Zygmunt Sliwinski v London Borough of Ealing

It is the unanimous decision of the Tribunal that the Appellant's appeal be dismissed and that the decision of the Respondents to cancel the registration of the Appellant in respect of Carlton Lodge be confirmed.

Witnesses

For the Respondents:

Dr Margaret Lurring
Miss Carol Love
Dr Neil McNeil
Dr B Shafighian (read)

For the Appellant:

Dr Patrick Lau (read)
Gilbert Gough Esq
Mrs Zofia Stankiewicz
Zygmunt Sliwinski Esq (Appellant)
Mrs June Sliwinski
Alec Bamping Esq
John Corry Esq
Mrs Maida Clyne
Ralph Hayman Esq
Mrs Jolanta Tondel
Dr Audrey Ahmad
Mrs Irena Macielinska
Dr Tess Hare
Dr Wlodek Dzikowski
Mrs Zofia Pietluch
(Other character witnesses' letters were read by the Tribunal)

Carlton Lodge was registered for 24 persons of old age and physical disablement. Mr Sliwinski was the registered manager and co-partner with Mrs Campbell (now Mrs Rose) in the ownership of the home.

Mr Sliwinski administered injections of Cyclimorph 15 to one of his residents, Miss G, for whom it had not been prescribed. This occurred on Sunday evening, 29th, and on Monday morning, 30th November 1987. The two ampoules used were part of a balance of a prescription given for another resident, since deceased. He telephoned Miss G's doctor after giving the second injection. The police were informed. The Respondents' officers subsequently visited the home and discussed the matter with him. He admitted he had given both injections without them having been prescribed and without previously either contacting a nurse from the Continuing Care Team (which provides a 24 hour service), or a doctor. He admitted he should not have been in possession of the drug. He admitted he knew of the rules and regulations concerning the administration of this kind of drug but said he had done it with the best intentions, to relieve dire pain of a resident.

It was suggested he appoint a Manager to replace himself until it was known what action the police would take. He later arranged this and informed the Respondents by letter. He also acknowledged that his action in administering the drug was wrong.

The Appellant was prosecuted under section 23 of the Offences Against the Person Act 1861 (administering a poison with intent to endanger life). He was informed by the Respondents that they would await the outcome of the criminal proceedings before taking action.

He had five court appearances but the charge was eventually withdrawn. At one of these appearances he stated to two of the Respondents' officers that he did not regret what he had done and that if he were in a similar position he would probably do the same thing again.

The Respondents decided that the Appellant was not a fit person to be in charge of a home and a list of conditions was drawn up to be imposed, including a condition that a Manager be appointed for the home. The decision and reasons were confirmed in a letter dated 29th April 1988. Formal steps were taken to impose these conditions, the Appellant being legally represented, and a resolution was passed to impose them. The Appellant appealed to the Registered Homes Tribunal against the decision of the Sub-Committee taken on 9th September 1988 to adopt the conditions. However, it was later apparent, from a Court of Appeal judgement, that conditions such as these could not be imposed. On 16th December 1988 the Sub-Committee decided that if the Appellant were prepared to give an undertaking to abide by the conditions the Council would accept this. The undertaking was to last for five years. However, difficulties arose as to when this time should start to run.

In the meantime another matter had arisen. Mrs P, an elderly resident at Carlton Lodge, was admitted on 14th October 1988 to Ealing Hospital suffering from some ten ulcers. She remained there until her death from bronchopneumonia in February 1989. Concern was expressed by the hospital regarding the size and extent of these sores, and to the fact that she was found to have an unattended fracture of the neck of the right femur. The Appellant had not notified the Respondents of Mrs P's admission, (required by Reg. 14 - notification of serious illness, etc.). On February 8th 1989 the Council gave notice of a proposal to cancel the registration and on 12th April 1989 the full Committee adopted the recommendations of the Sub-Committee to cancel on the ground that the persons registered were not fit persons.

The Appellant appealed against cancellation. Mrs Campbell did not appeal. The Appellant's two appeals were heard together.

