Mr and Mrs D West (Marginturn Ltd) v Worcester and District Health Authority

The Tribunal was unanimous that the decision of the Respondent to cancel registration be confirmed.

REASONS

Background

On 1 December 1987 Mr and Mrs West individually signed a form of application for registration in respect of a nursing home. The applicants were stated to be Mr and Mrs West and Marginturn Ltd of 94 Copthall Road West, Ickenham, Middlesex. The application states that it was being made also on behalf of Marginturn Ltd of 1, The Quadrangle, Church Street, Slough, Berkshire, a company of which Mr and Mrs West were the sole directors. The Certificate of Registration was issued on 17 February 1988 stating: "This is to certify that Mr and Mrs D West of Marginturn Ltd. Sarn Hill Grange, Bushley, nr Tewkesbury, Gloucestershire is/are carrying on a nursing home at Sarn Hill Grange, Bushley, nr Tewkesbury, Gloucestershire and has been Registered in respect of the said establishment by Worcester and District Health Authority in pursuance of Part II of the Registered Homes Act 1984". The company itself was in fact registered by the Hereford and Worcester County Council on 23 February 1988 under section 5 of the Act in respect of a Residential Care Home at the same address. It may be this that has produced some confusion, but we have no doubt that Mr and Mrs West were both duly registered in respect of the nursing home in accordance with section 23(4) of the Act and are both therefore, under the terms of the Act and the Rules, appellants. It appears from the heading and addressing or signing of many and various documents, that the status of the company also as an appellant has been assumed by both sides. For the purposes of this appeal we have adopted that assumption because it makes no practical difference to the outcome.

There were really two appeals concerning two decisions of the Respondent, (relating only to the Nursing Home and not to the Residential Care Home) - firstly, an appeal against a decision to vary one of the registration conditions by reducing the permitted number of beds from 25 to 24 on the ground that a double room is too small; secondly, an appeal against a decision to cancel registration on grounds of the unfitness of Mr and Mrs West and matters connected with staffing.

Preliminary Points

The Registered Homes Tribunals Rules 1984

Rule 2 - "In these rules, unless the context otherwise requires, "appellant" means a person who under any of the relevant enactments is entitled to appeal or being so entitled has appealed to a tribunal".

Rule 4(2) - "The Secretary of State shall appoint a person to act as secretary of the tribunal for the purposes of the appeal".

Rule 8(2) - "If...the appellant...fails to appear or be represented...at the time fixed for the hearing of the appeal the tribunal may take such action whether by proceeding with or adjourning the hearing or otherwise as may appear to the tribunal to be just and expedient". Rule 12 - "An appellant may at any time give notice in writing to the secretary of the tribunal that he desires to withdraw his appeal and thereupon the appeal shall be deemed to be dismissed".

Purported Withdrawal

On Friday, 19 January 1990, a Fax letter post dated 18th September 1990 was received by the Tribunal Secretariat signed by Mr West as Managing Director of the company. The letter included the following text - "Take notice that on 18th September 1990 Mr and Mrs West and Marginturn Ltd withdraw their appeal. (Item 12 of the Registered Homes Tribunal Rules)". A covering message dated 18 January 1990 stated - "The Worcester and District Health Authority should not consider the matter closed by this withdrawal from the Tribunal". A reply was given to the effect that a post dated withdrawal by Fax was not acceptable, the Tribunal would convene as arranged, and that the secretary to the tribunal would there receive a proper withdrawal if so desired. At the hearing on Monday, 22 January the Appellants did not appear at 10.30am, the time fixed for the hearing. After submissions of counsel for the Respondent concerning procedure, the Tribunal agreed to adjourn to allow time for the Appellants' delayed arrival or some other explanation.

The Tribunal considered the relevant Registered Homes Tribunals Rules 1984 and concluded that there had been no proper withdrawal of the appeal in terms of rule 12 because (i)no notice in writing whatever had been received from Mrs West, nor from Mr West in his personal capacity; (ii)no such notice had so far been given at the hearing to the secretary of the tribunal (being the person appointed under rule 4(2) for the purposes of the appeal); (iii)the letter of notice Faxed to the Tribunal Secretariat was accompanied by the covering message containing some apparent qualification of the withdrawal; and (iv)the notice given was post dated as the words "at any time" in rule 12 relate to the physical giving of the notice and can not be correctly interpreted to include a giving of notice to take effect at some time in the future. We express the opinion that the proper construction of rule 12 requires that a written notice of withdrawal must be - (a)unambiguous in its terms, and (b)immediate in its effect, and (c)authenticated by each of the appellants in a case where there are several.

Procedure

We considered the powers to take action conferred on a Tribunal under rule 8(2), and the courses open to us. We concluded unanimously as follows - (i)that without the consent of the Appellants as required by rule 13(1), it would be improper to hear both appeals together; (ii)that a just decision in respect of the double room would probably not be possible without the opportunity to visit the nursing home, accompanied by the parties, whilst the room was occupied by patients; (iii)that the result of the appeal in respect of the double room was of far less consequence than that respecting the Appellants themselves. We therefore decided that it was neither just nor expedient that the hearing of that appeal should be proceeded with. An adjournment of the remaining appeal was not desirable or necessary because (a)an adjournment had not been requested by the Appellants; (b)an adjournment would serve no useful purpose; (c)we were informed, by counsel, that the Respondent was anxious to proceed and ready with a large number of witnesses in attendance.

