MRS JEAN ABBOTT-HULL | Appellant |
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LANCASHIRE COUNTY COUNCIL | Respondent |
Decision of the Tribunal sitting at the Council Chamber, Wyre Borough Council, Civic Centre, Poulton-le-Fylde on 24, 25, 26, 27 January, 27, 28 February, and 1 March 1989.
Before: | G.F.Harwood - Chairman |
Appeal against an order under section 11 of the Act made on 8 December 1988 by a Justice of the Peace cancelling the registration of the appellant in respect of Belmont Park Residential Home, 32/34 Henley Avenue. Thornton Cleveleys, Lancashire.
For the Appellant: | David Fish, of Counsel, instructed by |
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For the Respondent: | Keith Thomas, of Counsel, instructed by |
DECISION
The unanimous decision of the Tribunal is that the order be confirmed.
REASONS
Preliminary
The Appellant was registered in respect of the Belmont Park Residential Home in February 1985; the permitted number of residents was increased from 7 to 9 in September 1985. The Appellant had qualified as a state enrolled nurse in 1972 and, by the time of her decision to retire and enter the sphere of private residential care; she had acquired practical nursing experience in the geriatric wards of several hospitals. The Respondent's guidelines concerning this aspect merely stipulate that "the responsible person in day to day charge should have at least one year's experience at senior level in a residential home and/or a qualification recognised by the local authority-as appropriate for the stated aims of the home". She had no previous experience of working, in any capacity, in a residential home. Assistance in the management and running of the home was provided by Beverley (a daughter, now aged 29) without qualification or any initial training or experience save, at the age of 17, the completion of the first half of a 2-year pre-nursing course at college, a few weeks helping on hospital wards some time before that, and 6 months employment at another residential home commencing in late 1984.
An ex parte application for an order of cancellation of registration under section 11 of the Act was made on 8 December 1988. The principal reasons alleged were: firstly that one of the residents had been "regularly restrained against her will by being tied in a chair by both the proprietor and her daughter" the bonds having been "concealed from casual view by a loose covering"; secondly that the residents "have on a number of occasions suffered significant facial bruising" sustained when only members of the family were on duty; thirdly that residents had confided in members of staff that they had been struck by the proprietor's daughter; fourthly that residents had been subjected to verbal abuse and "pushed and grabbed with unnecessary force"; fifthly that "some residents in the home appear distressed and frightened"; and lastly that "the police are investigating the allegations and will report their conclusions in due course". The same reasons were put before the Tribunal, though the latter was properly withdrawn at the hearing. The Respondent failed entirely to ascribe any dates or other particulars to the generality of these allegations before the hearing, and no witness statements were initially supplied, with the deplorable result that the assembled Tribunal was kept waiting for 1 ½ days whilst preparations were made for the commencement of this appeal. Witness statements taken earlier by the police as part of their investigation were eventually produced by direction of the Chairman. Even so, basic particulars of the allegations emerged only in course of the oral evidence, thus making it difficult for all concerned to determine beforehand the scope of enquiry.
The Witnesses
The Tribunal heard sworn evidence, based on written statements, from three teenage girls hitherto employed at the home, the mother of one of them, a relative of a former resident, and Mrs Schofield (an officer of the registration authority). For the Appellant there was sworn evidence from Mrs Abbott-Hull, Beverley, two relatives of residents and two visitors to the home; in addition we read and considered 19 statements of evidence (from four former members of staff who had - but not at all recently - worked part-time on night duties, and from various friends, relatives and visitors), and other material including the contents of the 1987 and 1988 'daily diary' or occurrence book relating to the home.
We could see no valid reason whatsoever to suppose that any of the three young girls was lying. Indeed we considered that they were credible witnesses concerning events that they had actually observed. We paid particular attention to our assessment of one of them and her mother because the Appellant had suggested that there existed some sort of conspiracy and possibly duress regarding the evidence they had given. We were entirely satisfied that this was a wild and baseless suggestion, though not perhaps out-of-keeping with the Appellant's tendency, demonstrated in cross-examination, to be either inventive, inconsistent or less than frank when called upon to explain unpalatable facts.
