Mrs Mussarat Mohammed v North Derbyshire County Council

6 Devonshire Road, Buxton is a large, three-storey, Victorian house close to the centre of Buxton. It has been a nursing home since 1988. On the 16^th March 1988, the Appellant's husband, Mr Abdul Qayum Mohammed was registered to carry on the home, which was then known as the Pendennis Nursing Home.

On the 8^th November 1990, Mr Mohammed and his brother, Mr A Salam Mohammed were convicted by a jury at the Derby Crown Court of two offences of obtaining property be deception. The offences related to the obtaining of £400 in state benefit, in July and August 1989, in respect of a resident in the home who had recently died.

Following the conviction the North Derbyshire Health Authority cancelled Mr Mohammed's registration. There was an appeal to the Tribunal, which was heard on the 24^th January 1992. The appeal was dismissed and the cancellation confirmed. In its decision (Decision No.180) the Tribunal referred to Mr Mohammed's lack of experience in running a nursing home, the limited extent of his involvement in the running of the home, staff shortages and failure to comply with staffing levels, and financial problems. These are all issues that have been raised before us in the course of the present hearing concerning the fitness of Mrs Mohammed to run the home.

In 1992, following the Tribunal decision Mr Abdul Guffar Mohammed and Mr Sadar Mohammed (brother and father respectively of Mr Abdul Qayum Mohammed) applied for registration. The Health Authority granted them registration in respect of the home, which then became known as the Devonshire Nursing Home.

In 1995 Mr.Abdul Guffar Mohammed ceased to be involved in the running of the home and a fresh application for registration was made by Mr.Sadar Mohammed, the Appellant, a Mr.Barrie Jones and Mr.Satish Puri. The application was made on the basis that applicants were partners in the running of the home. It was duly considered by the Health Authority and approved on the 1^st September 1995. The registration was for 25 elderly and 10 young physically disabled patients.

Of the four applicants only the Appellant remains involved in the running of the home. Mr. Puri informed the Health Authority by letter, dated 23^rd December 1997, that he was not a partner in the home. Mr. Barrie Jones gave notice that he had resigned from his position as "Registrar of the Nursing Home" by letter, dated the 1^st July 1998. The Health Authority sought clarification and by letter dated the 20^th July 1998 the Appellant said that, whilst retaining a financial interest in the home, he was no longer involved in its day to day operation. In the letter, which is not signed personally by Mrs Mohammed, she is described as "the registered owner". Mr. Sadar Mohammed died in September 1998.

The Health Authority gave notice of proposal to cancel the registration on the 13^th October 1998 and the cancellation was confirmed following a hearing before a panel of the Health Authority, which took place on the 14^th May 1999. It is against that decision that Mrs Mohammed now appeals, by notice dated the 1^st June 1999

The course of the proceedings has not been straightforward.

The hearing was fixed for the 4^th of October 1999, with a time estimate of five days. By letter dated the 1^st September 1999 the Appellant, through her solicitors, sought an adjournment. The basis of the application was expressed in these terms - "we have been advised that our client has suffered from a road accident and this will necessitate recuperation in Pakistan for a further 6-8 weeks". The Chairman refused the application in the absence of any supporting medical evidence or evidence as to who was running the home in the Appellant's absence. By letter dated the 28^th September 1999, the Appellant's solicitors informed the Tribunal Secretariat that they were without instructions and would not be attending the hearing.

On the 29^th September, Mr Peter Stanniland informed the Tribunal Secretariat by fax that he had been instructed to represent Mrs Mohammed and that he was intending to make a further application for an adjournment on 4^th October.

Shortly before the hearing date the doctor appointed to sit on the Tribunal was taken ill. Urgent efforts were made to find a replacement at short notice and it was ascertained that Dr.Merali could make himself available for the 7^th and 8^th October but not for the earlier part of the week.

