Mohamud Isaac Muthy v Dorset County Council

It is the unanimous decision of the Tribunal that the Appellant's appeal fails and that the order of the justice of the peace shall be confirmed.

Brief history of the dispute

The Appellant was registered as the proprietor in respect of Greystones Rest Home on 16th November 1988. At the same tithe Mrs Craig was registered as manager. This was in respect of up to nine residents within the category of old age.

Regular inspections were carried out from 14th December 1988 - 4th December 1991. Complaints were received from former residents and staff and these were discussed with the Appellant who was given an opportunity to resolve the difficulties.

Complaints were made to The Respondents between November 1991 and January 1992. A series of meetings between the Appellant and the Respondents resulted. Letters were exchanged. A schedule of works to be carried out by the Appellant was sent to him. An inspection on 28th January 1992 revealed an improvement in the areas which had been discussed.

On 31st March 1992 a complaint was received from a resident in Harvey Road to say that two drunk visitors had arrived at the Home and that there was a lodger at the Home who went out to work each morning. The Respondents looked into the matter immediately. The Respondents were told that the Appellant was out of the Home, making arrangements for a visit to Mauritius. A message was left asking the Appellant to contact The Respondents.

On 2nd April a message was left on the answerphone by a Mr Gordon that he had been left in charge of the Home whilst the Appellant was away on urgent family business in Mauritius and that the Appellant would return on 3rd May. A further 7 days was allowed by the Respondent for notification in compliance with Regulation 15(1)(3). During this period they did not visit the Home.

On 9th April, no such notification having been received, a visit to the Home by the Respondents was arranged. After interviewing Mr Gordon, the Home was inspected. Certain matters came to light. Later that same evening another visit to the Home took place. Mr Gordon was on duty alone, although a Mrs F Muthy, the sister-in law of the Appellant, was on call in the private accommodation. Mrs F Muthy and four of the seven residents were also interviewed. As a consequence of what was disclosed, the Respondents felt serious concern for the safety, health and well being of the residents. An application was made to a magistrate on 10th April, and an order was granted. The Home was deregistered, the residents, with the exception of one who refused to move, being moved out by The Respondents. The Appellant gave notice of appeal on 29th April 1992.

The Appellant's Case

The Appellant's case is that the evidence upon which the Magistrate's Order was made was incorrect and/or inaccurate and not in accordance with the facts. He had gone to Mauritius because of the serious illness of his mother.

Mr Gordon has known the Appellant for two and a half years, has had experience and was living at the Home when the Appellant left. He was in the Appellant's opinion, a trustworthy, reliable, competent and honest mature man. He was jointly in charge with Mrs F Muthy and was on the premises every night. The resident Mr P was put in the chalet unto his room could be cleaned thoroughly by extra staff.

Mrs F Muthy was fully briefed about running the Home before the Appellants departure. She was on duty every day with at least one other member of staff. She stayed in the Home every night and was always on call.

Mrs F Muthy and Mr Gordon were pressurised by the Respondents. The Respondents were prejudiced in that they refused registration to Mrs Muthy (wife of Appellant) and the potential purchaser of the Home. The Appellant was victimised and the Respondents were doing all they could to encourage the Appellant to sell the Home. They never sent a single resident to the Home and even stopped residents from coming in.

It is admitted from the evidence that the arrangements made by the Appellant to cover his absence were not as satisfactory as they should have been; he mistook the capabilities of the people he left behind. It was human error, due to the situation of stress in which he was. His mother was ill and things can be extremely difficult when family members who live abroad are ill.

Mr Butterworth had visited the Home on 31st March, when he was told the Appellant was not there. He did not feel the need to investigate the complaint any further. The fact that he let seven days elapse indicates he did not consider the residents to be at risk. It appears that the Respondents were only waiting for are technicalities.

As to the evidence at the hearing, there were conflicting statements. But the notes on which the Respondents relied were never produced. Mr Butterworth had said that by implication he understood that Mr B was being punished whereas Mrs Whately said clearly in her written and oral evidence that Mr Gordon said Mr.B was being punished. There were other instances of conflicting evidence.

The residents were well looked after, comfortable, happy and secure whilst at the Home. They would all like to return to there. There was no serious illness. The process by which the Home was closed was extremely high handed. The Appellant should have been given a warning before the order was applied for. No help was offered, or alternatives suggested. Pressure was put on the residents to move; had

they had a free choice they would not have moved. Both RC and JE came back to the Home after they had been moved.

