At that point she heard screaming. She went through the lounge and, as she did so, put the pot on a high shelf because she did not consider that it would be safe just in her pocket. The shelf is at head height. She has seen staff stand on a chair to reach the shelf but has never seen residents do so. She did not touch it again.
45. She had calmed B down and taken GH and MD back to the lounge. She had left VT with three residents in the lounge and gone to the nurses' station to complete the Cardex. At 3.45 am she heard VT shout for help and ran to the lounge. She tried the main doors but they were tied together. She went to the other doors and, on entering the lounge, saw that the doors were tied together with an apron. She did not see any chairs against the doors.
46. When she entered, she saw GH hitting and kicking her colleague and speaking in German. She tried to calm her down. She asked if she wanted a drink, settled her in a chair and held her hand. She had asked VT why the doors were tied and had been told that VT could not manage GH and she was anxious that she did not further disturb other residents. She saw GH go the doors and shake them. She had not seen VT actually tie the doors.
47. VT had suggested they dim the lights. GH was not agitated anymore but had not gone to sleep. She was not fully settled and the Appellant did not want to untie the doors until she was.
48. She admitted that she dropped off to sleep. She cannot say how the chairs came to be in front of the doors, only that it was not her who did it. She took her shoes off, put her feet on another chair and covered herself with her cardigan because she was cold. She fell into a light sleep. When Mrs. Ogden and Mrs Beaumont arrived it was 4 am.
49. She told the Tribunal that, when she joined Bankhouse, she worked one night shift with a qualified nurse. Nobody took a break and when she enquired about it she was told that they were not allowed to take breaks. She accepted that, even if she had taken a break, she would not have been allowed to sleep. She had not felt qualified to cope with GH during this incident. She had resorted to using her common sense but felt that she would have managed better had she received some specific training.
50. The Tribunal was provided with the findings of the Nursing and Midwifery Council at its hearing in November 2008

Tribunal's Findings

51. The law in this matter is set out in paragraph 4 of this decision. It is a two stage test. Firstly the Tribunal has to be satisfied, on the balance of probabilities, as to misconduct and the burden of proof in this part of the test is on the Respondent.

Misconduct

52. The Respondent's case is that this was a series of misconduct which happened on one night. Those allegations are set out on page 38 of Bundle A.
53. Although counsel for the Respondent opened her case on the basis that all the allegations, save for number 4, were relied on, the evidence presented by the Respondent at the hearing emphasized allegations 1,2,3,5 and6. Allegation 7 was not considered by Mr. Swan to be a disciplinary matter and no specific evidence was heard relating to it. The Tribunal had the statements of Mrs. Beaumont and Mrs Ogden, but they did not give oral evidence. The Appellant was not asked questions about these matters in cross-examination. The view of the Tribunal, in any event, is that, in the general scheme of things, these matters are trivial and do not amount to misconduct which harmed a vulnerable adult or placed one at risk of harm.
54. With regard to the allegation relating to the Imodium capsule, the facts are accepted by the Appellant, but her failure to secure the medication in accordance with the appropriate procedure has to be considered in the light of the events taking place at the time. The evidence is that the Appellant had just found the capsule on the floor when she heard screaming coming from B's bedroom. Her intention had been to take the capsule in the medicine pot to the medicine room, discard the capsule and make an entry in the medicine book. She was diverted from this by the noise from B's room. She placed the pot on a high shelf and the Tribunal considered that this was a reasonable course of action to take in these circumstances. The evidence of Ms. McNally was that Imodium, if taken inappropriately, would cause discomfort, not be life-threatening. The Tribunal is not satisfied, on balance, that this conduct amounted to misconduct on the part of the Appellant.
55. With regard to the allegation relating to the failure to secure the security door to the unit, the Tribunal heard no evidence as to whether or not the Appellant knew it was open in the first place. She was not questioned on this point by counsel for the Respondent. The Respondent has not discharged the burden of proof on this allegation.
56. In the Tribunal's view, the most serious allegations faced by the Appellant relate to her sleeping whilst on duty, failing to untie the doors to the lounge and failing to unblock the doors. The context in which these incidents took place is important. The Tribunal heard that the Appellant and her colleague had been on duty for nearly 8 hours without any form of break. Much was made of the fact that the Appellant says she had not been told she could take a break, something which the witnesses for the Respondent found unlikely. However, the Appellant has maintained this account throughout this case and the Tribunal did not have the benefit of hearing oral evidence from Mrs. Ogden, the Home Manager, on this point. In any event, it seems to be the case that she never met the Appellant. It may indeed be the case that it is BUPA policy to allow breaks on a night shift as required by law, but the Tribunal accepted that the Appellant had not been made aware of that. In addition, three residents were refusing to go to bed and GH was displaying particularly challenging behaviour. In an attempt to calm her down and encourage her to fall asleep, the Appellant dimmed the lights in the lounge and sat with GH, holding her hand. The Appellant accepts that she fell asleep. In the majority of cases, falling asleep on duty will amount to misconduct, but the Tribunal considers that, in the Appellant's case, it was concomitant with her attempts to calm and soothe GH rather than a deliberate intention on her part to sleep. In the light of what had gone on before, the behaviour of GH and the lack of a break to take a drink and some food to revive herself, the Tribunal does not find, on balance, that this amounted to misconduct.
57. Insofar as the failure to unblock the doors is concerned, the Appellant's evidence is that she does not know who blocked the doors with the chairs. She did not do it. The Tribunal heard evidence that there were three residents in the lounge that night who were refusing to go to bed. GH and MD were disturbing other residents. Service users have been known to move the furniture about. The Tribunal is not satisfied, on balance, that the Appellant knew the doors were blocked by chairs, and consequently, does not find that her failure to unblock them amounted to misconduct.
58. However, the Tribunal has reached a different conclusion on the allegation that the Appellant failed to untie the doors to the lounge. The evidence is that, when she entered the lounge having heard her colleague shouting for help, she saw that the doors were tied together and asked her colleague why that was. At that point, she had entered through the second set of doors to the lounge so they were not blocked at that time. It is entirely reasonable at that point for the Appellant's first reaction to be to deal with GH who was extremely agitated at that point and behaving violently, but the Tribunal considers that, once the Appellant had calmed GH down, she should have taken the opportunity, then, to untie the doors. She was the nurse in charge on the night and it was her responsibility. Her failure to untie the doors does amount to misconduct, in the Tribunal's view, which placed a vulnerable adult at risk of harm.

