Decision 453
This decision may be freely reproduced and distributed. It should be drawn to the attention of the registration and inspection staff and legal advisers
IN THE REGISTERED HOMES TRIBUNAL
BETWEEN
Appellant: ROBERT DINGLE
Respondent: CORNWALL AND ISLES OF SCILLY HEALTH AUTHORITY
On: 9th, 10th, 11th and 13th September 2002 and 22nd, 23rd and 25th October 2002
Sitting at the National Care Standards Commission, St Austell
and
16th, 17th,18th and 20th December 2002
Sitting at the Riviera Hotel, Newquay
BEFORE
Mrs A Rivers
Mrs N Kelly
Dr S Kumar
REPRESENTATION
For the Respondent: Mr Robin Tolson QC and Ms Miranda Robertshaw
For the Appellant:
Michael Curtis and Ms Rebecca Taylor (during September and October)
Mr Robert Dingle in person, assisted by Mrs Sylvia Berry (for the remainder of the hearing)
THE APPEAL
1. This was an appeal by Mr Robert Dingle, proprietor of Penpillick Nursing Home, against the Respondent’s decision on March 11th 2002 to cancel his registration.
THE HISTORY
2. Penpillick is a nursing home for the elderly mentally infirm. The business is jointly owned by the Appellant, Mr Robert Dingle, and his wife, although she plays no part in its running and took no part in these proceedings. As well as being the co-owner of Penpillick, Mr Dingle, a Registered Mental Nurse, is the person in charge. Registration certificates show that the home was first registered in February 1990, for a maximum of 22 residents. In December 1996 registration was granted for one additional elderly mentally infirm resident in need of care.
3. It was also at this time that Mrs Sylvia Berry, a Registered General Nurse, came to work at Penpillick. She soon became involved in the day to day running of the home although in her statement she described herself as "business manager" with responsibilities for training, marketing, policies and documentation. She continues to work with Mr Dingle at Penpillick.
4. In January 1999 Burgess Pearson, an experienced member of the Inspection Unit, became line manager for the Inspectors of Penpillick, and later that year Geraldine Miles, a newly appointed Inspector, also became involved with Penpillick. This coincided with the beginning of a series of complaints about Penpillick, received by the Inspection Unit. According to a schedule, provided by the Respondent to the tribunal, there were five in 1999, eight in 2000 and eight in 2001. Most of the complaints were from relatives and staff (mainly agency staff) and there were also two from placing authorities. The substance of the complaints was wide ranging and related both to the care of residents and the state of the premises.
5. In January 2000, concerned by recent complaints, the Inspectors decided to interview members of the staff of Penpillick. Following these interviews their concerns remained and in February they arranged to meet Mr Dingle and Mrs Berry to discuss them. They drew up a document containing a long list of requirements and said that if these were not met within the specified time-scale this would "result in a proposal to cancel registration". They gave Mr Dingle two weeks to consider the document. He duly signed an agreement to meet their requirements. Deadlines were specified for each requirement and everything had to be completed by May 30th.
6. At a subsequent meeting in March 2000 Mr Dingle informed the inspectors that he had recently discovered that a member of his nursing staff had been struck off the UKCC register and that in addition serious allegations against her of malpractice had been brought to his attention by current care staff.. He now believed that she had orchestrated or instigated the stream of complaints and that therefore they were malicious and without substance.
7. Nevertheless, there was a further meeting in April, which Mr Burgess described as constructive, with Mrs Berry submitting an "action plan".
8. On May 4th there was an unannounced inspection and the report was broadly encouraging. It noted a number of improvements that had been made, but also made a number of "Recommendations for Good Practice" and listed thirteen statutory deficits which had been identified. Each of these was to be addressed within time limits ranging from "forthwith" to three months.
9. However, by this time the Inspectorate had received further complaints, one from a resident and two from agency nurses. As a result Nursefinders, the agency who supplied the two nurses to Penpillick wrote to say that they were withdrawing their services.
10. On May 18th a series of notices under Regulation 15(4) of the Nursing Homes and Mental Nursing Homes Regulations 1984 containing 54 requirements was handed to Mr Dingle at a meeting at Penpillick. A number of these requirements had already been dealt with by Mr Dingle. The time limit for full compliance with the notices was three months.
