Remo and Pirjo Killikki Casella v Metropolitan Borough of Wirral

The Tribunal unanimously dismiss both the Appeals of the Appellants

At 3.22pm on 18 January 1989 Mr Casella agreed that the Statements and Affidavits of those witnesses for the Respondents who had not been called shall be admitted.

They were:

Mrs Glenda M Brown, Mrs Helen Charles and Miss Sandra Rice (including a further statement d/d 19/1/89) and Mrs Lena Chesworth

THE LAW

On the 8 December 1988 in the case of Warwickshire County Council –v- Valerie McSweeney in the Queen's Bench Division of the High Court of Justice, (CO/1923/87) being an appeal heard before the honourable Mr Justice Roach from the decision of a Registered Homes Tribunal, it was decided (inter alia) that the only conditions which could lawfully be imposed by a Registration Authority in dealing with the registration of a residential care home, were those relating to matters set out in Section 5(3) of the 1984 Act. Further that a Tribunal has no wider power to impose any other condition that it thinks fit, when it allows an appeal than those referred to in Section 5(3) of the 1984 Act because such an unfettered condition would enable a Tribunal to impose conditions which the Registration Authority could not. As the learned Judge said "That would clearly be undesirable....".

This Tribunal confirms their decision that the Registration Certificate dated the 7 January 1988 as amended by the Registration Certificate dated 20 May 1988 do stand, and that the Appellants are duly registered for "6 Elderly Persons". That the Paragraphs 2, 3 and 4 of the Certificate dated 7 January 1988 and paragraphs 3 and 4 of the Certificate dated 20 May 1988 are unlawful and a nullity.

Section 14(3)(b) of the 1984 Act provides that registration shall continue pending the determination of this matter by the Tribunal.

Section 5(2) of the 1984 Act provides for registration and issue of a registration certificate "Subject to sections 9, 12 and 13 below", so that the Registration Authority must be satisfied upon the points raised in Section 9(a), 9(b) and 9(c) of the 1984 Act and would be entitled to withhold registration until so satisfied.

This Tribunal is satisfied that the correct procedure under the "Section 12 Procedure" has been followed by the Respondents.

The Tribunal visited the Tudor House, where they were shown round the premises by the Appellants. They saw the bedrooms, the public rooms and the kitchen. The Statement of the Respondents dated 15 December 1988 does not call into question or criticise the condition of Tudor House nor furniture and effects. The Tribunal do not consider that they can comment upon any matter not contained in the Respondent's statement of reasons. Bedroom No.9 on the 1st Floor smelt strongly of urine.

The members of the Tribunal spoke to some of the residents who were in the Home during their visit.

HISTORY

Mr and Mrs Casella purchased, first No 24 The Kings Gap, Hoylake and shortly afterwards No 22 The Kings Gap next door. Both properties were private dwelling houses, and were vested in the Appellants jointly.

The appropriate change of use of the properties was sought and, in due course obtained for the purpose of a residential care home and/or a nursing home.

A joint application was made to the Respondents on the 8 July 1986, for the Registration of the Tudor House as a home for 16 residents. This application included particulars of staff on the fourth page thereof, and a "manageress in charge".

The Appellants had no previous experience of running a home.

RECORDS

The records to be kept in a Home are set out in Schedule 2 of the 1984 Regulations.

As the result of an inspection of Tudor House by Mr Skelly on 11 February 1988, the Records at the home were described as poor. On the 16 February 1988 the Respondents wrote a letter to the Appellents confirming this point and setting out the details of inadequacy of the records as follows:

A further inspection of Tudor House on the 17 May 1988 by Mrs Purcell took place. So far as records were concerned, there was an improvement. However, in a letter from the Respondents to the Appellants dated 19 May 1988, the following points were noted:

A further inspection of Tudor House on the 4 August 1988. In the report dated 9 August 1988 the general note described the records as poor. In a letter dated 8 August 1988 to the Appellants the complaint about the records at Tudor House was expanded: - "The following records were not available or were not up to date":

A further visit was carried out at the Tudor House on behalf of the Respondents on 24 October 1988 by Mrs Purcell. A report of the same day indicates that records were still not entirely satisfactory and the details were set out in a letter from the Respondents to the Appellants dated 26 October 1988 as follows:

There was an objection by Mr Casella, that he did not receive the last page of each one of the four reports - referred to above. However, it is clear that the Respondents caused a follow-up letter to be sent to the Appellants after each inspection which they (the Appellants) agree that they have received. Such letters set out very fully all the relevant points contained in notes of the Respondent's officers and incorporated in the last page of the Respondents' Report. Far from information being concealed from the Appellants, it was expanded and spelt out in the said follow up letters.

