Mr Ian Gya v Worthing District Health Authority

It is the unanimous decision of the Tribunal that the appeal succeeds and that the decision of the justice of the peace, made pursuant to section 30(1)(b), shall cease to have effect.

Brief History of the Dispute

The Appellant was registered on 1 September 1989 for seventeen elderly medical category residents, in respect of Greystones Nursing Home in Rustington, West Sussex. Between 1989 and 1991 various matters of concern relating to the Home were noted by the Respondents. Visits occurred and correspondence was exchanged.

A new Inspecting Officer, Mrs Marks, paid her first visit to the Home on 13 May 1991. She investigated various complaints and noted that certain matters which had previously been of concern to the Respondents according to the files, for example, the low temperature at the Home, had not been rectified. Anonymous complaints were received. These were investigated. One in particular related to alleged abuse of a patient, Mrs T, and this she found to be justified. She continued to visit during May, June and September. Her concerns included the low temperature in the Home, lack of hot water, doubts as to whether there were sufficient staff, allegations that the Appellant was abusive, and that the last meal of the day was at 1600. Mrs Marks then went on holiday and study leave and her next visit to the Home was on 11 November 1991 following a complaint by Mrs Brewerton, (a member of staff who did the night shifts and who left the Home on 16 November), about there being no trained staff on duty at night on two occasions. Mrs Marks investigated the matter and became concerned.

On 22 November she received a telephone call from Mrs David, a niece of Mrs O'B, a resident in the Home, to the effect that there was "chaos in the Home", that her aunt was frightened of the Appellant, that a patient had just died, that a nurse had fainted. Mrs Marks and a colleague went round to the Home the same day. She spoke to the members of staff, including the matron. Members of staff made statements and they were asked to put them in writing. She took and collected these statements on 25 and 26 November.

On Thursday 28 November 1991 an application was made to the Magistrate, and the Home was closed the same day under section 30 on the grounds that there would be a serious risk to the life, health or well-being of the residents in the Home unless the order was made. The Reasons on which the Respondents relied were that there had been complaints received from staff and a relative of a patient that the Appellant	was physically and verbally abusing patients; that there were inadequate stating levels in contravention of the Staffing Notice; that drugs had been dispensed to patients without/in contradiction of, the doctor's prescription; that there had been complaints that members of staff and a relative of a patient were seriously afraid of the Appellant; that there was inadequate food, hygiene and catering standards and heating; that there was an unacceptable standard of nursing practice and care; that there were unsatisfactory fire precautions; and inadequate staff records and patients records.

The Respondents Case

The registration of this Home was cancelled as a consequence of an application to a Magistrate under section 30. It was different from the majority of de-registrations in that the events happened very quickly and urgently. On Friday 22 November

Mrs David, the niece of a resident (Mrs O'B) and her mother visited her aunt at the Home and became worried and anxious at finding her very distressed. Mrs David questioned care assistants, mentioning her aunt had said she was afraid of the Appellant. There was immediate reaction, with staff becoming upset and crying.

Mrs David telephoned the Respondents and later that day Mrs Marks and Mrs Haxton visited the Home. They spoke to staff and to Mrs David, they looked at the residents and the Home. One resident, Mr S had, died that day and the care assistants were very upset. They were very anxious to know about the way he had been treated for the 48 hours before his death, since it could have been caused/contributed to by the Appellant. The effect of this on the staff caused them all to start recollecting things, to talk about events, of occasions when the Appellant ill-treated the residents. There was a generally confusing discussion between the staff sharing experiences and also, that evening, attempts by Respondent officers to take coherent statements from the staff and matron. The situation was confusing, upsetting and distressing, and priority was given to restoring calm. The officers decided to leave the Home and to return when all was calm and when they had considered the situation. The result was that they decided to see each member of staff individually, which they did 48 hours later. Mrs Marks took statements from Miss Cheshire, Mrs Jackson and the matron Mr Payne, verbatim, and, after they had been carefully read, they were signed. Mrs David wrote her own statement by letter, Mrs Marks then contacted other staff in particular Mrs Brewerton and Mrs Stringer (night duty care assistants who had left the Home before closure). Mrs Stringer had been in touch previously but had wanted to remain anonymous. Others came forward and agreed that their letters could be used. On the basis of the statements, letters, the letter from Mrs David, and on the basis of what Mrs Haxton and Mrs Marks had seen on the Friday, in view of a history of some concern about the Home in the past, the Respondents started to consider the question of risk to life of the residents.

They had Miss Cheshire's statement as to Mrs T having her cheeks squeezed and abusive language being used to her; Miss Chadwick's evidence of bad language being used to Mr S and Mrs T; evidence as to lack of heating from Mrs Jackson; evidence as to food, heating and drugs from Mr Payne; evidence from Miss Clayton as to Mrs T being struck and Mr S hitting his head and evidence as to drugs; evidence of lack of incontinence pads and babies nappies being used for residents, and that the agency nurses listed did not exist; also inadequate food from

Mrs Brewerton. They had Mrs David's letter as to what had occurred on

Friday 22 and evidence that Mrs O'B was frightened of the Appellant. They also had a long list of concerns from Mrs Stringer.

