Decision No. 356
REGISTERED HOMES TRIBUNAL
This decision may be freely reproduced and distributed. It should be drawn to the attention of registration and inspection staff and legal advisors
MRS BERYL WANLEY - APPELLANT
V
HARTLEPOOL BOROUGH COUNCIL - RESPONDENTS
Tribunal sitting at The Grand Hotel, Hartlepool, on Tuesday 28th July 1998, to hear an appeal in respect of Pangbourne Care Home, Hartlepool.
Before:
Margaret Rutherford QC
Michael Attenborough Esq
Ken Coleman Esq
Representation
Neither the Appellant nor a representative attended the hearing
Mrs Betty Kirtley, Head of Legal Services, represented the Respondents
DECISION - It is the unanimous decision of the Tribunal that the Appellants' appeal succeeds and that the decision of the Respondent registration authority shall not have effect.
WITNESSES
For the Respondents :
Mrs Joan Wilkins - Principal Community Services Officer
Mrs Kathleen Spellman - Chief Inspector
Ms Margaret Hayden - Inspector
APPLICATION FOR ADJOURNMENT
A letter dated 8th July 1998 was sent by the Appellant to the Registered Homes Tribunal Secretariat (the Secretariat) confirming her verbal request for an adjournment as she was "having difficulties with (her) potential legal representative". The Respondents responded on l5th July opposing such an application and the Chair directed that the application should be made before the full Tribunal on the first day of the hearing. However, on that day the Appellant failed to turn up and telephone conversations between the Appellant and the Secretariat/Clerk indicated that she would not be attending.
The Respondents said that they had had great difficulty in trying to contact the Appellant over the past month, and had made repeated efforts to contact her without success. They suggested that it would be helpful to the Tribunal if Mrs Wilkins be sworn and explain the situation. This was done, and the Tribunal was told that no real problems had occurred until the Secretariat instructed the Respondents to pass on copies of various documents to the Appellant, e.g. the Reasons. They could not get in touch with her in any way. she had changed her telephone number. They tried hand delivery of the documents from a Thursday to the following Monday, with both Mrs Wilkins and couriers trying to affect service. They contacted the hospital where the Appellant works night shifts but were told that they had no record of her. They tried leaving documents at her home, but regrettably the letter box was far too small, and there was no porch or entrance in which the bundles could safely be left. They consider that they did everything within their power to serve documents and to inform the Appellant when the hearing was to take place.The Respondents were informed by the Secretariat that the Appellant desired an adjournment, and later received a letter from her.
The Chair then read a chronology prepared by the Secretariat setting out all the attempts to contact the Appellant who finally revealed her new telephone number on 27th July. This included the fact that a letter sent by recorded delivery, first class post, dated 21st July, was sent to the Appellant making it clear that her application for adjournment had been opposed by the Respondents and that the Chair had therefore directed that a further application should be made before the full Tribunal on the first day of the hearing.
The Secretariat contacted the Tribunal clerk at 0720 on 28th July to say that the previous day the Appellant had telephoned to say "she could not do the Tribunal". The Appellant telephoned the Tribunal clerk at 0940 on the first day of the hearing (Tuesday). She said that she had only received the Recorded Delivery letter at 1630 on the previous day. she had been away on leave and only returned late on Saturday night. She went to bed and on the Sunday discovered the card from the Post Office, telling her of a Recorded Delivery. She was in touch with her union (Unison) who had previously turned down her application for assistance with fees for the Tribunal hearing. Her Union representative could not attend on the first day. In any event she could not appear as she was too tired. She had been on night shift all Monday night at the local hospital.
The Chair then said that as a consequence there were two distinct stages of procedure to undertake: (i) to deal with the application for adjournment and (ii) if such were not granted, to go on to decide whether or not to proceed in the absence of the Appellant. She said that since the Appellant had asked for an adjournment by letter, and as she was not at the hearing, she would, on her behalf, assume that her application was still unresolved and invited the Respondents to respond.
