Decision 340
REGISTERED HOMES TRIBUNAL
This decision may be freely reproduced and distributed. It should be drawn to the attention of the registration and inspection staff and legal advisors
MRS KATHLEEN COLLINGS AND MRS EDIT KERGES - APPELLANTS
BOURNEMOUTH BOROUGH COUNCIL - RESPONDENTS
Tribunal sitting in the Council Chamber, Bournemouth Town Hall, Bournemouth, on Monday, Tuesday, and Wednesday 2nd, 3rd, and 4th March 1998 to hear an appeal in respect of the Dolphin Retirement Home, 40 Westby Road, Bournemouth, Dorset.
Before: Margaret Rutherford QC
Ken Coleman Esq
Wesley Dowridge Esq
Representation
Appellants
The Appellants represented themselves
Respondents
Gary Grant Esq of Counsel instructed by Ms S Travers
DECISION - it is the unanimous decision of the Tribunal that the Appellants' appeals fail and that the decision of the Respondent registration authority shall have effect. The Appellants each and jointly are unfit persons to be concerned in carrying on a residential care home pursuant to sections 9(1)(a) and 10(a) of the Registered Homes Act 1984.
WITNESSES
For the Respondents:
Station Officer Anthony Paul Esq, (Fire Officer)
David J Wordley Esq, Principal Environmental Health Officer
Mrs Elizabeth Whatley, Manager of the Registration and Inspection Unit
Mrs Marjorie Richards, Senior Registration and Inspection Officer
(Mrs June Minett, SRN and relative of LM -written statement only)
For the Appellants:
Mrs Kathleen Collings
Mrs Edit Kerges
Anthony George Esq
Mr and Mrs Raymond Hardy
(plus numerous letters of support from relatives of past residents)
BRIEF BACKGROUND TO THE DISPUTE
Mrs Kerges and her daughter Mrs Collings were jointly registered as proprietors of a residential care home on 29th October 1986. Following a change of name of the home they became registered in respect of the Dolphin Retirement Home (the Home) on 27th November 1992. Since 1993 there had been concerns expressed by the Respondents who felt that, despite help and advice, the Appellants had shown a continuing inability to comply with the Residential Care Homes Regulations 1984 (the Regulations). Following numerous visits and discussions over the years, a Notice of Proposal to Cancel, dated 23rd May 1997, was finally served on the Appellants. On 26th September 1997 the Appellants made representations on the proposal to a sub-committee which resolved to adopt it and thereby cancel the registration of the Appellants under section 10(a). Notice of the decision was served on the same day. On 6th October, solicitors acting for the Appellants gave notice of their wish to appeal the decision.
SUBSTANCE OF THE RESPONDENTS' CASE
The Respondents' case emerges from its Reasons for deregistration, and from the evidence of its own witnesses at the hearing and the cross-examination of the Appellants and of witnesses for the Appellants which are summarised in the closing submissions.
The Reasons on which the Respondents relied for cancellation
The Respondents contend that both Appellants are not fit persons to be concerned in carrying on a residential care home pursuant to sections 9(1)(a) and 10(a) of the Act. The six reasons on which they rely are as follows:
Reason 1. They have failed to employ by day and by night adequate numbers of suitably qualified and competent staff, adequate for the well being of residents, contrary to Regulations 9(1), 10(1)(a) and (r) of the Regulations. In particular, despite repeated advice which they failed to heed, the Appellants did not have sufficient staff properly to clean the Home or to care for the residents. Enforcement Notices were serve on 6th July 1994 and 20th May 1997. Mrs Collings, on 22nd June 1994 and 25th. April 1996 failed to accept the need to employ staff and indicated an unwillingness to do so. Both were found to be working excessive hours, becoming exhausted and struggling to meet the needs of the residents. They were also unable to provide sufficient time for therapeutic activities and recreation for the residents.