All these statements and letters were considered, together with the previous history of the Home with file notes dating from December 1989 (an anonymous telephone call concerning staff on duty). The events of 1989 and 1990 are not heavily relied on. However, when looking back a pattern emerges, for example of the temperature of the Home. Inspectors had found the temperature too low, but had received explanations which they had accepted at the time. There was, however, inconsistency in the Appellant's replies. The Home was too cold and there were queries and concerns about the staff. They were not always on duty, not always on the rota - but the Appellant gave an explanation.

The main events occurred in November 1991, although there had been complaints of physical abuse in May, for example concerning allegations of the Appellant smacking a patient and of force-feeding a patient who was also alleged to be often over-sedated. Also in May it was alleged the Appellant had stood on Mrs T's feet, shaken her, banged her head against a wall, dropped her into a chair, that he had pushed another patient, that the Home was cold, that there was no hot water, that a day room was being used to accommodate a patient. The Respondents found the complaint was substantiated in part, Mrs T having told the officers that the Appellant had stood on her feet, there being no hot water and the temperature being noted to be 66⁰. The officers went to the Home on 20 September at the Appellant's request and they met Mrs T's son. He was happy with the way his mother was treated and he felt anonymous complaints should be disregarded.

On 1 October 1991 the police contacted the Respondents concerning a complaint made to them by Mrs Valentine about a patient, Mr D, whose head was allegedly slapped. Mrs Valentine gave a statement to the Respondents. The Respondents now had evidence of past incidents. It was not such as to corroborate particular incidents but was corroboration of allegations of the Appellant being rough with patients, hitting them, losing his temper, using abusive language, ill treating them. The Respondents thought there was a serious risk to the health, if not to the life, of the patients and went to the Magistrate. They were accompanied by half the staff who had made statements, the others remaining on duty.

It was an ex parte application on Thursday morning, taking about 1.5 hours. The Appellant was not contacted. The same evidence which was before the Magistrate is relied on at the hearing, plus a couple of small additions, for example the post-mortem report on Mr S, which refers to the injury of his scalp caused the previous day. This is relevant to the evidence of Miss Clayton who said she saw the Appellant move Mr S so that he hit his head on the wall, resulting in a bruise. The publicity about the case also caused Ms Owens to send in a voluntary statement about the Appellant force-feeding, slapping and being rough.

As to the evidence of risk, much has been made of what Mrs Marks listed as her three most important worries. On 26/27 November she said she took into account two letters from Mrs Brewerton and Mrs Stringer, her own experience of the Home since May, the bruises she saw, the lies told by the Appellant, and the deteriorating situation. She saw the Appellant's changes of mood. She took into account the fact that the staff were frightened at the possibility of the Appellant's adverse reaction to what they had said. She took everything into account, not just those three areas, when weighing up the risk to the patients. Firstly, as to physical/verbal abuse, it has been suggested there were only four incidents. But there were far more than that. In May there had been an anonymous complaint concerning Mrs T - allegations of standing on her feet, banging her head, dropping her on a chair, etc. Mrs T herself agreed that she and the Appellant "had had a barny". Her son says her statements are unreliable, but what the son himself said should be treated with caution. He visited once a week for between 5-20 minutes. He had not bothered to ask his mother if the allegation was true, he did not even ask about the precise nature of the allegation and simply dismissed it. The complaint, however, had not been made by his mother but by an anonymous complainant. The Respondents investigated the incident, asked the Appellant who denied it. It was found to be partially substantiated - but there is little one can do with an anonymous complaint. The Appellant was warned that there had now been several complaints and if there were any more, legal advice would be sought.

In October the Respondents received a call from the police and they interviewed Mrs Valentine. Her story was that she had been on duty with the Appellant on 24 September and that she saw the Appellant hit Mr D on the face. He had been very frightened. It was one of the few incidents that the Appellant actually remembered. He said he would not have done such a thing and that it was Mrs Valentine herself who was in a bad mood, who shouted at patients. These two incidents on their own are thin evidence. But if the whole situation at the beginning of October is looked at, the Respondents' worries can be understood. Mrs Marks had received further telephone complaints by the end of October/beginning of November, concerning the standards at the Home and the staffing. On 10/11 November she was told - anonymously - that there had been no trained nurse on at night. She checked, and discovered that the Appellant had lied to her. He admitted this, and Mr Payne's evidence was evasive. The Appellant lied expressly, not merely by evasion. Who was on duty that night at the Respondents do not know. On 14 November a letter was sent to the Appellant. There were no grounds for alleging a serious risk since the call about the night staff was anonymous and the Respondents did not know who was on duty.

Then came the allegations of physical and verbal abuse on 22 November. Miss Cheshire saw the Appellant grab Mrs T's cheeks and squeeze them so that they were still red the next morning. Mrs T was being changed. Mrs T cried out "You beast", but the Appellant does not recall the incident, says he never takes a female's clothes off. Mrs Stringer said she saw him take the dress off. The Appellant does not remember being called a "beast" - a bland denial. Miss Cheshire could not put a date to the incident but this should not affect her credibility. She did not know what to do with her knowledge. Another incident was the hitting of Mrs T with a closed fist, not a gentle pat. The Appellant does not remember such an incident. The "f...word" was used. The Appellant denies using it. Miss Chadwick heard him use this word. Mrs Stringer heard a shout, Mrs Marks thought the Appellant unduly agitated. Mrs Jackson said that the Appellant was impatient, attempted to control himself. Perhaps he exhibited more restraint before mature and experienced staff than he did in front of the young and inexperienced members? Miss Cheshire spoke of Ms W being smacked, of Mr D being roughly treated of Mr E being deprived of his cigarettes, of Mrs W being thrown into a bed when her pad was being changed of Mr S being dragged to the lavatory, of leaving a patient on the floor, of force-feeding. She had a clear recollection of these events. Why then should she invent them? Because she did not like the Appellant? This does not make sense since the Appellant said he always got on well with Miss Cheshire. What she saw was not witnessed by others but a pattern clearly emerged.

