Decision No. 355
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
DONALD PLAYER ESQ - APPELLANT
V
LANCASHIRE COUNTY COUNCIL - RESPONDENTS
Tribunal sitting at The County Hall, Preston, Lancashire, on Monday 20th, Tuesday 21st, and Wednesday 22nd July 1998 to hear an appeal in respect of Linden House Rest Home, Skelmersdale, Lancashire
Before:
Margaret Rutherford QC
Professor Jane Tunstill
Christopher Wakefield Esq
Representation
Robin Kitching Esq of Counsel instructed by Ms Nicola Evans of Rowe & Cohen, Solicitors
Appellant
Keith Thomas Esq of Counsel instructed by John Taylor Esq of the Lancashire County Council Legal Department
Respondents
DECISION - It is the unanimous decision of the Tribunal that the Appellants' appeal fails and that the decision of the Respondent registration authority shall have effect.
WITNESSES
For the Respondents :
Mrs Shirley Jones (ex-supervisor at the Home)
Mrs Ann Hare (ex-Supervisor at the Home)
Ms Edith Meadow (Inspector)(statement only)
DC Lesley Vicary ( " )
Dr Alaric Hicks ( " )
For the Appellant:
Donald Player Esq (owner of the Home)
Mrs Ivy Gallagher (head of care at the Home)
Mrs Susan Alker (Supervisor at the Home)
Ms Susan Collins (night shift carer at the Home) (statement only)
Ms Jeanette Sawbrooks (Supervisor at the Home) (statement only)
BRIEF BACKGROUND TO THE DISPUTE
The Appellant was registered as person in control of the Linden Care Home (the Home) on 1st. September 1995. Initially it was registered to provide for 30 persons, 15 of whom were elderly and 15 of whom were both elderly and suffering from mental disorder. In February 1996 the terms of registration were varied to allow 30 elderly persons who also suffered from mental disorders to be accommodated.
In March 1997 the Respondents were informed by two members of staff in the Home that the Appellant had subjected a resident in the Home to what was perceived to be physical abuse. The staff in question reported the matter to the Police and the Appellant was charged with assault. Magistrates sitting at Skelmersdale on 17th September 1997 dismissed the charges.
On 3rd October 1997 a Notice of Proposal to cancel the Appellant's registration was served by the Respondents. Representations made by the Appellant were heard by the Sub-Committee of the Social Services Committee of the County Council on 13th January 1998. It resolved to adopt the proposal of the Director of Social Services to cancel the registration of the Appellant. The Appellant appealed through his solicitors on 10th February 1998.
SUBSTANCE OF THE RESPONDENTS' CASE
The Respondents' case emerges from its Reasons for deregistration, and from the evidence of its own witnesses at the hearing and the cross-examination of witnesses for the Appellant which are summarised in the closing submissions.
The Reasons on which the Respondents relied for cancellation
1. The Sub-Committee which studied all the evidence considered that the Appellant did use unreasonable and unjustifiable force against an elderly resident in his care with the result that she became unnecessarily distressed. It was felt that such behaviour was fundamentally incompatible with the standards of care and the treatment which is expected of proprietors registered under the Act
2. The manner in which the Appellant had discharged his responsibilities under the Act was seriously deficient and that accordingly he was no longer considered to be a fit person to carry on a Residential Care Home within the meaning of section 9 of the Act.
In particular (and these were the reasons which supported the Notice of Proposal to Cancel, dated 3rd October 1997 ):
(i) that the Appellant used unreasonable force in an attempt to restrain a resident in the Home;
(ii) that the Appellant behaved in a manner towards a resident in the Home which conflicts with accepted principles of good care practice and the guidance given in Home Life;
(iii) that the Appellant failed to maintain the Home on the basis of good personal and professional relationships between himself and persons employed at the Home and the residents.
Closing Submissions
In summarising the evidence, Counsel for the Respondents (the Respondents) said that there were three aspects to consider, (i) the evidence of Mrs Hare and Mrs Jones; (ii) the evidence of the Appellant; and (iii) the chronology of events. Essentially the matter in issue for the Tribunal to determine was a question of fact, and if it was satisfied by the account of the Respondents' witnesses on the balance of probability, bearing in mind the higher degree of proof required by Lyons, then the case was made out as to the use of unjustified and unreasonable force by the Appellant; his failure to comply with accepted principles of good care practice and guidance given in Home Life, and his failure to maintain the Home on the basis of good personal and professional relationships between him and persons employed in the Home and residents.