11. In the meantime the Inspectorate continued to receive complaints. On May 24th there was a complaint from a social worker who had placed one of her clients briefly at Penpillick and this was followed, on June 2nd, by a complaint from the three daughters of a resident who had died at Penpillick.
12. On 16th August, two days before the deadline for compliance with the Regulation 15 notices there was an unannounced inspection as a result of which, in the words of Burgess Pearson, the inspectors "concluded that the vast majority of (their) concerns had not been addressed and they identified new problems besides."
13. There were further unannounced inspections in September and these included visits from tissue viability and infection control advisers. The view of the Inspectorate at this stage was that they considered that only 19 of the 54 requirements set out in the statutory notices had been satisfactorily dealt with. There was also another complaint, this time from a placing authority who had been contacted by a relative and was passing on her concerns.
14. On 21st September the Inspectorate was contacted by a solicitor, Mr Robert Campbell, instructed by Mr Dingle, and as a result of his involvement they agreed to defer further action for the time being. In the meantime there were also further complaints, one from a relative and three from agency nurses.
15. It seems that the inspectors felt things that things were, once again, improving towards the end of 2000. Alison Moss, a highly qualified and experienced nurse and friend of Mrs Berry came to work at Penpillick in November and she stayed until the following January. While she was there she helped to set up new systems and training and following an announced inspection in February 2001 the inspectors made a number of positive comments. Nevertheless, at a review meeting in March Mr Dingle and Mrs Berry made it clear that they were extremely unhappy with the way they felt the Inspectors were dealing with the situation.
16. In March 2001 there were two further complaints from agency staff and in May there were four more complaints, three from agency staff, supported by the agency itself, and one from a relative. One of these complaints dealt with an incident at the end of April in which a resident was seriously injured and there were significant concerns about the way the matter had been dealt with by the Appellant.
17. On May 25th the managers of the Joint Inspection Unit decided to recommend that a Notice of Proposal to Cancel Registration be issued and this was done on 15th June 2001 and followed up on 31st January 2002 by a panel recommendation supporting that decision. The Appellant made no representations to the panel. In February 2002 there was a further complaint from a relative and on March 14th 2002 Mr Dingle gave notice of his intention to appeal.
THE LAW
18. Under Section 28 of the Registered Homes Act 1984 registration can be cancelled on any of the grounds for which registration can be refused. One of those, as set out in Section 25(1) is:
…that the applicant, or any person employed or proposed to be employed by the applicant at the home is not a fit person…
and further, under Section 25(2):
…that, for reasons connected with state of repair…the home is not…fit to be used for such a home.
19. Section 34(4) of the Act provides that:
"On an appeal against a decision of the Secretary of State the tribunal may confirm the decision or direct that it shall not have effect".
20. In deciding whether or not to allow this appeal it was therefore necessary for the tribunal to consider whether or not Mr Dingle was a "fit person" and whether or not Penpillick itself was fit for its purpose.
21. Allegations of breaches of the Nursing Homes and Mental Nursing Homes Regulations 1984 were also relevant to, but not determinative of our decision.
Burden and Standard of Proof
22. The burden of proof is upon the Respondent and the standard of proof is balance of probabilities.
THE EVIDENCE
23. Both parties submitted statements of evidence from a large number of witnesses. We were also supplied with copious documentation, items of which we were specifically referred to during the course of the hearing.
24. In addition we heard oral evidence from the following witnesses:
For the Respondent
Nurses
Sara Kelly
Beverley Chapman
Karen Honey
S Long
Care Assistants
Valerie Green
Mary Ruark
Michelle Wray
Relatives
BC
SJ
PV
LM
PW
Inspectors
Burgess Pearson
Geraldine Miles
Bridget Spear
Others
Joanne Fitzgerald (Health and Safety Inspector)
Andy Nicholls (Infection Control Adviser)
Donna O’Shea (Tissue Viability Nurse Specialist)
Heather Stanton (Social Worker)
Christine Tucker (Social Worker)
Sue Morris (Nursing Agency Manager)
Christine Marks (Matron of Eshcol Nursing Home)
For the Appellant
Relatives
Frederick Skilton
Hilary Scott
Ada Fitzpatrick
Care Assistant
Christine Phillips
Nurses
Catherine Woodman
Sylvia Berry
Alison Moss
Joy Williams
Dave Burgess
Others
Dr Paul Hogbin (Consultant Psychogeriatrician)
Appellant
Robert Dingle
25. The Tribunal took into account the evidence of all the witnesses but placed significantly greater weight on the evidence of those who attended in person.
