PM v Disclosure and Barring Service

This is an appeal against the decision (“DBS’s decision”) of the Respondent (“DBS”) dated 22 July 2021 to include the Appellant (“PM”) in the children’s and adults’ barred lists.

The decision was made under paragraphs 3 and 9 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (the “Act”). These provide (in very similar terms as regards both children and vulnerable adults) that DBS must include a person in the relevant barred list if

Under paragraphs 4 and 10, “relevant conduct” includes, amongst other things, conduct which endangers a child/vulnerable adult or is likely to endanger a child/vulnerable adult, or which, if repeated against or in relation to a child/vulnerable adult, would endanger them or would be likely to endanger them; and a person’s conduct “endangers” a child/vulnerable adult if he (amongst other things)

The letter conveying the decision (the “decision letter”):

DBS’s “barring decision process” document stated that DBS had “some” concerns under the headings “excessive/obsessive interest in sex” and “irresponsible and reckless”; DBS had “definite” concerns under the headings “attitude endorsing harmful behaviour” and “callousness/lack of empathy”

In the first of these categories where there were “definite” concerns, the DBS document stated that PM had displayed behaviour for many years that suggested that he had an “attitude” that his actions were justifiable. It said that PM made open verbal comments at the expense of residents because he considered it to be a joke. It said that PM had not listened to advice and guidance and continued to behave in ways he wanted rather than should, such as continually not wearing his PPE mask correctly. It said that the evidence suggested that PM’s “attitude” at work had been towards both colleagues and residents and had persisted for years.

In the second of those categories where there were “definite” concerns, the DBS document said that PM had continually failed to appreciate the impact of his behaviours on his “victim”. His behaviour had caused distress and alarm to his “victims” and PM has brushed it off by stating that he was only joking or that he denied any involvement. It said that PM’s lack of awareness and remorse had been a concern for the NMC and again in the newer information received by DBS the evidence suggested a lack of awareness, remorse and an inability to consider the impact of his behaviour on those around him.

Section 4(2) of the Act confers a right of appeal to the Upper Tribunal against a decision by DBS under paragraphs 3 and 9 of Schedule 3 (amongst other provisions) only on grounds that DBS has made a mistake

The Act says that “the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact” (section 4(3)).

Permission to appeal was given by the Upper Tribunal in a decision issued on 17 July 2023 on the ground that it was reasonably arguable that DBS made mistakes in its 2020 probationary period findings, and that these are findings of fact on which DBS’s decision was based. This was the only ground on which permission to appeal was given.

In that decision, Judge Citron said as follows under the heading Why I have found it reasonably arguable that DBS made a mistake in certain findings of fact on which the decision was based:

In addition to the decision letter and DBS’s “barring decision process” document, evidence in the bundle of 255 pages included:

PM attended the hearing, presented both arguments and evidence, and was cross examined on the latter by Mr Serr, who also made submissions on behalf of DBS. No other witnesses gave evidence at the hearing.

PM gave an overview of his career, including putting the NMC findings, in particular, in context, from his perspective. He said he felt that some of the staff at the care home he worked at in 2020 were against him (as he had the job that one of them had wanted); he said he felt isolated and ostracised there, and “set up for a fall”. He gave us his view of the various incidents on which DBS had made factual findings (and we will refer to these in the discussion that follows); in broad terms, he said he was aware of his somewhat distinctive “manner” and “sense of humour” but said that he had not, in practice, upset vulnerable adults he was caring for.

DBS adduced no new evidence at the hearing and submitted, in high-level summary, that there was no material mistake of fact or law in DBS’s decision.

The (only) issue before us is whether there were material factual mistakes in DBS’s 2020 probationary period findings.

We had quite a lot of contemporaneous documentary evidence before us, in particular the notes of the four (signed) probationary review meetings, and emails and statement from the time; on the other hand, the only “live” witness evidence, from someone who could comment on those documents, was that of PM. Our overall approach to the evidence – documentary and oral – was to review it critically and realistically. We tended to give evidence more credence to the extent it was corroborated, closer in time to the events it described and/or objectively plausible. This applies equally to PM’s oral evidence: much of it was credible and reliable; but not all of it. We explain in the discussion which follows, where (and why) we have not been persuaded by PM’s oral evidence, on significant points.

We would comment on two pieces of documentary evidence in particular:

There were a number of reference letters and emails about PM and his character in the bundle – and some were potentially more relevant than others, as they came from nursing colleagues and family of patients. However, none of these individuals were called by PM to give oral evidence (and so be questioned on their statements); and none of them were first hand witnesses to the events underlying DBS’s 2020 probationary period findings. As a result, we could not place any significant weight on these references, as regards our task of deciding if there were material factual mistakes in DBS’s 2020 probationary period findings.

There was an undated, typed letter to PM, signed off “Good luck Fi”, which PM said was from FB. It read as follows:

In our view, little evidential weight can be put on this letter to the extent it runs counter to more contemporaneous documentary evidence from FB, given that (i) there was nothing to vouchsafe the authenticity of the letter (other than PM’s putting it before us), given that it did not bear a signature or a date; and (ii) PM did not call FB as a witness at the hearing (despite this being raised as a possibility in the decision giving permission to appeal), such that she could be questioned on those discrepancies in her evidence.