Miss Clayton saw the incident with Mr S, and was heavily cross-examined as to what she saw. Both questions and answers were confusing but she did describe his beginning and ending positions on the bed, and that the Appellant pulled Mr S's legs round so that he fell back and hit his head against the wall. Why should she invent this story? She saw Mrs T struck. She reported this to Mr Payne, the matron. There were not only four incidents. There were two past incidents and many more mentioned in the statements and evidence. Mrs T had her cheeks pinched, had been knocked on the head, had her leg caught in the door of the lavatory, had her face hit with her own hands. Miss Chadwick and Mrs Stringer saw force-feeding. Mrs Brewerton, Miss Clayton and Miss Cheshire saw Mrs W being force-fed. Miss Clayton says Mr S was roughly handled, hit his head. Mr Payne said the patients referred to the Appellant as "him". Mrs Jackson said the Appellant loses his temper and that the Home was tense when he was on duty - and so on. It is all in the evidence. No incident was witnessed by more than one witness at a time, but there were similar incidents.

There were more than four incidents and more than physical and verbal abuse. There was the question of the temperature and the lack of hot water. File notes provide extensive references. By 22 November the Respondents had a file with a number of notes recording the temperatures as being too low in the Home with various excuses from the Appellant. The Tribunal was told that it was always cold at night The serious risk was always there. There were notices on the heating controls saying staff must not touch them. The Appellant said he knew nothing of this and that Mrs Jackson was in charge of the heating - is this believable?

There had been irregularities noted in the past about staffing. There had been an anonymous complaint of no trained staff on duty. By 11 November Mrs Marks began to be worried that the Appellant was lying to her. He did. He bed when he signed the duty rota stating that certain persons on it were enrolled nurses. Statements were made that on 22 November not one person employed at night was a trained nurse. Mrs Ravi was not neither was Mrs Cooper or Mrs Crilly. The Appellant said he was on duty. But was he? He was found upstairs with the light out. Did he stay at the Home all day? The staff say that he went out to dinner every night. They noticed him going out. The Appellant denies this - but are the three care assistants wrong?

The Appellant says he was on duty during the incident of Mrs O'B's bleeding. Mrs Ravi, on whom the Appellant relied to support him did not give evidence. The Respondents witness in this matter was Mrs Stringer - mature, well spoken, convincing. She remembers the bleeding between 2200-2400. The Appellant was not at his home and she could not telephone. The Respondents do not say this happened every night, but on one night. The Appellant says he was there, that he went down at 0300 and noted the bleeding. Would a trained nurse not have made a report to that effect in the report book? There was only one entry made at 0600, and he noted that the patient had lost 60-75 mls of blood. He says he telephoned the surgery which was closed, and left the matter to the day care assistant. The doctor took

Mrs O'B to hospital. It is submitted that Mrs Stringer's evidence is more convincing than that of the Appellant. If the Tribunal finds that there was no trained nurse on duty this constitutes a serious risk.

There were problems with drugs. Mr Payne told of drugs being prepared for him on trays by the Appellant in the morning. Mr Payne has witnesses who corroborate this but the Appellant denies it. Mr Payne said he threw drugs away from trays if they were not prescribed for the patients. There was the matter of Mrs W and the drug Melleril. The Respondents' officers saw it. If the prescription had been followed there should have been 380 ml left in the bottle, but the bottle had less than 1/5 ml meaning that at least 280 ml were missing. The Appellant's evidence was that he never gave it, so the bottle should have been full on 22 November. The Appellant confirmed that he did not follow the doctor's prescription. It is not up to the Appellant to say whether the patient requires the medication and if the doctor orally amended the prescription this should have been confirmed in writing at the earliest opportunity.

There were other, more minor concerns. Witnesses gave evidence that patients were put into toddlers disposable nappies instead of proper incontinence pads. The use of improper equipment/materials poses a serious risk that incontinence was not being properly dealt with. The well being of patients must be affected. There was evidence as to the quantity and quality of food. Relatives and residents said there was not enough. The Respondents do not say that the lunches were inadequate. But the very thin evening meal was at 1600 and it was noted that there were patients who wanted something to eat later on. On 22 October, for example, there were ten sausage rolls and two tins of tomatoes between 14 residents. It is not alleged that patients were starving. However, food is very important to them. There were also no fire drills.

If even one of the allegations is proved, particularly as to the physical abuse, the risk is serious. The Appellant himself said that a nurse who hit a patient should not be a nurse. The list is extensive of occasions when the Appellant hit, struck, flung or roughly treated patients. On the balance of probabilities, even a heavier balance (but not a criminal one) with so many witnesses, the balance must be heavily in favour of the Respondents. As to whether the risk should be considered a continuing one, there must be some probability of re-occurrence of continuation. But a person who has hit once is likely - if tired, worried or simply in a bad mood - to hit again. It is not the function of the Tribunal to give the Appellant a second chance, ie if the Appellant says he will never do it again, will buy a new boiler, will employ more staff. If any, some or all of the incidents are found to be as alleged, the Magistrate's decision should be upheld.