26. Although all this evidence was taken into account by the tribunal we did not find it necessary to make findings in relation to each and every allegation and concentrated instead on those which we considered most serious.
Evidence in relation to individual residents and their families
27. Many of our findings relate to individual residents and we will therefore outline briefly the relevant circumstances surrounding their care.
(i) Mr J
28. Three of the Respondent’s witnesses gave evidence to us about Mr J: his daughter-in-law, Mrs J, a nurse, Beverley Chapman, who worked at Penpillick during November 1999, and Christine Marks, the Matron of Eshcol Nursing Home.
29. Mr J was a resident at Penpillick who suffered from Alzheimers and also prostate cancer. He had been transferred there from another home and initially his family was pleased that he was being weaned off the sedatives he had previously been receiving, and that he was now able to live a more active life.
30. Following a fall he had a hip operation and returned from hospital to Penpillick three days later. Mrs J told us that the family’s concerns started shortly after that. When they visited they thought he was looking uncomfortable and were worried that his feet and back were unsupported. They asked for pillows but nothing was done. It appeared to them that Mr J was suffering increasing pain over the weeks that followed. Mrs J described her father-in-law as "an old fashioned farmer" who was "slow to complain" but when his son and daughter-in-law visited on Saturday November 20th they found him complaining of "hellish pain". They asked what was being done to relieve the pain and were told that he had been given his usual paracetamol. There was also a dreadful smell around him. They asked for a doctor to be consulted.
31. On the following day, November 21st, a nurse at Penpillick privately advised the family to remove Mr J and they arranged to transfer him to Eshcol Nursing Home the day after which was Monday November 22nd. On the same day the notes show that Mr Dingle contacted Mr J’s GP. Mr Dingle told the family that in his view there was no serious problem but gave them the doctor’s telephone number so that they could speak to him themselves if they wished. When they tried the number they were told that they would not be able to speak to the doctor until the next day. However by then Mr J had been moved to Eshcol and he died there on November 23rd.
32. Beverley Chapman was a nurse who had been on night duty at Penpillick at around this time. She told us that she had become seriously concerned about a pressure sore on Mr J’s hip. She described it as a "massive cavity". It was bigger than she felt competent to deal with and she had asked for an expert to be consulted but this was not done. She too described "the offensive smell of the exudate" and she was also concerned about his level of pain. He had been written up for co-codamol and tramadol, two reasonably strong painkillers, but they were not available. She said "I was concerned that the analgaesia prescribed wasn’t touching his pain. When I asked for something stronger, nothing happened." She also noted that an injection for his prostate cancer, due to be administered to him at the beginning of November, had not been given She asked for this to be dealt with but this request was also ignored.
33. We saw the Nursing Report written on Mr J’s arrival at Eshcol, containing the following entries:
"The smell of his pressure sores were overpowering"
" He was in pain, talking through clenched teeth"
"…large (big fist) pressure sore…the site is very painful to touch"
"heels are also smelly – black both heels size of walnut"
34. The Matron of Eshcol, Christine Marks saw him the following day, which was the day he died. She told us that the "smell from the wound was overpowering". She noted that on his arrival a bottle of paracetamol tablets had been sent on with him from Penpillick. There were no antibiotics or stronger pain killers. She was so concerned about Mr J’s level of pain that she consulted a doctor who visited and prescribed Oromorph, a morphine derivative.
35. Catherine Woodman, a nurse at Penpillick who was then and is still their tissue viability link nurse with special responsibility for overseeing treatment of pressure sores, also appeared before us. She was asked a number of questions about Mr J’s care but gave no answers, save to say either that she did not know or that she could not remember.
36. We find that the care given to Mr J at Penpillick was completely unacceptable.
(ii) The Relationship between Mr S and Mrs L
37. Mr S suffered from dementia and was a resident at Penpillick. He was known to be, on occasion, aggressive and also sexually disinhibited to female staff and patients. A Mrs L, who also suffered from dementia came to live at Penpillick and about a fortnight later staff noted that she seemed to have struck up a friendship with Mr S and thought that the two of them were demonstrating mutually affectionate behaviour. A decision was made to facilitate the development of this relationship and on 10th November 1999 Mrs Woodman made the following entry in the care notes in respect of Mr S and Mrs L: "After discussion with Mr Dingle and Mrs Berry, taken down to an empty bedroom for privacy for sexual acts".