Suitability

59. The first part of the statutory test is, therefore, satisfied and the Tribunal has gone on to consider the suitability of the Appellant to work with vulnerable adults. The burden of proof at this point shifts to the Appellant.
60. It is important to note that this Appellant's first language is not English. In those circumstances the Tribunal considers that it is essential on the part of employers to ensure that their employees understand exactly not only what their responsibilities are, but also their rights. The Appellant's background is also of relevance in this case. She is originally from India and told the Tribunal that she is the only person in her family to have received an education. Her attitude is extremely deferential, both in terms of her approach to the panel members and in terms of her reaction when she was found sleeping by Mrs. Beaumont and Mrs Ogden. In their statements they describe how the Appellant fell to the floor and attempted to kiss Mrs. Ogden's feet in apology. This is significant because, to some extent, it goes some way to explaining why she did not question the fact that she could not take a break. It also gives the Tribunal insight into why, although she had never had any training in dealing with dementia patients, she did not pursue this point with her employers when they told her that she would learn as she was going along.
61. The absence of specific training in nursing patients with dementia is significant. The Respondent accepts that there should have been training but argues that, in this case, it would not have made any difference. The Tribunal does not accept that. The Appellant was having to deal with a very difficult set of circumstances and a service user who was violent, both verbally and physically. Training in de-escalation may have proved to be invaluable, had she undergone it. The fact that the Appellant reacted in an entirely appropriate way by using her own common sense, is testament to her suitability as a nurse, rather than proof that training would not have made any difference as suggested by the Respondent. The suggestion that the Appellant lacks insight, judgment and common sense is contradicted by the very fact that she handled GH exactly as she should have done, according to the Respondent's witnesses.
62. The Tribunal heard no evidence that there were any residents requiring additional observations that night. The Appellant confirmed that she carried out two- hourly checks in accordance with BUPA's procedures. She clearly responded immediately to events that occurred between those checks, as evidenced by her reaction to the commotion coming from B's room and her colleague's calls for help.
63. The testimonials included in the bundle are glowing and suggest a lady who is a caring, reliable and efficient person; one who is fundamentally a good nurse who coped with a difficult situation, even without training.
64. The failure to untie the doors when she had the opportunity to do so is misconduct, as stated earlier in this decision, but the risk to other residents was minimal, in the Tribunal's view. It does not render the Appellant unsuitable to work with vulnerable adults or children.
65. The appeal is allowed. The Tribunal directs that the Appellant's name should be removed from the PoVA and PoCA lists forthwith.

Carolyn Singleton

(Tribunal Judge)

Susan Last

Ron Radley