The question arose as to whether the Tribunal had jurisdiction to hear the appeal. The certificate of registration, dated 2nd January 1986, stated that both Mr Sliwinski and Mrs Campbell were joint registered owners. The former only, and not the latter, had appealed. Both Counsel considered, inter alia, what the position might be if the Tribunal, having heard the appeal, decided that the decision should not have effect. In the event the question of jurisdiction was not disputed: they both agreed that Mr Sliwinski must be given the opportunity to establish his fitness. The Tribunal agreed.

There were two appeals. The first, in respect of Miss G, and the second, in respect of Mrs P. The reasons for cancellation in the first case were that Mr Sliwinski failed to comply with the requirements of the Registered Homes Regulations; that he administered an unprescribed drug, morphine; that he failed to comply with the legislation in relation to the administration and storage of dangerous drugs; that he stated that in similar circumstances he would do the same thing again; and that there was a history of concern about certain aspects of the running of the home under his management.

The Regulations (6 and Schedule 2, paras. 4 & 6) deal with requirements for records, and medicines and their disposal. Clearly the Appellant failed to comply, both as to Miss G and Mrs L, now deceased, for whom the Cyclimorph 15 was originally prescribed. The Appellant was one of the most highly qualified persons to be in charge of a residential home (he was an SRN, Registered Mental Nurse, had a Certificate in Social Work and years of experience in charge of registration and inspections of all private and voluntary old peoples' homes in Ealing, before he resigned in 1985). He of all people should know how to deal with dangerous drugs and what the requirements are. There were no records as to the destruction of the drugs prescribed for Mrs L. There is only his word that the fifteen other ampoules were destroyed. Such destruction was not witnessed. The remaining two ampoules were in a cupboard in his office, a cupboard containing "far more potent drugs", a cupboard whose existence was never disclosed to the inspectorate. Miss Love knew nothing of this second cupboard; she thought the only medicine cupboard was the one near the dining room. Before the drug was administered to Miss G there was no record made of her condition, other than that she was in pain. The Appellant was a nurse, he should have taken and recorded her pulse and her temperature. He made a haphazard guess at her blood pressure, but there is no record of what this was. Neither was a record made of her condition after the administration of the drug.

It is in dispute that the Appellant made any attempt to contact Miss G's doctor on the 29th November. He must have known there was a means of contacting either a nurse from the Continuing Care Team or a doctor. He says he did not have the telephone number, but, being the manager of the Home he must have known the means by which Roza (CCT) or her team could be contacted. The call would have been automatically transferred to the hospital. Dr Lurring said she was never made aware that there were any difficulties in getting through. The reason he gave her for not trying to ring a doctor was that he did not want to bother the doctor. Later he said to Miss Love that the reason he had not telephoned the doctor was that he had been reprimanded when he did so on a previous occasion.

There is no record of Miss G being monitored during the night. The Appellant, who has said that he was so concerned about her condition that he feared she would have died if she had been moved, went home after giving the injection. He brought in an oxygen cylinder (which had been prescribed for another patient who had since died and which he had retained on the premises, apparently with the consent of the pharmacist).

He made no further attempts to call a doctor that night. In the morning he returned and repeated the whole process, administering a further dose of morphia, With again no record of monitoring Miss G's condition. He left the home - he was not there when Dr Lurring arrived mid morning, and since it must be assumed that the night nurse had also left, there was No one at the home with any medical qualifications to care for her in her drugged state.

The Appellant states that he telephoned Dr Dzikowsi on the Sunday evening, before giving Miss G the first injection, and discussed the situation with him. Much of this doctor's evidence was rather surprising, as was the evidence of another doctor called by the Appellant, Dr Hare. It was suggested that there is a difference between dealing with drugs in a hospital setting and a residential home setting, i.e. in the latter it is not necessary to abide by all the strict rules and regulations. The Respondents say that the very fact that this is not a hospital and is a home, where the vast majority of the staff are unqualified, with no knowledge of drugs, makes it even more of a requirement that rules are adhered to and followed scrupulously. Dangerous drugs are dangerous drugs, wherever they are dealt with. They cannot be dealt with more lightly outside a hospital setting. It is the laissez-faire attitude that is the most disquieting aspect this case: the Appellant acted as a doctor, making a diagnosis of Miss G. In fact the hospital found she was suffering from chronic constipation, for which morphia is not given. The Appellant should have gone on trying to get her doctor. He made no attempt to ring the emergency services. He should never have contacted a private consultant over the telephone who at best could make "guesstimates" as to a resident's condition. This is unacceptable behaviour even in one who is medically unqualified. For one who is so qualified it is doubly unacceptable.