38. We saw care notes in respect of Mrs L at around that period. They indicate a confused and changing response to Mr S and his sexual overtures, ranging from encouragement, to indifference, to fear and anxiety. At one point it is suggested that she "thinks (he) is her husband."
39. Beverley Chapman gave evidence to us of her concerns about the way the decision had been made. She felt that relatives should have been consulted and that Mrs L, in view of her dementia, had no capacity to consent.
40. We also had evidence from Dr Hogbin, a consultant psycho-geriatrician who visits patients at Penpillick. Dr Hogbin told us that in his view issues like this should be identified at an early stage and family and relatives should be "(taken) on board beforehand".
41. The Inspectors questioned the appropriateness of the decision making process. Mr Pearson said that Mr Dingle and Mrs Berry told him that they had had prior consultation with a social worker, a community psychiatric nurse and Dr Booth, a clinical assistant to the consultant psychiatrist, Dr Hogbin. It later transpired that there had been no such consultation until after 10th November.
42. We find that the way in which Penpillick handled this delicate issue was unprofessional and unsafe.
(iii) Mr S’s Departure from Penpillick
43. We heard further evidence in relation to Mr S from a Care Assistant at Penpillick, Christine Phillips. She told us about the circumstances surrounding Mr S’s departure from the home following a decision by his relatives to move him.
44. In preparation for the move Mr S’s possessions were packed up but no one had explained to him that he was going. A vehicle arrived to collect him and Penpillick staff were asked to help him out into it but this request was refused because Mr Dingle said that Mr S was now the responsibility of his new carers. Christine Phillips described Mr S as being in a distressed and potentially violent state. The new carers were obliged to come into the sitting room "where all his friends were" to remove him.
45. We find that the way in which Penpillick handled Mr S’s departure was uncaring and unprofessional.
(iv) Mr C
46. Mr C was a 61 year old resident at Penpillick who suffered from dementia. On the night of April 30th/May 1st 2001 he was sharing a room with Mr R, a 41 year old man with significant mental health problems, who had been admitted to Penpillick as an emergency. During that night nurses discovered him on the floor with serious injuries. Eventually, an ambulance was called and the ambulance crew than contacted the police. They attended and Mr R was arrested and taken into custody. Mr C was taken to hospital with a suspected fractured jaw and released back to Penpillick on 2nd May. He died there on 18th June 2001.
47. We heard evidence from Mrs Wray, a care assistant who had worked at Penpillick that night. She told us that she had understood from the agency who sent her that she had been engaged to "special" Mr R. In her experience this meant spending the whole shift monitoring a single patient, rather than helping with general nursing duties. On arrival at Penpillick, however, she was given a list of duties and was therefore unable to give him particular attention. During the night she and a nurse discovered Mr C on the floor of his bedroom, injured, whereupon they asked another colleague to telephone Mr Dingle as a matter of urgency. She told us that Mr Dingle’s response was to advise them not to contact the police or ambulance but to put Mr C back to bed in the room with Mr R and that he would deal with the situation the next morning.
48. She and her colleagues were not happy about this. They called an ambulance and the crew took Mr C to hospital with a suspected fractured jaw, having first called the police.
49. We heard evidence from Inspector Johnstone, a police officer whose colleague, PC Rowe had attended the incident the night before. He showed us a copy of a computer print-out from that night. It described Mr C’s condition as follows: "injuries to the right side of his face including bruising to right eye and broken skin with blood loss." It goes on to say that "The owner of the home was called at the time who did not think it necessary for police or ambulance at the time but staff at the home became more concerned when Mr C…began to drift in and out of consciousness….ambulance attended and also suspected a broken jaw as well as the other injuries mentioned. Blood stains were visible on the bed of the injured male and also some blood spotting on the bed-sheets of the suspect." Mr R had been arrested and taken into custody.
50. Inspector Johnstone told us that he had read the computer log the following morning and decided to go to Penpillick to see Mr Dingle because he was concerned that he had not advised staff to call the ambulance or the police. In his view this should have been normal procedure in such a situation, not only because it was important to attend to the victim’s injuries but it also because it necessary to protect the staff from the suspect and prevent him from escaping, as well as to gather evidence at the earliest opportunity. He said that Mr Dingle appeared to resent his advice. Inspector Johnstone also asked him whether the home had a "policy regarding calling the police and ambulance" but it appeared that no such policy existed.