The Staff rotas, copies of which were in the bundle of agreed documents produced by the Appellants, from June 1987 to November 1988 were not well prepared, and had a number of alterations and amendments made to them. There was no indication when these were made. Many were incomplete and others did not provide for night duty rosters.

STAFFING

An important feature of the staffing was the provision of a qualified Manageress or person in control to be registered pursuant to Section 3 of the l984 Act.

A person whom the Appellants approached, was Mrs Mandy Colette Otter. She is referred to as "our would be matron" in a letter written by Mr Casella to the Respondents dated 9 October 1987, which refers to a copy Certificate granted by the English National Board for Nursing Midwifery and Health Visiting in November 1985. Mrs Otter was never registered by the Respondents as the person in control. She would have been interested in the nursing home side of the Tudor House when this became effective

By September 1986, Mrs Jill Parr had been approved by the Respondents to be registered as the Person in control at the Tudor House. As can be seen, there were still outstanding requirements, including the provision of references, before the registration certificate could be issued to the Appellants. The letter from the Respondents to the Appellants dated 5 December 1986 refers. Evidence is clear. The Registration Certificate was prepared by the Respondents but was not issued to the Appellants until the 7 January 1988 (which is referred to in the paragraph headed "The Law" above).

The evidence of Mr Casella is that Mrs Jill Parr worked at Tudor House for 6 weeks in September and October 1986. She resigned on the ground of ill health.

Mrs Glenda Brown was registered as the Person in control and took up her appointment at Tudor House on 14 December 1987 but resigned on the 28 December 1987, because of staff difficulties.

The nest manageress to be registered as the Person in control was Mrs Helen Charles, who commenced work at Tudor House in January 1988 but who resigned on the 22 February 1988. Again there were staff difficulties.

The next Manageress to be registered as the Person in control at Tudor House, was Mrs Linda Joan Spall SRN who commenced her duties on 12 April 1988 and resigned on the 15 July 1988.

The evidence shows that since Tudor House commenced to take residents (limited to 3 only in July 1986), there were only an aggregate of 25 weeks during which there was a manageress or a registered person in control. Miss Tina Ryding came to the Tudor House as a trainee care assistant during the last week of August 1986 on a part time basis. In November 1986 she became employed full time as a care assistant.

Miss Ryding was 16 years of age when she started. Evidence on behalf of the Appellents is not consistent in that Mrs June Linda Ryding and Mrs Millington indicated that all the staff got on well together. However, Miss Tina Ryding said that she did have disagreements with other people, and Mr Casella conceded in his summing up, that while Miss Tina Ryding, was a good and loyal worker, she was not always diplomatic and things were made difficult by her approach. There is no doubt that the Manageresses, Mrs Brown, Mrs Charles and Mrs Spall, all 3 independently blame Miss Tina Ryding's behaviour and attitude for staff difficulties and in part for their own resignations.

There is evidence that some members of staff worked long hours. In particular Miss Tina Ryding and Mr Casella himself.

Of those members of staff (both past and present) who gave evidence, it is noted that there has been a frequent change of staff. Details of the approximate period of employment at the Tudor House of staff relevant to the Tribunal hearing are shown in the visual aid which is in the appendix to this decision.

The quality of care for the residents was diminished by the fact that care assistants undertook domestic duties in both 24 and 22 The Kings Gap as well as the preparation and cooking of food, which is evidenced by the care assistants concerned and the details shown in the Staff rosters.

It was stressed during the first four days of the hearing on behalf of the Appellants that either a Manageress or in her absence Miss Tina Ryding as 'Leading' care assistant organised the routine in the Tudor House and directed the staff duties. However in the later stages of the hearing, the stress was placed upon "a helping family unit in which everyone did her own thing". The Tribunal prefer the evidence given on behalf of the Respondents where there is a conflict, and believes that Miss Tina Ryding undertook the organisation and direction of the duties of Tudor House.

Further where there were difficulties, Mr Casella tended to resolve matters so as leave Miss Tina Ryding in her former position.

DRUGS

Concerns about the handling, maintenance, administration and recording of drugs at the Tudor House were raised repeatedly by Registration Officers over a substantial period of time. These included:

Drug records being inaccurate (Visit by Mrs Purcell in April 1988).

Mr Casella refusing access to past medical records (Visit by Mrs Purcell 12 October 1988)

Some drugs belonging to people who were no longer residents at the Tudor House had not been disposed of, (Joint visit of Mr Skelly and Ms Whitten on 25 March 1988).

The administration of specific drugs to residents for whom they were not prescribed (Mr Skelly when being cross-examined by Mr Casella).

