Monsami D S Sanjivi v Hastings Health Authority

It is the unanimous decision of the Tribunal that the Appellant's appeal fails and that the decision of the health authority shall have effect.

Brief history of the dispute

The Appellant, a highly qualified nurse, was the registered owner of four Nursing Homes in the Hastings area. He was first registered in 1985 in respect of Park Lodge I for 13 elderly and psychogeriatric patients, being reregistered by agreement in 1991 for 13 elderly mentally ill, (EMI). In 1988 he was registered in respect of Park Lodge II for twenty-eight EMI patients, and in 1990 in respect of Trinity Court for twenty-eight EMI patients. In 1991 he was registered in respect of White Rock Mansion (WR) for forty medical and 60-years-plus post operative and elderly patients.

Various concerns were felt by the Respondents, in particular regarding staffing issues and what the Respondents considered to be a wholly inappropriate and unsuitable mix of patients in that some were considerably younger than retirement age and were alcohol abusers. There were also serious concerns as to persons in charge of the four Homes. During the period from September 1987 to date there were some one hundred and fifty visits by the Inspectorate.

In February 1992 an anonymous letter was received by the Respondents as a result of which they intensified their visits. As a consequence of their investigations and concerns, and following correspondence and communication between the parties, the Respondents proposed cancellation in March 1992. Written representation were made in May and June 1992, and following a stabbing incident in the Home on June 1992, the decision to cancel was made in August 1992. The Appellant appealed.

On 24 November 1992, following financial problems, a Receiver was appointed for all the Homes with the exception of WR.

Preliminary Matters

There were difficulties between the legal representative for both sides prior to the hearing concerning the evidence. The bundle had not been agreed by the Appellant and witness statements had not been exchanged, although the Respondents were willing and ready to do this. Some days before the hearing solicitors for the Appellants requested an adjournment on the grounds that a Receiver had been appointed on behalf of the company, Classpalm Ltd, the owners of Park Lodge I, Park Lodge II and Trinity Court Nursing Homes. The Appellant holds the Certificates of Registration on trust for Classpalm Ltd. The Appellant's solicitors were therefore technically without instructions and maintained that if an adjournment were not granted the Appellant might have to represent himself at the hearing. This application was vigorously resisted by the Respondents. The Chairman directed that the hearing should commence as planned and that any application for an adjournment should be made then, before the full Tribunal.

Application for an adjournment

On the first morning of the hearing, on 24 November, the Appellant applied for an adjournment, the reason being that his new solicitor had only just been instructed, having first spoken with the Appellant on Friday afternoon, November 20. The Respondent's evidence had been received on the Saturday and the solicitor had not yet gone through it himself/with his client. Receivers had been appointed on 18 November in response of three of the Nursing Homes, and the Appellant retained control of WR. Neither the Respondents nor patients would be prejudiced by a delay. A general adjournment was not requested, merely sufficient time to read and study all the documents.

The Respondents recognised the need for time and were prepared to be flexible, although had the application been for a general adjournment they would have resisted it strenuously. They did not agree that patients were not at risk. The point of their case was that there was an inappropriate patient mix and things could go badly wrong. They were, however, prepared to make the replacements solicitor's path as smooth as they properly could.

The Tribunal, after considering the application, granted an adjournment until 1100 the following morning (approximately 24 hours).

Medical confidentiality issues and admissibility of evidence.

The question arose as to the manner in which consents as to medical evidence were obtained and as to the admissibility of such medical evidence. In very brief and general terms there were two matters for which the evidence was relevant: (a) a stabbing incident when W stabbed C on 1 June 1992 (The evidence concerned the blood alcohol level on C on 1 June) and (b) the occasion when P was found unconscious in Warrior Square and admitted to hospital on 18 September 1992. The medical evidence concerned hospital records.

