Enkarsamy Nursiah and Pandareebye Ruggee v Bradford Health Authority

It is the unanimous decision of the Tribunal that -

REASONS FOR DECISION

Mr Nursiah qualified as a State Enrolled Nurse in 1973 and has been a Registered Mental Nurse since 1976. He worked at Stanleyroyd Hospital from 1976 to 1987 and since then he has been running a residential care home in Wakefield. Mrs Ruggee has been a Registered Mental Nurse since 1988. She met Mr Nursiah when she worked part-time in his Wakefield Home. They bought Coburg House together and, on 11 February 1991, were registered by Bradford City Council under Part I of the Registered Homes Act 1984 as carrying on a residential care home at Coburg House. The current certificate, dated 6 February 1995, shows that they remain registered under Part I of the Act subject to the condition that there shall not be more than ten elderly residents of whom up to five may be suffering from mental disorder other than mental handicap and one may be suffering from physical disablement. Of those ten, up to two may be short-stay residents. On 4 June 1993, Mr Nursiah and Mrs Ruggee were registered by Bradford Health Authority under Part II of the Act as carrying on a mental nursing home at Coburg House subject to a condition that there should not be more than 22 patients suffering from mental illness and "the numbers of staff to be present should be agreed by registration officers of [both the local authority and the health authority]".

We need not dwell on the past relationship between the registration authorities and Mr Nursiah and Mrs Ruggee, other than to say that it was cordial but that both registration authorities had from time to time been deeply dissatisfied about certain aspects of the running of the home. Nor need we dwell on the details of the personal, relationship between Mr Nursiah and Mrs Ruggee, save to say that they have two daughters, born in February 1994 and January 1997, and that by April 1997 the relationship had cooled but nevertheless remained friendly. They were not living together. The business relationship had also become less close during 1996. Mrs Ruggee had increasingly taken the leading role with respect to the running of Coburg House and had sought advice from outside, while Mr Nursiah concentrated on his Wakefield home. The registration authorities were aware of that situation and most of their dealings were with Mrs Ruggee.

On 8 April 1997, Mr Nursiah wrote to Mr Alan Hargreaves OBE, the Nursing Home Registration Manager of Bradford Health Authority, stating:-

Mr Hargreaves replied:-

By the time the third week in May arrived, there had been drawn to the attention of Mr Hargreaves the two matters that have featured most prominently in these proceedings. By a letter dated 30 April 1997, Mr Peter Dunne who, for a brief period, was manager of Coburg House, formally put before Mr Hargreaves allegations that: Mr Nursiah absented himself from the Home when he was the nurse on duty. By a letter dated 6 May 1997, Mr Dunne reported an incident that had taken place the day before when the three year old daughter of Mr Nursiah and Mrs Ruggee gave to one patient medication that had been intended for another.

On 28 May 1997, the health authority gave both Mr Nursiah and Mrs Ruggee notice that they proposed, on behalf of the Secretary of State, to cancel their existing registration under Part II of the Act in respect of Coburg House and they gave Mrs Ruggee notice that they proposed, on behalf of the Secretary of State, to refuse her new application to be registered alone. On 29 May 1997, Mr Nursiah's solicitors wrote to Bradford Health Authority, saying:-

On 5 May, the same solicitors, acting on behalf of both Mr Nursiah and Mrs Ruggee, wrote to say that they did wish to make representations to Bradford Health Authority objecting to the proposed cancellation. On 5 June 1997, the partnership between Mr Nursiah and Mrs Ruggee was dissolved. The representations hearing before "nominated members and officers of the authority who are present to receive your representations and report back to the health authority who will then make a decision regarding the proposal" took place on 9 July 1997. Mr Nursiah did not attend the hearing. On 14 August 1997, notices were issued cancelling the existing registration of both Mr Nursiah and Mrs Ruggee and also refusing Mrs Ruggee's new application. By letter dated 18 August 1907, Mrs Ruggee appeals against the decisions made in respect of her and, by letter dated 20 August 1997, Mr Nursiah appeals against the decision made in respect of him.

So far as we are aware, Bradford City Council have taken no action to cancel the registration under Part I of the Act and, indeed. Mr Hargreaves was unable to tell us what their view of these proceedings might be - which suggests a lack of very close co-operation between the registration authorities. In any event, notwithstanding the "dual registration", the tribunal is constituted as required by section 42(1) and (2) of the Act, because the appeal relates solely to registration under Part II of the Act, and is not constituted as would be required by section 42(3), which applies only where appeals relating to both parts of the Act are being heard.

MR NURSIAH

At an early stage in the proceedings, the tribunal raised the question whether, on 14 August 1997, there was any registration under Part II of the Act in respect of Mr Nursiah that could be cancelled, given that Mr Nursiah had said he wished to have his name removed from the register and that his partnership with Mrs Ruggee had been dissolved.

