MRS ETHEL MINGO Appellant
and
LONDON BOROUGH OF SOUTHWARK Respondent
Decision of the Tribunal sitting on 2 and 3 November 1992 at the Council Chambers, Southwark Town Hall, Peckham Road, on 4 November 1992 at the Department of Health, 133-155 Waterloo Road, and on 5 November 1992 at the Department of Social Security, 157-158 Blackfriars Road, London
Before: G F Harwood - Chairman
Miss M G Joynson, OBE
R Humphries
Appeal against the decision of the Respondent pursuant to section 10(a) of the Act to cancel the registration of the Appellants care manager at Lena Fox House, Crimscott Street, London, SE1, a registered home for 27 elderly female persons.
Representation
For the Appellant: Mr Damian Brown (of counsel) instructed by solicitors of the North Kensington Law Centre, 74 Goldborne Road, London, W10 5PS.
For the Respondent: Mrs Gloria McFarlane (solicitor) instructed by the Solicitor to the Southwark Council, Legal Services Division, South House, 30/32 Peckham Road, SE5 8UB
DECISION
The Tribunal unanimously allows the appeal and directs that the decision of the Respondent to cancel the registration of the Appellant in response of Lena Fox House shall not have effect.
REASONS
Mr Gerald Armstrong, Director of Mission Care, took up employment at the Bermondsey and Brook Lane Medical Mission on the 10th June 1991. He met Mrs Mingo for the first time the following day. Lena Fox House, one of the home for which he then became responsible, was a Victorian building which had served as a hospital from 1905 until about 1958 and had then become a care home chiefly for elderly people in need of medical attention. Mrs Mingo was appointed care manager at the end of November 1990. Not long before her appointment many residents had been moved elsewhere, because of registration requirements and fire regulations, leaving in occupation only ambulant elderly residents. Mr Armstrong mentioned rooms with high ceilings, a high proportion of large bedrooms on the first and second floors, and consequently heavy heating costs. Apparently, some interior décor and furnishing, and certain structural features of the building needed expensive refurbishment – and this was not the only home requiring attention, for which the Mission had responsibility.
Concerning the treatment and supervision of Mrs Shorter, we prefer to accept the evidence of Mrs Mingo rather than rely upon the events contained in that lady's somewhat confused unsworn statement. We perceive that there exists a conflict of opinion and judgement as between Mrs Mingo and Miss Graham with regard to the needs of this recent and fairly independent resident. We do not think the evidence about this lady and her requirements justified the criticism made of Mrs Mingo, and we are not prepared to give this matter the significance that has been attached to it. In particular (i) we find that by this time Mrs Mingo has already pressured the Mission to spend money on replacing the call-bell system and (ii) the evidence does not convince us that it was necessary to walk beside the lady to assist her or to prevent her from falling. Indeed Mrs Mingo's evidence showed not only knowledge of the correct theory of the assistance that might have been required to be given, but also seems to us to establish a proper understanding on her part of the need (and possibly also the wishes) of this resident. Another incident occurring while Miss Graham was visiting concerned Miss French, who at the time was sitting at the breakfast table in tears. She told Miss Graham she had had no breakfast. Miss Graham suggested to Mrs Mingo that the lady should be fed, but Mrs Mingo replied that Miss French had already been given her breakfast in her bedroom, as usual, and that this pattern of behaviour had become a habit. In spite of this, and in front of other residents and staff, Miss Graham insisted that Miss French be given breakfast. Miss Graham described to us how Miss French was being ignored and that that the attitude of Mrs Mingo towards the lady was "absolutely amazing". Mrs Mingo told us that the lady was always crying and signifying hunger, that she regularly carried food around in her handbag, and habitually came down after breakfast in her bedroom and would go to the dining room expecting to get another breakfast. We are in agreement with Mrs Mingo when she said under cross-examination "Miss Graham did not know this client as well as I do…. she took it the wrong way"; in any case we do not find anything of substance in the criticism of the Appellant based on this incident.
As regards the alleged failure to initiate assessments, we find that in this particular home there had always been a somewhat 'ad hoc' response to the needs of the residents. We are satisfied that Mrs Mingo was aware of this. Clearly, and reasonably, Miss Graham wanted to see a more structured approach. Mrs Mingo was both agreeable and willing to introduce a system, and in our opinion wished to see this brought about, but unfortunately she did not always have the necessary support of the Mission and a change did not take place speedily enough to satisfy the registration authority. In our judgement Miss Graham was incorrect when she stated that Mrs Mingo does not know what an assessment is – on this point the evidence of the Appellant, which we accept, gave us a firm impression to the contrary.
Miss Graham regarded Mrs Mingo's non-attendance to a resident's problem, whenever such a problem was referred to her, as demonstrating a lack of concern on her part. The fact that a busy care manager cannot always respond to every occurrence does not, to us, seem to have been sufficiently fully considered. In many cases we think it may well be more appropriate that care staff should be the ones to demonstrate direct concern and to use judgement as to when intervention by a care manager is required. We think this would be a rather relevant consideration, particularly when the needs and idiosyncratic behaviour of certain residents are as apparently well known to care staff as they were in Lena Fox House.