Evidence was heard from Miss Paxton as to how she obtained consents from C and P for the disclosure of their medical records. It was the Appellant's case that the manner of obtaining those consents was unsatisfactory, in particular that the two men did not know why and for what purpose such medical records were going to be used.

Even given that the consents were properly obtained, the question arose as to whether the evidence should be admitted. After hearing submissions from both sides and after very carefully considering the matter, the Tribunal decided that such evidence was admissible. It was satisfied that the consents had been freely and properly given and that also the patient's consultants had been fully informed. It was satisfied that there was no prejudice to the patients nor to the Appellant.

The Appellant's case

The Appellant denies admitting patients outside the registration category. In particular, he says that the term "elderly mentally ill" does not import any age limit but includes patients who are suffering from mental illness and who present as older rather than younger persons. It is wrong to limit the age of EMI patients to those who are of pensionable age. In support of this the Appellant relies on an independent assessment report as to suitability and appropriateness of placement of patients within the Homes compiled and written by Mr David Miller. The word 'elderly' is capable of various interpretation but none derive from statute of any particular authoritative source. There does not appear to be any reliable definition to which the Tribunal can turn for assistance. A reasonable interpretations when applied to the care of individuals is one which takes into account the type of care required, bearing in mind the individual's state of health, age and other circumstances. There are some patients in the case of the mentally ill who present elderliness or problems commonly acknowledged as problems which the elderly, in the everyday sense of the word, have to face. Unfortunately, this is a matter over which the Appellant and the Respondents disagree. The Appellants' submission is that in taking patients into the Homes who are in need of care which these Homes provide, he is fulfilling his role and not stepping outside the terms of his registration. The opinions put forward have differed.

It has been said that there was a danger to patients because of the varying degrees of mobility and agility among the residents in each Home. Three of the Homes, in particular Park Lodge II, are not Homes for the elderly and gentile but are for the treatment of people from a wide range of backgrounds who share similar mental problems. To some extent the rough must be taken with the smooth. On this particular point much has been said about the incident which occurred between the decision to cancel and the start of the hearing, the incident which concerned C and W, both of whom had known one another for sometime. It was very unfortunate for all concerned that the incident occurred and that it happened in a Home. But it could have happened anywhere and in that case there would not have been help immediately on hand.

As to inadequate staffing, what actually happened was related by Mr Aidhoo. The Appellant's organisation at the material time comprised four Homes and the way of working had necessarily to vary from the method which would apply in the organisation of a single, or even two, Homes. The rotas and operation differed considerably from those one would expect to find in a single Home, but that is not to say the system was defective. Both Mr Aidhoo and the Appellant very closely monitored the preparation of rotas and their operation. The Appellant was very active in arranging the deployment of staff. Mr Shadbolt did not agree with or necessarily understand the way in which the rotas operated. Since the date of the last registration (WR) there have been difficulties relating to staff, and this had been actively taken up between the Appellant and the Respondents. Time was given to the Appellant, following the meeting in October 1991, to find additional staff, but there were recruitment difficulties, some of which arose as a consequence of the proposal to cancel.

It has been said that some of the patients were taken from the streets of London and ferried down to the Appellant's Homes. This was said to be a common factor for a number of residents who were either inadequately or inappropriately assessed. But the Respondents' evidence is hearsay or based on discussions they have had with mentally ill or alcoholic patients. There was no evidence at the hearing which improved on hearsay, reported rumour and a defamatory anonymous letter. As to admitting patients with alcohol problems, this is denied. All patients in all Homes except WR suffer from some form of mental illness, which may, in some cases, be associated with alcohol abuse.

It was said that there was insufficient record keeping and a lack of admission procedures. But Mr Steele, an experienced nurse said that admissions were screened quite closely, that he personally was involved in keeping records, and that care plans and systems were up-to-scratch.