(i) The evidence of Mrs Hare and Mrs Jones
The Tribunal not only read their various statements but saw and heard these witnesses. These ladies, who were on very modest rates of pay, are not the sort of people to have invented the allegation. Others who gave evidence, including Mrs Gallagher for the Appellant, spoke of their reliability and of their honesty. No written warnings or complaints were ever made by the Appellant about either, before or since the incident. Indeed the Appellant described Mrs Hare as "excellent", volunteered that he "would re-employ her tomorrow", and that she "put the welfare of residents very high" on her list of priorities. As to the question of her competence, Mrs Gallagher described her as being "very good at her job".
Neither exaggerated. They had every opportunity to do so if they had wished. For example Mrs Hare firmly stated that "Mr Player does not assault residents". on the very day the incident occurred both told Mrs Alker what had happened and together made entries in the records which both signed - the best guide to knowing what happened was this contemporaneous account.
As to the apparent discrepancies between the three statements each witness made subsequent to the incident - (one to the police for the purposes of a prosecution against the Appellant; one for the purpose of an Industrial Tribunal hearing to establish unfair dismissal by the Appellant and the third being statements taken by the Respondents for the purpose of the present Tribunal hearing), - it is important to remember that they were three statements taken by three different individuals in three different ways for three different purposes. As such it was inevitable that there would be some differences, even if they were for the same purpose. The differences were those of emphasis and were not substantial, and both witnesses have stuck to what was said.
(ii) The Appellant's evidence
There was a variety of instances where the Appellant was reckless as to the truth of his allegations, in particular regarding the initial purchase of the Home and who the proprietors actually were (i.e. the Appellant and his son ?) Further, despite a very lengthy statement prepared for the present hearing and elsewhere, and the written account of his interview by the police, he made his first reference ever in cross- examination to Mr M ( a resident) and Mr Buxton (maintenance man). He was making things up as he went along, for example the fact that he followed immediately behind Mrs Jones and Hare as they wheeled the trolley past his office. He made no attempt to give accurate evidence, which demonstrates a lack of credibility. Examples of this are his reference to the incident and in particular to IG's long nails, which the records show were cut only the day before. He was reckless with the truth when he gave his reason for sacking Mrs Jones; no one else, for example, Mrs Collins, Mrs Gallagher nor Mrs Hare were sacked or even reprimanded for not giving IG her medication, and in evidence he also mentioned Mrs Hare "moonlighting", a matter which came up for the first time during his evidence and which was never put to her in cross-examination. The real reason for the sacking was the writing of the report.
He was also reckless with the truth when he explained why he faxed the Respondents - the only time he had ever done so was after the incident. Why would he have done this if nothing untoward had occurred and IG was involved in similar incidents so often, i.e. they were commonplace, as he alleged in his police interview ? This is the lynch pin of his evidence. No satisfactory explanation has ever been given as to this only occasion when he faxed the Respondents to report an incident.
(iii) The chronology of events
The incident occurred on 7th March, and the Appellant's evidence referred to the need to "restrain" a resident and that there were "no injuries". He did not call a doctor, as is required by the guidance in Home Life. His only positive act was to fax the Respondents (for the first time ever, although he stated in evidence that such incidents with IG were common) with an account of the incident. He admitted that on 8th March he knew of the allegation by Mrs Hare and Mrs Jones of his alleged abuse of IG but he neither called the doctor nor took contemporaneous statements from the staff. On 9th March he sacked Mrs Jones and admits to hearing her say "he'll not get away with this" as she left, but still did not call in the doctor nor Mrs Gallagher, the Head of Care. She noticed bruising on IG's left hand, and his evidence was that he asked her if he should call in the doctor but that she said "no, she doesn't need it".
On Monday 10th March a second fax dated 8th but sent on the Monday was sent to the Respondents. Why did he do this if he was so certain that nothing untoward had occurred ? And still the doctor was not called to the Home to examine IG. On Wednesday 12th the doctor called, but only because he had been asked to do so by Ms. Dempsey, the CPN. He was also told by a member of staff that the bruise to IG was from another incident.
What was in effect a pro forma, compiled by Mrs.Gallagher, who was not present at the Home on 7th March, was drawn up on an unknown date but not before 21st March. It gave the names of various staff who had purportedly examined IG but had noticed no injuries. Included in the names was Mrs Alker, but the evidence she gave at the hearing was that she did see bruising. Similarly, notwithstanding Mrs.Gallagher's signed statement, she said in evidence that she saw bruising on IG on 10th March. The obvious interpretation of this document was that it was an attempt by the Appellant to cover up the incident of 7th March.