The evidence was largely unchallenged. For the vast majority of the time the two Appellants and Mr Collings have done everything in the Home, from cooking and laundry to cleaning and caring. As to the consequences of insufficient numbers of staff, harm to residents was fully demonstrated by the inability of the Appellants to deal with Miss L's room. The Respondents' evidence included the statement by Mrs Richards that she had no other previous experience of a requirement to serve two Notices on the same issue on any other Home. The excessive hours worked by the Appellants and their subsequent exhaustion was not disputed, and this was not desirable from the standpoint of protecting the interests of elderly people. It also confirms that too few staff were being employed and this was particularly demonstrated in respect of Mr M and Miss L.
Reason 2. The Appellants failed to take adequate precautions against the risk of accidents within the Home contrary to Regulations 9(1) and 10(1)(j). In particular, the Appellants, despite advice from the Environmental Health Division of Bournemouth Community Services, caused / permitted a resident, RY, to obtain keys to unlock his bedroom window from which he jumped, causing himself serious injury on 15th March 1996. Mrs Collings, when asked what she would have done had he asked her to open the window so that he could jump out of it, replied that she would have opened the window. Neither Appellant had considered it their responsibility to enquire about his potential behaviour arising from his schizophrenia before the accident. Hazardous substances, such as bleach, were repeatedly left in positions freely accessible to the residents despite repeated advice not to do so. The Appellants also failed to repair the hand rail at the side of steep stairs to the basement laundry and placed alarm cords out of the reach of residents despite advice to the contrary.
There was strong evidence that the Home was a powderkeg of safety concerns giving rise to a serious and real risk of an accident. There was one accident (Mr Y) and a greater insight into safety matters would have better equipped the Appellants to avoid it. The Appellants' admission procedure and approach to accepting residents prior to arrival at the Home revealed itself to be wholly inadequate and lacking in insight. Again much of the evidence was undisputed / largely undisputed, in particular that relating to hazardous substances, the broken hand rail, alarm pull cords, and blocked fire exits. As to these two latter, they are further examples of the Appellants having been unable to follow advice, having clear implications for the safety and well being of residents, particularly in an understaffed Home. The safety issues impinge on staffing, fire precautions and the keeping of adequate records.
Reason 3. The Appellants failed to take adequate precautions against the risk of fire, including the provision of adequate means of escape, contrary to Regulation 10(1)(h). In particular, fire exit routes were blocked on several occasions and they showed a complete disregard for the safety of residents in the event of fire.
The vulnerability of the elderly residents is beyond question. The Appellants' failure is a serious and fundamental safety issue. The importance of appropriate safety management in the event of fire is paramount. The evidence before the Tribunal was even more compelling than that on paper. It is not disputed that fire exits were blocked on several occasions. Most of the evidence was unchallenged. The Appellants are not able to meet the requirements and there is an absence of insight into the need to heed advice which was being given. They exhibit an inability to appreciate that "good alarms" on which they rely can fail. They are unable to grasp or appreciate the role of records in safeguarding the position. They persistently disregarded advice, a fact which they acknowledged.
Reason 4. The Appellants failed to maintain safe / adequate standards of hygiene, cleanliness and tidiness of the Home, contrary to Regulations 9(1), 10(1)(c) and (g). In particular, the lack of cleanliness, general clutter and untidiness within the Home was first identified in March 1993 and despite an Enforcement Notice in July 1994 any improvement was not sustained. The Environmental Health Officers have criticised poor hygiene practices in the kitchen, that the Appellants failed to maintain any improvement and that they are "high risk" premises. Food stocks are not properly rotated, leading to out of date food items being found on shelves, unlabelled and improperly packaged food in the freezer. The poor standard of cleanliness and hygiene extended to matters of care, in particular regarding a particular resident, LM, whose clothing and level of care and hygiene was found in January 1994 to be unacceptable. Staff were unable to deal with his care needs and only following a complaint from a relative was he removed from the Home. In respect of another resident, BL, her room in May 1997 was allowed to reach an exceedingly poor condition, for example her carpet had been removed and blue plastic sheeting, soaked in urine, replaced it. The Appellants agreed to set aside specific rooms for storage purposes but were unable / unwilling to keep those arrangements.
A persistent theme of concern on this issue ran throughout the period 1993 - 1997. There would be an improvement, which was unsustained, causing increasing concern. There was no substantial challenge to this evidence.