The Respondent's Case

Almost from the registration of the Home, complaints had been received by former residents and staff about the care provided, standard of accommodation, food and difficulties concerning the residents' own property and benefit books. A series of meetings took place between the Appellant and the Respondents and a schedule of works to be carried out was sent to the Appellant on 17th January 1992. An

improvement was noted in the areas which had been discussed with him.

On 31st March 1992 a complaint was received from a resident in Harvey Road to the effect that two drunk and noisy visitors had arrived at the Home and also that there was a male lodger in the Home. As a consequence of this complaint an immediate visit was undertaken. The Respondents were told that the Appellant was out, making arrangements to visit Mauritius on urgent family business. A message was passed to the Appellant requesting him to contact the Respondents.

On 2nd April 1992 a Mr Gordon left a message on an answerphone to say that he had been left in charge of the Home whilst the proprietor was away. The Respondents visited the Home on 9th April 1992 in order to ascertain what arrangements had been made. They questioned Mr .Gordon and Mrs F Muthy. They also questioned those residents who were in.

It was not clear when the Appellant had gone abroad, but it appeared to be from 29th March 1992 until 3rd May 1992, that is to say for a period of five weeks. He failed to notify the Respondents as specified in Regulation 15(1), 15(2) and 15(3). He left in charge Mr Raphael Gordon, a 32-year old part-time student who had been involved in catering. He said he had never worked in my residential care setting previously and had no knowledge whatsoever of personal care services. He was handed a standard set of application forms to complete as soon as possible but in a later visit he declined to give any other information about himself other than his name and age. (The Respondents' witness said he stated his age as 29).

The arrangement between him and the Appellant, he said, was that he was doing a favour for the Appellant, and that he received no remuneration. He was not a fit and proper person to manage the Home, having no previous experience of residential care. He was not aware of the implications of running a Home. Had he been so informed he would not have agreed to accept the responsibility. He acknowledged his lack of skill and knowledge to provide adequate care for the seven vulnerable residents at the Home.

The minimum level of staffing required by the Respondents for this Home was one responsible person in charge and one other mature adult. The roster showed only one person on duty between 1415 and 1915. No second person was available.

Mr Gordon advised the Respondents that he was on call at night from 1915 - 2015 but that he occasionally spent nights in his own flat. The only other person on the premises was Mrs F Muthy, sister-in-law of the Appellant. She was looking after the flat in the absence of the Appellant. She made it clear that she had no responsibilities or duties in relation to the Home. She was unable to offer assistance to residents on account of her own ill heath. She did not know the residents, staff or organisation of the Home, had little communication with anyone else on the premises and was unable to provide any emergency assistance. She had been given no information about anything to do with the Home. She stated to the relevant officers that she had only visited the Home once before and that she had simply been asked to live at the Home for a few weeks to keep an eye on the Appellant's business interests.

At the time of the investigations, no adequate records were available to the Respondents. Mr Gordon was unable to provide them with access to the residents' records. The most he was able to provide were two rough sheets of paper written in pencil referring to two residents.

During the visit the Respondents discovered that a chalet or shed was being used to accommodate a resident. He had been moved from his room to this garden chalet as a punishment at Mr Gordon's instigation, according to Mr Gordon. This was because one of the beds in his room had been soiled by a drunken guest. The resident slept in a sleeping bag on a metal frame bunk bed. There was no storage space for his personal possessions. The weather was not warm and there was no heating in the chalet. It was not connected with any emergency call system, had no hot water, and the nearest toilet facilities were through a covered way and kitchen, some 10-15 yards away.

Physical standards of care - for example beds, linen and lavatories - were inadequate and unacceptable. No funds were available to provide food for the residents. Their Benefit Books were unable to be found. A number of residents said that the books were normally held by the Appellant and that before his departure he obtained their signatures on all orders payable up to and including the week beginning 4th May 1992 when he was due to return.

When the Respondents visited they found 7 residents ages ranging from 64 - 86. Their disabilities included old age, confusion, physical frailty, physical illness, long-term psychiatric problems, limited intelligence, alcoholism and physical aggression. They all required skilled care which was beyond the ability and experience of the staff.