The key to the drug cupboard was kept on the mantle piece above the fireplace in the same room as the drug cupboard.

Young and inexperienced staff were administering drugs.

Allegations by three staff members who administered the drugs that they were instructed by Mr Casella to sign either his or Miss Ryding's initials on the drug records. Perusal of the Drugs Administration Record certainly showed differently formed initials in a few cases.

The Tribunal was told by Mrs Purcell when she was giving evidence that during a recent visit to the Tudor House she found the maintenance of drugs and the medical records to be in order. This we found to be so when we visited the Tudor House.

At the time of our visit the Tribunal was assured that the key to the medical cupboard was always kept on the person of a member of staff on duty, and were advised that no young and inexperienced staff member was allowed to administer drugs. We were left uneasy about these two matters about which we heard conflicting evidence, and were inclined to accept the validity of the statements made by Gail Carver, Deborah Evans and Paula Bastow.

FIRE DOORS

Fire Doors at the Tudor House were seen wedged open on the ground and lst-floors during visits on 11 February 1988, 17 May 1988, and 4 August 1988 by Officers of the Respondents. In her statements the witness Gail Louise Carver indicated that "The fire doors were normally wedged open", and her statement was not challenged in cross-examination on behalf of the Appellants. In his evidence Mr Casella said that Fire Doors were only opened for the purpose of staff and residents passing through them in safety, but the evidence on behalf of the Respondents did not support this contention, and was to be preferred. Also the reference is made to this point by the Merseyside Fire and Civil Defence Authority in their letter dated 7 July 1988 signed by Mr B G Jones.

CARE

In Home Life, the principles of care are set out in paragraph 1 on pages 15, 16 and 17.

The basic principle of personal care is stressed in section 1 of the 1984 Act, which is set out in The Information Booklet on page 3.

There was evidence that when on night duty alone, Mr Casella was observed leaving the Tudor House, crossing Warren Road and entering his residence "The White House", No 26 The Kings Gap. The houses are within visual distance of one another. Nevertheless a Home should not be left unattended by a member of staff on duty for any period of time, either by day or by night.

Tudor House had admitted dependent residents. This fact is born out by the fact that the District Nursing Officer of the Wirral Health Authority assessed the dependency of three residents at Tudor House, as being in need of nursing care, and by his letter dated 11 November 1987, Mr Casella confirmed with the Respondents that Mr Briscoe, Mrs Marriott and Mrs Williams had then been transferred to suitable nursing accommodation.

Upon the removal of these residents, the numbers of residents at Tudor House reduced from 9 to 6, at a time when Mr Casella knew or ought to have known (by reference to correspondence and by oral contact with the Officers of the Respondents) that the number for which provisional registration was to be granted was 4. Through the intervention of Mr Skelly, the Respondents enabled the Appellants to continue with 6 residents for which number the Certificate of Registration dated 7 January 1988 was issued.

The Dependency of Miss Stanley (a resident) was assessed on the 6 January 1988, she was found to be in need of nursing care. Mr Skelly received a letter on behalf of Miss Stanley's relations, who did not wish her to be moved. The Respondents upon considering this plea, allowed Miss Stanley to remain at Tudor House.

The dependency of Mr Teal was assessed on the 30 January 1988 when he was found to be in need of nursing care. Both the Appellants and Mr Teal's relatives were informed on 12 August 1988. By that time there was no manageress and the Respondents were concerned for the welfare of those heavily dependent residents of the Tudor House.

The specific allegations of the administration of suppositories and also the incident related to Mr Skelly by Miss Bastow and Miss Hodkinson when they both made a serious allegation that Mr Casella performed an undesirable practice on Miss Stanley, a fact which he denied, Miss Bastow confirmed this in oral evidence in her examination in chief and added that Miss Stanley bled for about 1/2 hour - She was not challenged in cross-examination. All these matters were alleged to have occurred in or about November 1987.
Mrs Chesworth in her Affidavit claimed that Mr Casella used to put her to bed on some occasions. She objected to this. Mr Casella denied that he undressed Mrs Chesworth.

On one occasion Mrs Gail Carver was asked to wash and lay out a deceased male resident which she did.

In the Lyons case, it was decided (inter alia) that the burden of proof is on the registration authority to prove the allegations it makes on the balance of probabilities, but the more serious the issue to be determined the higher the standard of proof required.

The tribunal has not had corroboration of the incident as alleged above involving Miss Stanley, a very serious matter, which Mr Casella denied. The Tribunal consider that they can take this incident no further.

There was conflict of the evidence concerning the type of protective coverings which were available and used between the mattress and the lower sheet on the beds of residents who were sometimes incontinent. However, what became clear was that 2 residents were found to have their beds soiled by urine when woken in the morning on two or three occasions each week.