Mr Taylor submitted that, when two people were registered in respect of a nursing home, one of them could not cease to be registered under Part II of the Act without the approval of the health authority acting on behalf of the Secretary of State. Otherwise, he submitted, the remaining person will be registered on a false basis. It was not permissible, he submitted, for a person simply to walk away from his duties under the Act. If a number of people are registered together, they must maintain their obligations. He referred to section 36(3) and submitted that death was the only circumstance in which, if two people had formerly been registered, registration of one person could continue in the absence of the other. He also referred to paragraphs 34 and 35 of Circular No. HC (81)8 and submitted that a change of ownership of a company is the only circumstance involving a change of proprietor in which it is not necessary for there to be a new application for registration. Accordingly, he submitted that the proper approach was that adopted by the health authority in this case: that is, the registration of Mr Nursiah and Mrs Ruggee should be regarded as a single registration which would come to an end if Mr Nursiah ceased to be registered. It was therefore necessary, he submitted, for Mrs Ruggee to make a fresh application by herself and for Mr Nursiah to remain registered and to continue to bear responsibilities under the Act until Mrs Ruggee's application could be considered. Mr Taylor further submitted that it could not be right that a person could avoid the consequences of cancellation by abandoning the registration voluntarily.

The tribunal are unable to accept those submissions. A registration authority has no right to compel a person to continue carrying on a home against his or her wishes. Nor has the registration authority any right to compel one person who was carrying on a home to continue to allow another person to be involved in the home. In our view, where two people are registered in respect of a home, it is always open to them to agree among themselves that one of them should no longer be concerned in the running of the home and if that person notifies the registration authority that he is no longer involved in the home, the registration authority should remove his name from the register and issue a new certificate in the sole name of the remaining person.

The terms of section 23 of the Act make it clear that it is a person who is registered, rather than a home, that registration is required only while a person "carries on" a home and that each individual person who carries on a home must be registered. It is one of the many unsatisfactory features of this legislation that it makes no provision for the termination of registration under Part II of the Act other than by way of cancellation under section 28 or section 30 or by virtue of the death of the person registered. Nevertheless, it seems to us that it is implicit that a person cannot be registered against his will (being liable to prosecution if he is not registered when he should be) and that, even if that is not so, a person, who has notified the health authority that he wishes to have his name removed from the register and who has in fact ceased to be concerned in the carrying on of the home, is entitled to have his name removed from the register.

Section 36(3) is not relevant. It enables a home to be carried on lawfully when there is no person registered in respect of it, following the death of the only person registered. The paragraphs of Circular No. HC (81)8 to which Mr Taylor referred also throw no light on the matter. They merely serve to emphasise the fact that a body corporate is a legal person that may be registered and that a company has an existence which is unaffected by changes in its directors.

Nor is there anything strange in a person being able to avoid cancellation by abandoning the registration, even after notice has been given of an intention to cancel the registration. As far as the legislation is concerned, all that is achieved by cancellation is that the relevant person is prevented from lawfully carrying on that home. That much is achieved if the person's name is removed from the register at his own request. It is true that it is a practical consequence of cancellation that the person's name is entered on the list held by the Department of Health (see paragraphs 23 to 34 of Annex B to Circular No. HC (84)21) but that is not a statutory consequence of cancellation and neither a health authority nor a tribunal has jurisdiction to make a declaration solely to enable a person's name to be entered on the list. Far from it being odd that a person should be able to avoid cancellation by abandoning registration, it seems absurd that the registration of a person judged by the health authority to be unfit to carry on a nursing home should be continued, against the will of the person concerned, for a day longer than necessary. In our view, it is an abuse of process to continue a registration merely so that it can be cancelled under section 28 of the Act.

(For the avoidance of doubt, we stress that we do not consider that a person can avoid a cancellation by purporting to abandon the registration after it has been cancelled and while an appeal is pending. Nothing in Decision No. 338 should be taken to indicate the contrary as that decision was based on an agreement between the parties that ought, perhaps, to have been reworded by the tribunal - of which the present chairman was also chairman - to make it clear that the surrender of the registration would be effective at the moment the appeal was allowed and not before then. We also point out that the legislation relating to children's homes is very different and that there is in that legislation a statutory scheme of disqualification.)

We do not consider that this approach creates any additional practical problems for a registration authority. There are two areas that might be of concern. One is the fitness of the person who has abandoned the registration to run any other home. The answer to that lies in the facts that a finding of unfitness to run one home is not necessarily conclusive as to his unfitness to run another home but that the evidence of the way one home has been run is relevant as to his fitness to run another home. If a person who has given up the registration of one home is registered in respect of a second home, it is far more important that any evidence that he ran the first home in an unsatisfactory manner should be considered in the context of the live question as to whether he is fit to run the second home rather than in the context of the hypothetical question whether he was fit to run the first home. It is open to one registration authority to make available to another registration authority any evidence they hold.

