Appeal No. NISCC/3/2010


IN THE CARE TRIBUNAL
R A M
Appellant
And
NORTHERN IRELAND SOCIAL CARE COUNCIL
Respondent

Before:
Diane Drennan (Chairman)
Malachy O’Loane
Kerry O’Halloran

Hearing dates: 24th, 25th and 29th November 2011

The Application

Representation

Preliminary Hearings

The Law

Burden of Proof

Facts and Evidence

The Respondent’s Evidence

The Appellant’s Evidence

The Facts

The meeting concluded that the appellant had a case to answer in relation to all five concerns. A report was prepared giving the substance of the meeting, noting responses from the appellant and providing supporting information.
Each of these concerns will be dealt with in turn.

The Tribunal has examined the investigation report, the signed statement of SC, the active night checklist and the staff notes exhibited thereto, particularly the note in the communications book from SC marked ‘clarification about the emptying of bins’ written on the 13th March 2008.

The appellant’s response to this concern during the investigation meeting of 21st April 2008 was to at first refer to a discussion with SC about the possibility of reducing his working hours. SC stated that the appellant needed to make a formal request in writing to have his hours reduced and that he had been previously advised to do this. When reminded of the concern in question by SC, he stated that bins were not to be emptied when they had a tissue in them or when they were half full and then suggested that he had emptied the bins on every occasion since he had seen the note of the 13th March. No further submissions or comments were made by the appellant refuting the statements made on behalf of the respondent.

The Tribunal accepted that the toilet bins, which contained soiled incontinence pads, were not emptied and the toilet floors were not cleaned on a regular basis and were stained with urine on occasion. These duties were clearly stated as part of the duties to be carried out on the active night checklist, exhibited to SC’s statement and the appellant would have known that these tasks were part of his job. It found that the appellant did not empty the bins and clean the toilet floors on the 6th and 26th of March 2008. It further found that the bins were not emptied on the 12th and 28th March 2008.
The Tribunal considered this failure on the appellant’s part to perform duties clearly stated to be part of his job to be a serious matter. The presence of urine on floors and unemptied bins containing soiled incontinence pads would have resulted in very unpleasant odours, as well as possible slipping hazards, constituting health and safety hazards to frail elderly residents. The odours may also have extended into surrounding areas, thus affecting the atmosphere of the building generally for staff, residents and visitors.

The Tribunal has examined the investigation report, the witness statement of ES, Acting Project Supervisor, a job description referring to an active night support worker, the support plan of Mrs JM, staff notes and the active night checklist exhibited thereto. It has also considered the witness statement of NS, Support Worker.  It has reflected on the correspondence between DR, conduct officer for the respondent and the appellant dated 13th and 22nd July 2010, the copy training certificates enclosed with the 22nd July letter, dated 7th June 2010 and 1st May 2009, the appellant’s appeal form and the letters to the Care Tribunal dated 15th March and 26th July 2011, which are in identical terms.

This concern involved an allegation that an elderly and frail female tenant, Mrs JM, was not assisted with personal care on the morning of the 28th March 2008. This resulted in the lady not being properly dressed and left with dried faeces around her legs and ankles. Her condition became apparent when she appeared in communal areas of M accommodation in a soiled and undignified state. Also, her bed was soiled with urine and faeces.    During the investigation meeting of 21st April 2008, the appellant is quoted as saying, referring to Mrs JM : “She sometimes dresses her self, I normally check her, on that occasion I may have been running late, didn’t check her”. The appellant also said that he had told a colleague, NS, about JM.

In a note in the communications book exhibited to the statement of ES, dated 27th March 2008 and headed “Thursday night” which detailed any issues arising during the appellant’s shift, which extended into 28th March 2008, the appellant wrote : “JM and... both up, breakfast made meds given out to ....JM.” There was no mention in the note of a need for personal care or difficulties in completing duties, nor was there any indication that the appellant had told any colleague to deal with Mrs JM’s personal care and hygiene.

In his letter dated 22nd July 2010 to DR, conduct officer for the respondent, the appellant stated in relation to this allegation :
“...every morning I would assist to wash and dress some residents who needed assistance, there was a resident who occasionally I would assist in the morning, on that particular night I did not assist her to get washed and dress, she was capable of getting her self dressed with minimum assistance. When I left the building she was still in bed.
It only came to my knowledge that she had dressed and got herself up. And that she did not wash herself properly, she had faeces on her legs. I explained to my manager at that time that I did not assist her that morning.
I would not intentionally leave a patient in my care in neglected state with faeces”.

