Harvey Residential Care Home (Burnley) Ltd Appellant
and
Lancashire County Council - Respondent
Decisions of the Tribunal sitting at the Town Hall, Burnley on 27 28 and 29 June 1990.
Before:
J C R Fieldsend, Chairman
J I Stephens Esq
F L Watts Esq
Appeal against the decision of a Justice of the Peace sitting at Burnley on 12 March 1990 cancelling the registration of the appellant in respect of a residential home known as The Rookery Pasturegate, Burnley, Lancashire pursuant to Section 11 of the Act.
For the appellant: George England, of Counsel instructed by Bury and Walkers with Smith and Ebberson
For the respondent: Keith Thomas of Counsel, instructed by the County Solicitor.
DECISION
The Tribunal unanimously allows the appeal and directs that the Order of 12 March 1990 shall cease to have effect.
REASONS
General history
Mr and Mrs Oldfield, as directors of Harvey's Residential Care Home (Burnley) Ltd operated, The Rookery Pasturegate, Burnley as a residential care home registered for 20 elderly residents, having obtained registration on 23 December 1987. At that time they also owned a residential care home for 23 residents fin Barnsley and a Mrs Mansfield was registered as the manager of the Burnley home.
In May 1988 Mrs Oldfleld dismissed Mrs Mansfield and was herself approved by the respondent council as manager of the Burnley home where she slept for 2 nights a week. In July 1988 the Oldflelds sold the Barnsley home limiting themselves to the Rookery.
In June 1988 following complaints made to the respondent the Environmental Health Officer had been called in to examine the premises and to report on a number of shortcomings. These were eventually remedied and thereafter that officer had no further complaints of any substance. During discussions on these matters Mr Butterfield of the respondent raised questions of staffing with Mrs Oldfield including the appointment of a person to deputise for her when she was not on duty. A Mrs Briggs was appointed but she stayed only until September 1988.
At the turn of the year 1988/89 Mrs Oldfleld was pursuing the idea of turning the Rookery into a nursing home and there were discussions about alterations and staffing. This plan was finally shelved but the Oldflelds bought a nursing home (Ashlands) in Stockport in July 1989. Mrs Oldfield was obliged to spend a considerable amount of her time there, and it was from September 1989 that her difficulties with the respondent became particularly pressing.
At this time Mrs Stonehouse, an assistant manager with the respondent was given responsibility for the inspection of The Rookery succeeding a Mrs Pilling. From the start the main complaints related to the staffing. With Mrs Oldfield working considerable hours at Ashlands it was necessary that a mature, and experienced person should be available at The Rookery to deputise for her. This was especially important as Mrs Stonehouse did not regard the care assistants as sufficiently mature experienced or knowledgeable. The number and the seriousness of complaints about The Rookery increased rapidly, perhaps in some way connected with the fact that the Oldfields were trying to sell the enterprise.
By 2 February 1990 the respondent’s officials decided in view of the seriousness of the shortcomings and the difficulty of getting Mrs Oldfield to remedy them that they should seek a closure order under Section 11 the next week. However on 5 February it was decided to have a further meeting with Mrs Oldfield to try to have matters remedied. This was held on 7 February and was followed by a letter of the same date. Little was done to improve matters and Mrs Oldfleld’s bank was also becoming concerned at the fact that the home was not more than half full, and that it seemed unlikely that the proceeds of its sale would fully cover the Oldfield’s debt to the bank. In an effort both to safeguard the bank and to allay the continuing serious concerns of the respondent, the bank arranged with Mrs Oldfield for a manager to be appointed at The Rookery. With the approval of the respondent a suitably qualified person, a Mrs Andrew was appointed and assumed duty on 23 February.
Under Mrs Andrew’s guidance a management team was organised and matters improved at the home with an experienced and mature person in charge of the care assistants at all times and Mrs Oldfield taking little or no part in the daily nursing of the home. There were, however, tensions and difficulties between Mrs Andrew and Mrs Oldfield, who as owner felt that Mrs Andrew was being too extravagant particularly in regard to staffing levels. As a result Mrs Andrew on 12 March telephoned Mrs Stonehouse to say that she was considering leaving.
This was interpreted by the respondent’s officials as a threat to leave which was to be implemented that day. That morning the respondent bought and obtained the Section 11 order now appealed against. The application was supported as it had to be by a written statement of the respondent’s reasons for applying dated 5 February which made no reference to Mrs Andrew’s appointment and of her impending departure.
In fact Mrs Andrew did not leave on 12 March and no steps were taken to close The Rookery until 21 March, when Mrs Andrew finally left.
The evidence
The respondent led evidence from Mrs Stonehouse and her supervisors, a Mr Vokes and a Mr Butterfield, from two district nurses who visited residents in the home from time to time, from Mrs Andrew and from 4 former members of staff.
Mrs Oldfleld gave evidence herself and called a former employee, Amanda Rhodes, nee Heap and two more general witnesses who took the case a little further.