The second possible area of concern may arise in a case like the present where two people have been registered and one wishes to abandon his registration. Often, two people are registered together because it is accepted that, as a team, they are fit to run a home although one of them would not be fit to run the home by himself. However, if one person ceases to be registered, it is always open to a registration authority, having issued the new certificate, to consider whether the registration of the other person should be cancelled. It is simply unnecessary to ask the remaining person to make a new application. The grounds upon which registration may be cancelled under section 28 are actually wider than those upon which a new application may be refused under section 25 but very often would, in practice, be the same. This is demonstrated in the present case, where the grounds for cancelling Mrs Ruggee's original registration were precisely the same as the grounds for refusing her new application. It seems desirable not to make two decisions when one will do.

The health authority's approach in this case may have been due to their confusing the register envisaged by the legislation (which we suspect is purely notional in some authorities) with the certificate that should reflect what is recorded in the register. The departure of one of two proprietors and the consequential removal of his name from the register requires the issue of a new certificate but it does not require a new registration of the remaining person.

Mr Nursiah did not dispute that, after his letter of 8 April 1997, he had continued to have some involvement in the running of Coburg House, although, for a long time before that, Mrs Ruggee had taken the leading role. That Mr Nursiah should not immediately have ceased to have any involvement is not surprising given Mr Hargreaves' indication that Mr Nursiah must remain registered until the third week in May. In particular, Mr Nursiah dissuaded Mrs Ruggee from closing the home altogether and advised that she call in a firm of consultants to put the home back on its feet. However, in their letter of 29 May 1997, his solicitors had made it perfectly clear that Mr Nursiah wished to have his name removed from the register forthwith. Thereafter, he had no involvement in the management of the home. He worked a few shifts in early June as the nurse on duty, for which he had probably already been rostered, and that was the last work he did in connection with the home. We entirely accept his evidence as to that. It is true that Mr Nursiah's name had remained on the bottom of the roster forms but that was only because old forms were being used. The partnership was dissolved on 5 June 1997. The health authority had no further dealings with him and neither did Mr Coulson, who was appointed as manager of the home from I September 1997. There is no evidence that he exercised any control or influence over the running of the home whatsoever after June 1997. It was not until August that the health authority purported to cancel his registration.

He continues to have what he described as a "bricks and mortar" interest in the home in that he has a 40 per cent. share in the premises and that the mortgage on the property is paid from the income of the home. However, we do not consider that he can he regarded as being a person who "carries on" the home by virtue of that mere property interest. This is not a case of a person who exercises influence behind the scenes.

Accordingly, we are of the view that the health authority should have removed Mr Nursiah's name from the register before they cancelled the registration and they were wrong to cancel the registration under section 28 of the Act. On that narrow ground we allow his appeal.

Of course, in this particular case, the matters alleged against Mr Nursiah are also relevant to the registration of Mrs Ruggee and it so happens that we have heard evidence from Mr Nursiah and made findings on those matters, which will give some indication of the decision we would have given had we accepted the health authority's approach to Mr Nursiah's case.

MRS RUGGEE

Mrs Ruggee appeals against two decisions but, as we have already indicated, it was wholly unnecessary for her to make a new application for registration while the original registration was still subsisting and so the decision to refuse that application was equally unnecessary and may be regarded as being of no effect. We need say no more about it.

The statement of reasons for the cancellation of registration was not well drafted, as was accepted by Mr Taylor (who was not responsible for the drafting), although, as Mr Taylor also submitted, it was clear enough to avoid any injustice. It alleged breaches of the Nursing Homes and Mental Nursing Homes Regulations 1984 that are not per se grounds for cancellation of registration (unless the person registered has been convicted in respect of the breaches - see section 28(d) of the Act) but are, of course, matters relevant to the question whether Mrs Ruggee is a fit person to carry on the home (see sections 25(1)(a) and 28(a)). In his opening, Mr Taylor abandoned the fourth of the grounds. The sixth ground alleged that Mrs Ruggee failed to maintain the cleanliness and repair of the kitchen. This was largely based on a report by an environmental health officer who was not called to give evidence and on a statement by the former cook who was ill and unable to give oral evidence. We heard little oral evidence on this ground and we think that it is unnecessary to make any finding on it. That leaves four grounds upon which it is said that Mrs Ruggee is not a fit person to carry on the nursing home. We will consider each in turn.