51. In view of the circumstances surrounding the incident we find, on balance of probabilities, that Mr C’s injuries resulted from an assault on him by Mr R. We find that Penpillick failed in its duty of care to Mr C by neglecting adequately to supervise Mr R and by leaving Mr C alone in a room with him, leading to the incident which caused his injuries.. We further find that the advice which Mr Dingle gave his staff following the incident was wrong and unacceptable.
(v) Mrs J
52. Mrs J was one of the oldest residents at Penpillick, having been born in 1906. She often complained of being in pain and it was sometimes hard to know whether or not she was suffering or not. She was also very hard of hearing.
53. Mrs Miles gave evidence about an occasion when she and Mr Pearson had visited Penpillick on the November 5th 2001. Mrs J approached them and complained to them that she was in pain and needed a doctor. The accident record book showed that she had had a fall that morning and they suggested to Mrs Berry that "it would be appropriate to seek a medical opinion." Mrs Berry disagreed with them and pointed out Mrs J’s history of phantom complaints. It was only when the inspectors persisted that Mrs Berry eventually agreed to seek medical advice. The following day Mrs J was admitted to hospital and found to have a fractured head of femur.
54. We also heard evidence from Mrs Green, a care assistant, who told us that on her return from hospital Mrs J had often complained of pain, especially when staff urged her to walk to help restore her mobility. However, once again her complaints were not taken seriously and she was not given regular painkillers. Instead it was the practice at Penpillick to give her a little milk as a placebo.
55. Yet on 19th December a joint assessment of Mrs J by a community psychiatric nurse and a social worker raised concerns about pressure sores and pain which they thought she might be experiencing when "transferred from the bed using a hoist", the operation on her fractured femur having been unsuccessful.
56. In view of her age and disabilities Mrs J was an especially vulnerable resident and her care required particular sensitivity. The Inspectors were alert to her needs as were her CPN, her social worker and her care manager. Mrs Berry and the staff at Penpillick, however, were not.
57. We find that Penpillick and Mrs Berry in particular failed in their duty of care to Mrs J by not taking adequate steps to determine whether or not she was in pain and by routinely assuming that she was not, so that she did not obtain pain relief and did not receive adequate medical attention when she needed it. .We further find that Mr Dingle failed in his duty of care to Mrs J by impeding the visit to her of the District Nurse.
(vi) Mr M
58. Mr M was admitted to Penpillick in February 2001. His previous home had been unable to cope with his violence and in the past his wife had obtained an injunction against him because he had tried to set fire to the family home. His daughter Mrs M visited him weekly at Penpillick and became concerned about certain aspects of his care there. As a result of these concerns a review meeting with social services was held at Penpillick.
59. Mrs M’s evidence was that at the end of that meeting the staff of Penpillick told her to remove Mr M immediately even though at that time she was living in a caravan so it was extremely difficult for her. She had expected there to be a notice period. She told us that Mr M is now settled in another home where he has been for some time which is able to cope with his problems and, in her view, is providing a far higher standard of care.
60. We find that Mr Dingle’s behaviour in summarily evicting Mr M from Penpillick was uncaring and unprofessional.
(vii) Mr F
61. Mr F came to Penpillick in December 1999. His relatives included children from his first marriage and his second wife, Mrs F. His children had been adults at the time of his second marriage and had had little contact with their stepmother or their father over a number of years although there had been some visits to him at Penpillick. His wife, Mrs F, visited regularly. Mr F died there on May 16th 2000.
62. We heard the following evidence from Mrs V, Mr F’s daughter. On 31st May 2000, together with her sisters, Mrs B and Mrs H she had written to the inspection unit, complaining about Penpillick. We were told that on 13th May their brother had visited Mr F and found him to be in a distressed state. When Mrs B visited the next morning she thought her father was having breathing difficulties so she asked Mr Dingle to arrange for a doctor to visit. Mr Dingle, however, said that "old people are up and down…he was just a frail old man" although he did arrange for a doctor to visit on the following day. After the doctor’s visit Mrs B had spoken to Mrs Berry on the telephone and was told "in an offish manner" that the doctor had given him a few days to live. Mrs B was aware that he had not been thoroughly examined by the doctor and in view of his frail condition she felt that Mrs Berry should have ensured that this was carried out as otherwise she knew that there would have to be a post mortem, something which would cause additional distress to the family. Mrs Berry assured her that this would not happen.
