Priyalal Saha and Versirani Saha v North Nottinghamshire Health Authority

Decision 452

This decision may be freely reproduced and distributed. It should be drawn to the attention of the registration and inspection staff and legal advisers

BETWEEN

PRIYALAL SAHA

VESIRANI SAHA

-and-

NORTH NOTTINGHAMSHIRE

HEALTH AUTHORITY

1. The Tribunal sat at Edwinstowe House, Edwinstowe, Nottinghamshire on 13, 14, 15, 18 & 19 November and 12, 13 and 14 December 2002, to hear an appeal against the decision by the Respondent made on 4 February 2002 pursuant to Section 28 of the Residential Homes Act (1984) to cancel the registration of the Appellants in respect of premises known as the Willows Nursing Home at Willowbridge Lane, Sutton in Ashfield ("Willows") on the ground that they were not fit persons to be concerned in carrying on a nursing home.

WITNESSES

2. The Tribunal heard oral evidence from the following persons;

Respondent's witnesses: Miranda Hunter, Kim Foster and Donna Williams (ex-employees), Julie Meldrum (Nurse Adviser) Bridget Hill and Andrew Bailey (Nursing Inspectors) and Karen Tomlinson (Executive Director of the North Notts Health Authority ["HA"] ).

Appellants' witnesses: Priyalal Saha and Vesirani Saha,(Appellants), Janet Langford, Michelle Baker, Maureen Humber and Margaret Waring (ex employees of Willows), M. Clifton and K. Clifton (relatives of residents).

The Tribunal also had regard to the various witness statements and documents in the bundles produced by the parties and a viewing of Willows.

PRELIMINARY RULING

3. At the outset of the hearing the Respondent sought to introduce further evidence relating to an event which took place on 18 October 2002. We were given the relevant witness statements. The Appellants objected to the admission of this evidence primarily on the ground that they had received no detailed notice of this matter prior to 11 November.

4. In reaching our decision we had particular regard to the quality and degree of relevance of the evidence to the Appellants disposition and character as it related to their fitness to be concerned in carrying on a nursing home, Lyons v East Sussex C.C. (1988) LGR 369 (per Farquharson J), and any possible unfairness to the Appellants if the evidence was admitted and in particular whether they would be prejudiced in making their case if they wished to call evidence on this matter.

5. We upheld the objection on the ground that the admission of the evidence would adversely affect the fairness of the proceedings. We had particular regard to the short notice to the Appellants, an apparent lack of investigative action by the local Social Services Department, the lack of detailed information available and the absence of any direct evidence concerning the event.

BACKGROUND

6. Willows was registered as a Nursing Home in September 1989 with permission initially to accommodate 28 persons. The Appellants were registered as the proprietors with Mrs Saha as the Manager. The premises were inspected regularly and prior to August 2001 there appears to have been no serious criticism of the way in which care was provided at Willows.

7. However, on 21 August Miranda Hunter, then an employee at Willows, although on sick leave for some months, telephoned the HA and made a series of complaints about the treatment of certain residents and other matters relating to the way in which care was provided at Willows. She was interviewed the following day along with Kim Foster, an ex-employee of Willows. The HA was then referred to another ex-employee, Donna Williams, who also made various complaints about the running of Willows. HA staff made an unannounced visit to Willows on 23 August. In consequence of the above complaints and other matters that came to light that day, the HA required the suspension of Mrs Saha and another nurse Mrs Langford while the HA undertook an investigation of the complaints made on 21 August. It was made clear to Mr Saha by the HA that he was expected to carry out his own investigation into the complaints before he could consider reinstating either Mrs Saha or Mrs Langford. This he did and in his evidence in the appeal, he produced a number of letters and other documents obtained in the course of his inquiry

8. There followed a series of monitoring visits and inspections of Willows by the HA. Mrs Saha and Mrs Langford were formally interviewed in October 2001 and other members of staff were spoken to during the course of the monitoring visits.

