Mr and Mrs Kenneth McFall v Hampshire County Council

It was proved to our satisfaction that Mrs McFall claimed, in the application for registration of the previous home dated 24 September 1983, to possess the qualification "S.E.N.". Although she had passed Part I of the course, we could not accept that her claim was in any way accidental or due to forgetfulness or any genuine belief. We do not think that the claim was such as to affect the outcome of her application. However the seriousness of the allegation is that it goes to the root of her honesty and integrity in dealing with a matter directly concerning the intended proprietorship of a residential care home. Although in later applications the claim was not made, we felt bound to endorse the necessity for the strictest probity at all times in circumstances of that kind.

We rejected the allegation that the Appellants are not fit persons by reason of their "excitable temperaments and manner and attitudes towards residents". Indeed there was no evidence to justify such a label over attaching to Mr McFall. To the extent that the evidence suggested this as being generally true of Mrs McFall we were satisfied that Mrs Mackie was either exaggerating or mistakenly interpreting what she may have seen. Having regard to the circumstances which the inspectors relied upon to support this conclusion we considered it understandable that Mrs McFall showed anxiety and symptoms of exasperation in their presence and we consider that situations generally could and should have been handled by them more appropriately. Indeed, although on occasions a degree of expertise was lacking in the handling of more difficult residents by both Appellants, we have no doubt on the evidence put before us that they bore no malice towards those residents and genuinely did their level best for them. However, elderly people presenting behavioural problems or suffering substantial physical and mental deterioration require the benefit of rather special management skills and the involvement of staff in related disciplines to find ways in which appropriate care can be provided. We were satisfied that the Appellants treated all their residents to the best of their limited ability and had established the simple and basic approach of treating the elderly people in their home as a family. Whilst this satisfactory result was achieved with regard to those whose care needs were minimal, the Appellants were unable to adjust when faced with the reality of certain residents needing a considerably more professional approach. Nevertheless this was not a ground upon which our decision is based.

There was said to be a lack of respect shown by Mrs McFall for the dignity and privacy of residents. The evidence of the inspectors to support this allegation concerned her behaviour in the course of one particular inspection of the home when she had good reason to be upset. Having heard all the evidence we concluded that no lack of respect was intended and that such behaviour on the part of Mrs McFall was neither habitual nor characteristic.

The lack of records was initially a serious matter. As already noted it was substantially corrected shortly after the Special Sub-Committee hearing at Christmas 1988 at some considerable expense on the part of the Appellants by the appointment of a private consultant. The Sub-Committee decided not to cancel registration at the time despite this allegation before it. Besides the relationship between the Appellants and the inspectorate appears to have precluded the positive dialogue and assistance that one would normally expect of a registration authority regarding such a matter. To the extent that staff records were deficient in 1989 we considered the matter under a different heading.

it seems likely that for a brief period of time or on one occasion room temperatures may have been found to have dropped below that which would ordinarily be regarded as Ideal. This was probably as the result of building works in progress. It was not a regular occurrence. Indeed the home was described generally as comfortable and warm in evidence supplied by the Appellants which we have no reason whatever to doubt. This was not a ground upon which much reliance was placed at the hearing of the appeal and it played no part in our decision.