On the 4^th October the Chairman sat with Mrs Doidge to hear the application for an adjournment. The main plank of Mr.Stanniland's application, which had been referred to in his fax, was that the Appellant was in negotiation with a third party, Professor Carr, with a view to leasing the home to him for a minimum period of five years. In the event of the negotiations being successful the appeal would be withdrawn. He also expressed concern about Mrs Mohammed's state of health following a road traffic accident and his preparedness for the hearing.

The application was opposed by Mr. Engelman. He pointed to the substantial period that had elapsed since the Respondents had given notice of intention to cancel the Appellant's registration and submitted that the time had come for the uncertainty about the home's future to be finally resolved.

Having carefully considered the submissions we refused the application and directed that the hearing of the appeal would begin on the 7^th October when Dr.Merali would be present. In the judgement of the Tribunal whenever there is an appeal against the cancellation of registration on the ground of unfitness to carry on a nursing home, it is incumbent on the parties and the Tribunal to ensure that the matter is disposed of with the minimum of delay. Seldom will it be appropriate to postpone the hearing of the appeal. The interests of the patients of the home have to be a matter of primary concern. Uncertainty as to the future of a home and delay in a final decision is normally inimical to their welfare and best interests.

In this case a year had already elapsed since the Health Authority started the cancellation procedure and five months since the proposal to cancel Mrs Mohammed's registration was confirmed. The negotiations with Professor Carr were, plainly, only in an early and exploratory stage and could easily lead to nothing. (This proved to be the case. In a letter of the 3^rd November 1999 to the Respondents, Professor Carr indicated that he was not prepared to lease the home on a long-term basis and was prepared only to step in as a temporary registered person until such times as the home can be sold). The application so far as it concerned the Appellant's state of health, was not supported by medical evidence.

In reaching our decision we were conscious of the difficulties facing Mr Stanniland in being asked to represent the Appellant at such a late stage. He was, though, familiar with the issues and had represented Mrs Mohammed at the first representation hearing before the Health Authority on the 16^th November 1998 when he made a successful application for the matter to be adjourned. We also bore in mind that he would have time to consult with Mrs Mohammed and to prepare between Monday and the start of the hearing proper on Thursday.

We heard evidence from the Respondent's witnesses on the 7^th and 8^th October and then adjourned the hearing to the Wednesday the 17^th November with a view to concluding the evidence on the Friday 19^th. Unfortunately, towards lunchtime on the 17^th, as he was about to cross-examine one the Respondent's witnesses, Mr Stanniland became unwell. He requested a short adjournment and we adjourned until 2.00pm. Then he informed us that he would not be well enough to continue to represent Mrs Mohammed and that it was the wish of the Appellant and her husband that the hearing should proceed and that Mr. Mohammed should assist his wife and conduct the hearing on her behalf. We confirmed with the Appellant and her husband that this was their wish and that they did not seek to make any further application for an adjournment. Mr. Mohammed had been present throughout and was well acquainted with the issue in the case, but, at the Tribunal's suggestion, the hearing was then adjourned to the following morning.

Partly as a result of this further complication it became impossible to complete the evidence by Friday evening. Late on Friday the Respondents sought to introduce into evidence, and put to a witness in cross-examination, a letter written to the Respondents by the witness that was inconsistent with his evidence. The letter was, plainly, relevant and material. It had apparently been faxed on the 6^th October by the Respondent's solicitors to Mr. Stanniland and the Tribunal Secretariat, but unfortunately neither the Tribunal nor the Appellant had seen it before. To provide ourselves and the Appellant with time to digest the content of the letter, and its relevance to the witness' evidence, we adjourned for the day at that stage and sat to conclude the evidence on the morning of Saturday the 20^th November.

At the conclusion of the evidence it was agreed by the parties that closing submissions should be submitted in writing without the need for a further hearing unless directed by the Tribunal. We have received detailed submissions from Mr. Engelman and Mr. Stanniland, who has prepared the submissions on the Appellant's behalf, and we are grateful to both of them for their assistance.