Reason 5. The Appellants failed to maintain suitable arrangements for the safekeeping and disposal of drugs in the Home, contrary to Regulation 9(1) and 10(1). In particular, despite advice as to the need to secure all such medication safely, there were occasions when it was found lying around accessible to residents, some of whom were confused. Out of date medication was found and advice given as to its disposal. However, despite this and subsequent advice from a pharmacist early in 1997, a large stock of remedies were found on 22nd. May 1997, a number of which were out of date.
This problem was particularly surprising given that Mrs Collings is an SRN. It is even more surprising that it continued to be repeated. Again the evidence was not substantially disputed. It indicated a total lack of any systematic approach, even after repeated advice.
Reason 6. The Appellants have failed to maintain proper records available for inspection, contrary to Regulations 6(1) and 9(1). In particular, they failed to maintain records such as the record of visits by an Authorised person, June 1993, and full personal records in terms of the daily register and care records in October and November 1995. Residents' personal records failed to provide sufficient detail so as to be a helpful tool in caring. Despite advice such records remained sub-standard in March and April 19's7. Mrs Collings was reluctant to record personal details and misunderstood their importance. Records have not always been available or up-to-date, for example some could not be located on 30th. October 1995 and many records could not be produced on 14th May 1997.
The evidence was not disputed. Mrs Collings found record keeping "impossible" and Mrs Kerges said that she did not think she would be able to keep records.
Conclusion of Respondents
In summary, the Appellants have not substantially disputed the vast majority of the Respondents' evidence in relation to each of the reasons. Mrs Collings, in particular, does not dispute that she is unfit to be concerned in the carrying on of a Home, and, by accepting the substantial part of the case against her, Mrs Kerges, the Respondents say, effectively accepts that she, too, is not fit to run a Home. The Appellant's testimonial evidence both written and oral serves no more or less than the Respondents accept, which is that the Appellants are very caring people, they make visitors welcome to the Home, relatives are concerned at possible disruption for their relatives, relatives are sufficiently impressed with the Appellants' caring attitude that they wish to speak on their behalf, they found the Home physically comfortable and, on the occasions they visited, their relative(s) were found to be clean and apparently well cared for. The Respondents have consistently tried to help the Appellants over a number of years to comply with their legal obligations. They have provided advice on all the issues which are before the Tribunal, they have visited the Home on numerous occasions and they have given them every opportunity to. improve. They have even helped them prepare their case for the Tribunal hearing and helped with the conduct of their case.
The Respondents have presented a "clear, consistent and structured case, supported by reliable and credible evidence" (Decision 182) and the cumulative effect is that the Appellants are unfit and that their appeal should be dismissed.
The Appellants' Case
The Appellants' case emerges from its Grounds of Appeal, from the evidence adduced by themselves and their witnesses at the hearing and from the cross-examination of the Respondents' witnesses, as summarised in the closing submissions.
Grounds of Appeal
As to Reason 1, the Appellants say that sometimes they employed a cleaner and sometimes they did not. The only caring staff were themselves and they treated everyone well and tried to meet their needs. They placed advertisements in the Job Centre and newsagents' windows, would interview staff, some of whom would then fail to turn up or, if they did, they would leave after a few days. Staff always treated residents with kindness and sympathy. The Appellants admit they got tired, and there were times when it was a struggle to meet the residents' needs, but they were buoyed up by doing a job they really enjoyed and spending time with the residents. There were no formal activities as such, but residents were taken out in groups to the hairdresser, to eat cream teas, go shopping, visit a garden centre, dancing and suchlike. The Appellants would join in with activities which they enjoyed, for example reading poetry, making scrap books and cooking.
As to Reason 2, Mrs Collings says that the resident concerned went to a lot of trouble to find the key and open his window. He did not have an accident, he tried to commit suicide. If he had asked her to open his window she would have done. She had no reason to think he might jump. She would have tried to stop him if she had known although she believes everyone should be able to live their lives as they want to. The doctor visited this resident within 3 hours and was not concerned about his condition or his mental state. It was not the Appellants' responsibility to enquire about his condition. Mrs Collings was not told he was a schizophrenic until he was in hospital. She had tried several times to get his medical records and medication. If his doctor had been concerned he would have had him admitted to hospital. As to the Environmental Health Officer concluding that the Appellants had failed in their duty of care towards this resident it would have been difficult for them to come to a different conclusion.