As to the Appellant's remark about doing the same thing again, it is accepted that at the time he made it he was under stress. However, he has made no utterance of regret whatsoever, and his attitude now is no different to his attitude then: he still thinks he was right to do what he did. He cannot bear to have his authority challenged in any way. There is every danger of repetition. The next time, however, the action would not be allowed to be detected. Supposing Miss G had died after the injection? There could have been an inquest and the morphia would have been detected. In hospital Miss G would have had contemporaneous records made as to her condition. Nothing was recorded for Miss G. It has never been the Respondents' case that the Appellant acted with an evil, malicious or wicked motive. However, it is their case that he acted with gross recklessness, and it is gross because the Appellant was a nurse and should have known better.

As to the second appeal, Dr Lau was called after Mrs P's fall in February. He was called in to deal with her chest infection on 11th April but was not made aware that she had become immobile, and that she had steadily deteriorated. He was called in on July 20th to deal with a sore, but was not called in for another three months, despite her deteriorating physical condition. The Appellant said that at this time he was not concerned with the management of the home, dealing only with office work and shopping, etc. However, since he saw Mrs Tondel every single day it is absolutely inconceivable that he was not being made aware of Mrs P and other residents. He has put forward evidence as to his kind and caring attitude. It is simply not true that he was unaware of the entries in the day book, of Mrs P's sores and her treatment. He knew what was going on. He was the person in overall charge. If anyone knew that it would be prudent to call in a doctor (it was three months from the last call), it should have been the Appellant. The letters, signed by Mrs Tondel, were in reality his documents, and both are completely misleading. It was incorrect, for example, to suggest that Mrs P was walking intermittently. She could only walk with support and take a few occasional steps. Her reluctance in walking started in February, following the fall. The Appellant knew there had been such a fall. He tried to pull the wool over the Respondents' eyes and also mislead the hospital. When he belatedly notified the Respondents of the admission to hospital there was no mention of the fall. It is known that Mrs P's ulcers deteriorated throughout September, that new areas developed, that there were smelly discharges. To say that her condition only began to deteriorate in October is wrong. It was deteriorating throughout September, as is shown by the entries. Dr Ahmad agreed that it would have been prudent to have called in a doctor during this period. Neither Dr McNeil nor D Ahmad had any idea that there had been a fall. There was no attempt to give the full picture of events.

There is no evidence that Mrs P was given any special treatment, such as frequent moving, supporting areas of pressure and so on, other than the application of two creams and dressings. It was clear she was suffering from a serious illness and there is a requirement (Reg. 14) that such an illness should be notified to the registration authority within 24 hours. She was in a very poor state of health, with some ten sores on her. The Appellant did notify the authority some 13 days later, and this notification was misleading.

The Appellant is unfit to have the care of elderly vulnerable people. This particular home appears to have a large proportion of residents who suffer from senile dementia, who require a good deal of care and attention. The Appellant, a trained nurse, bound by the code of conduct which applies to all registered nurses, has fallen far below the standard required and is not a fit person to have the care of 24 very elderly, vulnerable people.

The reasons for the first proposal to cancel the Appellant's certificate were set out in document 10. Taken collectively they amount to: the retention of the morphine, the administration of it and the unpenitant statement by the Appellant subsequently. The Tribunal should ask the questions, "Why did he do it?", "Did he put Miss G at risk?" and "Is there any likelihood of his doing it again?"