The Respondent's Statement of Reasons set our three reasons why it was submitted the Appellant was not a fit person to be registered in respect of a nursing home, namely -

As the hearing proceeded it became obvious to us that the central issue in the case concerned Mrs Mohammed's ability to discharge the duties of the registered person responsible for the carrying on of the home and the extent to which she had been performing this role.

We heard a great deal of evidence in support of the Respondents third reason. The evidence concerned such matters as the recording and administration of drugs, staff duty rota, and the availability of food and incontinence pads, especially at night. It was hotly contested. Its significance for us lay not so much in whether the individual allegations were true or false but in the light which the evidence shed on the tensions between members of staff and on the management of the home.

When Mrs Mohammed was registered in respect of the home in 1995 the nurse in charge was Mrs Joan Walton. She had been in post since mid 1992. She had been interviewed for the position by Mr. Abdul Guffar Mohammed and by the Appellant's husband. She understood the Appellant's husband, who was generally known as "Joe" to be the owner and he discussed the day to day running of the home with her, It was only later that she discovered that his registration had been cancelled before she had been engaged.

In 1996 a firm of consultants, Taylor Healthcare, were engaged to advise on the management and administration of the home. We have not been supplied with a copy of their report, but from a set of profit and loss accounts for 1995, which we have seen, it is apparent that in the first quarter of the year expenditure was running well ahead of income from patients and that efforts were made in the following two quarters to reduce expenditure with a measure of success.

The financial problems continued though. Mrs Walton resigned from her post in May 1997. A month earlier, on the 7^th April, Mrs Mohammed had written to her stating that "we cannot possibly continue to sustain this level of loss". Although the Appellant signed the letter and approved its contents, she told us that it had been drafted for her by a Mr. Hassan. The letter gave Mrs Walton notice of the appointment of "my accountant, Mr. Riaz Awan" as general manager and Mrs Alka Misra as deputy matron. It also informed her of the withdrawal of her use of a car and petrol allowance, that she would be "required to be answerable" to Mr. Awan on all business matters, and that Mrs Misra was to become a partner in the business. Mrs Walton was instructed that she would be required to support her and not show her any antagonism. The tone of the letter, in which a number of criticisms were made of Mrs Walton, was distinctly high handed. It is hardly surprising that she chose to leave following its receipt.

In her evidence the Appellant made further heavy criticism of Mrs Walton's commitment to the home and the way she performed her duties. We note, though, that she was the nurse in charge of the home for a continuous period of almost five years. We also note the assessment of Mrs Pearce, an inspector from the Health Authority, who visited the home regularly, that she was a competent person with good management skills and a proper knowledge of her responsibilities as nurse in charge. If the Appellant had valid and serious complaints about Mrs Walton, it was her responsibility as one of the registered persons carrying on the home to take prompt and effective action to deal with the matters of concern.

Mrs Misra joined the Devonshire Nursing Home in March 1997 and, after Mrs Walton's departure, became the acting matron. Notwithstanding the content of the letter of the 7^th April, we were told by her and Mrs Mohammed in evidence that she never became a partner in the home or held any financial interest in it. She stayed at the home until December 1998.

In her statement of evidence Mrs Misra says that she was not very popular with the staff. We have heard a good deal of evidence from witnesses about her time at the home, some of it favourable and supportive of her, some of it highly critical and damaging. The criticisms of her were wide ranging and included mistakes in the recording and administration of drugs, the manipulative use of fake staffing rota to fool the Health Authority inspectors, the locking away of foodstuffs at night and the inadequacy of supplies of incontinence pads.

Much of the evidence centred on one specific occasion, November 5^th 1997, when a number of MST tablets undoubtedly went missing and subsequently were discovered in a rubbish bin. Where the responsibility for this serious state of affairs lay was hotly disputed. Mrs Misra, as the last person to administer the MST before the loss was discovered, was accused of mislaying the tablets. She claimed that she was being deliberately framed by members of staff who were hostile to her.