The Respondents' response to the application to adjourn
As to the Appellant's claim that she would be prejudiced by proceeding without legal representation, the Appellant served her notice of intention to appeal on 24th February 1998. She notified the Respondents that she had representation, which was her Union representative. She has by now had five months in which to organize representation. She informs the Tribunal today that she is having difficulties with representation. However, any difficulties should have been detected not just a week before the hearing but at least four months ago. she has alternative means of representation at her disposal. There are at least seven firms of solicitors in general practice in the town. Although legal aid is not available for Tribunals there is legal assistance available under the Green Form scheme, and she could have received preliminary advice. Had she gone to a solicitor and been unable to meet his charges, he would have directed her to the CAB. Within five months she should have been able to obtain free legal advice and / or representation. The Tribunal should reject this ground for an adjournment.
A new ground is suggested today, and that is that the Appellant is too tired to attend. She has been aware of the date of the Tribunal since 2nd June. The proceedings today are of considerable importance to the Appellant. In losing her Certificate of Registration she has lost part of her livelihood, a matter of extreme importance to anyone. In view of this fact it is not unreasonable to expect her to make arrangements so that in all the circumstances she is able to attend today to defend her position. These Organisations are not beyond her power; she simply has to arrange her night shift work to ensure that she would not be on duty for 12 hours on the night before the hearing. She tells us that she was on leave last week, which is cavalier in all the circumstances particularly when important documents relating to the hearing were likely to be sent to her. she has brought her alleged indisposition on herself. Her application for adjournment cannot be substantiated on reasonable grounds.
Five senior officers are here in court today. They have given up their time, postponed their appointments, at cost to the authority, to be here. The expenditure to the authority and to the Tribunal is a matter to be taken into account as all these costs come from public funds. To postpone the hearing today on the ground that the Appellant is tired because she failed to organize her night shifts properly would be an abuse of public funds.
The Tribunal's decision
After retiring to consider the matter, the Tribunal decided that the hearing would go ahead as planned and would not be adjourned. In reaching this decision the Tribunal accepted and adopted those grounds which were put forward by the Respondents.
DECISION AS TO WHETHER OR NOT TO PROCEED EX PARTE
Having decided to proceed, the next matter to be dealt with was whether, in all the circumstances, it was fair and proper, particularly in view of the rules of natural justice, to proceed in the absence of the Appellant. The Chair invited the Respondents to make a submission.
Respondents' Submission
The Respondents asked that the hearing proceed in the absence of the Appellant. They believed that there would be no prejudice to the Appellant for the following reasons:
(i) When the Chief Inspector initially made the Proposal to Cancel registration, the Respondents took pains to give the Appellant full notice of the charges against her. They did so by serving her personally with the Reasons for that Proposal, found in the report put by the Chief Inspector to the Committee. Accompanying this report were some 115 supporting documents and these were delivered more than the required 14 days before the Committee hearing. In all the Appellant had sight of 119 relevant documents, and was also personally served with a letter dated 15th January 1998 informing her of the Proposal put on 2nd February 1998, and giving her notice that she was entitled to make oral and / or written representations to the Committee. The Respondents urged the Appellant in this letter to do both, giving her the opportunity to have "two bites of the cherry". The Appellant did so and served upon the Respondents in response her own bundle of documents, amounting to some 77 documents in all. Further, at the hearing she produced three more documents, all of which were placed before the Committee.
During the hearing the Chief Inspector took long-hand notes, and, at the Appellant's request, these were typed up and sent to her for perusal by her representative.The reasons for the decision were in the bundle. The Appellant appealed and served her Notice of Appeal including some of her reasons. She subsequently served formal Reasons relating principally to a complaint that the Committee lacked insight into a variety of matter relating to the management of a residential care home. In short, the situation is that the Appellant had sight of every documents in the bundle and no further evidence would be offered to the Tribunal today. On major issues there is no more evidence. She has had full disclosure of all documents and the Respondents have complied fully with their obligations.
It is the Tribunal's decision as to whether the Respondents have been reasonable in making the decision it did, based on the documents before it. It is denied that the Appellant would be prejudiced by proceeding today ex parte. The Committee made a decision on the basis of the documents and submissions, written and oral, made by the Appellant.
The Tribunal's decision
After retiring to consider the matter, the Tribunal decided that there would be no breach of the rules of natural justice in all the circumstances, and that the hearing would proceed. In reaching the decision the Tribunal found that the Appellant would not be prejudiced and in this respect it accepted and adopted the Respondents' submission. In particular, it was satisfied that the Appellant has known the case she had to meet for many months and that she had answered that case, both in writing and orally, at the Committee meeting on 2nd February 1998.