It is admitted that it was wrong to have retained the morphine. It should have been destroyed. It arose as an oversight. There was no deliberate breach of the law. It arose as a consequence of unsatisfactory storage of drugs, which matter has now been put right, a fact acknowledged by Miss Love. It is perfectly plain that the Appellant did what he did from entirely humanitarian motives. There has been no attempt to prove anything to the contrary, and a reasonable inference to be drawn from the discontinuance of the prosecution's case against the Appellant is that the Crown Prosecution Service was unable to establish any evidence of intention, an essential element of the offence. As to the second question, Miss G was not put at risk. Three doctors gave evidence for the Appellant and no attempt was made in cross- examination to say that the morphia was likely to cause significant harm to her. As to the third question, it is true he made this statement. It has never been denied. However, it was a long time ago, and much water has since flowed under the bridge. When he said it he was under considerable strain. He has learned from experience and would not do the same again.

Further points to be made in these respects are that the Appellant only injected the Cyclimorph after he had tried unsuccessfully to contact Dr Lurring. There is no good reason to disbelieve his evidence. There is no positive evidence to the contrary. Dr Lurring said he told her he tried to 'phone. She accepted the telephone could ring for a long time and that the system depended on British Telecommunications to intercept the calls. She agreed that at least once before there had been long delays and that she had made a complaint. In any event, the Appellant did not go ahead without medical consultation as he contacted Dr Dzikowski. There is no rational explanation for his conversation other than that he had tried, and failed, to contact Miss G's GP. If, as has been suggested, he was arrogant enough to administer drugs on his own, why bother to contact Dr Dzikowski and discuss the matter with him?

The Appellant voluntarily and of his own volition disclosed the very next morning to Dr Lurring what he had done, and he recorded the injections in the day book. His actions are wholly inconsistent with the suggestion that he acted blindly or thoughtlessly, let alone with a more sinister motive. It is not disputed that if he had kept quiet no one would ever have known about the injections, (Dr Lurring said the signs would last only about 24 hours). If his motives were evil, or he were acting with gross recklessness, it is hardly the way he would have gone about things.

Originally the Respondents were content to deal with these problems by the imposition of conditions. It was their view that the residents would be adequately protected by this solution. When they realised that the imposition of such conditions under section 5(3) was unlawful, they were still content to accept undertakings from the Appellant. They would have been accepted had not a dispute as to the exact terms arisen. The Respondents were in principle willing to accept the undertakings, and the situation only changed when the Mrs P incident blew up.

The reasons for the second appeal are set out in document 25. Unlike the others, these are directed against the Appellant and Mrs Campbell. They concern the leaving of the fracture unattended and the pressure sores, and the non-notification of the illness (the sores) of Mrs P. The Respondents have selected the wrong ground, since it is not open to them to say that what happened when neither of them was responsible for the residents (neither were the actions done by either personally) can make them unfit. The Appellant, as proprietor, had overall responsibility for what went on at the home. However, since the Appellant was not the registered Manager at the time, the fact that he was a proprietor when something occurred cannot make him an unfit person. There is no substantial criticism of the Appellant and none whatsoever of Mrs Campbell. In relation to Mrs Campbell there is no rational basis on which either can be said to be unfit.

However, without relying on the technicalities, the underlying merits of the case reveal that the facts relating to Mrs P have not turned out to be as the Respondents thought. The Appellant relies on the unchallenged evidence of Dr Ahmad. As to the undisclosed broken femur, this is wholly without foundation. No one at Carlton Lodge knew that the bone was broken. The Appellant and Mrs Campbell did not even know about the fall in February. The Home did the right thing following the fall: a doctor was called. He failed to diagnose a fracture. Dr Ahmad said that no blame should be attached to Dr Lau for this. But if there were any blame to allocate, it should be directed at the doctor, and not the people at Carlton Lodge. The fracture remained undetected until it was discovered by chance, when Mrs P had her knees x-rayed at hospital. It came to light by pure chance. The only doctor who attempted to put a date on the fracture was Dr Shafighian, and he does not suggest a date earlier than June/July, which rules out the fall in February. That makes the failure to detect it even more understandable.