Mr Nursiah's absences from Coburg House when on duty

The first ground arises out of allegations that Mr Nursiah absented himself from the home when he was the duty nurse. It is said that on a number of occasions he left the home to visit Mrs Ruggee's house, which was across a road, and that he left the patients and residents in the sole care of a single care assistant. Clearly, Mrs Ruggee could not be regarded as at fault unless she herself knew of, and encouraged or condoned, that behaviour or some failing on her part (such as a generally lax approach to standards) can be said to have led to it. One of the problems with the drafting of the statement of reasons is that it does not make it clear where Mrs Ruggee was at fault. There is no evidence that she actively encouraged Mr Nursiah to leave the home or that she generally allowed staff to leave the home and so suggested that it was acceptable behaviour (although there was evidence, curiously not relied upon by the health authority as showing a separate ground for cancellation of registration, that she herself left the home when she was the only nurse on duty). There was, however, evidence that, if Mr Nursiah did absent himself from the home, she was aware that he did so and condoned it and it is on that basis that we consider the case.

The tribunal heard evidence from Mr Dunne who has been a Registered Mental Nurse since 1971 and was the manager at Coburg House from 1 April 1997 until 28 May 1997. He was introduced by a firm of consultants and Mrs Ruggee paid a fee based on the number of hours he worked. He said that he had seen Mr Nursiah absenting himself from the home on a number of occasions when he should have been on duty in charge of the home. He referred to specific incidents on 3 April, 4 April, and 29 April and said that he had attempted to discuss the matter with both, Mr Nursiah himself and with Mrs Ruggee. On 3 April and 4 April Mr Dunne had been staying temporarily in a room in Mrs Ruggee's house. He said that he saw Mr Nursiah eating a meal with Mrs Ruggee in her house on the evening of 3 April at a time when Mr Nursiah should have been on duty. Mr Nursiah had relieved him at the end of his own shift at 7 pm. Mr Dunne said that he had seen Mr Nursiah with his daughter in Mrs Ruggee's house on the following morning. We also heard from Mrs Elizabeth Hynes who worked at Coburg House from May 1995 until November 1997, first as a care assistant and then as a senior care assistant. She said that she was left on her own by both Mrs Ruggee and Mr Nursiah when they should have been on duty with her. She remembered one occasion when a patient suffered an epileptic fit and had to remain on the floor for fifteen minutes because she was unable to lift him without assistance. Mr Nursiah had left her alone on that occasion and she said it happened two or three times a week when she was on duty.

In their grounds of appeal, Mrs Ruggee and Mr Nursiah denied the allegations but in their written statements they both accepted that on 29 April 1997 Mr Nursiah had left the home and gone to Mrs Ruggee's house shortly after he had come on duty. That was because there had been a change to the rota which had resulted in there being two men but no women on duty. Mr Nursiah went to discuss the matter with Mrs Ruggee and she agreed to work in his place. Mrs Ruggee said that she understood that Mr Dunne was in de home at the time but he said that he was not there all the time and was not asked to cover for Mr Nursiah.

In his oral evidence, however, Mr Nursiah conceded that there had been a number of occasions when he had left the home to go to Mrs Ruggee's house to get items which the nursing home had not worked. He said that he would check the residents and patients to ensure that it was unlikely that he would be needed and then he would go over to Mrs Ruggee's house for a few minutes. He was unable to say how often that happened. No absences for such purposes had been recorded and he was rather vague as to the nature of the emergencies other than that it was due to such incidents as running out of tea-bags. Mrs Ruggee denied any knowledge of such absences.

Both Mrs Ruggee and Mr Nursiah accused Mr Dunne and Mrs Hynes of lying. It was suggested that Mr Dunne was dishonest because payment had been claimed for hours he had not worked. It seems to us far more likely that there was a genuine mistake arising out of Mr Dunne originally being rostered for a shift on 5 May 1997 and then not working it. We think that there may have been some tension between Mr Dunne on the one hand and Mrs Ruggee and Mr Nursiah from the moment he arrived because his style was rather different from theirs. Mr Nursiah said, and we accept, that Mr Dunne's arrival was one of the factors that prompted him to write to Mr Hargreaves on 8 April 1997 to say that he wished to have his name removed from the register. There was also some evidence that not all the staff got on with him. We so think that Mr Dunne was rather prone to draw over-hasty conclusions from what he saw and to exaggeration. One example was his suggestion that Mrs Ruggee was spending only £40 per week on food for all the residents and patients which we consider to be a gross under-estimate. Nevertheless, we consider that his concerns were genuine and that he really did see Mr Nursiah go to Mrs Ruggee's house on 3 and 4 April 1997 as he stated. Mr Nursiah protested that he was diabetic and would not have been eating a meal with Mrs Ruggee as was suggested. It is possible that he was merely sitting at the table while she was eating but we think that he was seen there by Mr Dunne.