The appellant then refers to training in the protection of vulnerable adults which he attended in 2009 and 2010 which he stated has helped him to understand abuse and neglect of vulnerable adults.

In his appeal form, the appellant does not refer to this issue directly stating in his grounds of appeal .... “the accusation levelled against me was apparently according to O (housing association) happened once or twice...”
In his letter of 15th March 2011, received by the Tribunal Office on 14th April 2011, the appellant states :
“Yes I am remorseful of the incident against me and since I left O Housing Association 4 years ago, I have worked in other organisation, and have been trained to enhance my competence, this has completely changed my performance and enhanced my skills in care work.” The appellant repeats this statement in his letter to the Tribunal of 26th July 2011. No further submissions or comments were made by the appellant refuting the statements made on behalf of the respondent.
The Tribunal accepted the evidence of ES set out in her statement, that the part of the scheme where the appellant was on duty was the supported part of the scheme for vulnerable tenants and that the applicant was solely responsible for the welfare of these tenants as the only person on duty at night. There may have been comments to be made as to why only one worker was on duty and responsible for a number of tenants, but no submissions have been made to the Tribunal by the appellant in relation to this.

The Tribunal found that the appellant would have been aware of the requirement to check the tenants hourly as stated on the active night checklist. It also accepted that at no time did the appellant state that hourly checks were unnecessary. It found from an examination of Mrs JM’s support plan that she was a frail elderly lady with health problems connected with diabetes, but that, with some assistance, she was able to undertake some personal care, such as washing and dressing herself, although assistance was to be offered with showering.  There is no mention on the support plan of any incontinence problems.

The Tribunal has carefully considered the description of Mrs JM’s condition on the morning of the 28th March 2008, given in the statement of ES, where it describes that JM was not properly dressed and that there was a pool of urine below the chair where she was sitting in the dining room. It has also examined the notes signed by ES and dated the 28th March 2008 and marked ‘ES4’ and ‘ES5’, which describe Mrs JM as having dried faeces on her ankles and legs, having two pairs of pants on, but no incontinence pad, petticoat or tights. The note marked ‘ES5’, made in the communication book, also states : “JM’s bottom sheet wet and faeces stain on it...”.

The Tribunal accepted that JM’s physical condition and state of dress were as stated by ES in her statement. It also found that the pool of urine below her chair in the dining room occurred because Mrs JM was improperly dressed and was not wearing an incontinence pad. It also found that her bed clothes were wet and soiled.

The appellant’s statement (in the investigation meeting of 21st April 2008) that Mrs JM “ sometimes dresses herself...”is accepted and is borne out in her care plan. However, the Tribunal also found that, as the appellant himself stated in his responses during the investigation meeting,

“I normally check her, on that occasion I may have been running late, didn’t check her”. It is accepted that the appellant normally checked Mrs JM because of her frailty and the reason he did not check her on this occasion was because he was running late in relation to the duties he had to perform, as there was no suggestion that he was late in arrival/departure terms.

The appellant stated, during the investigation meeting of 21st April, that he had told NS about Mrs JM on the 28th March 2008.  He produced no evidence either at that meeting or subsequently to the respondent or this Tribunal to show that NS was in work that day. Having read the statement of NS and examined the copy work rota exhibited to it, the Tribunal found that NS was not in work that day and that therefore the appellant could not have passed information about Mrs JM’s need for personal care on to NS.

The Tribunal found that, in accordance with the appellant’s contemporaneous statement headed “Thursday Night,” and dated 27th March 2008, that when he left work Mrs JM was up, which conflicts with his later statement in his letter to DR dated 22nd July 2010, “When I left the building she was still in bed”.

It also accepted that no hygiene problems regarding JM were high-lighted in this note. Referring again to the appellant’s letter of the 22nd July 2010 to DR, the respondent’s Conduct Officer, the Tribunal found that the appellant did not assist JM to wash and dress on the morning of the 28th March 2008. The Tribunal also noted the appellant’s statement in the same letter that he “would not intentionally leave a patient in my care in a neglected state with faeces” and found that if the appellant had not been running late, as he said in the investigation report of 21st April 2008, he would have checked Mrs JM, discovered her state and given her care.