Obvious confusion and probable falsification of accident reporting
The principle allegation under this heading rested upon the evidence surrounding Mrs Crump's fall on the 9th August 1991, and subsequent events, which together comprised the most serious of all the criticisms of Mrs Mingo. Miss Graham's reconstruction of those events, and particularly of the circumstances relating to the drafting of the accident report form, do not impress us as being either an accurate or logical foundation for her accusation of deliberate dishonesty. After considering all the areas of conflict between the evidence of Mrs Mingo and that of the staff, the registration office and the resident, we can find no good reason to disbelieve Mrs Mingo's account of the various events. We are satisfied that the answers she gave when cross-examined were truthful; and we find that her written and oral evidence on this matter amounts to a logical and convincing explanation which remains unshaken. We also find that the accident and the details surrounding it were reported to Mr Sercombe, of the Mission headquarters, before the accident/incident forms were completed.
The 'accident' involving Miss Whitlock and the spillage of a hot drink occurred the following day, on the 10th August, when the Appellant was not on duty. The statement of Pat Ojo suggests that whatever occurred was not serious and describes a confusing argument involving several members of staff as to who was present on duty at the time and who should bear the responsibility for reporting it. We do not doubt that some entry was made on the Kardex (which we have not seen). On the next handover to Mrs Mingo she probably should have spotted the entry; perhaps she may not have even checked the residents' Kardex at all. She admitted the occasional lapse in this area of her work if under pressure and we have no doubt that on this particular handover she would have been quite seriously distracted by having to deal with the investigation and reporting of the more significant accident to Mrs Crump. That lapse is excusable so far as we are able to judge from the evidence.
Failure to investigate accidents
We find no evidence of substance to support this allegation. In fact, all accidents do appear to have been investigated by the care manager on duty at the time and, in the case of the accident to Mrs Crump, the Appellant took the matter further herself. The statistical evidence of accidents at Lena Fox House and the attempted comparison with two other homes was, on examination, of no significance whatsoever in our opinion. Indeed, bearing in mind that Mrs Mingo did not take up her post until 30th November 1990, it seems probable that a number of accidents included in the statistics occurred before that date.
Inappropriate behaviour towards staff
Many of the staff witnesses spoke of Mrs Mingo constantly 'shouting'. We think they were probably guilty of slight exaggeration and we bear in mind the explanation given by Mrs Mingo herself that, coming from an Afro-Caribbean community, her voice can occasionally be quite loud. She admitted that she sometimes did speak loudly to member of staff, probably with some justification in endeavours to assert her authority particularly in the early days. We doubt that she was the only member of staff who raised her voice. Nevertheless, we do feel that this is an aspect of her management she might do well to review, but in all the circumstances of this case it is not a sufficient or satisfactory ground to support the allegation of unfitness. It was said that Mrs Mingo should have 'handled staff' in a sensitive manner and obtained their approval and agreement to projected changes. Mrs Mingo mentioned that, at the time of her appointment, the home was controlled by three people – the cook, the housekeeper and Mr Sercombe the acting general secretary of the Mission organisation with responsibility for finance. The cook had worked at the home for some 11 years, the housekeeper for somewhat less, and we can understand how they may well have 'resented any form of change to their routine', such as Mrs Mingo described, when she attempted to introduce even small improvements. It is true the conversion the staff rest room into a second resident's lounge left little space for the comfort of staff. However Dr Payne described the benefit thereby accruing to residents and we prefer to give Mrs Mingo the credit for a commendable innovation and to balance that against the criticism of her for the way it was done (albeit with the knowledge of the Mission, the staff and residents, but excluding Dr Payne) and any discomfiture to certain of the staff; thus we consider that the scale tips in her favour.
Inappropriate training/advice to staff leading to poor care
Apart from matters already mentioned and dealt with under different heads, we find little of any strict relevance to this ground. There was some suggestion, which we find of little significance, that one or two of the staff were required to do jobs which they were not originally employed to do. Our view of this matter of training is that Mrs Mingo participated with the registration authority and (after his arrival) with Mr Armstrong in considering and identifying a plan for meeting staff training needs. The plan was to include training for staff and also for Mrs Mingo herself. Some start was made, but no list of the needs was ever finalised or documented before she heft her employment. It was surely very difficult for her to know what training or other initiatives she could take until after Mr Armstrong was appointed, because this would probably have required financial input, also the approval and active support of an appropriately knowledgeable as well as senior Mission office (for which there was evidently a vacancy until he arrived in June 1991). We accept that even on the day of her interview, and thereafter, she was not afraid to mention shortcomings of the Home. It seems that staff training was not of top priority because other needs, more immediately connected with the welfare of the residents, required to be dealt with first. We can well understand that.
Conclusion
We take the view that Mrs Mingo was probably the victim of circumstances beyond her control. Her troubles seem to us to have been variously and largely attributable to her inauspicious and difficult start at Lena Fox House, to the entrenched attitudes and evident limitations of the staff there, to the rather over-zealous attentions and unbending stance of Miss Graham, to the initial absence from the Mission of an officer with the skill and authority of Mr Armstrong, and to inadequacies in performance, reliability, confidence and managerial skills, of at least on of her deputies. Much emphasis was placed on Mrs Mingo's inability to understand issues and what was required of her: Miss Graham in particular considered that her lack of understanding was a key problem, rather than any deliberate resistance on her part. We have to say that we did not detect such deficiency in Mrs Mingo at any time during her evidence. One striking feature of this case seems to be the lack of communication to Mrs Mingo of the criticisms being made about her and the corresponding lack of opportunity apparently afforded her to meet them at any rime until after she was effectively required to resign from her employment. The absence of contemporaneous documentary or other evidence from sources more reliable than those we have seen and heard if noteworthy and somewhat surprising having regard to the nature of the case. We have no doubt that the evidence we have heard falls far short of the degree of reliability, and lacks the required gravity, to sustain an allegation of unfitness.
G F Harwood
M G Joynson
R Humphries