Because there had been no notice given to the Respondents that the Appellant was leaving the Home in the charge of someone else, because of the total unfitness of Mr Gordon, the person who was in charge, because of inadequate staffing, and in particular inadequate night staffing, because there was no access to records, either by the Respondents or, apparently, to Mr Gordon, because of inappropriate treatment to residents, in particular, to Mr B and to Miss U, because the standards of the Home were inappropriate as were the financial arrangements for the welfare of the residents, and the level of care inadequate, the Draconian step of closure was justified. The Respondents considered their lives, health or well being was placed at serious risk and an application was made to a Justice of the Peace on 10th April 1992. The Home was deregistered and the residents were removed out of the Home.

It is accepted that the closure of a home by order is a serious, Draconian step, and to find serious risk because of clear traumas to all concerned, the Respondents have to satisfy the Tribunal as to the truth of the allegations on a high degree of probability. The Respondents, on the evidence, have clearly done so. The Appellant was away from the Home some five weeks and clearly failed to provide notice to the Respondents containing the material information within the provisions of Regulation 15, even if he did send the letter. The first ground for closure (the Appellant failing to notify the Respondents) has been fully made out. As to the second ground, (person in charge not a fit person) this again was clearly been made out by the Respondents. It was unclear whether Mr Gordon was solely in charge (as he indicated from his recorded telephone message) or jointly, with Mrs F Muthy. Whichever it was, he was in charge, and he was not fit to manage. It is difficult to imagine someone less suitable to look after such vulnerable people. His own evidence, particularly his answers in cross-examination and to the Tribunal's questions, demonstrates he was not a fit person to manage a care Home. The results of the hearing served only to reinforce the proper view of the evidence presented to the officers in April. There is a conflict of evidence as to what Mr Gordon said to the officers but if the Tribunal finds the evidence of the officers more credible, the ground is made out in full.

As to the third ground for cancellation, (minimum staffing level), in cross examination Mr Gordon resorted to the suggestion that Mrs F Muthy worked a 24 hour shift. But no evidence relating to the level of staffing was adduced by the Appellant, no member of staff was called. The level of staff during the day has not been contradicted and is as set out by Mrs Whately. As to the situation at night, Mr Gordon's evidence was evasive and unhelpful. What was reported to have been said to the officers was probably the case - that he occasionally spent nights in his own flat. That meant that Mrs F Muthy was the only person on the premises. On the one hand Mr Gordon said she was apparently working every hour God sent, on the other hand the Respondents' evidence is that Mrs Muthy told them that she played no practical role in the running of the Home, and was only there to look after the Appellant's interest.

Mrs F Muthy did not give evidence and all that is available is her affidavit, more significant for what it does NOT say than for what it does. She did not indicate her present, up-to-date experience, in what capacity she worked, it does not explain the nature of her past visits to the Home. In cross-examination the Appellant said that they were family visits, occasionally overnight, and he could remember four occasions when she stayed at the Home. How, then, could she possibly say that she knew the staff and residents very well in those circumstances? Compare what she says with other evidence. For example, she says that the Sundhoos came "every day and night," but this does not accord with what Mrs Sundhoo said under oath or Mr Sundhoo said in his inadequate statement. In her affidavit she admits to misleading the Respondents. Her credibility is flawed, and the evidence given to the magistrate by the officers was the truth. If Mr Gordon's account of her role is correct, working as extensively as he says she did, then she has been absolutely dishonest with the Respondents. If, however, Mr Gordon was incorrect and the reality is that she was telling the Respondents the truth when she said she had little practical experience, then neither brings credit to the Appellant's case.

Ground four (relating to duties) is also very clear cut. It is clear that Mr Gordon was completely at sea regarding records. Ground five, relating to records, is also clearly made out. All residents needed skilled care, a fact admitted by the Appellant. Mr Gordon was completely out of his depth, and there was nothing to suggest that Mrs F Muthy was actively engaged in care. As to the written evidence submitted by the Appellant, much of this is irrelevant and none has been tested.