 The Appellant's Case

When the order was made under section 30 on 28 November 1991 against the Home, it had immediate effect. The Appellant's business was closed down and has remained closed. The application was made to the Magistrate, without the Appellant being told, without his being given the opportunity to counter the allegations. No strong criticism is made about this since it is permitted by law, section 30(2). But it is a wholly unusual provision of English or any other system of law that an individual may be deprived of his livelihood and the assets of the goodwill of his business without being heard or allowed to speak. Lord Donaldson has described this power as "Draconian". The construction of law must be very strict and the evidence considered before such an order is made must be of the gravest imaginable; anything less would be wrong. Many innocent third parties are affected by such a closure: first, the frail and vulnerable patients. They must be protected, - but their interests are not necessarily protected by uprooting them from those on whom they are wholly dependent. Secondly, the wholly innocent, such as the finance business, whose valuable security is diminished by an act over which they have no control or of which they have no notice. This might be compared with an application for the possession of a house, where the principal mortgagee must be notified. Thirdly, the effect of the closure of the proprietors themselves. The effect of such an order - even if it is later successfully appealed, - is that Homes are difficult to reinstate, that there are great difficulties in reopening. This is borne out by an observation in Lyons. Such a process might be contrasted with provisions under the Food Hygiene Act whereby Environmental Protection Officers can close premises which deal with food, but where there is a very short return date of 72 hours. They must either justify the closure or pay compensation. No such provision applies here.

At no stage was there any attempt to commence the "ordinary" procedure. In Lyons the Court of Appeal suggested that twin procedures were appropriate. The Respondents were thoroughly dissatisfied with the Home: they had plenty of opportunities to take steps from summer 1991. If they had made a decision to close the Home they could have proceeded with twin hearings in October/November. The reason they did not take this course was that there was no serious risk. The Appellant invites the Tribunal to accept the evidence so far, that this was not accidental. The Respondents did not think that such a low ebb had been reached that an emergency closure was appropriate. Mrs Marks was trying to be reasonable, the Appellant was trying to run the business. Matters had not reached such a pitch that any closure was necessary. Mrs Haxton wrote a letter on 14 November which outlined many matters, including the temperature and staffing levels, and gave the Appellant 21 days to deal with them. At that time the Respondents knew that there were allegations as to the temperature of the Home and very serious concerns about staffing levels. Yet Mrs Marks said that it was not the Respondents case that at that time there was serious risk. In November (but not the subject of complaint on 12 November) it was clear that both the Appellant and Mr Payne lied to the Respondents. It is no part of the Appellant's case that staffing arrangements were satisfactory. There were always two members of staff on duty at night. They were two nursing auxiliaries but Mrs Ravi, Mrs Crilly and Mrs Cooper were not trained nurses. When two were on duty, the Appellant was upstairs in his flat to be available in an emergency. It was wholly unsatisfactory. However, the Respondents knew of this on 14 November and it clearly was not such a serious risk as to justify closure. The Respondents do not seriously contend this. The Appellant recognised the problems, and was trying to get qualified staff. He honestly believed that for the morning and "twilight shifts" it was acceptable to have a lower level of auxiliaries in view of the lower level of patients in the Home. It was not the Respondents case that a 3rd nursing auxiliary should be on in the mornings and for the "twilight" shift.

What is required by law to justify the sudden, secret action? It is clear from Lyons that it is not open to the Tribunal to take any position other than that taken by the Magistrate. It is not open for the Tribunal to say that it does not think there would have been serious risk if the Home had not been subject of the order but that, nonetheless, it considers that the Home should be closed. The only question, followed through the judgements, is that there must be a serious future risk. It is not enough to prove there was a serious risk, the Respondents must establish that there will be such a risk.

What is meant by a serious risk? Any risk which relates to old, frail and vulnerable people could be regarded as serious. However, the Tribunal is urged to take a robust view and to look at what is at stake and alternative remedies. Did the risk justify the closure of the Home? The risk should be so grave, so immediate as to justify ex-proprietary legal action which would otherwise be totally contrary to the rules of natural justice. It is right for a person to know the case against him and to be given the right to reply.

When Mrs Marks was asked about the matters she considered the most serious, she listed allegations of verbal and physical abuse, heating and unsatisfactory staffing. Both the staffing and heating issues can be excluded as to serious risk, since there was nothing in the mind of Mrs Marks relating to these issues when she proceeded to the Magistrate. This included the fact that both qualified nurses at the Home had clearly lied to her - she knew all about that. The letter she caused to be written by Mrs Haxton on 14 November made it clear that the Appellant was being told to deal with certain problems within 21 days. It therefore follows that the Respondents did not feel that such matters posed a sufficiently serious risk as to justify the more dramatic action. Mrs Marks agreed that it was the allegations of verbal and physical abuse, arising on or after 22 November which caused the Respondents to ask the Magistrate to make the order.

