Lackundeo Nursing v Hampshire County Council

It is the unanimous decision of the Tribunal that the Appellant's appeal fails and is dismissed, and that the decision of the Respondents, (being the registration authority), to de-register the Appellant, shall be confirmed.

Brief History of the Dispute

Originally a joint application to register was made by the Appellant and his wife. However, her English was thought to be inadequate and on 12th June 1989 the Appellant was registered as the sole proprietor of The Cottage Residential Care Home (the Home), to care for up to 8 elderly mentally disordered (MP[E]) and mentally handicapped (MH[E]) residents with an age qualification of 55 years plus. In January 1990 a Regulation 20 Notice was served, the reasons being that on four separate occasions the Home was found to be understaffed, and that there were inadequate quantities of varied wholesome and nutritious food available. No further action was taken on this matter.

In November 1990 the Appellant applied to increase his numbers from 8 to 9 and certain difficulties were encountered. The Respondents had certain anxieties, for example, concerning the Appellant's work apart from the management of the Home, and concerning accommodation and facilities at the Home. The Appellant withdrew his application to vary. Subsequent visits revealed other matters of concern to the Respondents, in particular, relating to the accommodation of FB, and the sharing of accommodation.

On 5 May 1992 the Operation Sub Committee of the Registration Authority met to consider the proposal of the Director of Social Services to cancel the registration of the Appellant. They reached the decision to cancel registration on the grounds that he was not a fit person (section 9(a) and pursuant to sections 10 and 12) on 7 May. This was confirmed by letter to the Appellant. He received this confirmation on 11 May and on 29 May, he appealed against the decision under the provisions of section 15(1 )(a).

Preliminary submissions of law

The question arose as a consequence of the grounds of appeal, as to whether FB was a resident within the meaning of the Act and Regulations in any event, since he was the ex-father-in-law of the Appellant and the father of Mr Box, a full-time, permanent member of staff. The provisions of section 1(4) relate inter alia, to the exclusion of "persons carrying on or intending to carry on the home, or employed or intended to be employed there AND THEIR RELATIVES" (emphasis provided). Regulation 1(2) provides, inter alia, that "resident" means any person in the home who is in need of personal care by reason or old age, etc……."

After hearing submissions from both sides the Tribunal adjourned to consider this matter, and after careful thought it held that, at this stage, it was not minded to attempt an interpretation of section 1(4). However, it had very carefully read all the documents prior to the hearing, and it was satisfied that, for the purposes of this hearing, FB was a resident of the Home, within the meaning of the Act and Regulations, at the relevant time.

The Respondents' case

The Respondents' case is that the reasons for cancellation were identified in the Regulation 5(2) of the Rules document and that they do not seek to depart from that statement in which four reasons were given to support the contention that the Appellant is unfit. There is no statutory definition of fitness, but the condition encompasses qualities of trust, integrity, honesty and openness. It is more than mere competence to do a job, particularly where, as here, a particularly vulnerable section of the community is involved, several of whom are unable to express informed choice. The Respondents have maintained throughout that the running of a Home of this nature is a partnership which requires trust on both sides. A proprietor requires a degree of judgement over and above that which may ordinarily be expected with residents who are clearly able to make an informed choice, given the nature of the residents at this Home. The Appellant inappropriately admitted an elderly resident in need of nursing care on 23 April 1991, in breach of his conditions of registration. He is a quaffed nurse for the mentally handicapped of some twenty years standing. The Respondents do not accept that he did not appreciate FB's special needs right from the outset. It was clear from the evidence of Ms Gilda Newsham, how apparent those needs were. It is not enough for the Appellant to say that now, with the wisdom of hindsight, he realises he made a mistake about taking this resident in.

He failed to consider the dignity of residents in that he placed unrelated persons of the opposite sex, - the female of whom had learning difficulties and thus unlikely to have been able to give informed consent to this arrangement, and neither of whom clearly understood the full implications, - in shared accommodation. It was not until the Appellant's cross-examination that he was prepared to admit that, - contrary to all the file notes, submissions to, and evidence adduced at, the Sub-Committee proceedings, - there was in fact no communication between him and the relatives of AB, LB and IS about such sharing, or between him and any of the professional team responsible for the residents welfare. That admission to the Tribunal goes to the very heart of the Appellant's absence of integrity. What were his real reasons for accommodation FB? It was wholly inappropriate effectively to disrupt the lives of long term/long stay residents by introducing a gentleman (causing various room changes, including the shared accommodation) who should never have been there in the first place. The Appellants integrity is questioned, as is his honesty in giving the replies, and disclosing the documents he did, particularly with regard to the compilation of records purporting to identify a relationship between IS and FB.