In summary, the issues before the magistrate to establish serious risk were the dangers of the incompetence of Mr Gordon; the dangers of the neglect apparent in the Home; the dangers in the inability to respond to an emergency situation. It is impossible to gauge serious risk actuarially; one has to look at it in terms of the potential for harm and therefore serious risk. The evidence to support this was that residents smoked in their rooms; a number of residents were alcoholics; Mr B was in the habit of having drinking companions in at night; a number of the residents were mentally unstable; there was evidence of physical frailty and lack of mobility, in particular Miss U; the evidence of Mr Gordon's inability to deal with certain matters, e.g. Miss U; his patent lack of awareness of any safety procedures, and in particular fire; Mrs F Muthy's lack of involvement in the Home and the neglect/treatment of Mr B concerning his soiled room. One only has to consider the terrible situation of the occurrence of a fire…. The evidence clearly demonstrates a serious risk in the terms required for a closure order.

The Tribunal's reason for its decision

Serious Risk

The Tribunal, after most carefully studying all the documentation and rereading notes of all the evidence adduced at the hearing, are unanimous in their decision that on 10 April 1992 when the Respondents went to the justice of the peace for an order, there WAS and would have been a serious risk to the health and well-being of the residents if the order had not been made. The Tribunal is very conscious that such an order, particularly where, as here, it was made ex parte, is Draconian, and that the consequences were grave for all concerned. In particular, the Appellant lost his livelihood and reputation at a blow, without the ability to argue the merits of the decision until the appeal hearing was set down. (In this case, due to a whole variety of circumstances, this was delayed.) As to the residents, for whom the legislation should protect their welfare and provide a shield against disturbance, they, too were subjected to the stress and anxiety of a sudden move to new accommodation. The residents' relatives must also have suffered from anxiety following the precipitate move.

However, The Tribunal is satisfied that the Respondents were right to act as they did, and it confirms the order of the Magistrate. It is convinces by the evidence of the Respondents. It is satisfied that the Appellant was unfit, in that he made totally inadequate arrangements for the well being of the residents in his Home during a lengthy absence abroad, by asking one who was unqualified, untrained, inadequate and inexperienced to act as the person in charge; he failed to notify the Respondents adequately or at all of his departure overseas and of the substitute person left in charge; and that he showed a serious lack of judgement in selecting someone as inappropriate as Mr Gordon to take charge. It is also satisfied that the vulnerable residents were at risk in the Home and that the risk to their health and well being was serious enough to justify the Draconian step of sudden closure. The serious risk was that they were left in the charge of someone with no knowledge of residential care, that no records were available, or apparently being kept, that drunken behaviour was apparently being allowed to take place in the Home, that there was a serious potential fire risk, given the evidence that drunkenness was not unknown and that several of the residents were heavy smokers; that staffing arrangements were vague and unreliable, due to a lack of accurate and reliable records; it was also not at all clear that there was anyone on duty on some nights since the evidence was that occasionally Mr Gordon slept at his own flat and that Mrs F Muthy did not regard herself as being on duty; and that at least one of the residents had been treated quite inappropriately in that he was put into an unheated garden chalet without emergency communication, hot water or toilet facilities.

Notification of absence to the Respondents

The Tribunal is unconvinced by the Appellant's assertion that he notified the Respondents in advance of his departure. It is sceptical about the copy of his letter he adduced. Even if this letter had been sent, which it does not think was the case, it is quite inappropriate to comply with the provisions of Regulations 15(1) and (2), that is to say, it contained no details, e.g. as to the arrangements which had been made for the running of the Home during that absence. This was all the more serious since (a) the Appellant had been warned on a previous occasion about leaving residents and going abroad without information the Respondents and (b) as a trained and experienced nurse he should have known what an irresponsible act it was to omit to send any details of Mr Gordon/Mrs F Muthy to the Respondents.

Mr Gordon

Mr Gordon's evidence is that he was left in charge of the Home by the Appellant. The story he allegedly gave to the Respondent's officers contradicted that in his affidavit and in the oral evidence he gave at the hearing. The former, being an account by officers visiting the Home purported to be an account of what he had told them on their visit to the Home. It indicated that he recognised his shortcomings, that he had had no previous experience whatsoever in the provision of residential care, and that he had moved Mr B into the garden chalet by way of a punishment for the soiling of his room. It was alleged he had no records of the residents, save information about two of them contained on small scraps of paper, that he was looking after the Home as a favour to the Appellant, received no salary for his services, and that he appeared to have little knowledge of "the lady next door", i.e. Mrs Fadia Muthy. His affidavit evidence and his oral evidence at the hearing gave a different account, for example, that he was jointly in charge of running the Home with Mrs F Muthy, that he was always on the premises at night, that he moved Mr B only in order to have his room cleaned.