The Residents
There was much evidence concerning the residents at Belmont Park, whose ages (latterly) ranged between a very disabled 74 and 93. It was accepted, and the diaries confirm, that each of them suffered at least one of a variety of serious disabilities. Two were blind, seven partially deaf (3 with hearing aids), and at one time there were two with Parkinson's disease - in addition, several of those same residents were incontinent or confused, or both. The Appellant (sometimes referred to as 'Matron') told us, with some pride: "I would take in the people nobody else would have". There was also evidence from a relative to the effect that, when her sister was in hospital, she was requested by the Appellant to allow the lady to return to Belmont Park to be looked after - notwithstanding that the ward sister at the hospital evidently thought that a nursing home would be more appropriate. Before she died on 26th September, 1988, the lady had sustained, whilst resident at Belmont Park, a broken arm on 19 August 1986, a broken hip on 6 December 1986, a head injury in the night of 16 November 1987, and a facial injury on 17 April 1988. We were not surprised to hear the relative say that, towards the end of her sister's life, she felt that "Matron was getting a bit tired of the attention my sister was needing". The evidence of the diaries as well as witnesses shows that a substantial number of other incidents occurred at Belmont Park in which various residents suffered bruising or more serious injury during 1987/88. A number of these incidents ought to have been, but were not, reported by the Appellant to the registration authority within 24 hours as required by regulation 14(1)(d) of the Residential Care Homes Regulations, 1984. If they had been duly reported, we think it likely that the Respondent would, for example, have terminated the arrangement whereby junior care staff might be left in charge so long as the Appellant or her daughter remained on call by intercom from premises: across the road.
The Duties and Competence of Management and Staff
Having regard to the high level of dependance of the elderly residents, the small number of young, unqualified and untrained staff and the very extensive scope of their duties, we were quite satisfied that latterly it became a virtual impossibility for the Appellant to cope adequately with the demands made upon her. Beverley's hours of duty and the burden of her responsibilities were also quite clearly excessive. Both the Appellant and her daughter tended to be abrupt and rather rough at times in their handling of certain of the residents, possibly more so at peak times or when otherwise over stressed and irritable. It was quite evidently beyond the capacity of all concerned to cope with Minnie, aged 90, who had a propensity to wander around the home either fidgeting or seeking to help in the performance of some small household task. The Appellant told us that this resident was given a nickname "mithering Minnie", and much of the hearing was devoted to an examination of the general behaviour of this lady, and of her treatment during the week before the closure of the home.
The Behaviour and Treatment of Minnie
The evidence that Minnie was unsteady on her feet to an extent suggesting that she was a possible source of danger to herself or others was far from convincing. Little attempt, if any, seems to have been made to help her to occupy her time though clearly she 'liked to do things'. She occupied an upstairs bedroom and she was, and had always been, an active person. In terms of accidents sustained, her history was no more remarkable than that of several others of the residents. According to the Appellant, on 30 November 1988 she somehow came to fall in the lounge and her face was quite badly bruised. The following day, 1 December 1988, a far more serious accident befell Gertrude, a 93-year-old resident who was both deaf and blind. Both the Appellant and Beverley were, and appear still to be, satisfied that Minnie was to blame, although neither of them was on the premises at the time and such a conclusion was, in any event, quite illogical. We are satisfied that the Appellant, when called from her house across the road, with mixed feelings of anger and frustration, regarded Minnie as being somehow responsible and treated her as a scapegoat by tying her to a chair. We reject, because we do not believe it, the argument suggesting urgent medical necessity put forward by the Appellant. On 3 December 1988 Minnie was again tied up, this time by Beverley who was on duty that day, because "she had already caused the accident to Gertrude" and "she was so unsteady on her legs...for her safety". In addition to tying Minnie, both the Appellant and Beverley took it upon themselves to administer to her a small dose of Largactil - a drug that had been previously prescribed but which it had evidently not been necessary for her to take since early August. The Appellant pointed out that on each occasion less than a standard dose was administered because Minnie had very recently been prescribed and was being given a course of Pavacol D, a cough medicine one of the likely effects of which is to induce drowsiness.
The Cancellation of Registration
As the result of an anonymous telephone call on 6 December 1988 to a Principal Officer in the Respondent's Social Services Department, Mrs Schofield (Assistant Manager - in that Department - for Elderly and Physically Handicapped Persons, and one of the officers responsible for previous inspections of the home) visited Belmont Park at once. Amongst other things, she observed on a chair in the dining room the crepe bandage used for tying Minnie and shortly thereafter noted that it had been removed from view. Beverley was in charge that day, and the explanation she gave to the Tribunal, as to why she decided to remove it and why she selected that particular time to do so, was not at all convincing. Mrs Schofield spoke to each of the residents in turn. Whereas on previous visits they had seemed to her to be quite happy, on this occasion she found four of them to be distressed - three of whom "kept looking towards the door". The order of cancellation was made on 8 December 1988 at Garstang Magistrates Court.