Mrs Hynes accepted that she had been annoyed when asked to do cleaning as well as care for the residents and had been particularly cross at' being asked to move furniture when she was six months pregnant but she denied bearing a grudge. We found her to be a convincing witness and we accept her evidence.

Much was made of the fact that no-one recorded anywhere that Mr Nursiah had been absenting himself from the home until Mr Dunne wrote to Mr Hargreaves. However, that does not surprise us. There was no point in recording what was happening for the benefit of the proprietors because they already knew and the failure to record it for the benefit of the health authority may be explained by lack of thought, fear of losing employment or simple loyalty to the home. While we regard Mrs Ruggee and Mr Nursiah as careful and honest witness in relation to most matters, on this particular issue we consider that they have not been frank.

It is obvious that Mrs Ruggee knew of Mr Nursiah's absence from the home on 3 April and she must have known that there was no other nurse on duty. While she may not always have been aware of his absences, because on occasions he may have gone to her house to get things when she was out or asleep, we think it highly unlikely that she was not aware of some of his other absences and condoned them. The evidence was that the absences were quite frequent and we do not accept that they were all for the purpose of just obtaining articles that were urgently required. The more likely explanation is that he went to see Mrs Ruggee on at least some of the occasions. The fact that Mrs Ruggee has not been straightforward with us about her knowledge of Mr Nursiah's absence on 3 April has made us unwilling to accept her general denial of knowledge of other incidents.

This is an important matter. It is not in dispute that the health authority expected that there would be at least one qualified nurse on duty at all times. There does not appear to have been a formal notice to that effect that might fall within section 25(-'I) of the Act and the Recondition" in the certificate of registration can hardly be said to do so, but Mrs Ruggee and Mr Nursiah were well aware of the health authority's requirement and did not dispute that it was justified. Mr Dunne suggested that there would be a serious risk if there was no nurse present because there was a person with diabetes and a person suffering from epilepsy among the residents and patients. While we note Mrs Hynes' evidence that she had had no training in dealing with epilepsy, we do not consider that those two conditions were the ones most likely to give rise to danger if there was no nurse present. This was a mental nursing home and it seems to us that the greater risk was likely to come from disturbed behaviour of the residents and patients with which one unqualified person on her own might not be able to cope. Furthermore, as the health authority pointed out, the second member of staff would be required in the event of fire. There was no method of communication between Coburg House and Mrs Ruggee's home, other than the telephone which might be engaged. We accept that Mr Nursiah may well have avoided leaving the home when there was any particular likelihood of him being needed, but we are satisfied that he was gone for some little while on many occasions and that there was a real risk of harm befalling the residents and patients which should not have arisen. Mrs Ruggee should have taken action to stop him leaving the home when no other nurse was on duty. There was a breach of both regulation 12(1)(a) (provision of adequate staff) and regulation 12(1)(h) (making adequate arrangements for evacuation in the event of fire).

Causing or allowing medication to he given to the wrong patient

There is no dispute about the facts behind the second ground for cancelling Mrs Ruggee's registration. Monday 5 May 1997 was a public holiday. Normally, Mr Dunne would have been on duty on that day but he had asked Mrs Ruggee on the Friday if he could have the day off and she had agreed to take the shift herself. She took the children with her to the home because the elder daughter's nursery was closed for the day, her sister who normally looked after the children was on holiday and other family members were &[so unavailable. In the afternoon, she was on duty with Mrs Hynes and the cook and was doing some minor painting work in one of the rooms which was being got ready for a new patient. While Mrs Hynes was giving patients their teas and the cook was in the kitchen, Mrs Ruggee approached Mrs Hynes with two small plastic pots, one containing a liquid medicine and the other containing two tablets and told her they were to be given to a patient upstairs. She did that because Mrs Hynes would be taking a pudding up to the patient concerned and the patient liked to have her medication with food. Mrs Ruggee then returned to her painting and Mrs Hynes continued giving tea to the residents downstairs. Some little while later, Mrs Hynes noticed that the tablets were missing. She told the cook who said she had moved them a little distance to prevent them being knocked over but had not moved them again and then Mrs Ruggee's elder daughter volunteered that she had given them to one of the residents in the room. Mrs Hynes retrieved one of the tablets from the resident's mouth and told Mrs Ruggee what had happened. Mrs Ruggee shrugged the matter off but Mrs Hynes was so concerned that she told Mr Dunne about the incident and he drew it to the attention of Mr Hargreaves.