The bottles of bleach had child-proof caps. The handrail was repaired but a support had become loose and the screw needed tightening up. No staff or residents go down to the basement and the door is locked. One of the resident's alarm pull cord was tied out of reach at her own request, as she used to get tangled up in it. Another resident had her bell and light cords tied out of reach as she was confused and unable to use them properly. She had a light in her lavatory which was left on all night and she was regularly checked. Other bell pull cords have been tied up but most are definitely not out of reach of residents.
As to Reason 3, the Respondents are aware that on at least two dates residents had stored their own personal things on the fire escape. The plumber also stood a chair in front of a fire escape door. The Appellants say that they do have a sense of safety of the residents which was one of the reasons they purchased this particular property: it had a built-in fire escape.
As to Reason 4, the Appellants say that they do not subscribe to minimalist decor and that everyone's idea of clutter is different. They say that hygiene has improved and food stocks are rotated. Mrs Collings does the cooking and knows how to use loose items in the freezer underneath first. Although food is not always labelled and dated she knows what everything is by the containers used. She has kept out of date items but this food is eaten by her family and not the residents.
The Appellants cared for LM very well under difficult circumstances. Previously he had lived in an hostel but had had to leave for aggressive behaviour. He was also incontinent of urine. They gave him everything he needed and encouraged him to bath and change his clothes. He was very aggressive with the Appellants and had certain anti-social habits: sometimes they succeeded with him, other times not. It was difficult to keep him clean. The Appellants sought help from his GP and visited a urologist. No one knew how to help him. Mrs Collings was rather afraid of him and would not go into his room whilst he was in it as she was scared he would corner her / not let her leave the room. It was at the resident's suggestion that newspaper was put down on his lavatory floor and the paper was changed every day. He remained very aggressive and she was always very careful how she suggested shaves, clothes changes and baths.
As for BL, she was also very difficult to cope with, not washing, changing her clothes or using the lavatory, and carrying all her possessions around in plastic bags. She would not allow anyone into her room whilst she was in it. She refused all food and bought everything for herself. Some times were better than others. The Appellants coped by leaving her to do what she wanted. Mrs Collings considers that she does not have the right to force her to live in a way which suits others.
Rooms set aside for storage were kept until 5 new residents moved in on February 1 9th. Many brought their own furniture and so 5 rooms had to be completely rearranged. Another Home also gave the Appellants lots of pillows, towels, sheets and table linen and it took weeks to sort through and make piles for the charity shops, recycling bins and suchlike.
As to Reason 5, there have been times when the medicine cabinet has been off the wall due to the reorganisation of the dining room. It has been redecorated 3 times since 1994. Medication was kept in the "office" - i.e. part of the dining room near the kitchen. The medicine cupboard is now kept in the office on the first floor. Many of the homely remedies that were out of date had been given to the Appellants by various residents and it seemed an awful waste to throw them away. They were out of date because no one used them so really it was pointless keeping them.
As to Reason 6, Mrs Collings says she found it incredibly difficult to keep records in the detail required, but she thought she had written sufficient. Only three people were involved in the residents' care (the two Appellants and Mr Collings) and they always talked and discussed between themselves. They cared very much for the residents and always tried to give them what they needed physically, psychologically or emotionally. There have been times when Mrs Collings was very reluctant to write down things of a personal nature about a resident. A room has been designated as an office and a manager will hopefully be employed so there should never be such problems again. Regrettably the person who was to have been the manager is not now taking over.
The Appellants supplied photographs of the Home and many letters from relatives of residents. In their closing submissions they put forward proposals as to how they could afford to pay for a manager, how Mrs Kerges would just do certain night duties and how Mrs Collings would restrict her role to cooking and being in charge of the kitchen. They hoped the Home could continue.