However, in order to give the Appellant every opportunity (i) the Tribunal decided to adjourn until after lunch to give the Respondents a further chance to contact the Appellant and to make sure she continued to refuse to attend the hearing and (ii) that the Tribunal would in any event hear the Respondents' evidence, since the burden of proof was on them to justify their decision.
BRIEF BACKGROUND TO THE DISPUTE
Dr and Mrs Mahapatra were registered as owners of Pangbourne Rest Home (the Home), which provides care for up to 17 elderly residents with mental disorders, on 31st. January 1995. It is understood that Dr Mahapatra is a psychiatrist at North Tees Hospital at which the Appellant worked and continues to work doing night shifts.
The Appellant, then an RMN, was granted registration as manager of the Home on 11th January 1995 by Cleveland, which was abolished in April 1996. From that date responsibilities for registered homes were vested in the newly created unitary authority (the Respondents).
Between January 1995 and April 1996 Cleveland received formal complaints concerning the Home on management-related issues. In March 1995 the Appellant received a "final written warning" from Dr. Mahapatra. From April 1996 the Respondents received seven formal complaints, by relatives of residents, a General Practitioner, a Community Psychiatric Nurse, a Social Worker and an anonymous complainant. These were investigated and between April 1996 and December 1997 various announced and unannounced inspections took place, some 15 visits were made to the Home and meetings took place between the Respondents and the proprietors. The Respondents considered that their visits and inspections revealed management failures and concluded that the Appellant was not a fit person to hold a registration certificate.
A Notice of Proposal to Cancel the Appellant's registration was served on 15th January 1998. On 2nd. February 1998 the Social Services (Regulatory Activities) Sub- Committee (the Sub-Committee) was convened. The Appellant made both written (some 77 documents) and oral representations. A decision was made that the Appellant was not a fit person. On 24th February 1998 the Appellant served Notice of her Intention to Appeal the Sub-Committee's decision to cancel her registration as Manager and sent the grounds for her appeal on 30th June 1998.
SUBSTANCE OF THE RESPONDENTS' CASE
The Respondents' case emerges from its Reasons for deregistration, from its written evidence which included, inter alia, announced and unannounced inspection reports, and from the evidence of its own witnesses at the hearing.
The Reasons on which the Respondents relied for cancellation
At the Sub-Committee meeting on 2nd. February 1998 the Reasons to support the decision to cancel the registration were as follows:
1. It was clear that the responsibility for management lay with the Appellant but she had not carried out her responsibilities in full.
2. The Appellant sought to excuse herself from management failures by claiming that the proprietors had not provided her with sufficient money to do the job properly. She had had the option of notifying the Chief Inspector, and in failing to exercise that option had failed to fulfil her statutory obligations under the Regulations.
3. The Appellant had failed to manage situations which had not arisen from financial strictures. Management structures were not in place and, from her own evidence, she often did not know what was going on in the Home.
4. Her failure to report to the Chief Inspector problems which were within her knowledge was a major failing. Although she said there was no need to do so since the Respondents were making repeated visits to the Home and noting problems for themselves, there was a difference between this and a Manager doing her job properly and reporting such problems, since the Respondents could then have addressed the matters directly with the proprietors.
5. Lack of management skills was evidence by the Appellant being given a final warning shortly after her appointment. Further criticisms of the Home in lay assessors' reports reinforced the conclusion that she lacked necessary management skills.
6. She sought to absolve herself from responsibility for various deficiencies in the Home and did not take responsibility for anything.
7. Management systems were not put in place until after the Respondents had raised an issue.
8. She failed to exercise the managerial skills necessary to run a resident care home to the standards required by the Regulations.
SUBSTANCE OF THE APPELLANT'S CASE
The Appellant's case emerges from the Grounds of Appeal and from written responses to the complaints made against her which she submitted to the Sub-Committee.