As to the allegations of verbal abuse, they do not in themselves constitute serious risk. Mrs Marks said that she was very concerned because of the history, the developing pattern. This is all very well, but much of the history was of unsubstantiated allegations, or, if substantiated in the eyes of the Respondents, then based on the most tenuous evidence, such as that of Mrs T. The nature of her condition made it unreliable. The Appellant says that obscene and vulgar language is not within his vocabulary. He did not know of the allegations until 31 January 1992, when the Respondents' bundle arrived. In fact he did not see this until 4 February. It is unfortunate that he was taken by surprise concerning incidents which were alleged to have taken place so far in the past. He says he is unable to recall specific incidents. This is understandable in the daily routine talks of running a Nursing Home. It is difficult to recollect events some two months later. Most unfortunately the Appellant was not questioned contemporaneously. The burden of proof is high since the fact that evidence was not taken contemporaneously, and that the Appellant was given no opportunity to respond to the allegations, reduces the ability to examine routine incidents. This increases the burden of proof and makes it necessary to look at the evidence even more critically. There were four allegations of physical abuse from 22 November. Each incident was witnessed by one unsupported witness. None was corroborated. It is the Appellant's word against them.

There were four instances of alleged physical abuse, agreed to by Mrs Marks, Mrs David speaks of the "state of hysteria" in the Home at the relevant time. Miss Clayton even passed out. The girls were all young, inexperienced and wholly inexperienced in these circumstances.

As for Miss Clayton's allegations of seeing the Appellant slap Mrs T's face, the Appellant has no recollection of such an occasion. He has never struck her or any other patient. Miss Clayton may have seen/not seen/misunderstood something in a fleeting moment. Is it not curious that a lady of 97, struck by a hand of a fit adult male led no mark the following morning? Miss Clayton reported this incident to

Mr Payne, the matron. He did not think it warranted action, according to Miss Clayton. He said it was "hearsay". He was wrong. But Miss Clayton's understanding of what "hearsay" meant is revealing: "He doesn't know if it is true or not, I could be just saying it," "None of us know what happened at this time". A professional nurse at the time did not think it was sufficiently serious, or the witness sufficiently credible, to pursue. The matter was not recorded. The Appellant was never questioned about it. There is nothing in the incident on the evidence to justify an adverse conclusion against the Appellant.

As to his handling Mr S roughly, whereby Mr S, sitting on the bed catapulted backwards and hit his head on the wall, the Appellant has no such recollection. The way in which Miss Clayton described the incident, it could not have happened. She says Mr S was "lolling". It is clear that Mr S was nearing the end of his life, falling over, not being attended to every waking moment. Probably he acquired relatively minor injuries in any number of ways; perhaps he could have struck his head on the side pieces of the bed? The account given by Miss Clayton of a harrowing incident is really a very surprising piece of evidence. The Appellant says it never happened. But the next day Mr S died - and that may be the secret of the whole case? The atmosphere in the Home was tense; it very severely affected everyone. This was another incident not recounted to anybody until early in the afternoon of 22 November in the highly charged atmosphere which arose after Mr S's death. Miss Clayton said she could not recollect another occasion when the Appellant behaved badly with Mr S. She also said that at the time the Appellant was in a good mood. It was never part of the Respondent's case that the death of Mr S was caused by the Appellant, or had any causative link with him. Miss Clayton was not able to suggest that the injury to the head left any mark which survived the night. She saw the mark, but there was no evidence of such a mark the next day. The Appellant was not even told about this alleged incident, or asked about it until 31 January 1992. It is not surprising, with the traumas and shocks, that he was not able to have a crystal clear memory of every event in the last weeks of the running of the Home. To find against the Appellant the Tribunal have to accept the impossible situation described by Miss Clayton - and go further. It must accept that this incident, more than a mere accident, showed callous cruelty or such recklessness for the safety of a patient as to constitute professional misconduct. On the sole, and fatally flawed, recollection of Miss Clayton, the Tribunal does not have material on which to make such a finding.

Miss Cheshire said that the Appellant squeezed Mrs T's face and that the mark was there the following day. The Appellant has no recollection of such an incident. He has never pinched or squeezed cheeks and his attitude to the patients is loving and caring. As to the allegation of Mrs W H being "picked up and thrown on the bed", on the scale of gravity this has become somewhat diluted. It amounts to the Appellant being seen (and he has no recollection of this) to lift a very thin, frail, light lady, already supine, and move her position higher up the bed in such a way as to cause her to grunt or squeak. Perhaps the Appellant should not have lifted her alone, perhaps he did drop her a short distance, perhaps she did squeak or grunt. But this does not justify the highly charged allegations of a patient being picked up and thrown. Considering the height and length of the alleged fall, it is questionable whether anything of any significance happened at all.

As to the allegation by Miss Chadwick of the Appellant closing a door on Mrs T's leg as she sat on the lavatory he has no recollection of such an incident and would never ever deliberately damage a patient. The evidence is so slender and so unsupported by detail, that it should be disregarded completely. Miss Chadwick was carrying a bundle of towels. She went through the day room into the narrow corridor, which was L-shaped, and her first glimpse of the door is as she came round the corner, passing the Appellant to go along the corridor to another bathroom. She said she saw Mrs T's leg protruding through the door, and the Appellant moving the door so hard as to cause relatively serious injury. This is surprising since she had to squeeze past the Appellant, and presumably look over his shoulder. From that position she could not possibly have seen the door and handle as she described. This is not to say that Miss Clayton does not say what she believes happened. However, she and the other girls had formed a view of the Appellant, exacerbated by the hysteria on 27th which had been coloured up. There was no evidence from anyone else of an injury to Mrs T. This is not evidence that could possibly discharge a sufficiently high burden of proof to establish a purposeful assault on a patient. It was a glimpse of something that was not seen, recounted later in a highly charged emotional atmosphere, and the evidence should be disregarded.