The evidence clearly establishes the Respondents' case to a high degree of proof.
SUBSTANCE OF THE APPELLANT'S CASE
The Appellant's case emerges from the Grounds of Appeal, from the evidence adduced by its witnesses at the hearing and from the cross-examination of the Respondents' witnesses, as summarized in the closing submissions.
Grounds of Appeal
1. The principle issue on which the Appellant appeals is an issue of fact. He asserts that the allegation made by Shirley Jones and Ann Hare that he, on March 7th 1997 slapped, shook and dragged a resident (IG) amounts to a malicious exaggeration. There was an incident between IG and another resident and he merely intervened to ensure that there was no further trouble. As he did so, IG, who despite her 91 years was unpredictable and could be violent, attempted to attack him and he merely seized her wrists to prevent that. He denies he ever shook, slapped or dragged her, but merely led her by the wrists away from other residents.
2. There were only the two employees and the Appellant present at the time, and the Appellant calls into question the credibility of Shirley Jones and Ann Hare. They made previous inconsistent statements regarding the incident and medical evidence was called to refute their allegations that IG had sustained injury as a result of the incident.
3. If the Tribunal determines the issue of fact in favour of the Respondents, they should consider whether such an incident, given the Appellant's long and unblemished involvement in Homes, merited revocation of his licence.
Closing Submissions
Essentially the issue is a question of fact for the Tribunal: in a nutshell, how did the Appellant behave towards IG on 7th March 1997? The Respondents called two witnesses, but the Appellant says their evidence cannot be relied on as there were many inconsistencies between them and between their own statements. These are some examples: Mrs Jones description of the Appellant's behaviour before any physical contact with IG (i.e. screaming across the room, waving his arms and pointing his finger) was not supported by evidence given by Mrs Hare. If that description were truthful, it is inconceivable that Mrs Jones would have turned to DB at the very point that the Appellant and IG came together.
Mrs Hare's allegation that the Appellant slapped IG's hand did not appear in her statement to the police, nor did she state that she, herself, had been slapped by IG. The Appellant's description of merely parrying a blow is more plausible, and Mrs.Jones' evidence was that she heard only one slap. Mrs.Hare said that after she had been slapped she went back to feeding the residents and there was a gap before IG was pulled into the centre of the room. Mrs Jones disputed that sequence of events. The "incident of abuse" written in the report makes no mention of the Appellant pulling IG across the room.
In evidence Mrs Jones said that both she and Mrs Hare were so concerned by that, that they rushed over to intervene, after which Mrs Hare said she turned to feed another resident - an inconceivable action in the circumstances. If Mrs Jones' description of events is accurate and truthful, Mrs Hare would have been well placed to see what happened next. Mrs.Jones alleged that the Appellant twisted IG's forearms and shook her. Mrs Hare in her statement to the police says she "saw" that. In her statement to the Industrial Tribunal she says she "witnessed" that. However, in her evidence she accepted that she did NOT see it. She could give no real explanation as to how that came to be in her statements. The Appellant submits that it was a deliberate falsehood and that Mrs.Jones' admitted dislike of the Appellant coloured her evidence.
The evidence that was called in relation to the alleged injuries sustained by IG demonstrates that both were Vying. If the Appellant had twisted IG's forearms as alleged, she would have sustained injury. Mrs Hare described bruising on both hands which looked as though IG had "something black on the back of one hand". That extent of bruising was not noticed by any of the staff who subsequently examined her, and if Mrs. Hare and Mrs Jones were telling the truth, those witnesses called by the Appellant must have been Dying. Further, the bruises described would not have vanished by the time Dr Hicks examined IG on 12th March.
The Respondents' evidence is unreliable and the Appellant's version of events was, in the main, consistent and more plausible.
REASONS FOR TIDE TRIBUNAL'S DECISION
Introduction
After having read all the written evidence, after hearing oral evidence and rereading notes taken during the hearing, and after reading and listening to the closing submissions of Counsel, and discussing the matter thoroughly, and after most careful and anxious thought the Tribunal is satisfied and finds that the Respondents have proved their case to a sufficiently high standard. It unanimously finds that the Respondents have proved their case and that the Appellant's appeal fails and is dismissed.
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 he 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 probability, 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 be sufficient.