63. That evening Mrs V and Mrs H visited again and found their father in a chair "in a semi-conscious state". They asked for him to be put to bed and went with Mrs Berry to her office to discuss the matter. They described Mrs Berry’s behaviour to them as hostile. She told them that Mrs F was Mr F’s next of kin and that these things were nothing to do with them. As they left they said they saw their father being "dragged by the arms and put on a commode". He was then returned to the lounge where the television was on. At 10.45 that evening Mrs H telephoned and was told that they were about to put him to bed.
64. Early the next morning Penpillick informed them that Mr F was close to death and the three daughters collected Mrs F and they all went to Penpillick, arriving at about 7.40am. They said that they noticed he had a very sore mouth and asked for glycerine swabs but that these were only provided after repeated requests and a significant delay.
65. Mr F died later that day and as his children had feared it was necessary to hold a post mortem because he had not been properly examined by a doctor before he died. Mrs H had to go and identify the body.
66. We find that the circumstances surrounding the care of Mr F in his last days, including the attitude of Mr Dingle and Mrs Berry to his daughters was uncaring and unsatisfactory.
Evidence as to breaches of Nursing Homes and Mental Nursing Homes Regulations 1984.
67. At the time of the Notice of Proposal to Cancel, in June 2001, it was the Respondent’s case that Mr Dingle was in breach of a number of these regulations. However, by the time of the hearing the situation had changed. A report of an inspection on 30th April 2002 noted that, "It appeared to both inspectors that the statutory requirements noted in the last inspection report had been addressed. There were no statutory requirements stemming from this inspection". However a subsequent inspection in November 2002 did find a number of statutory breaches. It was thus clear that a number of the matters referred to in the Notice of Proposal to Cancel had, in fact, been remedied by the time of the hearing, although it appeared that the position fluctuated.
68. Therefore the tribunal concentrated on regulatory breaches which we found proved on the basis of the evidence before us and we make the following findings:
Regulation 12(1)(a) – Failure to provide adequate staff
69. This concerns the numbers and suitability of the staff.
70. It was extremely difficult for the tribunal to gain any clear idea of current staffing numbers. Even by the penultimate day of a lengthy hearing spread over a period of over three months Mr Dingle had still not provided us with information about how many staff he employed. He told us that he simply did not have that information. On the morning of the final day of the hearing he said "we will be producing a staffing document later" but he did not do so.
71. A report of an inspection in April 2002 noted that "from the information provided it was not possible to determine whether the home was meeting the overall minimum staffing levels agreed….(however)….It was the opinion of the inspectors that the level of care provided….is insufficient to meet the needs of the residents. It is advised that this situation be kept under constant review."
72. It is clear that it was not being kept under constant review as otherwise Mr Dingle would, at the very least, have had a clear idea of the staffing levels himself.
73. There was evidence of the following instances where the level of care provided was insufficient to meet the needs of residents:
a. Despite the fact that Mr F was close to death he was not put to bed on the night of his death until 10.45 and the following day it seems that staff were too busy to provide glycerine swabs for his dry mouth, a short while before he died.
b. When Mrs Spear visited on 17th June 2002 she found an unlocked, unattended medicine trolley.
c. Mr J's pressure sores were allowed to develop unchecked, resulting in great pain to him.
d. Medication records were not properly completed.
e. Mrs Wray, who had been engaged to "special" Mr R was allocated to do general duties, despite the fact that Penpillick received additional funds to cover extra help in caring for him. This, as we have found, contributed to the fact that Mr C was injured.
74. More generally, we find that additional staff would have been necessary for these reasons:
a. Mr Dingle told us that he had a policy of admitting difficult clients whom other homes could not cope with. This was certainly the case with Mr R. It is likely that a particularly difficult client group requires a higher level of staffing.
b. Mr Dingle and Mrs Berry told us at some length about their philosophy of care for the elderly. Mrs Berry said that unlike other homes Penpillick did not "overmedicate" patients to make them more manageable, thus satisfying the needs of nursing staff and relatives but not the patients. Residents were encouraged to "express themselves" and organise their own days. There were no set mealtimes or times for getting up or going to bed. It is likely that this philosophy requires a higher than average staffing level if patients are to be kept safe and have their physical needs attended to.