REASONS FOR THE TRIBUNAL'S DECISION
Introduction
After having read all the written evidence, after hearing oral evidence and rereading notes taken during the hearing, and after reading and listening to the closing submissions of Counsel and to those of the Appellants, and discussing the matter thoroughly, and after most careful and anxious thought, the Tribunal is satisfied and finds that the Respondents have proved their case to a sufficiently high standard. It unanimously finds that the Respondents have proved their case and that the Appellants' appeals fail and are dismissed.
Burden and Standard of Proof
In civil cases the general rule relating to both the legal and evidential burden of proof is that the party who asserts a fact must prove it. In this matter, the Respondents, on whom the burden squarely falls, are required to prove that the Appellants are "not fit persons" within the meaning of the Registered Homes Act. It is not for the Appellants to prove that they are fit.
The party bearing the legal burden of proving the facts in issue is required to prove it on a balance of probabilities. The Tribunal does not have to be satisfied beyond reasonable doubt, which is the criminal standard, but simply, (subject to what follows) on a preponderance of probabilities, for example, that it is more likely that the Respondents' version, rather than that of the Appellant, is true. Put even more generally, a 51 / 49% balance of probability would be sufficient.
However, as a consequence of Lyons v East Sussex (Tribunal Decision No. 78), in certain civil matters a heavier burden lies, namely, that the more serious the issue to be determined, the higher the standard of proof required. These are serious issues and serious consequences will flow from the Tribunal's decision. On the one hand are the interests of the residents. They must rank very high since the residents constitute a vulnerable group, being old and frail. On the other hand, and more particularly, are the interests of the Appellants. The consequences of the appeal being dismissed will be serious for them. The Home may well have to be disposed of. Their livelihood will be seriously affected. They would also lose their accommodation. More importantly in the Tribunal's view is the damage to their reputations which would be axiomatic in the light of a declaration of "unfitness".
It is therefore imperative that the evidence adduced by the Respondents should be cogent, weighty, credible and persuasive to a high degree if it is to succeed. In view of this the Tribunal has paid assiduous attention to all the evidence, which has been carefully read, heard and re-evaluated. It considered their evidence was weighty and completely convincing It had no doubt that it should be accepted. In its view both Appellants, although undeniably well-intentioned and kindly, are unfit to be concerned with the running of a residential care home. It accepted the Respondents' evidence and was satisfied that no reasonable, credible or acceptable case had been submitted by the Appellants.
The matter of "fitness"
The word "fitness" has two, inextricably intertwined components. One such component comprises physical and mental attributes, for example being well adapted or suited, good enough for, qualified, competent. Thus, one would be "fit" to practice medicine if one had been properly trained, and was both qualified and competent to do so. Such a person would NOT be "fit" if, despite training and qualification, one was regrettably incapable through senility or incapacitating illness. The other constituent comprises moral qualities, such as integrity, honesty, reliability, conscientiousness, dependability, trustworthiness, correctness and so forth. All these qualities are included in the term "fitness" and it is impossible to separate out the various elements, as they are all part and parcel of the whole. For example, a doctor properly trained, qualified and competent, but at the same time dishonest, would be unfit. Similarly, a person honest, reliable and conscientious yet lacking in essential skills and competency to do a particular job, would also be also unfit.
"Fitness" in the particular case
After having heard and read the evidence, and after having paid particular attention to the fact that almost all the Respondents' evidence was not only unchallenged, but was positively accepted, by the Appellants, the Tribunal had no doubt whatsoever that each / both of the Appellants are unfit persons to be concerned in the carrying on of a residential care home.
It is aware that this finding will come as a cruel blow to two individuals whose caring qualities, whose honesty and good intentions are beyond question and whose hard work in the Home is readily acknowledged. They made various suggestions about what they would do ha the future, and the Tribunal considered the extent to which the Appellants' words could be relied upon to rectify defects which had previously and on numerous occasions been brought to their attention. In other words, it had to make a prediction based on past history as to the extent to which the Appellants' promises could be relied upon. To this extent their "fitness" - that is to say, their integrity and their credibility - was very relevant. Evaluation of a future risk can only be ascertained with regard to past experience, past behaviour and past promises, in order to predict the likelihood of repetition.