We found that this area of the evidence, in particular in relation to the missing MST tablets and the entries in the drug administration book, tended to generate more heat than light. Two of the witnesses relied on by the Respondents, Mrs Rooker and Mrs Fletcher, had to be recalled when it was found that their evidence was inconsistent with the drug administration records. Their recollections of the sequence of events could have faded with the passage of time, but this did not explain all the discrepancies in Mrs Rooker's account, and we would not consider it safe to rely on her evidence.

Where serious allegations are made clear and cogent evidence is required if they are to be made out on the balance of probabilities (see Tribunal Decision 341). We do not feel that the evidence concerning Mrs Misra of serious lack of professionalism and incompetence meets this test. We bear in mind the fact that she has had some 25 years experience in nursing. Further there was no evidence of any patient suffering from a lack of nursing care during her period in the home. We are satisfied that there was considerable friction between her and other members of staff, which may have coloured the evidence. Mrs Pearce's assessment was that Mrs Misra tried her best but that she had difficulty communicating with members of staff and that there were internal problems between her and certain members of staff. Of course it is for the registered person, with the responsibility of carrying on the home, to be alive to such problems and to intervene to handle them to ensure the proper running of the home and to safeguard the welfare of patients.

In late August 1997 a new nurse in charge, Mr. Paul Harrison, was appointed to replace Mrs Walton. He stayed for less than a month. Of significance is a memorandum that he issued during his brief time in the home, on the 6^th September, addressed to all kitchen staff. In it he referred to the unacceptable practice of diluting milk products and to the need to comply with the dietician and a recent Health Authority inspection. We did not hear from Mr. Harrison but we were told by Mrs Misra that he left because he did not like the way in which the home was being run, something which the terms of the memo tend to confirm.

We are satisfied that there were times when stocks of food and incontinence pads were low. We consider this to be a product of the financial constraints under which the home was required to operate rather than a criticism of any member of staff. It is not without significance that there was no evidence before us that any patient suffered from pressure sores or skin infections or was not properly nourished, and we noted on our inspection of the home that the larder is kept locked at night to this day to prevent depletion of stocks.

Following Mr. Harrison's departure, Mrs Jeanne Doy joined the staff at the home, not as matron but as a consultant. Before her engagement she met the Appellant's husband and Mr. Awan at a hotel near Manchester. They discussed the possibility of Mr. Mohammed leasing or selling the nursing home to her and Mr. Mohammed explained something of the home's financial problems. It is noteworthy that these discussions took place with Mr Mohammed and not with any of the registered persons responsible for the carrying on of the home. Mrs Doy worked in the home on a part time basis for about three months by the end of which she had decided that she wanted no further involvement in the running of the home. She worked with Mrs Misra as the acting matron. The two did not get on. Mrs Doy was one of the witnesses called by the Respondents who supported the allegations against Mrs Misra in particular over the missing MST tablets. After she left she reported her concerns to the Health Authority.

Mrs Misra applied to be approved by the Health Authority as the nurse in charge of the home. At a meeting on the 16^th March 1998 attended by Mr Barrie Jones (then still involved in the home) and by Mr Awan in place of Mrs Mohammed, which was convened to discuss complaints by Mrs Doy and others against Mrs Misra, staffing levels and other matters of concern to the Health Authority, Mrs Peach, the head of the Health Authority's inspection unit, explained that they were not prepared to approve Mrs Misra's application in the light of the concerns that had been expressed about her.

In August 1998 Mrs Janet Foster, who had worked in the Pendennis Nursing Home as deputy matron from March to May 1988 and matron from May 1988 to February 1990, rejoined the staff of the home as nurse in charge. She has been approved in that position by the Health Authority. Although the home is registered for 35 patients, there are currently only 14 patients in the home. Mrs Foster told us that numbers have been declining and there have been no new Social Service placements since August 1998. Because of the decline in numbers the top floor of the home is no longer in use.

Mrs Foster has had a difficult task. Since October 1998, when the cancellation procedure was begun, she has been nurse in charge of a home with an uncertain future. From our inspection, and the evidence before us, we feel that whilst standards of nursing care in the home are adequate there is an obvious need for investment. The impression one gets is of a home that is tired, run down and surviving on a shoestring.