The Tribunal considered that this incident was very serious, involving both neglect of an elderly, frail and vulnerable lady in relation to her personal care, but also a complete loss of her dignity in public areas of the complex, where she was seen by staff and other residents. Although the Tribunal has no evidence before it of the effect upon Mrs JM, it found that this incident would have adversely affected the atmosphere in this part of the complex. It considered that this lady was in the appellant’s sole care during the night and early morning and that he was therefore responsible for her soiled and undignified state and also for the wet and soiled state of her bed clothes. If the appellant had carried out regular checks as he was required to do, he would have realised from the odour that both her bed and her person required attention.

The Tribunal accepted that some remorse and acceptance of responsibility were shown by the appellant in correspondence, but noted that there were no detailed submissions from him regarding this matter, no specific reference to it in his appeal form and no attendance at any hearing except the investigation hearing of 21st April 2008. Given the clear statement of duties contained in the Code of Practice for Social Care Workers, which the appellant would have read as part of his application for registration and the training courses he undertook in 2009 and 2010 in relation to vulnerable adults, the appellant should have accepted full responsibility and provided detailed submissions and explanations regarding this incident.

iii         Sleeping on duty
The Tribunal has examined the investigation report of 21st April 2008, the statement of ES and the report made by her, referred to in the investigation report and exhibited to her statement. This concern relates to two incidents on the 27th and 28th March 2008. ES refers to the appellant on both occasions sitting in a chair “apparently asleep”. She refers, again on both occasions, to the fact that the appellant did not appear to have moved since ES had first approached him and states in her report that on neither of these two occasions did she attempt to awaken the appellant.  The Tribunal has examined the statements of the appellant noted in the investigation report where he states “I cannot confirm or not if I was sleeping” and “I definitely don’t sleep”.

The Tribunal found that the appellant denied the allegations of sleeping on duty made against him. It also found that the sole witness ES did not categorically state, either in her report or in her witness statement, that the appellant was actually asleep on the 27th or 28th March 2008. It also found that ES did not awaken the appellant. In the absence of any clear evidence before it, the Tribunal could not come to any conclusion as to whether or not the appellant was asleep on the 27th or 28th March 2008 and therefore made no finding of fact on this area of concern.

iv         Failure to secure the building on the 9th & 10th April 2008
The Tribunal has examined the investigation report of 21st April 2008, the witness statements of SC, ES and NS and the note made by NS in the communications book and exhibited to her statement.

This concern referred to an allegation that the appellant had failed to lock external doors, contrary to a check-list of required duties, on the 9th and 10th April 2008. In her statement, NS refers to arriving at work on the morning of the 10th April and to bringing in bins from outside the building and noticing that ...”the bin store doors and gate were unlocked”. In her note she refers to locking the doors and gate herself, raises concern about the security of the tenants and also refers to the requirement, contained in the active night check-list, for the active night support worker to ensure that all doors are secured and locked. The Tribunal accepted the evidence of NS, given in her witness statement and exhibited note as to the unlocked bin store doors and gate, although it also accepts that that she cannot categorically state who may have been responsible for leaving the doors unlocked. It also accepted her evidence in relation to the check-list and the requirement to check and secure the doors. However, there was no evidence before the Tribunal as to how frequently this type of security check was required.

The Tribunal was aware from the statement of ES that, on occasion, other members of staff, apart from those on duty, stay over-night and exit the building. However, there was no detailed evidence before the Tribunal in relation to this and no statements or submissions have been made by the appellant in relation to it.
SC referred in her statement to arriving at M accommodation at 11.50pm and being able to access the building without having to use any key as the bin store was unlocked. The Tribunal accepted her evidence.
During the investigation hearing, the appellant responded to the above allegations by stating that on the morning of the 10th April 2008 NS had locked the doors. He denied the allegation, stating that he always checked the doors were locked. He implied that whoever had last used the doors should have locked them. The appellant made no further remarks or submissions in relation to this allegation.

In the investigation report, reference was made to an incident a few weeks before the date in question where prowlers and been reported on the premises. The Tribunal accepted that there had been an incident involving prowlers on the premises a few weeks before the above dates. The appellant did not contest this and the Tribunal also found that the appellant would have been aware of this incident which would have required members of staff, especially those working at night, to be especially vigilant, given the vulnerable tenants living in M accommodation.