.

FINDINGS AND REASONS FOR THE TRIBUNAL'S DECISION

5. When making our findings we reminded ourselves that the burden of proof in these proceedings rests with the Respondent. The serious nature of certain allegations such as assaults on residents meant that strong and cogent evidence was required before we could be satisfied that the Respondent had discharged that burden in respect of any particular allegation;

When assessing the probabilities the court will have in mind as a factor, to whatever extent it is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability....

The more the improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.

Re H and others [1996] 1All ER 1 per Lord Nicholls of Birkenhead at 16h to 17a.

6. Because of the volume of the documentary evidence produced to us both before and during the course of the hearing, we have not set out the evidence in full on each issue. The fact that only the main points of that evidence are included in our findings should not be taken to mean that we have not taken into account all the evidence and arguments put before us.

7. The HA's case falls broadly under two headings, firstly the historical complaints made by the ex-employees (Miranda Hunter, Kim Foster and Donna Williams) and secondly the alleged deficiencies identified by HA staff and others during the visits to Willows on 23 August 2001 and on subsequent occasions. :

8. A substantial part of the HA's case depended on the evidence of variously Miranda Hunter, Kim Foster and Donna Williams. We are satisfied that there is and was hostility towards the Sahas and particularly Mrs Saha on their part, primarily because of Mrs Saha’s perceived attitude towards the relationship between Miranda Hunter and Kim Foster. There was also a dispute between the Sahas and Miranda Hunter concerning her wish to be dismissed so that she could become eligible for increased State benefits. We took these matters into account in determining the truthfulness and reliability of these witnesses.

9. No attempt was apparently made by the HA to interview other staff members, present or past, or any resident, relative, social worker or medical practitioner to try and confirm the truth or otherwise of the above complaints. However, Mr Saha did take his responsibilities extremely seriously. He produced to us a substantial amount of documentary evidence derived from interviews and correspondence with residents, nursing and care staff and relatives. This evidence in both particular and general terms contradicted the evidence of the complainants. Also, three ex staff members were called to give evidence for the Appellants.

10. We were not assisted in reaching our conclusions on the issues arising from the evidence of Miranda Hunter, Kim Foster and Donna Williams by the election of the HA not to cross examine the Appellant's witnesses including Mrs Saha, whose evidence directly contradicted or was inconsistent with that of the HA's three witnesses.

11. Prior to the commencement of the hearing, the Appellants had complained that they did not know what case they had to meet. The HA responded by adopting the content of a document entitled "Reasons for proposal to cancel registration" and dated 21 November 2001 as their case against the Appellants. We have therefore set out our findings using the same headings as that document in respect of those matters where evidence was identified as supporting one or more of the allegations in this document.

12. Documentation-Care Planning and general; it was accepted by Mrs Saha in terms during her evidence that there were substantial deficiencies in the residents documentation and records held by the Home including Care Plans and staffing rosters, and that such deficiencies were unacceptable. Such deficiencies do not appear to have been the subject of any previous significant criticism by the HA. Mrs Saha told us of the efforts made to improve this situation since August 2001. Evidence in support comes from the record of the most recent monitoring visit in the HA's bundle dated 17 October 2002. Two care plans were inspected, one selected at random, it is said that (they) "were of an excellent standard, and comprehensive risk assessment documentation was observed."

13. Medication; on 23 August a significant amount of "expired patient identified medication" was found in a desk drawer in an office at Willows. Further, an inspection of the drug administration and disposal records also disclosed significant deficiencies. The Pharmacist Inspector rightly described this approach to record keeping and drug usage as "cavalier". However, records of pharmacist's inspections in 1999, 2000 and 2001 record no substantial criticism. By February 2002 a new regime for the handling and storage of medicines was in place and subject to external audit. The HA also rely on the absence of a number of the MAR sheets from the records. It is not in dispute that this category of documents was examined on various occasions but we heard no evidence as to when it was that these documents were first said to be missing or in whose possession they were at the material time.