On the basis of the evidence adduced, in order to find such serious risk as is required the Tribunal must find evidence of physical abuse alleged. Nothing else will do. It must accept the evidence of Miss Clayton, Miss Cheshire and Miss Chadwick and accept that such evidence discloses such conduct as to show there would have been serious risk to the patients it the order had not been made. Their evidence is tenuous in the extreme. It cannot justify the findings of serious risk.

If the Tribunal accepts what the Appellant says, or has doubts, the case ends. If it rejects what the Appellant says, then it moves to consider the Respondents case. It is not for the Appellant to prove anything, but for the Respondents to prove the allegations to a high degree of probability. If the Tribunal rejects the Respondents evidence or has doubts, that is the end of the case. If it accepts the Respondents evidence, or some of it, what does it all amount to? It is clear from the papers that what is being alleged at the lowest is a reckless disregard for patients safety. At the highest, possibly a deliberate, perhaps psychopathic plan to inflict cruelty on the frailest members of society placed in the Appellant's care. On the evidence before it the Tribunal cannot even begin to meet the high aspirations of hopes of the Respondents, or the fears of the Magistrate. At the very highest, it amounts to two or three isolated instances wholly explicable by reference to ordinary experiences in a Nursing Home - and that only if the Tribunal accepts the substance of the Respondents case.

The cases show that the Tribunal should be looking for a very high degree of probability before this particular order is upheld. What is at stake? Allegations against the Appellant have been made amounting to criminal conduct and serious professional misconduct. He is a professional man faced with professional financial ruin and personal disgrace. Within the bounds of the civil burden, the Tribunal should look for proof on the highest balance of probability. It is not the best of Nursing Homes. However, this is not the issue. The Respondents decided to use the "urgent" rather than the "slow" procedure. The Tribunal may feel that if the appeal is allowed the Home will remain open. The Tribunal should be bold enough to avoid going down that route. The case will be watched by others and it would be disastrous if authorities gain the view that proceedings for cancellation where the Home remains open can be conveniently side stepped by invoking the urgent procedure. It was intended by Parliament that such procedure should only be used in the direst emergencies. The Respondents have manifestly and hopelessly failed to establish that there would have been serious risk without the order, and the Tribunal should allow the appeal.

The Tribunal's Reasons for its Decision

The Tribunal is satisfied on the balance of probabilities and finds that the Appellant is not a fit person to carry on a Nursing Home. It finds that the Appellant's integrity is seriously in doubt. In reaching this decision it took account of the lies which the Appellant had told the Respondents, in particular it is satisfied he lied about the duty rota on which Mrs Ravi, Mrs Crilley and Mrs M Cooper were described as enrolled nurses. He was unable to produce UKCC personal identity numbers. It is satisfied he lied when he said he had used agency nurses since IHG Nursing Agency and Inter County Nursing Agencies were adamant in response to queries from Mrs Marks that they had not supplied or been asked to supply Nursing Staff of any grade for the Home, either for 11 November, or any other night that week, or at any time in the recent past. He lied when he said that Mr Payne had been on duty at night, having swopped a shift with him.

The Tribunal is also satisfied on the balance of probabilities and finds that the Appellant did not tell it the truth on several occasions during the hearing. It did not believe him, for example, when he stated that he was always on the premises in the evenings and every night each week. (He had one day off a week but says he never slept at home). It did not believe him when he said his wife or daughter always brought him his food to the Home. On the balance of probabilities it finds that there were occasions when he probably did leave the Home and go to his own home for evening meals. It did not believe him when he said he was up at 0100 and 0300 dealing with Mrs O'B the night she lost blood, as Mrs Stringer was feeling unwell. It did not believe him when he said he did not work in his other rest home. It did not believe that he agreed with Dr Best to vary the medication prescribed for Mrs W. He admitted in cross examination that Mrs Ravi and Mrs Crilley were not qualified nurses. He said there were apparently two Mrs Coopers, only one of whom was qualified. It found such answers unsatisfactory.

The Tribunal is also satisfied and find that, possibly due to tiredness or concerns about his son, the Appellant was subject to mood swings, volatility or unpredictability and it believes the evidence of Mrs Marks in particular about his agitation at certain times. It is satisfied that he temper was getting increasingly short and that the staff had some anxiety about him. The Tribunal is satisfied and finds the Appellant its unfit to be a proprietor of a Nursing Home because he kept the Home at a totally unacceptable temperature despite frequent warning that it was too cold. He knew that the boiler was old and broke down frequently. He should have had it repaired or replaced. He failed to provide sufficient secondary heating to overcome its known deficiencies. It finds he permitted patients to be bathed or washed in unacceptably cool water, which, quite apart from being very uncomfortable for them, could have increased the risk of hypothermia. The temperature on occasions was bordering on an unacceptable condition of work for staff during the day, with no heating during the night.