As to the pressure sores, on a fair reading of all the evidence, the allegation is not made out. Whatever happened before l0th October, the one inescapable fact was that Mrs P was seen by her doctor four days before her admission to hospital. Any suggested criticism of her treatment before that is negated by the fact that her doctor, on l0th October when he was called to the Home, saw no cause to criticise the treatment she had been receiving there. Any criticism up until that date is conclusively answered by Dr Lau. He saw no cause to criticise, he decided on the course of treatment and that hospital was not appropriate at that time. He was perfectly happy to continue to leave the staff to carry out his instructions. During the next four days, events occurred which led Carlton Lodge to call the doctor back and he admitted Mrs P to hospital. Such deterioration in four days might appear to be surprising. However, Dr Ahmad's report, accepted by Dr McNeil, showed how quickly these sores can develop. Such sores can even arise with careful nursing, illustrated by the fact that Mrs P developed another after her admission to hospital. Dr Ahmad is an extremely eminent geriatrician and she said she had seen many cases as bad as that of Mrs P.

As to the failure to report a serious illness (Reg. 14) firstly as to the fracture - no one can report something of which one is unaware. The failure to report the sores is more difficult. There is no definition of "serious", and it involves a certain element of subjective judgement, allowing room for differing opinions. Injuries are easier, but illnesses develop, and the course of their development is not always predictable. It is a subjective assessment to decide at what stage it becomes serious. It is not disputed that at the time Dr Lau decided that Mrs P should go into hospital on 14th October it was a serious illness. However it had not been serious prior to that time. It is conceded that there should have been notification on 14th October and that there was a breach of the regulations. But a failure to report within 24 hours is not a serious enough matter to establish that both were unfit persons, even if they were responsible for the Home at that time, which they were not.

The Appellant has an excellent record, and a very high reputation. He has provided many testimonials from relatives of residents and doctors. Their confidence in him did not waiver when they were given a full account of the allegations against him. Both the Appellant and Mrs Campbell are fit persons. If there is any residual doubt as to the Appellant, he is still willing to give the same undertakings as originally set out, to last for five years from December 1987. As to the Respondents' contention that he has failed to abide by them in the past, he has, by and large, restricted himself to administration and finance. Being the man he is he has, on the isolated occasion, helped residents in need. If he has occasionally strayed, this does not make him unfit. The main submission, however, is that the case of the Appellant's unfitness has not been made out.

After most careful consideration and evaluation of the witnesses' evidence, both oral and written, and meticulous study of all the documents, the Tribunal is satisfied on the balance of probabilities that the Appellant is not a fit person to be concerned in carrying on a residential care home, and it confirms the decision of the registration authority.

As to the first matter concerning Miss G. For the avoidance of doubt the Tribunal wishes to make it clear that it does not doubt the Appellant's intention in doing what he did. It is satisfied and so finds that the Appellant acted from humanitarian motives in an attempt to relieve pain. However, the Tribunal finds as follows: that the Appellant should not have retained drugs relating to a patient who had died; that he should have destroyed them in the presence of a witness or handed them back to the patient's GP or a pharmacist for destruction; that on destruction he should have recorded the fact; that if he retained them he should have recorded the fact; that if he retained them he should have disclosed their presence to the registration officers; that he should have drawn the attention of the registration officers to the fact that there was a second drugs cupboard in his office which contained, in the Appellant's own words, drugs of "extra strength for safety reasons", being "far more potent drugs"; that he should not have retained oxygen, left over from another patient, in a shed. His acts and omissions indicate irresponsibility and a falling below standards of acceptable behaviour.

The Tribunal further finds that the Appellant should not have administered the first injection to Miss G without prior permission of her GP; that he failed to contact her GP and that he made no attempt to contact either the Continuing Care Team or the Emergency Services; that he acted recklessly in administering the drug to her without taking her pulse, her blood pressure, her temperature, or that if he did so, which the Tribunal doubts, that he failed to record these vital matters; that he acted recklessly and irresponsibly in leaving Miss G in a deeply drugged state without nursing supervision and monitoring during the night and without records being kept of her condition; that he failed to call the doctor during the night; that Dr Lurring's main concern was ""the lack of diagnosis" and that the Appellant admitted the importance of diagnosis when he said, in answer to the question "Why did you not go on trying to get a doctor during the night?" "What for? She had achieved the desired effect. There was no need to get a doctor. How can a doctor give a diagnosis when the patient is under morphia?"; that he acted recklessly in administering another drug to Miss G the following morning, again without recording details, and again without prior permission of her doctor; that he acted irresponsibly in leaving her unattended by medically qualified staff.