14. Training and Development; under this heading the HA makes a general assertion that the records submitted by the Appellants as evidence of training are not credible. The evidence relied upon in the HA's closing submissions was a documentary reference to two staff members said to be on a course and also shown as on leave.

15. Restraint/Seclusion;

There is no dispute but that on a number of occasions two residents (WB and HM) were removed from the company of the other residents and placed in the treatment room for a period of time. This was done, it was said, because they were behaving in a manner which was disturbing and distressing other residents. WB's relatives were told about this practice and the reasons for it and confirmed that on the occasion they witnessed it, she was kept under supervision. We accept that when an individual is disruptive in the ways described in evidence, it can be very distressing and unsettling for other residents. Nevertheless we consider that greater consideration should have been given to circumstances under which a resident would be secluded, the duration and the degree of supervision given to a resident in those circumstances. A policy and protocol should have been established and a record kept of these events

16. Physical/Verbal Abuse; Under this heading a number of very serious allegations were made against Mrs Saha and also Mrs Langford. The following matters constitute a sample of these allegations. Ms Hunter gave evidence that Mrs Saha used to ridicule, swear and shout at resident DA and that she was left sitting on the toilet for long periods of time until she was crying. Ms Foster confirmed this evidence and claimed additionally that on one occasion Mrs Saha had left DA lying on the floor and instructed carers not to move her. DA (now deceased) was spoken to by Mr Saha in the presence of her daughter and son-in-law. DA had nothing critical to say about Mrs Saha and spoke very favourably of the care at Willows. DA made no complaints concerning her care or any other issue to any member of her family who visited her frequently. Ms Hunter and Ms Foster also gave evidence that Mrs Saha abused and swore at resident CN. He dictated a letter to a member of the care staff (whose conduct was not the subject of any criticism) in which he stated that Mrs Saha had never treated him in any abusive way.

17. It was also alleged that Mrs Saha swore at resident HS (now deceased) during "care interventions". Mr Saha contacted HS’s Social Worker who visited her regularly and who stated that she was not aware of any abuse and had received no complaints from HS. Similar allegations were made in respect of other residents. We were shown correspondence from a number of ex-members of Willows staff, both nurses and carers and residents’ families who painted a very different picture of life at Willows from that given in evidence to us by the HA’s three witnesses. We also read correspondence from six general practitioners with patients who were resident at Willows, none of whom had received any complaints concerning their care.

18. We were therefore presented with a complete conflict of evidence on these very serious matters. It was not suggested to us by the HA that there was any way in which this evidential conflict could be reconciled and we could not in these circumstances say we were satisfied to the necessary standard of proof by the evidence of the HA’s witnesses on these and other issues.

19. Professional Issues/Staffing; Mr Saha is criticised for allowing Mrs Saha and Mrs Langford to return to working at Willows after they had been suspended. In a letter to Mr Saha dated 30 August 2001, the HA stated that they expected the suspensions to continue "until such time as the Authority and, by default, yourself as their employer is satisfied either that there is no basis in the allegations or that the matter should be referred to the UKCC...". Mr Saha did conduct an inquiry as required by the HA and in unchallenged evidence said he was satisfied that the allegations had no substance and referred to the documentary evidence he obtained. In these circumstances, we see no ground for criticising Mr Saha.

20. Infection Control; There was a conflict of evidence as to whether sterile gloves and aprons were provided for staff when carrying out various tasks such as catheterisation. It is unlikely in our view that they were only available at inspection times as Ms Hunter told us in evidence. There appears to have been no gloves in evidence on one particular inspection but otherwise the evidence is unclear. There was no written Infection Control policy in August 2001, equally there was no such document in May when an inspection was carried out. This absence did not attract any adverse comment from the Inspector. Nor does the issue appear to have given rise to any concern on the part of the Inspectors who conducted the monitoring visits from January 2002 onwards

DECISION