75. Therefore we find that staffing levels at Penpillick were inadequate for the needs of the residents.
76. So far as the suitability of the staff is concerned it is clearly necessary for them to be sensitive and thoughtful to the needs of patients and relatives and competent to discharge their responsibilities.
77. In this respect we make the following findings:
a. Mrs Berry’s attitude and the attitude of staff generally to Mrs J was uncaring and unprofessional, as described above.
b. Similarly, her behaviour during the last days of Mr F, as described above was uncaring and unprofessional.
c. We heard evidence from Heather Stanton, a social worker who had visited Penpillick accompanied by a CPN, to see a client who had been admitted to Penpillick as an emergency a few days before. It was only by insisting and going against Mrs Berry’s wishes that she was able to see her client alone in the client’s bedroom as Mrs Berry wanted her to be seen in her presence, in the office. We find this behaviour to be unprofessional and insufficiently respectful of the right of that resident to privacy. It also demonstrates an unco-operative attitude to a fellow professional.
d. Mrs Woodward was and is the tissue viability nurse at Penpilllick. We find that she did not discharge her duties in respect of Mr J and the fact that in her evidence to us she showed no recognition or even awareness of what he had suffered caused us to doubt her current competence to carry out this extremely important function.
78. We therefore find the breach of this regulation to have been proved.
Regulation 12(1)(g) Failure keep all parts of the home occupied or used by patients in good structural repair, clean and reasonably decorated
79. We find this breach to be proved and will deal below with the evidence supporting that finding in relation to fitness of premises under s25(1)(b) of the Act.
Regulation 12(1)(n) Failure to make adequate arrangement for patients to receive medical services
80. We make the following findings:
a. Mr J was not given the medical services he required. His pressure sores should have been looked at by an outside expert; he should have had adequate pain relief and the injection prescribed for his prostate cancer; he should have been seen by a GP.
b. Mrs J was only seen by a doctor following the intervention of the inspectors, despite the fact that she was found to have a fracture to her femur.
c. Mr Dingle tried to block the visit of the District Nurse which had been arranged by Mrs J’s care manager and only agreed following her insistence.
d. Mr Dingle failed to make arrangements for an ambulance to be called to attend to Mr C following the attack on him by Mr R.
81. We therefore find this breach to be proved.
Regulation 12(1)(o) Failure to make adequate arrangements for the recording of drugs
82. The proper procedure in relation to Medical Administration Record sheets is for each drug prescribed to be written up and signed for by the prescribing doctor. Where this cannot be done immediately a nurse should sign on a temporary basis and a doctor should countersign at the first opportunity. In the case of records for Mr J covering a period between September and November 1999 all but three of the entries were simply unsigned and therefore apparently unauthorised. When this was drawn to Mr Dingle’s attention he was not able to explain it so that although this breach relates to 1999 it was clear that this was not an issue which he has attended to and it is therefore likely that the same attitude to the recording of drugs continues at Penpillick.
83. We therefore find this breach to be proved.
Regulation 12(1)(s) Failure to take reasonable adequate precautions against the risk of accident
84. As set out above, Penpillick failed to protect Mr C from the assault on him by Mr R. He was put at further risk by the failure to take proper steps to protect him from further harm after that incident.
85. As set out above Penpillick put Mrs L at risk both of physical attack and of being forced into sexual acts which she did not consent to by putting her into a bedroom with Mr S without the benefit of proper consultation with other relevant people and without having first taken expert, multi-disciplinary advice.
86. Further Mrs Spears discovery of the unlocked, open, unattended medicine trolley outside the lounge when she visited on 17th June 2002 put residents at an unacceptable risk.