The Tribunal finds the Appellant's nursing establishment did not meet a minimum acceptable safe level of qualified staff. He employed one full-time qualified nurse plus himself to cover 168 hours per week (it would normally take 4.5 to 5 full time staff to cover every shift in a week). Thus he had an unacceptable and dangerous qualified nurse establishment. He worked unacceptably long hours which could reflect on his professional competency and accountably. It is satisfied that there was at least one occasion when no trained nurses were on duty. It is satisfied that he was alone on the premises on at least one occasion when his actions caused the care assistant to be sufficiently distressed to leave vulnerable patients in his sole care. The Tribunals is satisfied on the balance of probabilities that there were times when he left the Home to have dinner in his own home and that there were occasions when he was in the Home when, on the balance of probabilities, he was asleep. The Tribunal do not consider that this met the requirement of his being "on duty" . It placed old and frail patients at risk as the staff he did employ were often young care-assistants with no knowledge of what to do if a patient's condition deteriorated. They also appeared to have no fire drill awareness. He failed to act in accordance with his Code of Professional Conduct in that he permitted an unqualified care assistant to catheterise a patient on at least one occasion. There were no qualified female staff to deal with female patients.

It finds he showed an apparent total lack of awareness of the needs of elderly people to be in a relaxed, calm environment, to have fun, to have dignity and privacy, to have control of their own lives (food, mealtimes, bedtimes, and smoking - with proper safety controls, of course). He had bad care practices, for example, he had patients put into babies disposable nappies instead of incontinence pads. The nature of the care he provided appeared custodial and not geared to individual needs, (waking and bed times, etc). His knowledge of dietary needs was poor in that, whilst he provided an acceptable midday meal, yet provision for the evening meal at 1600 or thereabouts was meagre and inadequate. It was poor in quantity and quality.

The Tribunal is satisfied and finds on the balance of probabilities that his drugs management was poor and unacceptable in that there was some evidence that he administered, or potentially caused to be administered, drugs not prescribed by a medical practitioner. It finds he prepared and dispensed drugs from the original containers into small pots together with other drugs for other patients in inadequately labelled containers. This is an unacceptable and dangerous practice, as the potential for mistakes is vastly increased, putting patients at risk of receiving the wrong/potentially dangerous? medication. The Tribunal is satisfied that he prepared medication hours ahead of the time for administration which can have serious implications for patient, for example requiring a subordinate to act in a potentially dangerous and unprofessional way. It finds the record of drug administration was poor in that the actual administration of drugs to the patients was not supervised. To require a subordinate to give medication under these circumstances is totally unacceptable professional practice. It finds that medications that had been administered were not recorded and the Appellant showed an apparent lack of knowledge of the meaning of PRN or "1 at night". He adduced no evidence to show that he recorded a verbal message from the doctor. The patients records given in evidence demonstrated poor practice showing no individualised care nor a proper review on an individual basis of a patient's condition.

However, the issue before the Tribunal is not to decide whether or not the Appellant is a fit person, but to decide on a high balance of probability whether there would have been a serious risk to the life, health or welfare of the residents if the Magistrate had not made the order on 28 November 1991. It had to consider whether the risk at the relevant time was so serious as to justify an ex parte application to the Magistrate for an immediate closure, to consider whether the risk at that time was any more serious than concerns/risks the Respondents had already been aware of. After very long and anxious thought, and after most carefully going through all the evidence, written and oral, the Tribunal finds that there was a continuing risk to the health and welfare of the patients at the Home, but that, at that time, there was no evidence of substantial deterioration leading to increased risk to the patients which was sufficiently serious as to justify the immediate closure of the Home.

In reaching this decision the Tribunal paid most careful attention to the evidence of Mrs Marks whom it considered to be an excellent witness and a person of undoubted integrity. It took account of the fact that the poor, and at times inadequate staffing situation had continued for some time, that those staffing levels had been known about and could have been enforceably increased by prosecution if the Respondents had really considered the risk to be serious. The first occasion when the question of staffing did constitute a serious risk was the episode of Mrs Valentine and her visit to the police. Then the risk was immediate and a case might have been made out for it being sufficiently serious as to justify closure of the Home under the urgent procedure. It will be remembered that Mrs Valentine, frightened herself, left the patients alone with the Appellant, and finding the Social Services Department closed contacted the police with her fears. She was under the impression that the police would get someone into the Home that night. However, no immediate action was taken by the Respondents when they were contacted, apart from asking Mrs Valentine to put her complaint in writing. Concerns as to the qualifications of staff could have been followed up much more vigorously if the issue was as serious as the Respondents state.

On 14 November the Respondents were fully aware of allegations about the Appellant's temper. The gradual build-up of evidence of the Appellant's changeable and volatile moods, and signs of agitation, was clearly very unsatisfactory and potentially grave. However, there was no evidence to suggest that it had suddenly become worse and was therefore critical so as to put at serious risk the residents in the Home. The allegations of poor evening meals had not altered significantly so as to constitute an immediate and serious risk to the health or well-being of the residents. By that date there were very serious concerns about staffing. However, Mrs Marks did not think the risk so serious at that time as to justify closure. The Appellant had been given 21 days from 12 November to get the matter of staffing, and in particular qualified nursing staff, in order. If at the end of that period he had failed to comply, then, perhaps, would have been the time to invoke the urgent procedure, not half way through. In any event, Mrs Marks admitted that concern had been felt over staffing for some 8 months, but that she had been unable to prove or substantiate the situation since she never saw the records. She had seen no reason to prosecute the Appellant, either for the breaches relating to staff or to the temperature of the Home. She did agree, however, that staffing was not a precipitating factor in seeking the closure order, and put the question of staff third in the order of what she considered to be the three most important factors which went to serious risk.