The reason that Mrs Ruggee was unconcerned was that the tablets were iron tablets (and the liquid had been a lactulose solution) and so no harm was done. Nevertheless, she was in breach of proper nursing practice that requires that a person who removes medication from the original marked container should see that it is given to the person for whom it is intended. Such a breach on a single occasion, involving relatively safe medication, would not cause us to find a person to be unfit to carry on a nursing home. What is more serious than the incident itself is the failure on Mrs Ruggee's part to recognise at the time her breach of practice and to record it. We are unimpressed by the letter her consultants later wrote to the United Kingdom Central Council for Nursing, Midwifery and Health Visiting in May 1998. Furthermore, this incident is relevant to our general concern about the staffing of the home and the presence of children in the home. Mrs Ruggee was one of only two care staff on duty and yet she was doing some painting and had the distraction of her two very young children. Her priorities became distorted and the consequence was that her nursing standards slipped.

The presence of children in the home

The undisputed fact that Mrs Ruggee had on several occasions brought her children into the home for the whole of her period of duty was the third ground upon which the health authority cancelled her registration. When this was first advanced by the health authority as one of the grounds for the proposed cancellation, Mrs Ruggee immediately introduced a policy that there should be no children at all in Coburg House and, so far as we are aware, that policy has been adhered to ever since. We think this is unfortunate and that it is a pity that the health authority were apparently content with this new policy.

It was generally accepted by the health authority's witnesses at the hearing, before us that the presence of children in a nursing home can be beneficial to the patients. Children can stimulate and amuse and can do much to make a home appear less Institutional. However, there may be too much of a good thing and children can exhaust elderly people. Furthermore, children must be properly supervised to avoid danger to the patients (and to themselves) and to preserve the dignity of the patients. In the present case, the younger child cannot have caused much concern in this regard because in May 1997 she was only three months old. However, the elder child was an active toddler. Quite apart from her involvement in the incident of 5 May 1997, there was evidence that she ran about with the risk of colliding with a patient who would probably have had the worst of the encounter, that she playfully swung the walking stick of one resident and accidentally hit the resident, that she provoked one resident into trying to hit her and that she watched a patient who was sitting on a lavatory. That suggests a lack of adequate supervision. On the other hand, to the extent that children are supervised properly, the person supervising them cannot be also devoting his or her full attention to the patients. In this respect, even the younger child must have been a distraction. It is not possible for young children to be in a home for long periods unless there are enough people on duty to ensure that both children and patients receive the requisite amount of attention and supervision.

Mrs Ruggee told us that her children only went to the home for extended periods when her child care arrangements broke down and that her elder daughter generally attended a nursery. We accept that that was so but we also take the view that she did not do all she could have done to try and obtain alternative child care by asking a suitable care, assistant who was not on duty in the home whether he or she would look after the children. Furthermore, when the elder daughter was in the home, she was not always appropriately supervised and this was properly a matter for concern by the health authority. However, if it had not been for the incident of 5 May 1997, we doubt that the presence of children in the home would have been a matter which, in itself, would have been a ground upon which the, would have proposed the cancellation of registration and it is not a matter that has weighed with us. It was, in our view, an issue that could, and should, have been dealt with by way of advice.

The security of controlled drugs

The final ground upon which the decision to cancel is supported is that Mrs Ruggee failed to provide secure arrangements for controlled drugs. This was an additional ground raised after the original decision to cancel in the light of a report dated 9 March 1998 following an unannounced visit made on behalf of the health authority by Ms Valerie Hepworth, pharmacist with Airedale National Health Service Trust. The report was critical of a number of aspects of practice and ended with no fewer than fourteen "advisory- requirements" and one "legal requirement". The "legal requirement" was that there should be a controlled drugs cabinet meeting the requirements of the Misuse of Drugs (Safe Custody) Regulations 1973. The report also pointed out that an earlier report in 1995 had made it clear that the poisons standard cabinet used for storing controlled drugs did not comply- with the Regulations (although it was accepted that it was widely believed in the nursing profession that it did) and that Mrs Ruggee should either use an old safe that had previously been used or should buy a new cabinet. The 1998 report stated that that requirement had not been implemented.

A failure to keep controlled drugs in a secure place despite having been warned about it would be a serious matter but the health authority have not satisfied us that there has been such a failure. It is not disputed that there is no proper purpose-made controlled drugs cabinet but it is also not disputed that the old safe is still on the premises and is an acceptable place to keep controlled drugs. Mrs Ruggee said that the safe had :in fact been used, both following the 1995 report and recently when a controlled drug had been prescribed for a patient for the first time since 1996. There is no evidence to contradict her. Mr Dunne said that there were no controlled drugs on the premises while he was there in April and May 1997. Ms Hepworth herself had noted in her 1995 report that there had only ever been one patient who had been prescribed controlled drugs and she told us that there was no evidence of controlled drugs being kept on the day of her 1998 inspection, although she had understood they would be kept in the poisons cupboard.