87. We therefore find this breach to have been proved.
Evidence in relation to statutory criteria pursuant to Registered Homes Act 1984
Section 25(1)…that the applicant, or any person employed or proposed to be employed by the applicant at the home is not a fit person…
88. A number of the findings already made in respect of breaches of regulations are evidence of unfitness. In addition we took into account the following matters:
a. Even though there was evidence that some of the requirements of the inspectors had been attended to at various times, including by the time of the hearing, we nevertheless we find that the length of time taken for these things to be done and the failure to sustain and build on any improvements was unacceptable.
b. We accepted the evidence of Burgess Pearson when he said, "I have found establishing a professional rapport with Mr Dingle exceptionally hard. I’m used to difficult situations and have always used negotiation rather than recourse to statute. But useful dialogue is very difficult because of Mr Dingle’s and Mrs Berry’s reluctance to acknowledge that we had a duty to investigate complaints. His dismissive attitude to complaints….was a barrier to the investigation of complaints.". Mr Dingle’s evidence to the tribunal was that he regarded the complaints of the inspectors as a "witch hunt" and it was also his case, as put to many of the Respondent’s witnesses, that the complaints against him were part of conspiracy or made in bad faith. We therefore find that Mr Dingle’s hostile attitude to criticism will make it difficult for him to work with any regulatory body.
c. We heard evidence from the social worker, Heather Stanton about Mr Dingle’s hostile reaction to her decision to move her client from Penpillick to hospital because she was worried about her physical condition. She was taken aback by the hostility of Mr Dingle’s response. He had made a number of telephone calls to her which she described as "abusive, non-cooperative, personal and not professional". He had threatened to complain about her and she felt that in saying this he "was trying to blackmail me into changing my assessment". There was also the evidence of Christine Tucker, Mrs J’s care manager, which has been referred to above. Mr Dingle showed a similar hostile reaction to the District Nurse who tried to arrange the appointment to see Mrs J, such that when the District Nurse did eventually visit she felt unable to go to Penpillick without the support of a colleague to accompany her. We find that in both these cases Mr Dingle showed an unco-operative and aggressive attitude to other professionals.
d. We find that Mr Dingle’s summary "eviction" (a word he himself used) of Mr M was an example of an uncaring attitude to relatives as well as patients. In his evidence to us he told us that he considered that the distress and concern of relatives over the suffering of Mr J was motivated by guilt, because they felt bad about putting their relative in a home, rather than because there was any substance in their complaints. His reaction to the distress of Mr F’s daughters about their father’s treatment, as set out above was that Penpillick was not obliged to consider their views because they were not next of kin. Further, that they had been motivated by a family disagreement with their stepmother, despite the fact that he produced no evidence of any such ill-feeling. We find that his attitude to the relatives of residents was uncaring and dismissive.
89. For all these reasons, as well as the regulatory breaches set out above, we find that Mr Dingle is not a fit person to run this nursing home.
Section 25(2)…that, for reasons connected with state of repair…the home is not…fit to be used for such a home.
90. It was clear from the evidence that Penpillick is, at best, shabby and that at different times different witnesses have reported a pervading and unpleasant smell. We heard that the layout of the building is also not ideally suited to its purpose and this was not disputed. The situation is complicated by the fact that Mr Dingle and Mrs Berry told us that they have plans to develop the site and replace the current building with a multi-million pound development, with outside financial backing and bank loans. For this reason they said it did not make sense to undertake significant refurbishment of the current building. However, they have twice been refused planning permission for the new building and Mr Dingle said that they have until February to lodge an appeal.
91. So far as the current situation is concerned we were helped by the evidence of Dave Burgess, an RMN who first worked at Penpillick for a period between January 1995 and April 1996. Since May 2001 he has worked there at least once a fortnight and sometimes more. His knowledge of the premises therefore is comprehensive and covers an extensive period, including to the present day.
92. He told us that the building is situated in an exposed position. There have been leaks and water damage, particularly in the entrance porch. This is regularly repaired but the problem re-appears the following winter. Sometimes, he said, the wallpaper peels off where it is wet. This too gets repaired but remains a recurring problem. There are particular problems with a flat roof.
93. The most up to date evidence about the premises provided by the Respondent was in the report of an inspection carried out by Mrs Spear and Mr Baber on 27th November 2002. This was a draft report and we read it in conjunction with the written comments made on it by Mrs Berry.
94. The draft report noted that "Communal areas and bedrooms would benefit from on-going maintenance. Some window frames were stained and rotten. Throughout the home was malodorous with some windows open and rain coming in…..externally parts of the walls were covered in green algae…"
95. We find that the premises are currently in a run-down state and in need of refurbishment and not of a standard which residents and their relatives are entitled to expect. We therefore find that these premises are not fit to be used as a nursing home.
DECISION
In the light of all these findings it was the unanimous decision of the Tribunal that this appeal be dismissed.