The Tribunal finds that on the balance of probabilities the Appellant made no prior attempts to contact Miss G's doctor. It believes the evidence of Dr Lurring in preference to that of the Appellant. In reaching this decision it has paid attention to the Appellant's evidence, inter alia, in response to the question "You didn't attempt to tell her GP?" "You may believe what you like." "Because you'd been ticked off in the past?" "Yes, by Dr Lurring herself. Ticked off well and proper."

The Tribunal was unimpressed with evidence adduced by some of the Appellant's witnesses, in particular that of Dr Dzikowski.

As to the second matter, the Tribunal is satisfied on the balance of probabilities that the Appellant must have known about the fall and the deteriorating condition of Mrs P, even though he was no longer managing the Home or had care of residents. This is because of the relationship between the Appellant and the Manager of the Home. The Tribunal accepts that a doctor was called immediately after the fall and that no fracture was diagnosed. The Tribunal finds that the Appellant, as a trained nurse and a person of much experience, should have known that it would be prudent to have called in a doctor during the last three months. In reaching this decision the Tribunal has paid careful attention to all the evidence, in particular to Documents 11 and 12, about which the Tribunal feels considerable concern. The Tribunal was also concerned that certain doctors, in particular Dr Ahmad, did not appear to have been given all the relevant facts, in particular, concerning Mrs P's fall in February. The Tribunal was most impressed with Dr Ahmad and carefully noted that she replied, in response to a query about alarm bells ringing, concerning immobility and pressure sores, "I certainly think a GP should be consulted." And, in answer to the question about it being prudent to call in a doctor concerning the black area on Mrs P's hip, "Yes, I think it would have been prudent." "If in doubt, it would be prudent to call in a doctor". The Tribunal accepts her evidence about the speed with which such sores/ulcers can develop and deteriorate.

The Tribunal finds that the Appellant failed to notify a serious illness as was required by the Regulations.

For the avoidance of doubt, the Tribunal wishes to make it absolutely clear that even without any evidence concerning Mrs P and based solely on the evidence concerning Miss G it would still have reached the conclusion that the Appellant is not a fit person. It has been said in an earlier case that, although there is no statutory definition of a fit person, the words "trust", "integrity", "uprightness", "honourable", and "truthful" are apposite. Clearly a person who is concerned in the carrying on of a residential care home must be competent, suited for that purpose, qualified (but not necessarily in a formal sense of the word) to do that particular kind of work. The Appellant was so competent and qualified, both by his nursing and other formal qualifications and experience. Fitness, however, in the sense used in the Act, must imply more than competence at a job, since the Act deals with Homes in which a particularly vulnerable section of society resides. The Act does not make their welfare first and paramount, although the Regulations require that the registered person, in making decisions relating to residents, shall give first consideration to the need to safeguard and promote the welfare of residents (Reg. 9(2) ). There are many qualities which collectively make up the total sum of integrity – an undeviating honesty, probity, virtue, morality, rightness – all of which imply a strict adherence to a code of ethics, or to rules of right and justice. The Tribunal feels that the Appellant fell short of the standards properly expected of him. He, more than most, as a trained nurse and a most experienced person in the field of care, knew of his legal and moral duties and responsibilities. Such breaches and failings as the Tribunal is satisfied have occurred would be serious in any person. In one of his training, knowledge and experience they are totally unacceptable.

July 1989

Signed

MARGARET RUTHERFORD (CHAIRMAN)
MICHAEL BURRELL ESQ
KAY WELLS

Footnote - an observation by one of the experts

This appeal has served to highlight the extreme caution which needs to be exercised concerning the provision of "nursing" care in a Residential Care Home setting. A degree of such nursing may be required and practised. However, it must be dealt with under the closest supervision. The role of the GP, District Nurse, hospital staff, etc., is of very great importance, particularly in a sector where semi-skilled or unskilled staff are employed.