The drugs situation was known about by the Respondents. The evidence is that

Mr Payne told them. Whether this was on the visit of 12 November or disclosed in Mr Payne's statement given on 22 November is not entirely clear, but the situation did not appear to have substantially altered after that time. In any event, there was no evidence that poor drugs administration was regarded by the Respondents as such an immediate hazard to life, health or welfare that instant closure was the only solution. Mrs Marks had investigated the drug allegations on 22 November and then apparently considered the matter not serious enough to take immediate action.

The allegations of the physical and mental abuse had started some time ago, (April l991) However, when on 24 September 1991 Mrs Valentine made a complaint to the police, who in turn sent the complaint to the Respondents, nothing urgent was done about this. This, surely, should have been the time to consider closure, or on

8 November when Mrs O'B was admitted to hospital and it seemed reasonably clear that no registered nurse had been on duty at the time she had her bleeding, apart from Mr Gya who was upstairs. Mrs Marks, who was on study leave, did not visit the Home until 11 November, and the purpose appeared to be to check staffing generally, not to look specifically into Mrs Valentine's allegations.

All agree that 22 November was the crucial day and that the most vital issues (Mrs Marks put them as the main reason for seeking closure on the grounds of serious risk) were the allegations of physical and verbal abuse of patients. Mrs Marks said in cross examination that the "situation was deteriorating" that she "was worried..." and that if she did not seek to act pretty soon there was a serious risk to life and health. I did not want to wait until someone died."

It is important, however, to look carefully and analytically at the alleged incidents which triggered off the application to the Magistrate's Court. They were made by three very young, inexperienced care staff. It is also important to restate that it was never part of the Respondents case, either before the Tribunal or the Magistrate, that the death of Mr S had any causative link with the Appellant. However, his death clearly much affected the young girls in the Home. He was on the verge of death that morning. Mr Payne said to Mrs David that he should have been sent to hospital. Mr Payne himself was extremely upset. When Miss Chadwick (17) came in and said that Mr S had died, Miss Clayton (18) fainted. (Miss Cheshire is 21). All were crying and in an agitated and hysterical state. The announcement of the death, following the emotional and hysterical atmosphere in the Home found by Mrs David, was clearly an important factor in triggering off the various recollections and complaints made by the three young women and the Matron.

The Tribunal accepts that Miss Clayton, Miss Chadwick and Miss Cheshire were sincere in their beliefs of what they thought they saw or heard and that they made their allegations in good faith. However, much of their evidence, in particular that of Miss Cheshire, which the Tribunal found to be very inaccurate and flawed simply did not bear detailed analysis. They used the same phrases, eg "Ian had a split personality and had clearly discussed their statements and allegations together. These discussions, particularly on those last crucial days, were made in an atmosphere of hysteria and emotion, in the knowledge that a patient, apparently hit by the Appellant, had died the following day and that a post mortem examination was being conducted. Many of the allegations, for example, concerning the "lifting up and throwing down on the bed" could be descriptions of the movements of anyone lifting a patient in similar circumstances. The evidence as to the allegation of the head being banged on the wall in the Tribunal's opinion simply did not add up, taking into account the extremely confusing evidence which was produced as to distances from the wall and suchlike. The lavatory incident is also difficult to unravel without viewing the Home and taking precise measurements. However, the whole sequence of events viewed as described does seem extremely unlikely, and as soon as some evidence is questionable, the credibility of the remainder is invariably suspect. The face slapping incident is also difficult to accept since there was apparently no redness, let alone bruising, the following day. The allegations were unsubstantiated. There were no independent witnesses. There were no contemporaneous notes taken. There were too many inconsistencies. Much of the evidence was unsatisfactory and gave the Tribunal cause to doubt. To find serious risk, which results in the awful trauma for everyone concerned in the immediate closing down of a home, there must be a very high degree of probability. The test is not the criminal one of being satisfied beyond reasonable doubt. However, with so much at stake - for the residents, relatives, staff, involved third parties, and the Appellant - the Tribunal needed much more clear, convincing and substantial evidence. The burden of proof is on the Respondents and they have failed to satisfy the Tribunal. If the risk was so serious as the Respondents say, why did they not close the Home on 22 November following the telephone call from Mrs David? Why did they delay making a decision until after the Health Authority meeting on the afternoon on 27 November?

Had the appeal proceeded in the more usual way, in tandem with a cancellation under section 28(a), (as was suggested in the Court of Appeal in Lyons) notice having been served, say, in September, the Tribunal feels that it would have had little difficulty in finding on the balance of probabilities that the Appellant was unfit. However, this was not the procedure adopted by the Respondents and the sole issue before the Tribunal was the question of serious risk. The Respondents' evidence did not satisfy the Tribunal that there was any significant change in any of their previous concerns to sustain that emergency closure. The very high burden of proof required to establish this has not been made out to the satisfaction of the Tribunal and it allows the Appellant's appeal.

Margaret Rutherford
Brian Maurice Esq
Mrs Susan Adams