The evidence clearly establishes to the requisite standard of proof that, at best, the Appellant either lacks competence in the sense of his inability to make crucial judgements on behalf of vulnerable residents, or at worst that he is prepared to disrupt people's lives for his own purposes. He had made concessions in his grounds of appeal in that he acknowledged mistakes had been made. However, in no way can this detract from the Respondents concerns regarding his competence.

The Appellant failed to disclose a previous conviction for theft in July 1984. He gave written confirmation in August 1988 that he had no such previous convictions. Prior to registration being granted he said the major part of his work would be at the Home in a managerial capacity. The Respondents sought clarification of this in September 1989 to which the Appellant responded in writing that he had resigned from his previous employment and that his sole interest was the Home. He confirmed in April 1991 that he did have other employment but that this was restricted to two days a month. However, the Respondents discovered that during the period 1 April - 15 September 1991 he had been engaged in work outside the Home for a total of some 316 hours. At no time had the Appellant disclosed this increase, notwithstanding their expressed concerns.

The Appellant also failed to maintain proper records relating to staff employed and the disposal of medication.

On 25 November 1991 the Appellant failed to notify the Respondents of the death of a patient until after some 22 days, in breach of the requirements of Regulation 14(1)(a).

The recently disclosed issue regarding insurance - that the Home, apart from the fabric of the building, is not now, and has not been for the last five months, insured - is yet one further, albeit critical, factor in the Appellant's level of competence. The evidence reveals that he has at best been disingenuous with the Respondents in response to enquiries relating to the insurance cover. All those matters revealed in the Statement of Reasons, plus the disclosure relating to the insurance plus facts in relation to his running of the Home (for example his assurance given just days before the hearing that he had complied with certain requirements and remedied certain defects when in fact he had not done so), clearly support the Respondents having discharged the burden of proof. For these reasons the Appellant is not a fit person to be concerned in the carrying on of a residential care home and the cancellation should be upheld.

The Appellants' case

As to the first Reason for Cancellation, the Appellant admits that he showed a lack of wisdom or error of judgement with regard to the admission of FB. He accepts this. But at the time his motive was to provide personal care for a relative. FB was the father of a member of staff and the ex-father-in-law of the Appellant and thus all the family had maintained close contact with him. It could be argued that he was not technically "a resident" within the provisions of section 1(4). The Appellant had discussed FB's admission with consultants and nursing staff and at the time and in all the circumstances it had been felt that the Home was the best placement for him. A representative of the Health Authority visited to assess FB and no action was taken under Part 11 of the Act. It is acknowledged that the situation was far from ideal, but FB's needs were met, including nursing care needs. There was even evidence that there was some marginal improvement in his condition following admission. The Appellant made all arrangements to have FB transferred to a Nursing Home in June 1991. The Respondents had taken no action on this matter and they had indicated that the admission of FB alone would not have justified cancellation.

As to the room sharing, FB (male) shared a room with AB (female). She was capable of giving an informed consent and this was subsequently confirmed by her next of kin. There was no acceptable alternative at the time. FB was in hospital and the hospital was pressing for his discharge. The Appellant did what he thought the best possible but admits that there were less than appropriate elements to this placement. He accepts that he made an overall mistake in accommodating the two together. In mitigation, mixed wards are used in hospitals for short periods of time and FB was only in the room for some two months. The Appellant accepts the fault regarding recording sufficient details on individual s case file. He will not repeat these.

As to the second matter of room sharing, this relates to IS (female) and LB (male). This was totally in accord with the principles of normalisation and was undertaken as part of the care planning for both. They had a pre-existing relationship (ie prior to their admission to the Home) and they both expressed a desire to share a room. The Respondents have not proved, certainly to a sufficient level in view of the penalty, that the move was not the wishes of the residents concerned, nor that the sharing was in any way improper. They have been unable to obtain either from the Hospital or the CPN service, information from any records regarding these two residents.