The Tribunal found that responsibility rested with the appellant to ensure that the building was secure and, on the papers before it, found that the appellant did not secure or check the security of the building on these occasions. This was a serious matter given the frailty of the tenants and the fact that prowlers had been detected before.

v          Failure to carry out hourly checks of the tenants on 10th April 2008
The Tribunal has examined the investigation report of 21st April 2008 as well as the witness statements of SC and ES, the active night check-list exhibited to these statements and the note made by SC relating to her visit to M accommodation on the 10th April 2008.

In the investigation report, the appellant stated that he had checked the tenants after 12 midnight; he also said he checked the tenants every hour but not necessarily on the hour. There have been no further statements or submissions from the appellant in relation to this allegation.

The Tribunal accepted from the account given in her witness statement and the note referred to above, that SC attended M accommodation and observed the appellant for more than an hour and during the time she was there he did not carry out hourly checks as clearly listed on the active night check-list.
Although the Tribunal do not know what specific instructions the appellant had, it concluded that the failure to carry out hourly checks as stated in the check-list was a significant omission by the appellant, given the vulnerable condition of the tenants.

Tribunal’s Conclusions

Human Rights issues

31.In his letters to the Tribunal of 15th March and 26th July 2011, which are in identical terms, the appellant raises an issue of Human Rights. The Tribunal has considered what bearing (if any) the European Convention on Human Rights (EHCR) has on this case. It considered the relevant Articles to be Articles 6 (right to “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”) and Article 8 (“right to respect for his private and family life, his home and his correspondence”) (see further: R [on the application of Wright and others] v Secretary of State for Health and another [2006] EWHC 2886 & [2009] UKHL 3 and R [on the application of the Royal College of Nursing] v Secretary of State for the Home Department  [2010] EWHC 2761).

32. Dealing first with Article 6, the Tribunal unanimously found that this Article was engaged. The Tribunal, having noted the appellant’s opportunities to be heard and to make representations before the Registration Committee and having taken account of the appellant’s opportunities to make representations and to be heard before this Tribunal, was of the unanimous opinion that there was no breach of Article 6 in this case.

33.In relation to Article 8, the majority did not consider disqualification from specified employments or areas of work in general engaged the Article or conferred any right to engage in a chosen profession and did not consider, on the facts of this case, that there was such an impact on personal relationships so great as to constitute an interference with the right to respect for private life (see further: R [on the application of Wright and others] v Secretary of State for Health above).  Even if Article 8 was engaged, since the majority of the Tribunal was not satisfied as to the appellant’s good character, conduct and competence, in the circumstances and for the reasons stated above, the majority were therefore satisfied that any such interference, affecting his ability to obtain employment, as a social care worker, arising from his non-registration, was proportionate and justified.  The minority was satisfied that there was such interference and that Article 8 was therefore engaged and the interference affecting his ability to obtain employment, as a social care worker, arising from his non-registration, was disproportionate, in view of the overall context, including the appellant’s good employment record, other than the incidents referred to above.
Decision

34.Section 15 of the 2001 Act provides the right of appeal to the Care Tribunal against a decision to refuse an application for registration and section 15(3) states that the Tribunal may confirm the decision or direct that it shall not have effect. Section 15(4) enables the Tribunal to make decisions with regard to conditions while by section 15(5) NISCC shall comply with any direction given by the Care Tribunal under the section.

35.By a majority decision, for the reasons set out above, the decision of the Registration Committee is confirmed and the appellant’s appeal is dismissed.

The Tribunal unanimously states that it is a matter of concern that the decision of the Registration Committee was in brief terms.  While “the general principle is that each party must provide sufficient evidence to support their case....” (Beverley Joy Peek v General Social Care Council [2010] 1753.SW at paragraph 13) and the burden of proof is, as stated, upon the appellant (or applicant before the Registration Committee), a much fuller statement of the reasons for the decision and not a mere quoting of the relevant portion of the Registration Rules, would be helpful to the Tribunal in determining these cases.  However, since this hearing by the Tribunal has involved a re-hearing of all the evidence in this case, it was not necessary for the Tribunal to consider this issue any further.

Diane Drennan (Chairman)
Malachy O’Loane
Kerry O’Halloran

Date Decision recorded in Register and Issued to Parties:  13 January 2012