It was alleged that residents had been confined to their bedrooms by the insertion of a nail through a hole in the door and into the door frame. The strictly factual evidence concerning the doors and frames and the evidence describing the reactions of both Appellants at the time of discovery, was given by Mr Reed. It was not seriously challenged. We accept it. Initially each Appellant gave an account that conflicted with that of the other. Mr McFall later admitted before the Sub-Committee, and before us that he had drilled the holes in the frames, though he contended that this was done much earlier and for an innocent domestic purpose. The function of the nail was to act as a form of bolt to secure the door from the outside. He similarly admitted that by this method the bedroom doors of two residents had been secured for short periods of time to assist in the management of particularly problematic behaviour. Mrs McFall admitted that she used the nail to secure the door of one difficult resident. Mr McFall denied the suggestion that it was a general practice although he agreed that similar holes did actually exist in more than those two doorways. We were satisfied that the occasions were not so infrequent or strictly limited as he would have us believe. One other method occasionally used to prevent the wanderings of two residents was the temporary installation of 'baby-gates'. The Respondent has contended throughout that it is entirely wrong to secure a resident in a room for any reason whatsoever specifying in particular the deprivation of freedom of movement and the creation of a dangerous fire trap. We feel bound to agree that this must ordinarily be so. Remarkably neither of the Appellants appeared to see anything wrong with the former method of restraint and neither could apparently devise any alternative and satisfactory method of dealing with the problematic behaviour presented. We do not believe that either of the Appellants appreciated that to take H upon themselves to restrict the movement of a resident in either of these ways is unacceptable and potentially dangerous. We feel sure however that it was done without malice. Nevertheless faced with difficult situations they should have been prepared to accept the limitations of their own knowledge and experience and to seek expert advice. A glance at paragraph 4.6.2 of Home Life might have proved to be of benefit. In any event we have no alternative but to record what was done as serious in the circumstances. When asked in cross-examination why he did not tell Mr Reed the truth when the nail was discovered Mr McFall told us that "people would have drawn the wrong Conclusions... they were eager to get us back to a second Sub-Committee hearing". That is an explanation which we can fully understand in the context of the unhappy relationship that existed but we find it unacceptable as an excuse. We consider it to be a serious default on the part of each of the Appellants to have endeavoured by deception to mislead an inspector concerning a matter as vital to the welfare of residents as that. For these reasons we considered both Appellants have shown themselves to be unfit in terms of section 9(a).

The inspectors received written information that one resident had on several occasions been made to wipe up her own urine and faeces. Although containing an element of accuracy we considered the source of the information to be unreliable and this allegation was not explored in great depth. There may have been some justification if an attempt was being made thereby to demonstrate to the particular resident that her neglect to use the toilet was unacceptable and we are satisfied that no malice would have been intended. This was not therefore a ground upon which our decision was based.

We were told that new staff rotas had been requested in 1989 in connection with an application for the increase of the maximum permitted number to 25. Mr McFall supplied a rota for the period 25th August to 16th September 1989 which included mention of an individual as being employed at Coppins for 15 hours per week on care duties and 3 nights sleeping-in. The allegation was that this was false information supplied in an attempt to conceal the fact that Mr and Mrs McFall and two young members of their family had been working more hours than it was thought would be acceptable to the registration authority. We found this allegation proved to our complete satisfaction. It was further alleged that another purpose was "to give the appearance that staffing levels were being maintained, which was not the case". This purpose however was denied and not substantiated to our satisfaction. We found as a fact that the employment of the individual in question lasted for only about 3 hours before he was sent home. His inclusion on the rota and its presentation to the inspectorate amounted in our judgment, to deliberate deception. We rejected the evidence of Mr McFall that the rota was prepared in advance and that the individual's name was left on it by accident; nor did we believe that the purpose of its inclusion was merely so that the individual could be called in on any occasion when the Appellants son might wish to go out. We were astonished to hear Mr McFall, under cross-examination seeking to suggest that because "no one has actually been hurt", "the staff rota is surely for one's own use... it was for me" and "it is not a legal document" (presumably meaning that a staff rota is not a document strictly required by law), therefore its inaccuracy should not be regarded too seriously. We consider that the making and production to a registration authority of a false record with intent to deceive is a very serious matter indeed. Conduct of that nature on his part having been established we were satisfied of the unfitness of Mr McFall in terms of section 9(a) on that ground also.

Lastly, there is no doubt that Mr McFall fell asleep whilst on waking duty one night and we were satisfied that he did not attend a resident when he was needed. However, we were told that the call system had failed and had to be repaired. Whilst it is clearly wrong that a member of staff cannot be summoned, for either of these reasons, we found this to be an isolated and unusual occurrence which, albeit serious, did not in the circumstances represent a wilful or negligent lack of service or caring.