The Appellant, an experienced and well-qualified man, is able to run the Home properly. Before the end of 1991 no difficulties were experienced between him and the Respondents. Had there been any such difficulties the Respondents would not have permitted the registration of WR. The Respondents have to discharge the burden of proof taking into account what is at stake. They have failed to discharge this burden. It is clear from the evidence that the Appellant has good managerial skills and a very much hands-on approach to the development of the Homes which until recently were in his control. There is no evidence to suggest that the Appellant has indulged in any of these undesirable practices.

As to the failure to adhere to staffing requirements, this is denied. Insufficient time was given to the Appellant to replace his RGN and EN(G)'s with RMN's by 10 March. To date a full complement in accordance with the Respondents' requirements is employed. All reasonable steps were taken to provide and maintain a qualified person in charge. He was given until March 1992 and at that time he had employed a suitably experienced and qualified PIC of Park Lodge I and II. As to the PIC at Trinity Court, the Appellant had difficulties in maintaining a PIC there. But he took all reasonable steps to advertise for, interview and appoint suitable persons. Unfortunately, due to the uncertainty caused by the proceedings from March 1992 there were understandable difficulties. The Home, however, was at all times in the charge of a suitably qualified nurse.

A Receiver was put in control of three of the Homes very shortly before the hearing. The Appellant accepts he is not in control of them and cannot pursue matters relevant to the three properties any further. However, WR is quite different; the Appellant is the owner and the Receiver has no interest in this Home whatsoever.

It has been said that the Appellant's unfitness arises as a consequence of his general mismanagement. As to the alleged practice of the allegedly inappropriate admission of people wholly unsuitable for the Home in that some were too young and/or alcoholic, it seems that the major complaints under this heading relate to Park Lodge I and II and Trinity properties. Mr Steel gave evidence of the admission procedures used. It was not the situation that alcoholics and/or persons of no fixed abode simply turned up at the Homes and were given admission.

The welfare of the residents at three of the Homes is no longer in issue since the properties are outside the control of the Appellant. The only Home that is relevant is WR and the Appellant has shown that he has the ability to select good staff, and has a wide and deep appreciation of the needs of both his staff and patients. The fact that the Receiver has been put into three of the Homes does not necessarily indicate incompentency or bad management. There are many reasons why a bank might appoint a Receiver, particularly in the present economic climate.

The Respondents' case

The reasons for the cancellation of registration on which the Respondents relay are (1) that the Appellant is unfit (section 25(1)(a)) by virtue of general mismanagement, in particular the undesirable practices used to recruit patients; (2) breach of condition of registration by virtue of admitting patients who were outside the terms of the registration, both in age and patient category (section 28(c)); (3) unsatisfactory staffing position due to a failure to adhere to staffing requirements (section 25(1)(b) and (g)); (4) failure to provide and maintain a qualified person-in-charge (section 25(1)(f)) and (5) undesirable use of the Home, in particular, the admission of patients with alcohol problems (section 25(1)(c)).

The highly qualified Appellant had been registered since 1985. His first Home had 13 elderly psychiatric patients and prior to 18 November 1992 he was the person responsible for four Homes, with some one hundred and nine patients. Somewhere between these two points, the Respondents contend, something significantly wrong occurred, in the manner on which the Appellant conducted both himself and his Homes. The significant feature appears to be financial problems, and this is demonstrated by the fact that at today's date three of his four Homes are in Receivership. His unfitness derives from a catalogue of errors, which came to a head in November 1991 - although problems started much earlier - when, trying to co-ordinate the running of four Homes he could not keep up. It could not be said that his unfitness derived from insufficiency of experience or incompetence. A serious problem was staffing issues, and his staff records were lamentably inadequate so that it was impossible to say who was working where and when. Some one hundred and fifty visits occurred, which is unique in the annals of such inspection in the Hastings Health Authority.