The Tribunal had visited the Home, which it found most attractive, with huge improvements in physical conditions from the previous state which photographs in the evidence had graphically shown. Members of the Tribunal also spoke with residents who were clearly extremely happy with the loving care they received. Regrettably, whilst many of the physical problems had eventually been resolved over the years, thanks to the dedicated help and advice given so generously by the Respondent officers, the Tribunal was satisfied that other serious problems would still continue, due to inherent, probably inerradicable, characteristics of the Appellants.
The character of the Appellants
Both Appellants impressed the Tribunal with their honesty, their conscientiousness and their caring natures. They also greatly assisted in freely acknowledging all the problems, and both accepted unconditionally that the evidence given by the two officers (Richards and Whately) was "true", "fair", "represented what they found at the time", that they had "helped (the Appellants) throughout", and had been "given advice on various topics". The Appellants meant well; they had the best of intentions.
However, most regrettably good intentions are simply not enough. The Tribunal was satisfied that despite their many most admirable qualities and accepted kindness to residents, they had and still have absolutely no comprehension of the legal duties and responsibilities imposed on them by the Act and Regulations. They also have no idea of the statutory function of the Respondent authority. The evidence overwhelmingly showed that, whilst they constantly sought advice and assistance, which was generously and freely given over some five years in the most patient and commendable way by professional officers of the Respondents who in all the circumstances demonstrated remarkable, almost astonishing, tolerance and patience over a long period, yet they signally failed to act on that advice. They were extremely grateful for it. However, they simply did not follow it for various reasons ranging from "I just didn't think about it", "Obviously because I'm an idiot", "I suppose it's because I don't go round checking", to "I'm trying to (follow advice). But lots of times I have not succeeded", "Yes, we didn't follow advice".
They appeared to have no idea of the consequences of their omissions. Again and again they ignored advice. Even on the day the Tribunal visited the Home at the express invitation of the Appellants, for example, it discovered a tied-up alarm bell in a room occupied by a resident and stacked bedsteads fronted by a most unstable metal object stored under the escape stairs, defects they had been told repeatedly to remedy, month after month. An infirm person, struggling to get down that escape in the eventuality of a fire or other emergency could have grasped the unstable erection to steady herself, bringing it down upon her. It was an accident waiting to happen. The Tribunal was mindful of the weighty evidence it heard relating to the fire risk. The Appellants placed heavy reliance on their alarms, saying in effect that they would not have a fire because the alarm system was so good. However, the Fire Officer found that the alarm was not working when he visited and it could have been out of action for any period between 30th May and 24th June. The Appellants seemed unable to appreciate the potential dangers.
The function of the Tribunal as perceived by the Appellants
Most regrettably the Tribunal was unable to convince the Appellants that it was not its function, having heard the evidence, to consider how appropriately this matter might now be resolved, that is to say, to consider a hypothetical situation at some time in the future, in terms of the eventuality of the Appellants finding and paying for a manager of the Home and of their own respective future roles in the Home. They both seemed unable to comprehend the Tribunal's sole function, which was to either confirm the Respondents' decision or to direct that it should not have effect. They were unable to understand that the function of the Tribunal was not to act as a mediator/fixer to enable return to the status-quo-ante.
Even in the closing submissions of the hearing the Appellants were setting out amorphous, hypothetical plans as to how they might mortgage a house one of them owned, how Mrs Collings might limit her activities to the cooking and kitchen, how the situation might be saved. However, they produced absolutely no evidence to support these suggestions either then or earlier in the hearing, and said, inter alia, as regards the failure to bring a relevant letter from the bank to the Tribunal, "It did not cross my mind to bring the letters". They still spoke vaguely about employing a manager but produced no evidence of any advertisements they had placed, interviews they had conducted, relevant job descriptions they had prepared, and suchlike. They totally lacked business skills, were unable to cope with the keeping of any sort of records, had little / no idea about basic care such as the need for meaningful care plans, proper admission procedures and so forth.
There were many other aspects of evidence on which the Tribunal could comment. However, it will not do so since enough has been said. It has no doubt at all that both Appellants are unfit to be concerned in the running of a Home and accordingly HOLDS that their appeals should be dismissed.
Margaret Rutherford
Ken Coleman
Wesley Dowridge