The Appellant admits he had a single conviction of theft and that he received 12 months conditional discharge and a £20.00 fine. He is embarrassed about this and acknowledges that he should have declared it. In 1988 he had not appreciated the significance of declaring his conviction. He knew his conviction had been some three years previously and he wrongly thought he did not have to declare it. He realises now that he should have done so. If he had registered it, it may be that the Respondents would have continued to register him. This issue should not now be sufficient to warrant de-registration.

As to the matter of his other employment at the time he said his sole work interest was in the Home (August 1989), this was the case. Subsequently at the meeting in April 1991 he had not been prepared (in the sense of not having his records with him) to discuss the matter. He spoke from memory when he said that his work on the "Nursing Bank" (April 1990 - 1991) was approximately two days a month. The Respondents had not raised the question of his work again and the Appellant had undertaken his "Nursing Bank" work in order to protect his nursing qualification. He had not been asked to disclose details of other employment other than at the meeting in April 1991. Had he been asked he would have provided such information willingly. There was no attempt to mislead and his involvement in other work did not prejudice the care of residents at the Home.

As to the alleged failure by the Appellant on "several occasions" to ensure proper maintenance of records, only two are specified (staff and the disposal of medication). Some eleven matters were raised in the Respondents' letter of 28 June 1990 and the two matters specified were not singled out as especially weighty. In fact the Respondents' letter of 5 July confirmed that these two matters had been satisfactorily resolved, some 16 months prior to the Appellant being advised about the cancellation.

The Appellant acknowledges that he should have notified the death. He admits he read the Respondents' letter of 30 April 1991 (- explaining Regulation 14, requiring notification - ) but failed to read it thoroughly. At the time he was concerned with notifying the deceased's relatives and making the necessary arrangements. It was only later when he read an article in the journal of the Home Owners' Association that he realised he should have noticed the Respondents, and he do so forthwith. He admits his mistakes and has learned from them.

Excepting for the matter of insurance, the Respondents have not adduced sufficient proof that the Appellant is not a fit person. In any instances where the Respondents allege the failure to produce information, they admit they did not ask for it or required it. Many of the complaints were resolved at the time. It would be a sad thing for one to be judged now on a composition of errors or mistakes. It is submitted that any form of "totting up" must be wrong. The Appellant has attempted throughout to be straight with the Respondents, will continue to attempt to be straight and is prepared to continue working with them without recriminations.

The matter of the insurance must be left to the judgement of the Tribunal. Apart from that, the burden is on the Respondents and, where cancellation of a registration is concerned, that burden must be particularly onerous. The Respondents have not proved their case. The Appellant has made mistakes, he acknowledges his wrong-doing, he offered mitigation. His mistakes do not justify the conclusion that he is not a fit person and should not warrant the heavy penalty of de-registration.

The Tribunal's reasons for its decision

The Tribunal was unanimous in its decision that the appeal should be dismissed. It is satisfied that the Respondents have discharged the burden of proof to establish on the balance of probabilities that the Appellant is not a fit person within the provisions of sections 9 and 10 of the Act.

As to the inappropriate admission of FB, it was never made clear whether the hospital (ie consultant nurses and so on) discharged FB believing him to be entering a residential care home as a resident, or whether they thought he was being discharged into the care of a relative, in particular, his own son, his ex-father-in-law etc. The Appellant gave evidence that he had had discussions with hospital staff and that "even the consultants agreed that it was the best decision for FB". The Tribunal was unconvinced by this evidence.

In the event the Appellant agreed to FB's admission as a resident, and, as manager, he was solely responsible for ensuring that such an admission was appropriate. It was not appropriate, since it was obvious that FB's physical condition demanded care beyond the level the Home was able to provide. The evidence of Ms. Newsham made it abundantly clear that her opinion was that the placement was inappropriate, given FB's complete immobility (he was wheelchair-bound and the Home was not designed to accommodate wheelchairs), his incontinence, his dysphasia and his other very special needs. Such an admission would have been a matter of concern at any time. In the circumstances in which it took place it was quite wrong. The Appellant admitted that he had made errors of judgement in relation to this matter and would not repeat them. Nonetheless, it was an irresponsible decision, made for whatever motives, and showed a serious error of judgement, compounded by a total disregard of the consequences the impact of the admission would make upon existing residents.