Grounds of Appeal
The Appellant submitted grounds for appeal in her Reasons for Appeal, dated 30th. June 1998 and in an earlier letter dated 24th. February 1998. Without going into unnecessary details, these dealt with matters relating to the Sub-Committee meeting, and, in a nutshell, were that a fair procedure was not carried out at that meeting and that it was neither fair nor just. For example, she stated that she was not invited to bring along any representing body in support and that she was interrupted as she gave evidence.
She did, however, also make other assertions, such as the lack of insight by the Sub- Committee to consider such matters as what systems were in place before and after relevant inspections; regarding the qualities of the person left in charge during the Appellant's absence and into the necessity of training to carry out effective care. she also asserted that her own qualification in management and her experience in the care field were devalued by the Respondents; that the Sub-Committee failed to take into account that at the date of the hearing proper managerial systems were in place, and that the Sub-Committee failed to distinguish her failings from those of the proprietors into matters over which she had no control.
The Appellant's responses to complaints made against her by Mrs Spellman in her Report
These will not be explored in any detail as they extend to some 80-odd pages, although they have all been most carefully studied. In brief and general terms they set out the Appellant's CV, including the fact that she trained as a State Registered Nurse, has been employed by North Tees Hospital for 14 years, 6 years of which were spent on elderly care specialising in EMI, and that she holds a first-line management certificate.
She set out detailed answers / explanations to all the various allegations. In particular she dealt with the allegation concerning JA, the gentleman who became ill, was taken into hospital and subsequently died; the question of food adequacy; the matter of DL who "wandered" from the Home; the matter of Grange House Surgery and a complaint by
Dr Holmes concerning his having to visit residents at the Home rather than them being brought to his surgery; an anonymous complaint about the proprietors for their delay in paying wages; the admission of Mrs P; a problem with Mr.S relating to his fear of water; a complaint from Mrs. S; the provision of certain items such as soap and towels for HW; the matter of Dr.Mahapatra promising to increase her salary if she reduced her working hours at the hospital; her difficulties in employing extra staff when the owners, and in particular Mrs Mahaptra, expressly prohibited it, and so on.
REASONS FOR THE TRIBUNAL'S DECISION
Introduction
After having read all the written evidence, after hearing oral evidence from the Respondents and rereading notes taken during the hearing, and after having reconvened after the hearing in order to discuss the matter again, and after most careful and anxious thought the Tribunal is satisfied and finds that the Respondents have failed to prove their case to a sufficiently high standard to justify a finding of unfitness against the Appellant. It follows that her appeals succeeds.
The Tribunal found this was a difficult case to resolve. On the one hand there was an Appellant who treated it somewhat contemptuously by refusing to attend the hearing because she was "tired", having been on duty the previous night, and presenting no opportunity for the Tribunal to see her and evaluate her evidence. It is sometimes the case that the cross examination of an Appellant by Respondents is more compelling than evidence adduced by their own witnesses and the Tribunal was denied this opportunity. There was also evidence, direct and indirect, which suggested that the Appellant was difficult, at times uncooperative and at times less than managerially efficient, and the Tribunal carefully considered all the evidence, for example concerning the lack of light bulbs on the second floor.
On the other hand there was evidence by the Respondents, on whom the burden of proving her unfitness lay, which was often of a generalised nature and, as a consequence, at times unconvincing. Some was unreliable and / or simply not proved. There was evidence that the Manager was at times unsatisfactory, yet the Respondents signally failed to convince the Tribunal that such defects were sufficiently serious as to justify a finding of unfitness. Evidence which could have been adduced, for example, calling the owners who could have shed light on why, inter aria, if the Appellant was so lacking in her managerial skills, they failed to give her notice, was mysteriously absent.
Burden and Standard of Proof
In civil cases the general rule relating to both the legal and evidential burden of proof is that the party who asserts a fact must prove it. In this matter, the Respondents, on whom the burden squarely falls, are required to prove that the Appellant is "not a fit person" within the meaning of the Registered Homes Act. It is not for the Appellant to prove that she is a fit person.
The party bearing the legal burden of proving the facts in issue is required to prove it on a balance of probabilities. The Tribunal does not have to be satisfied beyond reasonable doubt, which is the criminal standard, but simply, (subject to what follows) on a preponderance of probabilities, for example, that it is more likely that the Respondents' version, rather than that of the Appellant, is true. put even more generally, a 51/49% balance of probability would prima facie be sufficient. However, as a consequence of Lyons v East Sussex (Tribunal Decision No.78), in certain civil matters a heavier burden lies, namely, that the more serious the issue to be determined, the higher the standard of proof required. The bare balance of probabilities would be inappropriate and insufficient.