Mrs Foster's evidence gave us an important insight into how the home is carried on today. She told us that she regarded herself as answerable not to the Appellant but to Mr. Awan. She said that she had seen Mrs Mohammed only twice since August 1998, once when she brought her flowers after her father died, and the second time, when the members of the Tribunal visited and inspected the home on the evening of the 7^th October.

Mr. Awan was called by the Appellant. He was the author of the letter referred to above in paragraph 18. He is a graduate of the University of Pesawhar in Pakistan and has a degree in accounting and finance. He is currently studying to qualify as an associate of the Association of Chartered Accountants. In his statement of evidence he described his role in the home as to look after the administration, accounts and wages. He said that he worked closely with Mrs Mohammed and described the home as a good home and the residents and happy and well cared for. He also referred to an application that he had made to become the registered person in respect of the home in place of Mrs Mohammed, which had been refused by the Health Authority. He said that it had been refused because of events that had taken place in the home that he considered were beyond his control, and hence that he had been treated unfairly. In answer to a question from Mr. Mohammed he said that Mrs Mohammed leaned on him heavily as the registered person.

In cross-examination Mr. Engleman immediately put to him the letter, dated the 19^th September 1999. The letter painted a very different picture of a home that was being financially mismanaged by Mr. and Mrs Mohammed. Mr Awan claimed that he never had authority to make any payments or decisions himself. To quote just one passage, he said,

Mr Awan sought to describe the letter as an emotional response to the fact that his wages had not been paid for some time. He said the contents of the letter were not strictly correct. Under further questioning it emerged that he also worked for other business controlled by the Mohammed family, that there had been negotiations between him and Mr. and Mrs Mohammed for him to assume control of the home and that the letter had been written in an attempt to disassociate himself from the Health Authority's grounds for cancelling Mrs. Mohammed's registration and to bolster his own application.

At the end of the day Mr. Awan was a much-discredited witness, but his evidence and his role in the running of the home indicated a sorry state of affairs. It brought into sharp focus the central question of just what part Mrs Mohammed was actually playing in the carrying on of the home.

Mrs Mohammed is 31 years of age. She was born and brought up in Parkistan and came to settle in England when was about 16. English is not her first language, and, although she has a reasonable grasp of the language, in giving evidence she had the assistance of an interpreter to help by translating questions that she found it difficult to follow and answers that she felt more at ease expressing in Punjabi.

Mrs Mohammed and her husband have three children, aged 11, 9 and 8. They live in Whalley Range in Manchester, which is a distance of some 30 miles from Buxton and the journey by road across the Pennines is not an easy one. On the 8^th May 1998, Mrs Mohammed was involved in a road traffic accident. A lengthy medical report prepared for a personal injury claim from Dr. Sarah Norman dated the 20^th July 1999 was submitted to us. The report discloses a lengthy pre-accident history of depression, chest pain and other symptoms. Dr Norman was informed by Mr. Mohammed, who accompanied his wife to the consultation, that she was a housewife and part-time nursing home manager at the time of the accident, but that since she had not returned to work as she felt weak, confused and depressed. Dr. Norman was unable to associate the depression to the accident.

In evidence Mrs Mohammed told us that she believed that she could fulfil the role of registered person. She agreed that she had no experience of running a nursing home save for her involvement in the Devonshire Nursing Home or relevant experience, save an NNEB qualification to work in a nursery. On questioning by the Tribunal it was apparent that she had little insight into what the responsibilities of the registered person were or knowledge of the statutory rules and regulations concerning nursing homes. It emerged that she depended on others, in particular Mr. Hassan, to write letters for her, such as the letter to Mrs Walton of the 7^th April 1997 referred to above. Mr. Hassan is a close business associate of her husband who works from the offices of Acorn Holdings and is regarded as part of the Mohammed extended family. When asked to recall the last occasion that she had personally dealt with a problem affecting the running of the home, she frankly said that she could not do so.