However, as a consequence of Lyons v East Sussex (an appeal subsequent to 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. 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 particularly vulnerable group, being old, frail and mentally disordered. On the other hand, and more particularly, are the interests of the Appellant. The consequences of the appeal being dismissed will be serious for him. The Home would doubtless have to be disposed of and his livelihood would be seriously jeopardized. More importantly in the Tribunal's view is the damage to his reputation which would be axiomatic in the light of a declaration of "unfitness", particularly in view of his evidence that he and his mother had started some 44 Homes, and that he had been involved in caring for the "mentally retarded" since 1966. 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. In view of this the Tribunal has paid assiduous attention to all the evidence, which has been carefully read, heard and reevaluated.
The matter in issue
The matter in issue is whether or not the Appellant used unreasonable and unjustified force in an attempt to restrain an elderly resident in his care, whether he behaved in a manner towards her which conflicted with accepted principles of good care practice and the guidance given by Home Life, and whether he failed to maintain the Home on the basis of good personal and professional relationships between himself and employees of the Home and the residents.
The incident on 7th March
After most careful consideration of the three statements made by Mrs Jones, the three statements made by Mrs Hare, the two lengthy statements made by the Appellant and the oral evidence of these three individuals given to the Tribunal, it is satisfied and finds that he did use unreasonable/inappropriate force in restraining this 91-year-old lady. The Tribunal does not propose to go through each an every point of the evidence in this connection.
The Appellant's evidence was that he agreed he had restrained IG, but that he did so in order to protect her and another resident. However, notwithstanding some discrepancies in the various statements, and the extent to which some of the statements differed in emphasis from oral evidence given at the hearing, the Tribunal is satisfied that all the reasons set out in the Respondents' letter of October 1997, and in particular those contained in Reasons I & 2, have been proved on a high balance of probability. In reaching this decision the Tribunal took account of all the evidence. It found that inappropriate force had been used to restrain the resident and that felt that it was the Appellant's lack of appropriate training which clearly made a major contribution towards the situation which developed.
Home Life (pages 46 and 47) offers some helpful guidance regarding the management of those with severe dementia and goes on to say that "physical restraint may constitute an assault". Later it states, any restraint should be temporary and medical advice must be sought at once". The Home failed to seek this advice on 7th March and for several days thereafter. The Tribunal also was led to believe that IG has been restrained on a number of other occasions during her time at the Home but there was no clear evidence presented that any proper planning on the management of restraint, or strategies to cope with was said to be difficult behaviour, (referred to as "being naughty" ) had been in place.
The extent to which the Tribunal should be limited in its approach to matters of fact as to what occurred on 7th March
The Tribunal's powers derive from the Act and from the Registered Homes Tribunal Rules of 1984. In particular on an appeal against a decision of a registration authority the Tribunal may confirm the decision or direct that it shall not have effect. Section 15(4) applies as do Rules 9, 10 and 15 which govern procedure, which is in the form of a complete rehearing. Thus the Tribunal felt that, in all the circumstances, and in particular with reference to Reason 3 set out in the letter dated October 1997 (that the Appellant failed to maintain the Home on the basis of good personal and professional relationships between himself and persons employed at the Home and the residents ) it would be inappropriate to restrict evidence to what did or did not happen over some 10 minutes or so on 7th March 1997.
In order to understand the Respondents' case against the Appellant, and to be able properly and accurately to evaluate all evidence which it received from the only three people able to give such evidence as to what precisely occurred (as, of course, none of the residents were called as witnesses), the Tribunal felt it was essential to look at the incident in context. This would include matters leading up to the alleged abuse, if these were relevant to the matters in issue, and to the consequences of the incident. The consequences would, the Tribunal considered, quite properly include the sacking of Mrs Jones. They would certainly include evidence as to what steps were taken, e.g. to examine the resident, to notify the Respondents and the doctor by the Appellant. They would also certainly include evidence adduced by the Appellant on any matters raised in any of his statements and by new evidence which he adduced either in his evidence in chief and/or cross examination. Only in this way, the Tribunal felt, would it be able properly to decide, on the totality of the evidence, the fitness or otherwise of the Appellant.
The Appellant's lack of understanding of the differing needs of a mentally handicapped person (s 1(2) of the Regulations) and those of a mentally frail elderly person
Throughout his evidence the Appellant demonstrated that he had little comprehension of the client group for which he was responsible. In particular, notwithstanding his "30-years (of experience) and 22 residential Homes dealing with mentally handicapped", he was unable to differentiate between the "mentally deficient", "mentally retarded, "manic depressives" and "schizophrenics", which terms he used in his evidence. Mentally retarded individuals were, according to him, "quite adequate, not very good with speech, rejected by society because of their physical or mental appearance". Manic depressives were "people who get depressed and were very violent". Schizophrenics "heard voices, respond foolishly, become violent at times - (we) have to wean them off drugs and bring them back to reality". Individuals with Downs Syndrome "are not really retarded - they just take a long time to learn". As he had so little real comprehension of the differing needs of the various client groups it is axiomatic that he was unable directly or indirectly to fulfil all those needs. In particular the Tribunal notes that as proprietor he must have interviewed Mrs Gallagher for the post of Head of Care, and that, despite her qualities and experience, she also had no qualifications.