Most unfortunately, the Tribunal finds that it is obliged to make personal and disparaging remarks about Mr Gordon since the question if his fitness to look after the Home in the absence of the proprietor directly reflected on the serious risk to which the Tribunal considered the residents were exposed as a consequence. It found Mr Gordon's evidence totally unconvincing. It was satisfied that, apart from a few years after leaving school, he had been and remained unemployed, had no experience of residential care, had absolutely no idea of the responsibilities and duties associated with caring for vulnerable people, had no idea of the importance of records, or where there were, of fire drills, and so forth. He even seemed unable to comprehend that, just because they were mobile, this did not make the residents less vulnerable. His evidence was evasive and at times open to serious doubt as to its veracity. The Tribunal was unable to place much reliance on what he said.

The Appellant

The Tribunal was unimpressed by the Appellant's evidence, much of which it had difficulty in believing. For example, it did not believe the letter of notification was sent to the Respondents, and it considers that his departure was done in a way to disguise the fact from the Respondents. The choice of Mr Gordon, this inadequate, untrained, inexperienced and quite unsuitable person, by the Appellant showed a total lack of judgement and in the Tribunal's opinion rendered him unfit to run a Home. He appeared to know very little about Mr Gordon, and had taken up no references. He was evasive and unreliable in his evidence concerning Mrs F Muthy and failed to check or have any knowledge of her recent work. For the Appellant to have left such persons in charge of his vulnerable residents, exposing them to serious risks, shows a breach of trust by the Appellant in the caring for his residents.

Mrs F Muthy

This lady did not appear for the hearing and her affidavit contradicted the evidence of the Respondents' officers. She said, inter alia, that she had stayed with her brother-in-law at the Home "on many occasions", that she knew staff and residents "very well", that she had been "fully briefed" as to the running of the Home, that "at least two staff were on duty all the time" and so forth. The Officers' evidence, which the Tribunal believed and accepted, was that she told them she had only visited the Home once before, that she was given no information about the residents, or about anything to do with the Home, that she was not asked to take over any responsibilities or carry out any duties in the Home, and that in any event she was incapable of carrying out duties due to an injury. There appeared to be very little communication between her and Mr Gordon and no clarification as to who was on duty at night. The Tribunal attaches no weight whatsoever to her affidavit, the truth of which raises doubts in its minds. The Tribunal had little difficulty in accepting the Respondents' version as being the truth and treating the untested evidence of Mrs F Muthy as utterly unreliable.

The Residents

It has been argued that most of the residents were of far less dependency than is usually associated with residents of a care home. This was confirmed by the fact that several of them left the Home from time to time, to shop, visit the pub, and so forth. However, vulnerability cannot only be judged by physical characteristics, such as frailty or immobility, a concept which appears to be beyond Mr Gordon's comprehension. These residents were vulnerable in that without exception they were mentally ill, alcoholic or confused. LG had a mental illness, suffered from hallucinations and alcoholism. JE suffered from depression, and nervousness and had a mental illness. EG suffered from depression and arthritis; he required supervision and help with his tasks. EU was elderly and frail. She suffered from frustration, confusion and depression, and needed help with personal tasks. BK was slow and slightly disabled. PB suffered from mental illness, angina and alcoholism. JF suffered from mental illness and needed a lot of persuasion with his hygiene, needing to be shaved. RC suffered from confusion, alcoholism and mental illness. (These comments are taken from notes which the Appellant left, apparently, at the Home, although Mr Gordon denied ever having seen them.)

The evidence was that there was one care assistant (Sharon, who left), one part-time cook/care assistant and one cleaner. These did day duty, so far as the totally inadequate staff rota suggested. It appeared that either Mrs F Muthy or Mr Gordon did night duty, although the evidence was poor and it was unclear whether they were awake or asleep, or even in the Home at all - The Tribunal felt that, in the eventuality of an emergency, particularly say a fire, the residents would have been very confused and frightened, requiring capable and experiences assistance, without which they would be seriously at risk. It was, it felt, "an accident waiting to happen", and in the circumstances the Respondents had no option but to close the Home, a decision with which the Tribunal concurs.