The Tribunal's Conclusions
On the question of facial bruising and the inference adverse to the Appellant which we were clearly invited to draw: we applied the appropriate standard of proof and we found (a) that the residents did on a number of occasions, as alleged, display significant facial bruising; (b) that the occurrences giving rise to facial (and other) bruising were not confined exclusively to periods 'when only members of the family are on duty'; (c) that on a number of occasions certain of the residents did confide in members of the care staff (other than the Appellant and her daughter) that they had been struck by Beverley; (d) that in the absence of any corroboration of that hearsay evidence and having regard to the undoubted occurrence of numerous accidents involving the residents whereby facial bruising might have been caused, we were not satisfied that Beverley did in fact strike any resident.
We found that whereas the residents did not appear to have been 'subject to verbal abuse' nevertheless on a number of occasions both the Appellant and Beverley did rudely push certain residents in a manner that was both undignified and uncalled-for.
With regard to the allegation that Minnie was regularly restrained against her will by being tied in a chair by both the Appellant and her daughter and that the bonds were concealed from casual view by a loose covering: we found the allegation proved at least to the extent (a) that on an occasion in about September/October 1988 the Appellant tied Minnie to a chair in an upstairs bedroom by means of a bedspread; (b)that on 1 December 1988 the Appellant similarly tied Minnie more than once, and later that day tied her to a chair downstairs with a crepe bandage putting a covering over to conceal the fact; (c)that on 3 December 1988 Beverley repeatedly tied Minnie to a chair in the dining room with a crepe bandage putting a covering over to conceal the fact.
We had no doubt that the tying-up and the covering was both repugnant to Minnie and against her will, that it was unmerited, and that it was wholly unjustified. We were satisfied that no bodily harm resulted to Minnie, but that was never in issue.
The use of restraint of this nature by the Appellant, and by Beverley with her approval, was in our opinion an affirmation of her inability to cope properly with the running of the home. The contrast between the high degree of dependancy of the residents and the youth and inexperience of the care staff was a particularly disturbing feature of the evidence in this appeal: a situation that ought never to have been tolerated by the Appellant or, for that matter, the registration authority.
The Law
We accepted the contention of the Appellant's counsel that, since the section 11 method of proceeding had been adopted, it was for the Respondent to prove the ingredient of 'serious risk' referred to in section 11(l)(b) of the Act - failing which the Appellant must succeed on the appeal. Argument on the correct interpretation of the expression 'serious risk', in the context in which it is used, was not addressed to us. For the purposes of section 11(l)(b) we took the expression 'serious risk' to imply both 'a serious likelihood of significant harm' and 'a significant likelihood of serious harm' with reference to the health or well being of the residents.
Serious Risk?
The evidence viewed as a whole conveyed to us an alarming picture. In reaching our decision on this aspect of the case, our chief concerns were the Appellant's manifest neglect (a) to make any provision for the welfare and, if necessary, supervision of Minnie; (b) to employ suitably trained or experienced staff having regard to the age and physical condition of the residents; (c) to report, in the manner required by the regulations, occurrences in the home affecting the well-being of residents; and (d) to seek any assessment or advice before taking and implementing her decision to employ the physical restraint and sedation of-a resident. What she in fact did with regard to Minnie was the very -antithesis of many of the basic principles commended in paragraph 4.6.2 of 'Home Life' - a publication the Appellant apparently had never possessed nor even consulted until after her registration was cancelled; which in turn we view as an omission symptomatic of her proud complacency and evident determination to manage the home without the benefit of consultation or advice on important matters. Her failure to report the occurrence of events, as regulation 14(1)(d) requires, no doubt lessened the likelihood of a review of staffing requirements or other timely intervention by the Respondent for the benefit of the residents. Taking these considerations into account together with the positive evidence of Mrs Schofield and the Respondent's other witnesses we were left in no doubt of the existence of a serious risk to the well-being of the residents and that an order under section 11 was necessary, appropriate and fully justified. Our unanimous decision was that the order of 8 December 1988 made by the Justice of the Peace at Garstang Magistrates Court be confirmed and that this appeal be dismissed.
21st March 1989 | G F Harwood - Chairman |