Accordingly, we do not find this ground proved. It would have been better had Mrs Ruggee's views on the 1998 report been obtained before the additional ground was added to the statement of reasons, although we suspect that lack of time precluded that. Equally, the Appellants' solicitors did not clearly set out Mrs Ruggee's defence in the grounds of appeal, but lack of time may again have been a factor.

The 1998 report did disclose a number of examples of poor practice, some of which had been drawn to Mrs Ruggee's attention in 1995. One was the lack of a drugs refrigerator but that had been said not to be strictly necessary in 1995 because the home was small. Another two matters of concern were the lack of locks on some cupboards and the storage of other items with the drugs. These were rectified soon after the 1998 report but should have been dealt with long before that. There was also some unsatisfactory record-keeping, but, in our view, the most serious matter was the lack of a properly-used written policy for the administration of drugs. The actual practice in the home as it was described to us seems generally to have been satisfactory and there was a written policy which would have been satisfactory had it been in use. However, the policy seems to have been for cosmetic purposes only; it did not relate to the practice. It referred to a "clinical refrigerator" when there was none and it also referred to the use of a "trolley" when the drugs trolley was not in fact used. This suggests that the policy was not used for informing staff of their duties. If there was no written policy that could be used for training and to which staff could refer, it is likely that good practice was not always enforced.

Staffing concerns

One of the reasons that the hearing of this appeal lasted so long was that Mr Spencer, who originally appeared for Mrs Ruggee as well as Mr Nursiah, cross-examined the health authority's witnesses at some length in an attempt to establish that the practice in the home was generally good. He succeeded in establishing that the practice was regarded as adequate in some areas but the overall effect of his cross-examination was to establish that the health authority had had a large number of concerns, apart from those mentioned in the statement of reasons for cancellation, and that most of them were well-founded. The most serious of these have been concerns about the staffing of Coburg House because these staffing problems seem to us to underlie some of the others of more direct concern to the patients such as a lack of appropriate stimulation. We are a little surprised that staffing problems did not feature among the grounds for cancellation.

There has been a chronic problem of under-staffing at Coburg House. When there has been a shortage of cleaners, the caring staff have done the cleaning so that those nominally on duty have not been available actually to look after the patients. The same thing happened when the cook left early in 1998. This has been exacerbated by the difficulty Mrs Ruggee has found in recruiting a sufficient number of nurses to work in the home which has in turn led to her too often working excessively long hours. It has been necessary for there always to be at least one nurse on duty. Mrs Ruggee has taken on the burden when no-one else has been available. The consequence of her taking on Mr Dunne's shift on the afternoon of 5 May 1997 was that she worked from midday on Monday right through to 10 a.m. on Tuesday morning and then she worked from 7 p.m. on Tuesday through to 5 p.m. on Wednesday. Those were long shifts. It is, however, fair to record that she then cancelled the other shifts she was due to work that week and obtained the services of an unnamed agency nurse. On the other hand, there were times when she worked 70 hours during the course of a week.

Mr Hargreaves told us that he did not think he would be supported by a tribunal if he suggested that working excessive hours might be regarded as a matter indicating that a person was not fit to carry on a nursing home. We accept that a registration authority cannot be too prescriptive about the number of hours a proprietor may work, particularly when extra work falls unexpectedly on him or her. However, excessive hours can lead to tiredness which may lead to mistakes or otherwise affect the quality of care given to patients. In our view, a registration authority is entitled to question the judgement of a person who works too long too often. It must also be borne in mind that a proprietor is likely to have administrative work to do and that cannot be done while on duty (except, perhaps, at night) if he or she is also supposed to be caring for patients.

It does seem to us that one of the problems was that the fact that Coburg House was a nursing home meant that there had to be at least one nurse on duty for every one of the 168 hours in a week and there were a limited number of nurses on whom Mrs Ruggee could call. We wonder whether the home might have been run more efficiently if it had been run as a residential care home so that the nursing input did not have to be continual and it would have been easier to ensure that the home was fully staffed without anyone working excessive hours.

However, there is evidence that Mrs Ruggee has cut down on her hours of work, both by reducing the number of hours she is on duty as a nurse and by delegating administrative work. and that she intends to do so to an even greater extent. Furthermore, time has been found to improve staff training.

The present running of the home

Mr Spencer and Mr Engelman also sought to argue that, whatever the past concerns, matters were being improved under guidance of a firm of consultants and through the work of a new manager, Mr Coulson. We accept that there have been some improvements even though the very brief report of II March 1998 was not in glowing terms. We also accept that it is intended to provide a proper room in which the drugs may be kept more securely. No doubt there is room for further improvement but such problems as there still are have not influenced our decision.