These are serious issues and serious consequences will flow from the Tribunal's decision. On the one hand are the interests of the residents. They must rank very high since they constitute a vulnerable group, being old and mentally frail. On the other hand, and more particularly, are the interests of the Appellant. The consequences of the appeal being dismissed will be serious for her. she has already lost her job at the Home, and her reputation as a nurse must have already been seriously prejudiced. In this respect the Tribunal notes that she still works night shifts at the hospital in which the proprietor,
Dr Mahaptra is a Consultant. It is therefore imperative that the evidence adduced by the Respondents should be cogent, weighty, credible and persuasive to a high degree if it is to succeed. Most regrettably the Tribunal was unable to find it to be sufficiently weighty to brand the Appellant as unfit.
The Reasons for the Decision by the Sub-Committee:
This first "reason" is a generalisation and is much too vague. Where is the evidence ? Further, it begs the question as to whether any Manager of any Home can be said to have "carried out her responsibilities in full". Which Inspector could ever be said to have carried out his/her responsibilities in full ? It is normal practice for a Registered Manager to have her duties defined by the proprietor and accepted by the registration authority. A copy of this document would have assisted the Tribunal to evaluate and weigh the evidence as to whether or not the Appellant had fulfilled her responsibilities. However, this was not produced as evidence by the Respondents (nor submitted by the proprietors).
As to this reason, the only statutory obligations which, if the Rules are interpreted narrowly, are imposed on Managers* by Regulations 14 and 15, are to notify the Registration Authority of death, illness or accident (R14), and in particular R14(d) or to notify the Registration authority of absence (R15). There is no specific statutory obligation on the part of the Manager to notify the authority if the owners have failed to provide her with insufficient money to carry out her job properly, although the Tribunal accepts that R14(d) is framed in such a way as to be a "catch- all". Prima facie, there was no evidence that there had been failures on the part of the Appellant on these grounds and it is for the Respondents to produce such evidence of the Appellant's unfitness.
*( By implication, since the wording states "The person registered". However, it is clear that in this context it is the person who has the day-to-day responsibility of the Home which is referred to.)
However, if "statutory obligations under the Regulations" are to be interpreted in a wider sense, the Tribunal accepts that other Regulations would apply, for example R9, relating to conduct of homes, and R10, (provision of facilities and services). Rule 9, however, places commensurate responsibility on the proprietors. Rule 9(1) states, "The person registered. . . ", suggesting both a division and an intertwining of responsibility where there are two such persons registered, i.e. the Manager and the proprietor. In particular, R9(3) seems to impose more weight on proprietors, in that it is they who "employ" the Manager. The final responsibility relating to the selection and dismissal of a Manager rests with the proprietors alone.
As to the third reason, the Tribunal found that the Respondents had not proved this. There was much said as to the failure of the Appellant to reach certain recognised standards. However, very few standards are statutory. In any event the Tribunal was unconvinced that the Respondents' evidence that "the Hartlepool Reports show that the Home failed to achieve standards in 17 areas out of 20 areas inspected". It found that standards were met in full in 4 of the areas, and several were met in part. If standards were met even partially, then there is not a failure to meet them. In reaching this decision the Tribunal was very conscious that the burden of proving the Appellant's unfitness lay squarely on the Respondents. Yet they failed to produce persuasive evidence. For example, the Tribunal was never told the specific category of the residents in the Home, (the Certificate merely stated "17 elderly people with a mental disorder"), so that it was unable to form any real understanding of their needs, and thus to evaluate the extent to which they were or were not met.