We had the opportunity not only to assess Mrs Mohammed giving evidence but also to observe the inter-relationship between her and her husband during the seven days that the tribunal sat to hear evidence. She came across as a quiet, meek person, somewhat lacking in self-confidence. It was apparent to us that her husband was very much the dominant influence and often when answering questions she would look across to him for help.

The legal and financial arrangements under which the home operates are shrouded in mystery. When asked who owned the bricks and mortar, Mrs Mohammed replied "my husband". The property is in fact owned by a limited company, Acorn Holdings Ltd, of which the Appellant and her husband are directors. They each own half the shares in the company. The most recent set of company accounts, to the 30^th June 1998, though, refers to the directors holding the property (and others) in trust. We received no satisfactory explanation as to what this means.

The operation of the nursing home is, though, delegated to another limited company, Service Home Ltd. Its registered address is 6 Devonshire Road Buxton. Mr Mohammed confirmed in evidence that 60% of the shares in Service Home are owned equally by him and the Appellant and 40% by other family members, who have provided financial support for the business in return for shares. He told us that Acorn currently receives no payment from Service Home and that payment is dependent on the profits of the business.

According to the records filed with Companies House, the Appellant was a director of Service Home until the 16^th February 1999 when she resigned. She told us that she did not know why she had resigned. Her husband described it as an accounting exercise. We were provided with no satisfactory explanation of the nature of the arrangement (if any) between Service Home and Acorn and the Devonshire Home Partnership.

The partnership for registration was received by the Health Authority on the 8^th June 1995. In it Mr. Barrie Jones is described as "General Manager", the Appellant as "Admin Support", the late Mr. Sadar Mohammed as "Financial Controller" and Mr. Satish Puri as ."Physiotherapist". The certificate of registration is dated the 1^st September 1995. Bearing the same date is a document headed "Partnership Agreement" to which all four were parties apart from Mr. Puri. In the document Mr. A.G. Mohammed and Mr. Sardar Mohammed are described as vendors and Mr. Barrie Jones, the Appellant and Mr. Sardar Mohammed as purchasers. It refers to an agreement for the vendors to "relinquish their financial interest in the business known as Devonshire Nursing Home" and for the purchasers to acquire "their interest at a price reflecting the total overdraft liability outstanding at the time of official take-over". There is no reference whatsoever to Acorn Holdings or Service Home or to what the financial interest of the vendors was apart from the overdraft liability. Mr Puri was a partner and this was a genuine partnership agreement, one would have expected him to be a party to it. We were shown no partnership document bearing his name and by the letter dated 23^rd December 1997, to which reference has already been made, he informed the Respondents that he was not a partner.

In his written submissions, Mr Stanniland seeks to criticise the Health Authority for what he describes as abandoning action to cancel the registration of Mr. Barrie Jones. He describes the Appellant as " a member of a partnership which was properly registered to carry on a nursing home", and Mr. Jones as a continuing partner. He submits that by not proceeding formally to cancel Mr. Jones registration it abandoned the proceedings against "the persons registered" and could not proceed to cancel Mrs Mohammed's registration.

In our judgement the submission is misconceived and ignores the realities of the case. A partnership is not a legal entity unlike a limited company. It therefore cannot constitute the registered person, under the Act. The Act imposes a duty on all those who carry on a nursing home to register. It creates a formal procedure for cancellation of registration, but not for surrender or abandonment of registration. We are satisfied that the effect of Mr. Jones letter to the Health Authority of the 1^st July 1998 was to give notice of surrender of his resignation and that he ceased to be registered in respect of the home from that time.