Complaints about the health authority

It was suggested on behalf of Mrs Ruggee that the health authority had treated Coburg House unfairly by treating it differently from another home and by visiting more often than was required. We do not accept that suggestion. It is in the nature of things that we do not have sufficient information about the other home either to judge whether there really was a difference in treatment or, if so, whether the difference was justified. If we did accept that there was an unfair difference in treatment, we might as soon find the other home to have been treated too leniently as find that Coburg House had been treated too harshly. The question is whether the approach to Coburg House was unjustified and we do not consider that it was. There were a large number of visits to Coburg House because the health authority had legitimate concerns about both the level of staffing and the accuracy of rotas they had previously been shown. The best way to respond to those concerns was to make frequent unannounced visits to monitor the situation, which is precisely what the health authority did.

However, there is one aspect of the health authority's practice that seems to us to have been very unsatisfactory and that is the failure to give proprietors copies of inspection reports. Before "open reporting" was introduced in April 1998, reports of nursing homes were not public documents, but there was no reason at all why they should not be given to proprietors. Many authorities did so but Mr Hargreaves seemed to be unaware of that practice. He said that the practice in his health authority was that the inspector would verbally draw both minor and major matters to the attention of the proprietors and that he himself would write a letter referring just to the more serious matters of concern. The danger of that practice is that minor matters might be overlooked, that the judgement as to what is or is not minor might vary so as to provide inconsistent signals and that there might also be different signals coming from the inspector and Mr Hargreaves. Furthermore, in a case where there are two proprietors, drawing a matter to the attention of one proprietor verbally does not ensure that the other knows about it. It seems to us that it would have been good practice for all inspection reports to have been sent to the proprietors and for a letter to have been written after each visit by whomever had visited, making clear the purpose of the visit as well as drawing attention to any concern. If all concerns are recorded in writing, it helps to put pressure on the proprietor to take action in respect of minor matters as well as major ones and it reduces the scope for disputes about what has or has not been drawn to the proprietors' attention. It is also possible to lay before a tribunal a clear sequence of reports and letters showing how matters have developed. Having said that, Mrs Ruggee accepted in cross-examination that she had had discussions with the registration authority about the major matters that concern us and this issue did not appear to be such practical importance after she had given her evidence as it did when Mr Spencer was cross-examining Mr Hargreaves.

It was also suggested that Mr Hargreaves had become exasperated with the home. He conceded that he had become irritated on one occasion when copies of the staff roster documents had once again not been made available, as well he might. It was further suggested that he had told Mr Coulson that he should not do too much work on the home because it might be closed down by the tribunal. Mr Hargreaves denied saying any such thing. Having heard Mr Coulson, we think, that something along those lines was probably said but we are not sure what it was precisely and the risk that the tribunal would dismiss the appeals was real enough. We are not satisfied there was any improper conduct on Mr Hargreaves' part. In any event, as we have already said, the current state of the home is not a significant issue in this case.

Conclusion

We have said that we have concerns about Mrs Ruggee's management of Coburg House but that matters have improved. We think that she has not really had a great breadth of experience in a management role. However, the fact that she has been prepared to take advice from consultants and her new manager is to her credit. A person may be fit to carry on a home when prepared to act on advice even though he or she might not be considered competent to act without an adviser. It is also greatly to her credit that she has worked extremely hard for the patients in her care.

However, we must consider her integrity and her attitude to nursing standards because she can be regarded as a fit person to carry on a nursing home only if she can be trusted by the health authority to maintain her own professional standards and encourage her staff to do likewise. Sadly, her condoning Mr Nursiah's behaviour in absenting himself from the home - which we regard as a gross dereliction of duty on his part - her lack of frankness about that and her failure to record her own lapse on 5 May 1997 lead us to the conclusion that she is not a fit person to carry on a nursing home. A nurse must be aware that it is her duty to provide therapeutic interaction with her patients and must have a thorough understanding of her code of professional conduct and act accordingly. We accept that Mr Nursiah's position was unique and that Mrs Ruggee is unlikely to make precisely the same error again but we fear that she might be party to a similarly substantial breach of professional standards in the future.

For these reasons, we dismiss Mrs Ruggee's appeal against the health authority's decision to cancel her registration under Part II Of the Act in respect of Coburg House.

This decision does not directly affect Mrs Ruggee's registration by 'Bradford City Council under Part I of the Act in respect of Coburg House. She may wish to apply for an increase in the number of persons for whom residential accommodation with both board and personal care may be provided and the local authority will have to consider whether, or to what extent, to allow any such application or whether the registration should be cancelled altogether. They will no doubt have to take into account many matters of which we are unaware and we do not consider that we can or should make any suggestion as to the conclusion that they should reach or even as to the approach that they should take.