We had no hesitation in accepting as basically truthful the evidence of the respondent’s witnesses. There were no inherent improbabilities in it and there was considerable consistency between the evidence of the different categories of witnesses. In particular the evidence of the district nurses provided very strong corroboration of the evidence of the staff as to the treatment of seriously ill residents and was also supportive of that of the respondent’s officers.
Mrs Oldfield alleged that almost all the evidence given against her was quite untrue. She contended strongly and without equivocation that there was a conspiracy against her involving all the respondent’s witnesses in one way or another, and alleged that the respondent’s officers had in effect suborned her ex-employees to give false evidence. Mrs Andrew she said gave prejudicial and false evidence because she was trying to acquire The Rookery for herself at the cheapest possible price. It is true that Mrs Andrew did want to buy the home and that she did make offers for it. Indeed it emerged that she alleged a contract of sale which the appellant has failed to complete. We accordingly looked with extra care at Mrs Andrew’s evidence, but insofar as it related to the conditions she found and the capabilities of the care staff she found we felt we should accept what she said.
Amanda Rhodes the ex-employee called to support Mrs Oldfleld we did not find convincing. We were unable to accept it in the face of the overwhelming body of evidence for the respondent.
In that we were satisfied that where Mrs Oldfield’s evidence was in conflict with that of the respondent’s witnesses it was quite unacceptable.
Shortcomings of the home
The main complaints relied upon by the respondent were:
The care staff employed were not sufficiently skilled experienced or qualified to provide adequate care for the residents particularly as they were more often than not left in charge without proper managerial supervision.
This led to serious consequences in the treatment of and attention to seriously ill residents. Further, following Mrs Oldfield’s general instructions, residents were made to leave their beds and their rooms when they were not to enough to do so.
Residents, particularly those who were incontinent, were led with dirty clothing and bed linen and without proper incontinent pads, so that on many occasions they were in damp clothing smelling of course of urine and worse.
The procedure for obtaining prescribed medicines for residents was entirely unsatisfactory. Doctors prescriptions would be telephoned by care staff to chemists who would then send the medicines to the home. On occasions the care staff would pass on by telephone prescriptions telephoned to them from a doctor’s surgery. On one occasion there was a delay of 3 weeks in obtaining an anti-biotic for a resident suffering from an ulcerated leg.
The laundering of clothing and bed linen was not done separately nor was the clothing of incontinent residents washed separately. This resulted in all clothing smelling of urine.
No regular or satisfactory fire drills for the staff were held, and on occasions the fire alarm sounded without reason and was in effect disregarded.
On many occasions insufficient food was made available to the cook who had to improvise meals, or to rely on food brought in or bought by members of the care staff.
Mrs Oldfield who was the only quaffed or senior member of staff was in the latter months hardly ever in attendance when she should have been, and she insisted that members of staff should tell untruths to cover up her absence.
All these shortcomings were established by the evidence we heard over the period when Mrs Oldfield was actually the manager of the home and after she acquired Ashlands. We were satisfied that they were sufficient to establish that there was a serious risk during this period to the health and/or the welfare of the residents.
Should the order be upheld?
The Tribunal has to look at the situation as it was on 12 March 1990 and decide whether on that date the shortcomings were such that there was a serious risk to the health or well-being of the residents.
Had Mrs Andrew not taken over the management of The Rookery on 23 February it is difficult to see how the Justice of the Peace could have done anything but grant a closure order. But Mrs Andrew was in charge at the time the Order was sought and granted, and we heard that the respondent was satisfied with the situation while she was managing the home. It was only because of her anticipated departure that it was decided to proceed under Section 11. That is quite clear from the evidence of Mr Vokes and Mrs Stonehouse. As Mrs Andrew did not leave on 12 March but confused until 21 March there was not in fact a situation on 12 March to warrant a Section 11 closure as on her evidence she had indicated only that she was considering leaving.
It is easy to understand the concern of the respondent when fearful that Mrs Andrew might be leaving, but by taking action on 12 March without, according to the written statement of reasons, setting out the position so far as it concerned Mrs Andrew it acted too hastily. That the respondent was willing to allow the home to continue illegally under Mrs Andrew from 12 to 21 March was not entirely justified. It may have been acting prudently to arm itself with an order but we do not think that in law fit was justified in obtaining an order at that stage.
This may at first sight appear to be a somewhat technical approach but Section 11 is a season which should be invoked only in really urgent circumstances where serious situations may be anticipated. Care, too, must be taken to ensure that the Justice of the Peace is made aware of all the relevant facts. That decision calls for the exercise of judical discretion and is not a formality.
In the circumstances of this case we are of the view that had the full facts been before the Justice of the Peace on 12 March the Order may not have been granted. The Tribunal having considered all the facts is unanimously of the view that the situation on 12 March did not in fact warrant the granting of the Order.
Accordingly the appeal is allowed and we direct that the order of 12 March 1990 shall cease to have effect.
J C R FIELDSEND - Chairman
J I STEPHENS
F L WATTS