Most surprisingly of all the Respondents failed to call any evidence from the owners themselves, and with regard for example to the complaint relating to the 19-year-old girl who was left in charge of the Home, this was astonishing. One of the complaints before the Sub-Committee was that the Appellant arranged for this young lady to take charge of the Home in the absence of senior staff. Yet the realities of the situation were that before the Appellant went on holiday a meeting was arranged with her, Mrs. Spellman (Chief Inspector) and the owners. Mrs. Spellman's evidence was that "everyone except the Appellant thought it was unacceptable to leave the Home in charge of a 19-year-old girl, " and that she "asked to be notified of a proper managerially competent person to be left in charge", which she never was. The owners apparently agreed at that meeting that the arrangements were unacceptable ("they were as shocked as I was"). However, they did not forbid the Appellant to go on holiday without making more acceptable / appropriate arrangements. Neither did they summarily dismiss her on her return, on the grounds of gross misconduct in that she had disobeyed their explicit instructions not to leave the Home in charge of the young lady, - suggesting that they had given no such explicit order.
The Appellant went on holiday for two weeks, leaving the Home with some 13 residents in it in charge of the young lady. Before she had left both the owners and the Respondents were perfectly aware of the situation and yet did nothing. The Respondents visited the Home on 7th October to check that all was well and accepted the situation "after speaking to (the young lady) and saying that support mechanisms were in place and that we were around". In other words, nobody, and certainly not the owners, felt the matter was sufficiently serious to take steps both before the Appellant's departure or during her absence. The Tribunal finds that under the circumstances it is extraordinary that this matter is later raised as an issue, in particular as a criticism of the Appellant. If anything, it is a serious criticism of the proprietors.
The Tribunal considers that this matter has already been dealt with in answers to 1 and 2 above. In particular, the Appellant's case was that the Respondents were aware of problems in the Home since they visited so frequently. The Respondents case was that there was a world of difference "between the Respondents going into the Home and finding things out for themselves and the Manager doing her job properly by reporting important matters such as lack of funds...the Chief Inspector would then have addressed the matter directly to the proprietors". The Tribunal accepts that central to the issue of trust and integrity is the requirement for those registered to keep local authorities accurately informed (by maintaining accurate records and fostering a good working, co-operative relationship, etc), and to share with them problems which might adversely affect the Home. However, it appears that the Respondents knew of the difficulties, for example that the Manager blamed the proprietors for restricting expenditure and in regards to the Home being left in charge of a 1 9-year-old (- who would be cheaper to employ than a deputy-Manager ? thereby giving credence to her complaints that the proprietors would not permit the expenditure of money on extra staff-). The Respondents knew this well in advance of the Appellant's departure - and so, of course, did the proprietors, who chose to do nothing.
As to the matter of this final warning, the Tribunal never had sight of it. It was not produced as evidence and nor were the owners called to give evidence as to the circumstances in which it was given. In this respect the Tribunal also noted (i) there was no evidence adduced of any earlier warnings, (if any), either; (ii) the final warning was given in March 1995 and yet the owners did not dismiss the Appellant, notwithstanding all the criticisms from the Respondents over the following years, until February 2nd 1998 - after the Sub-Committee meeting had found the Appellant unfit. Surely some of the responsibility for alleged defects in management of the Home must rest with proprietors, who, made aware of such defects, continued (a) to employ such a Manager and (b) continued to allow practices which they must know could result in detriment to the residents ? In this respect the Tribunal considered the continuation of night duties by a full-time Manager, (see below), and such evidence, given by Mrs Spellman, as "whenever I approached the proprietors - anything I found I told them about - they promised they would put it right, recruit new members of staff. They always said they had not been told of the problems".
There was a formal complaint made to the Respondents on 9th March 1995 concerning a resident of the Home, JA, who became ill there on lst March, was admitted to hospital and who subsequently died there. However, the Appellant was not on duty at the relevant time and when next on duty (on 2nd March) she apparently looked at JA and called the doctor, acting appropriately in all the circumstances. There is no real evidence that the final warning given to the Appellant was the consequence of this complaint, without more. The three pieces of evidence presented to the Tribunal (at pp 3 and 15 of the Respondents' bundle and that provided by the Appellant in her written representations, which was the fullest explanation), simply are insufficient to establish any failure of care by the Appellant. This ground is not proved.