There was evidence adduced that there was no barrier cream for incontinent residents for use by the care assistants in or about September and November 1987. This would appear to have been remedied by 1988.

DOCTOR'S VISITS

Evidence was adduced to the effect that there was a failure to obtain the services of a Medical Practitioner on one occasion.

Documents were produced at the hearing on the seventh day, showing that there had been some attendances by General Practitioners on or after 18 July 1988.

In addition 6 residents had been taken for eye-tests between November 1986 and September 1987.

MR CASELLA

Mr Casella was born on 18 June 1929 and, although he had no qualifications as such, he had clearly had experience in business matters. He runs Allied Legal Services at No 26 The Kings Gap Hoylake, which has a certificate dated 12 April 1985 to operate as a Credit Broker. The business offers services to the public, including the arrangement of mortgage facilities and loans. Conveyancing and also representing clients before tribunals.

Mr Casella is a linguist and has taught languages at an international language school.

Between 1979 and 1981, Mr Casella attended a degree course in law at the Liverpool Polytechnic, although he did not sit the examination.

Many of the Witnesses for the Respondents described Mr Casella's as being an excitable person. In his evidence Mr Casella expressed the position by saying that he "showed feelings in a different way". There is no doubt that Mr Casella could show an acceptable side of his character to those whom he wished to please and this is born out by the evidence of the relatives and friends of the residents, who gave glowing accounts of the Tudor House. However, they did not know of the difficulties which the Respondents, the Fire Authority and some of the staff had to face.

After each inspection at Tudor House, a report was prepared by the Officers of the Respondents and this was promptly followed up by a letter to the Appellants, setting out in detail all that was required to be done in order to put right the points which needed attention. Mr Casella replied to these letters, and in each case showed resentment. The Respondents could not get any measure of reasonable cooperation from Mr Casella.

Several of the Respondents' Officers, who gave evidence, were reluctant to give their private addresses, Mr Casella had indicated in this evidence a wish "to find out all about people". Mr Casella wrote a "Report on Miss Glenda Margaret Brown" dated the 30 December 1987, which he signed as "Administrators - For and on behalf of The Tudor House Residential Home". This document made a number of serious accusations concerning Miss Brown and also suggested that she had committed criminal offences. A copy of this report was sent to the Respondents and also to Mersey Nursing Services of Crosby, Liverpool. Mr Casella, in his cross-examination, agreed that he had approached three of the Respondent's witnesses, for the first time, after he had received the copy written statements of what they proposed to say in evidence. He said that the visits were for the purpose of paying holiday pay, due after they had terminated employment at the Tudors house.

The Tribunal were concerned by the documents written by Mr Casella on 28 August 1986, 2 October 1986, 27 April 1988 which made serious allegations against officers of the Respondents and indicated that he did not consider that the inspecting officers were fit to carry out the work which they were appointed to do. Mr George Skelly was accused of having committed serious offences. This alleged conduct was investigated by the Respondents, and was not substantiated. The evidence of the Respondents and of Mr Casella himself, indicate that the Appellants are unwilling to accept the authority and responsibility of the Respondents which is reposed in them pursuant to the 1984 Act and the 1984 Regulations.

The staff difficulties of which there is evidence from time to time are the responsibility of the Appellants. Even where a manageress is appointed as the person in control, the ultimate responsibility for the smooth running and standard of care of the residents is that of the Appellants. The evidence shows that the manageresses did not stay for long.

It was submitted on behalf of the Appellants that because of the experience of Appellants in having to cope with the running of the Tudor House in the absence of a manageress, that they had acquired sufficient expertise to manage the day to day running of the Home. The Tribunal is not satisfied that this is so.

The attitude of Mr Casella towards those with whom he found himself in disagreement could be described as unreasonable, and he tended to over-react. The Tribunal saw this come through in the way in which he conducted his appeal before them. There were a number of occasions when Mr Casella displayed a mercurial temperament which showed him to be irrational and vindictive.

Mrs Casella did not give evidence. It is fair to say that she has been described in the evidence as a kind, quiet and patient person. However, the evidence of Mr Casella is that the affairs and conduct of the business side of the Tudor House is a partnership and in his words "The Appellants" appeal affects them equally,"

For the reasons set out above, the Tribunal unanimously dismiss both the Appeals of the Appellants.

February 1989

W M Jones, Chairman
Miss M Woodier
J Regan

THE APPENDIX REFERRED TO
THE VISUAL AID

Key

** Appellants Witnesses<
## Local Authority Witnesses
xx Not called at Witnesses
M = Matron
V = Volunteer