These consequences, in the Tribunal's view, were directly attributable to FB's admission, and it rejects the Appellant's contentions to the contrary. Both in relation to him and to other residents who were subjected to unplanned moves within the Home, there was a total disregard of the need to preserve the dignity of the residents. The manner in which these moves were made was inappropriate and a matter of concern. The Tribunal is satisfied that there was no prior discussion with the residents concerned, or with their relatives, or with any of the specialist teams. In his evidence, the Appellant had first of all insisted that the relatives had been informed of the proposed moves and had agreed to them. When pressed about this response his story changed. He subsequently stated that he was incorrect, that he had not contacted any relatives of the relevant residents before they were moved. His reasons for this change of story were that he had been confused and "had another issue on my mind at the time." Not surprisingly, the Tribunal was less than impressed with this evidence.

For such vulnerable, handicapped people, a high degree of sensitivity is required in carers to ensure that such residents may retain their dignity and make informed choices. There was no evidence of any such sensitivity, in fact the evidence seemed to suggest that the decision was that of the Appellant, not of the residents. This was further exacerbated by the fact that the residents were in shared rooms, (no single rooms apparent being available) thus negativing choice from the outset.

Of course there are limitations which arise as a consequence of intellectual impairment. However, the temptation to impose solutions because what is wanted is not immediately or clearly articulated, must be resisted, and the Appellant failed to do this. He is a trained nurse of many years standing: he, of all people, should have been aware of such principles of caring for this group. He should not have arbitrarily subjected them to room changes as he did, particularly since some residents had been in the same room for a long time. It was an affront to their dignity to have treated them in this way. As to the matter of records, the Appellant admitted fault. However, the evidence and records which were produced at the Tribunal made it clear that the Appellant appeared to have little understanding as to the purpose of such records. He was unable to grasp the distinction between the significance of crucial events and daily trivia, so that no meaningful case record to facilitate a periodic review of a resident's progress was available. This was glaringly apparent in records of residents of different sexes who were sharing rooms. Such records merely related to occupancy levels and in no way indicated a sensitive counselling/general approach to the needs of individuals. The Appellant stated inter alia, that "counselling" (concerning the alleged need for the room change) "was being done on a daily basis" and that this information "was definitely in their notes". The Tribunal saw no evidence of this and is very sceptical that any such counselling was done.

Finally, there is the whole question of the Appellant's honesty and integrity. The failure to disclose both the conviction and the fact of other employment goes to the very heart of the relationship between an owner/manager and the registration authority. The authority needs to have full trust and confidence in an owner/manager. They are only able to make visits to Homes from time to time, and thus need to rely heavily on such matters as the application form, records, assurances and so on. They need to be totally reassured that whatever is said or written is reliable. They need to have absolute confidence in the integrity and trustworthiness of the owner/manager.

The Tribunal is unconvinced by the Appellant's version as to why he omitted to disclose his previous conviction. It cannot accept that a registered nurse wish a good command of English did not understand the contents of the form he was completing, particularly since this did not happen only once but twice. Neither does it accept his evidence as to his increased hours of work. It is unsympathetic to his assertion that he would have disclosed the fact had he been asked. The first incidence should have made it apparent that he had a duty to disclose this information. It is simply not good enough for him to argue that he was not asked. His failure to offer such information reflects on the question of his honesty and integrity.

The failure to disclose the death in itself would not have justified de-registration. However, in the context of the totality of the situation, it is indicative of the irresponsible approach to his caring responsibilities as a proprietor/manager of a residential care home.

The question of the lack of insurance also goes to the issue of trust and fitness. To have his Home uninsured for some five months without disclosing the true position to the Respondents, clearly demonstrates his unfitness. The evidence reveals that the matter came to light because of concern over legal costs in May 1992. At the time of the hearing in October the matter is still outstanding. His behaviour in this matter shows quite astonishing incompetence. There was no evidence of a sense of urgency, no real attempt to try to resolve such a serious omission. He had a legal and moral duty in respect of the residents staff and visitors to the Home. If as he states, he was uncertain as to what the real position was, he should immediately have noticed the Respondents and sought advice. He was either untruthful or disingenuous to a worrying degree.

In his evidence before the Tribunal the Appellant gave an unconvincing explanation of how an insertion appeared to have been made in a record. The Tribunal did not believe this account, nor were they convinced by explanations he gave in other matters (eg. as to his reasons for moving the residents). In short, they were unconvinced of his truthfulness. The totality of all the above makes the Tribunal reach the inevitable conclusion that his appeal should be dismissed.

Margaret Rutherford

Jack Hanson

Michael Burrell