As to criticisms by Lay Assessors, the Tribunal has gone most carefully through the evidence and can find nothing in their various reports which goes to the question of unfitness. On page 45, for example, there is nothing in the Lay Assessor's report of detriment to the Appellant, nothing which reflects on her, other than that staff did not always appear to hear call bells. On pp 47 - 58, and p 55 the only issues seems to be that the menu was repeated, the house-keeping was regimented and a comment was made about beds. Improvements suggested to improve the quality of care appear for the most part to be the responsibility of the owners, for example, to provide a ramp access for the Home, to clear the overgrowth and restore the garden, to provide alternative lounge space.
As to the specific criticisms set out on page 73, (Lay Assessors' report dated 14th August 1997 - announced inspection): the first one, (relating to residents not being involved in the recruitment and selection of staff), this is quite unrealistic in the light of the resident group (elderly mental disorder) and can have no substance as a criticism relating to the fitness of the Appellant. As to No.2, "residents are informed of impending vacancies by hearing general talk between staff..", and No.3, "residents are very vague about how medical / care information is relayed" the Tribunal finds these have no substance and are unrealistic in view of the client group. No. 4, concerning a resident who said that she "was not cheeky", - with inferences being drawn from this remark, unsupported by any evidence at all, - the Tribunal finds this ludicrous and certainly not evidence against the Appellant. No 5, concerning privacy, was vague, ambiguous and insubstantial, ("privacy sometimes seems to be respected".) Further, even in the best-regulated Homes there are regrettably occasions when staff enter residents' rooms without knocking - most reprehensible but hardly something to invoke the seriousness of an allegation of unfitness. As to No 7, the fact that there "were only two public rooms".."the garden is uncultivated", etc. is down to the proprietors, not the Manager. No 8, relating to the Lay Assessor being told that staff watch TV, this is not substantiated in any way. No 9 stated that the only place for a private conversation was the resident's bedroom, and the Tribunal considers this can be perfectly appropriate. Even if bedrooms were shared residents would probably not both be in the room together during a day visit. However, the real point is that no evidence has been established to convince the Tribunal that this goes to the fitness of the Appellant. The only justified criticism might be said to be the last where the Respondents, during a 5- hour visit to the Home were not offered a cup of tea. However, in the circumstances - a formal meeting with a, by then, hostile manager - it is regrettable but understandable.
This "reason" included the comment that the Appellant placed great emphasis on qualifications held by herself and her staff. The Tribunal's response is that this is entirely commendable. The better trained, experienced and qualified staff are, the better for the comfort, dignity and welfare of residents. As to the Appellant seeking to absolve herself from responsibility, she undoubtedly did blame others, in particular the owners, for some of the deficiencies, but her complaints may well have been true. she was apparently very restricted in the extent to which she could authorize expenditure, and in many of the criticisms levelled against her, for example concerning the fabric of the Home and payments for increased staff, it is the proprietors who are responsible. There is evidence from the Appellant, for example, that she received two letters from Mrs. Mahapatra that she should not increase staffing levels, and that the Appellant was unable to discuss with her staffing needs. Yet the Respondents failed to call either or both the proprietors to rebut this.
Regarding other criticisms, Dr Mahaptra knew perfectly well that the Appellant was continuing to work night shifts in North Tees Hospital, where, the Tribunal understands, he is a Consultant. The written evidence from the Appellant is that an arrangement was agreed whereby she would reduce her hours there if the Doctor increased her salary as Manager of the Home by some four thousand pounds. He apparently did not increase her salary and she continued to work at the hospital. He must, as a reasonable person and a doctor, have been aware that her full time work as a Manager would be seriously impaired if she continued to work night shifts as well and yet he made no attempt to prohibit her from doing the two jobs. If this was not the case and the blame for deficiencies lay entirely with the Appellant, where was the evidence to support this?
As to the remaining reasons, the Tribunal is satisfied that the Respondents have failed to prove these to a sufficiently high standard.
Conclusion
The Tribunal accepts that there have been criticisms of the Appellant throughout the past three or so years, and it also accepts that some of these are justified. However, even taking into account the totality of the evidence, it finds that the Respondents have failed to discharge the burden of proof to a sufficiently high standard to justify a finding of unfitness.
Margaret Rutherford
Ken Coleman
Michael Attenborough
This decision was written by Margaret Rutherford, QC, LL.B., F.C.IArb, Past Chairman of the Chartered Institute of Arbitrators, after having consulted with the experts, and after they had both seen and approved the draft.