We seriously doubt whether there was ever a properly constituted partnership in which those described as partners were ever actively and genuinely involved in the carrying on of the home. We consider it much more likely that Mr. Jones interest was a purely financial one and that he never intended actively to involve himself in the running of the home. As his headed notepaper indicates he is a Manchester businessman, whose line of business is upholstery and French polishing. In the letter to Mrs Walton of the 7^th April 1997, the Appellant described herself as the registered owner. There was no reference whatsoever to any of the other partners. She refers to the appointments she is making, not to appointments that she and her partners were making. The letter of the 20^th July 1998 to Mrs Peach, written to clarify the nature of Mr. Jones' involvement in the home, in which the Appellant is again described as the registered owner, contains this statement -

Mr. Jones was not called as a witness. The evidence before us does not support the submission that he continues to be actively involved in the running of the home.

Before leaving this aspect of the case, there is one observation that we wish to make on the form of the certificate of registration issued by the Respondents. It describes the registered person as "The Devonshire Nursing Home (Partnership)". In the case of a limited company this is correct, as the company is a separate legal entity. In the case of partnerships or trading names, though, we consider that the certificate ought to refer specifically by name to each of the applicants who has been approved for registration. In that way patients, their families and the general public can see who it is who is registered to carry on the home.

In its decision on Mr Mohammed's appeal in 1992 the Tribunal said:-

Little seems to have changed. Between 1995 and October 1998 three matrons were employed and for a lengthy period the home was in the charge of an acting matron. Staffing levels failed to meet requirements and on the 6^th August 1997 a Reg. 15(4) notice was served. The requirements of the notice were not met. Mrs Mohammed spends less time in the home than her husband did and it was apparent from her evidence that she had no clear idea of what the responsibilities of a registered person carrying on a nursing home. As the evidence of Mrs Foster and Mr. Awan confirmed, she is dependent on others and playing no active personal part in the running of the home. This may be explained, at least in part by her state of health, but in the light of the contents of the report it must be doubtful whether she is well enough to discharge the responsibilities of a registered person.

The Act contains no statutory guidance as to what makes a person unit to carry on a nursing home, no doubt leaving it to the good sense of the Tribunal to assess the matter. Past Tribunal decisions have identified the qualities to be looked for. A fit person is someone whose integrity, honesty and trustworthiness can be relied upon and someone who has the relevant experience, ability and knowledge of the requirements of the Act and Regulations to carry on a nursing home caring for patients in need of care and who are likely to be vulnerable.

The Appellant does not have to prove her fitness. It is for the Respondents to establish on a balance of probabilities that she is unfit and for that reason that her registration should be cancelled.

We are satisfied that the Health Authority has discharged that burden. We have no reason to doubt Mrs Mohammed's personal integrity, honesty and trustworthiness but in our judgement she has never had much hands on involvement in the running of home and lacks the knowledge and understanding to discharge the responsibilities of someone carrying on a nursing home. She is dependent on others, particularly on Mrs Foster and Mr. Awan, but it is not their responsibility to make the important decisions and to be responsible for discharging the duties of the registered person. A recent example of this concerns the incident relating to the patient MH, raised in Respondent's amended Statement of Reasons, which she did nothing about personally, referring the Health Authority to Mrs Foster. She is also heavily dependent on, and influenced by, her husband, whose own registration was cancelled on the grounds of his unfitness. We are satisfied that in reality it is he who makes the major decisions affecting the home and that she looks to him to do this.

There has been a long history of inadequate management and control of this home. In inevitably puts the health and welfare of patients at risk. Fortunately there is no evidence that the health and welfare of any patients has been adversely affected. That is though more a matter of good luck than good judgement.

For these reasons the appeal is dismissed and the Appellant's registration in respect on the Devonshire Nursing Home will be cancelled. In the light of this conclusion we do not consider it necessary to make further specific findings on other allegations raised in the hearing. Since the exchange of closing submissions our attention has been invited by Mr. Stanniland to the recent Court of Appeal case of R v North and East Devon Health Authority, ex parte Coughlan (The Times, 20 July 1999). The issue in that case concerned the question of whether nursing care for a chronically sick patient could lawfully be provided by a local authority as a social service or whether it was the responsibility solely of the health authority. In our judgement it has no bearing on the issue in this appeal, which is one of the Appellant's fitness to carry on a nursing home.