In our opinion the words "or otherwise" in rule 8(2) confer power to allow or dismiss an appeal summarily in default of appearance, but only if that appears to a Tribunal to be "just and expedient". We decided it is a power to be exercised very sparingly, and probably only in circumstances that indicate it to be the proper course to take in a plain and obvious case. In the circumstances of this appeal, including the nature of the grounds of appeal and the Appellants' evident awareness of the date, time and place of the hearing, we considered that it would not be right to reach such a peremptory determination. We were unanimous that - in all the circumstances and after consideration of the various submissions of counsel for the Respondent - it was both just and expedient to proceed with the hearing. Accordingly, at 11.10am, we commenced the hearing - but in the continued absence of the Appellants.

Evidence

We received sworn evidence from nine witnesses (the evidence of one of whom was given by affidavit), and the unsworn statements of two witnesses who had since died.

In our assessment of the weight of the evidence we remained aware of the general denial, and the observation concerning hearsay, in paragraph 1 of the Grounds of Appeal. We were mindful too that, in the absence of the Appellants, none of the witnesses called had been tested by cross- examination. We looked for evidence that was corroborated and corroborative, and for evidence in other respects dependable for the reason that it fitted into the pattern woven by other evidence that we felt to be utterly reliable.

Findings

Mrs Doreen Barbara West

In considering the fitness of this Appellant we paid particular but not exclusive attention to the evidence of Doctor Crowther, Mr Barnett (a District Pharmaceutical Officer), and of Mrs Brown and other officers of the joint inspection team relating to the nursing home. We ignored matters of hearsay as the case of Mr West. We were satisfied that the acceptable standards, to maintained in the home by the previous owners rapidly deteriorated after the beginning of 1988. A picture began to emerge of inability to establish and maintain a satisfactory management structure, deficiencies in the deployment and level of staff, lack of a planned regime of health care within the nursing home, and unsatisfactory standards of competence. We accepted Dr Crowther's specific evidence concerning the condition of certain patients admitted to Tewkesbury Hospital from mid-1988, and we considered these to be especially shocking instances of the latter. His and other evidence also testified to a lack of proper provision of social activity and emotional support, and gave rise to serious misgivings on our part as to the adequacy of Mrs West's professional knowledge and expertise and her clinical judgment. As a general practitioner who had visited the home regularly at fortnightly intervals for many years before 1988, and who continued so to visit thereafter, he was able to make points of comparison that we found wholly convincing. Mrs Brown satisfied us that, despite regular reminders to this Appellant on the subject, little or nothing was ever done to provide for the training of staff. On a number of occasions important changes of staff occurred but were not communicated to the registration authority promptly or at all. On other occasions legitimate enquiries and reasonable requests for details concerning staff employed at the home were either ignored or met with the production of what were described as 'conflicting rotas and inaccurate staffing lists'. Justified criticism was levelled at Mrs West for her initial inability, even with the advice and assistance of Mr Barnett, to establish a proper or sufficient medicines policy. She made several attempts to do so, and there was a delay of some ten months from the date of registration before this matter was satisfactorily attended to by her; these were features that Mr Barnett found to be unusual and the cause of some surprise. More seriously, however, inspection in the meantime had revealed a number of irregularities within the nursing home in connection with the storage, allocation, dispensing and custody of medicines which, in a properly managed and run nursing home, should not have existed or occurred; the evidence of Mr Barnett and, to some extent, Mr Hamblin gave details of their own observation of unsafe practices. Moreover, even after Mrs West had submitted an acceptable medicines policy, we were satisfied from the evidence of Mr Hamblin that on a number of occasions she herself nevertheless ignored elementary principles of safe medicines administration in connection with the treatment of patients in her care.

Mr Dennis John West

Evidence concerning the keeping of financial records and the submission of patients' accounts suggested to us a lack of care and communication both of which are essential ingredients in the proper administration of a registered home of whatever kind. Being one of the persons registered in respect of the home as well as a director of Marginturn Ltd., Mr West must shoulder part responsibility at least for the failure to ensure in the nursing home a virtually faultless system such, for example, that Mrs A.B. would not have been charged, at precise monthly intervals, £7 for incontinence items that had not been supplied to her and that she did not then require. In his dealings with, and attitudes to, relatives and staff Mr West was undoubtedly uncaring, insensitive and at times overbearing. In consequence an abnormally high turnover of staff occurred, management support was lacking, and for these reasons staff morale was impaired. Frequent and various complaints, from staff, visitors and relatives of patients, were brought to the attention of the health authority resulting in a corresponding intensity of inspection visits. Mr West's attitude to and relations with members of the joint inspection team were often aggressive and uncooperative respectively. His reactions were particularly anger or at least in response to the necessary confidentiality and follow-up of the numerous complaints, and lack of co-operation and reluctance to provide information in response to enquiries or requirements regarding matters of internal administration and staffing issues. These were characteristics which indicated, on his part, either a refusal to accept their authority, or a remarkable ignorance or misunderstanding of their functions, duties and powers, but of which a competent proprietor ought to be well aware. From the evidence we heard, it was obvious to us that latterly a working relationship with the health authority had become quite impossible for reasons that could not be attributed to the personality, any improper conduct, or any lack of tact, on the part of any member of the inspectorate. We had no doubt that in the case of this nursing home regular inspections were essential to the welfare and protection of the patients. On one occasion, as we found, Mr West made scornful reference to the code of practice for residential care 'Home Life' relating it somehow to 'Chairman Mao's little red book'. W considered it to be an occurrence of significance not so much of itself but as indicative of his sentiments concerning the philosophy of care.

Conclusion