The major problem was that the Appellant allowed wholly unsuitable patients to be admitted to his Homes. There were no formal referrals by accredited agencies, (although a certain percentage - probably five patients - were referred to the West Middlesex Hospital). Of particular concern was the fact that there were patients who had had many years history of alcohol abuse and were in any event too young. It was a defective decision to admit them, leaving a volatile mix of patients in several Homes. The primary purpose of the Act is the protection of the vulnerable members of the community. Those at WR were particularly vulnerable in that they were the frail, elderly and mentally ill and they were subject to the adverse effect of the patient mix.

The evidence relating to problems of alcohol management was overwhelming - bottles were found with P, with R and M and C. Miss Worrall described regular drinking; the Kardex said that P was drinking, and the stabbing incident which occurred was the consequence of alcohol. The real issue was whether there was publication of an alcohol policy, and it seems from the evidence that there was not. Mr Steele was not aware of a notice until it was taken down in February and it was off the wall for some nine months. Miss Worrall was unaware of a policy at all. Collectively this is of importance because of the patient mix. It is proof of bad practise and appallingly detrimental to the running of an EMI Home. McG was discharged in very peculiar circumstances last month and the evidence was that Miss Worrall's record of his suffering from depression was altered. Mr Fisher in April 1992 found fifteen out of forty six patients inappropriately placed. The up-to-date position according to the unchallenged evidence of Miss Paxton is that out of fourteen patients at WR, eleven of them do not need nursing care.

What concerned the Respondents was that the registration conditions for each Home clearly designated the category "elderly". It may be that different views exist as to what this term means. However, to both laymen and the medical profession, and according to normal nursing practice, retirement age, that is to say sixty-five years, is taken as the bench mark. Whatever the definition of "elderly", what is certain is that it was put to the Appellant as meaning pensionable age since October 1991, and there are letters establishing that the Appellant wrote to the Respondents agreeing that he would not take in people before pensionable age. He continued to do so, however, illustrating his unreliability. It is very clear that a considerable number of patients were very much younger and of widely varying mobility. Coupled with the alcohol problems of some patients and their going in and out of the Home, things could become quite dangerous.

There were defects in the admission process. Enquiries were carried out as to where patients came from. Many of the men came off the streets to the Home, were inadequately assessed in the first place but continued to stay there. There were defects in the initial admission procedures. It has been said that the bulk of evidence was hearsay - but it was not challenged. Further, it was evidence from patients who at the relevant time had every reason to feel grateful to the Appellant, not bear him a grudge. The evidence establishes that so many men were inappropriately placed, and it will be remembered that the Appellant himself claimed to have discharged three on 17 February 1992, which can be regarded as an admission by conduct that they were unsuitably admitted. Within the first six weeks of 1992 something in the region of thirty patients turned up. The patient register shows ten in January, nineteen in February. Another twelve were discharged who were not included on the list. There was a huge influx of patients in a short time. There were very few proper referrals. The evidence was overwhelming, e.g. the absence of contradiction by the Appellant, the only single case of a proper referral (the West Middlesex Hospital), letters from the various organisations who deal with homeless persons, statements which referred to patients being collected in a car by the Appellant, other by train, admissions relating to admitting patients by telephone with no letters of referral and so on. The Appellant knew about all this information before the representations meeting on 1 May 1992 but although there was an opportunity to contradict it, he chose not to do so. To recruit patients in this way would be, according to Mr Steele, "professional suicide", yet there had been no contradiction of the Respondents' evidence of the dangerous and volatile mix of patients in some of the Homes. There was nothing in the records found to indicate that thirty gentlemen had been formally assessed.

There was inadequate staffing provision and a very recent inspection by two independent inspectors established that staff were working grossly excessive hours of duty. If they were working such long hours this indicates that there were insufficient staff. The rates of pay offered were extremely low.

There were very considerable problems concerning properly qualified persons in charge. For Homes which had EMI patients there should be a nurse in charge who had appropriate qualifications. At most, the Appellant paid lip-service to this requirement, although it was made clear what was required of him in October 1991. The Respondents' case is that this important matter was put off, and that people who were not up to the job were left in charge.