The Appellant's lack of understanding of people who are mentally frail and his lack of appropriate training
The Appellant had no strategies to deal with difficult behaviour, had received no independent advice, was untrained in dealing with difficult behaviour, behaviour modification or indeed anything relevant to his work. He stated that he did "not very much" hands-on care, and yet he intervened in the incident with IG, and possibly on other occasions. Had the Appellant followed the advice in Home Life, or indeed been more aware of the appropriate way to manage people suffering from dementia, then it might well have been possible to have diverted IG's attention without the use of force. The Tribunal considers that his lack of appropriate training clearly made a contribution towards the situation which developed. It also might be a contributory factor to his attitude towards the training/qualifications of his staff as very few of them were trained, and all seemed to have learned "on the job". In this respect, the Tribunal was dismayed when the Appellant (and some of the witnesses) used quite inappropriate and patronising language to describe the residents, referring to them as "being naughty", "We know when she's liable to blow", residents wore "bibs" when being fed, and so on.
The Appellant's treatment of staff
The Tribunal finds that the way in which Mrs Jones was summarily dismissed, and the circumstances in which Mrs Hare left her employment, were inappropriate. In particular it notes that the Appellant purportedly sacked Mrs Jones for failing to have given IG her medication. However, it was clear that others had similarly failed to do this and in particular Mrs Gallagher, as Head of Care, must have been aware from the medication record that this was the case. No verbal or written warnings were given. It also found that the way in which both complainants were told to leave the premises forthwith was inappropriate and supported the ground that the Appellant failed to maintain personal and professional relationships with staff.
Lack of honesty and trustworthiness of Appellant
The Tribunal was regrettably unable to accept some of his evidence, for example, it did not believe his explanation for having failed to call out the doctor ("it wasn't necessary. There were no injury s at all"); as to why he faxed the Respondents following the incident on 7th. March; of the real reason he sacked Mrs.Jones "because she was both insubordinate and incompetent", and in particular that she failed to give IG her medication. The Tribunal also found him at times to be facetious and sarcastic although it accepts that this may have been due to nervousness during the proceedings.
The Appellant stated that he was the joint owner of the Home with his son. However, this fact does not appear to have been disclosed on his application form, as a consequence of which he was registered as the sole proprietor. This indicates a lack of openness and honesty towards the Respondents.
He said that Mrs Jones "was proficient in her duties and kind to the residents" and that he had no complaints as to her honesty and reliability. He also said of her that "she was difficult right from the start", "she disliked me, walked out of meetings, turned her back on me when I was trying to talk to her", that the Home "never had a staff meeting that she didn't disrupt", that there was "insolence and rudeness from Jones from the day I got there". However, he not only failed to give her any oral or written warnings but the previous Christmas had given both complainants Christmas bonuses of £50.00 each. The Tribunal found this ambivalence surprising and disturbing.
He agreed that neither Mrs Jones nor Mrs Hare bore him any malice as far as he was aware. He introduced in his evidence-in-chief and in cross-examination new matters, for example the comment that his "maintenance man said, watch your back because they're cooking something and they're going to get you". He also said that Mrs Jones wanted to be head of care, and that she "had been moonlighting for the Respondents for some months before". However, since she had already given her evidence it was impossible to ask her about this. Similarly he said that Mrs Sambrook told him about Mrs.Jones adding certain words to the report of the incident, but again it had not been possible to cross-examine on this.
Summary
The totality of the evidence the Tribunal read and heard satisfied it to a high standard that the Appellant was unfit and that the decision of the Respondents should be upheld.
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Post Script: the Respondents' initial failure to identify the Appellant's lack of suitability to run a residential care home of this type
Whilst it is not part of the Tribunal's jurisdiction to make gratuitous comments, the experts in particular voiced their concern that the Respondents, in registering the Appellant some three years previously, had apparently failed to identify his lack of suitability to run a residential care home for this particular, vulnerable, client group. It would have expected this to have been identified during the fit person interview prior to registration.
Margaret Rutherford
Jane Tunstill
Christopher Wakefield
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 and approved the draft.