By the time of the inspection visit on 1 November 1992 there were individual care plans in evidence but there was no apparent revision of those care plans which would be noted on the Kardex during the seven-odd months they had been in existence. People who are not quite elderly or not quite mentally ill can change, and it is important to keep a careful eye on how patients are progressing and to check that they are properly cared for.

The Preadmission Assessment Procedure and the Admissions Policy produced by the Appellant at the representations meeting on May 1 1992 had never been mentioned before this time, notwithstanding many visits and inspections to the Homes by the Respondents. The care plans only came into existence in March or April. Similarly, the Appellant's comments at to what he saw as "elderly" (i.e. people in the 40's and 50's) had never been raised before the representation hearing - were these created to make a point?

There was no substantial challenge by the Appellant that there was an inadequate staffing level in all four Homes, Mr Aidhoo said that people have to work whatever hours are necessary and Mr Steele referred to staff working at full stretch. The evidence is clear that because of the practices involved, i.e. the circulation of staff between the Homes, their long hours, the anecdotal evidence of finding staff asleep, of Mrs Turner mixing up the pills - possibly due to tiredness - all serve to demonstrate that the staffing levels were inadequate. The staffing rotas were fictional. Mr Aidhoo said he was not concerned with accuracy. Miss Worrall was shown on rotas to be working at night when she worked days. Her evidence as to Mr Shadbolt's visit, when she was called out of bed to pretend she was on duty, was unchallenged. It also shows that the Appellant altered the records so that they would tell a lie. He dealt with staff in an extraordinary way in that no pay slips were given to them.

As to PIC's, both Mr Aidhoo and Mr Steele were available as PIC's from time to time, but they came on the scene late in the day and there is no evidence that there was proper PIC cover throughout the relevant period. There was no challenge to the financial statement in the letter from Barclays Bank relating to WR. It shows that the Appellant is in a financially weak position regarding the Home and that he desperately needs money. The Home is registered for forty and has only fourteen patients at present. He has a proven record of unfitness, his management has been utterly deficient in the past, he even stoops to dishonesty from time to time, as is shown in the alteration of records. He is untrustworthy. In the interest of vulnerable members of the community who are or may be accommodated there, the cancellation should be upheld.

The Tribunal's reason for its decision

The Tribunal most carefully read all the documents provided and heard evidence from witnesses. The Appellant himself did not give evidence. There is, of course, no obligation on him to do so. Nevertheless, the Tribunal would have liked to hear his own account of what was alleged, in particular, concerning the inappropriate admission of patients. For the avoidance of doubt, however, his failure to give evidence in no way influenced its final decision to dismiss his appeal.

It recognised that the situation in which the Appellant found himself, in particular the Receivers having been put into three of his Homes and financial problems emerging as to the fourth Home, was traumatic for him. It was sympathetic, particularly concerning the problems associated with the change of solicitor, and did all it properly could to assist. However, it was unanimous in finding the Appellant unfit and in dismissing his appeal. It accepted the evidence adduced by the Respondents and was satisfied that the Respondents had proved their case to a high degree of probability. In particular:

1 As to the allegation of unfitness - general mismanagement - recruitment of patients, the Tribunal finds that the Appellant is not a fit person, in that

As to the meaning of "elderly", the Tribunal adopts the common-sense meaning which is generally accepted (e.g. by consultant geriatricians and the Office of Population Census and Surveys) as meaning "over retirement age", which means in effect over 65 for men and women. If the Tribunal is wrong in its interpretation of the word, this in no way prejudices the Appellant in the way in which the Tribunal arrived at its decision. This is because the Tribunal is satisfied that the Appellant was informed in writing that he must not take in residents below pensionable age.

For these reasons the Tribunal upholds the decision of the Health Authority and dismissed the Appellant's appeal

Margaret Rutherford
Morton McDougall
Noelle Kelly