We now turn to discussing the question of factual mistakes in DBS’s 2020 probationary period findings.

Most of DBS’s 2020 probationary period findings are about incidents which, by all accounts (including PM’s), did occur – the factual dispute is about whether DBS misrepresented the incidents by stating, or implying, that PM, in the incident, was being insensitive or inappropriate in his dealings with a vulnerable person. This applies to the incidents where DBS found that PM

In our view, DBS did not make a mistake in finding that, on these occasions, PM’s style of interacting with the vulnerable adults he was caring for was insensitive, inappropriate and/or misjudged (in terms of how it would make the vulnerable adult feel). We rely on the contemporaneous documentary evidence (which indicates that the care home viewed the incidents in this way), and also on our own intuition, expertise and common sense, in preference to PM’s oral evidence (to the effect that he made sure that none of these interactions caused upset). We accept – and DBS did not find otherwise – that PM was not always inappropriate or insensitive, in his dealings with vulnerable adults; rather, it was an aspect of PM’s style that recurred in these various incidents. We also fully accept (and, again, DBS not find otherwise) that PM did not mean to upset or discomfort the vulnerable adults in question; we fully accept that PM did not have “bad” intentions as regards the vulnerable adults he worked with in 2020.

We have considered whether it was a mistake on DBS’s part not to “contextualise” these findings (rather as we have done in the preceding paragraph), and make findings as to the “positives” of PM’s style with vulnerable adults he was caring for. In our view, omitting to make such findings was not a material mistake, in the sense of one that affected the outcome (DBS’s decision to bar): it is clear enough that DBS found there to be a pattern in PM’s “insensitive/inappropriate” interaction with vulnerable adults, but DBS’s decision did not rest on this being his invariable way of treating such adults, or on his “style” not having other, more positive aspects.

We now turn to specific other elements of DBS’s 2020 probationary period findings.

This finding was based on statements in the probation review meeting on 4 May 2020. PM essentially accepts the finding that he failed to wear a PPE face mask on a number of occasions – but says there were good reasons (our words, not his) for his not wearing a PPE face mask. In the documentary evidence, the reason given was that PM was speaking to someone hard of hearing; at the hearing, PM told us that he had “long covid” and was told by his doctor that he had immunity. We are not persuaded that DBS made a mistake in not making a finding as to these “reasons” for PM not wearing a PPE face mask: in our eyes, they lack credibility (there was no corroborating evidence as to what PM said about his doctor) and, in any event, it is clear from the probation review meeting notes that the care home did not accept that PM did not have to wear a PPE face mask (and those notes indicate no attempt by PM to persuade them otherwise).

This finding was also based on statements in the 4 May 2020 probation review meeting. PM told us the finding was mistaken, as he did not have, or listen to, music on his phone. His response in the notes of the review meeting is recorded as: “I haven’t played music on my phone, I have had my phone out”. In our view, there is no material mistake in this factual finding: the essence of the finding, in our view, is that PM was absorbed in his phone (whether for music or for something else); that the resident asked him to stop paying attention to his phone; and that PM refused.

We consider here the findings relating to sub-standard provision of care by PM: that he

These findings were based on the probation review meeting notes from 4 May, 21 May and 19 June 2020. PM, broadly, did not agree with them, but, given they were documented contemporaneously (in documents PM signed), we do not find that DBS made a mistake in these findings. We note that, as regards moving the patient by himself when two were required, the meeting notes from 4 May record that PM said that “staff” had told him to do it this way; his line manager is recorded as expressing scepticism that this would have been said, but said she would investigate; however, we see no mistake here by DBS in finding that two were “required”, given that, from the line manager’s recorded response, it would have been clear that two persons were needed to move the patient, regardless of what colleagues may or may not have said to PM at the time.

We note that the probation review meetings also note certain of PM’s professional strengths (e.g. in completing paperwork) and improvements (e.g. 19 June meeting note says “medications are now being administered at a better time”): however, we do not consider DBS to have made a material mistake in not making findings on these more positive aspects, as, fairly clearly in the overall context, doing so would not have affected the outcome.

Our impression both from PM’s written representations in the bundle, and from his presentation at the hearing, was that this was a finding that PM particularly wished to challenge: his evidence was that he had made great efforts with the resident in question, and would not have done such a thing, as he knew it would upset her.

The evidence relied on by DBS here is an email from a colleague, “DT”, to HR (PM’s line manager), at 16:02 on 10 July 2020; the incident was also discussed at the probation review meeting on 12 July 2020: after being told that it had been reported that he told a woman with dementia that she ran over Frank Sinatra with her car, PM is recorded as responding:

At the hearing, PM told us that someone else had told the service user in question that she had run over Frank Sinatra.

We accept that PM had no intention to upset the patient in question. We note that in the 12 July 2020 meeting, PM referred to something else – a “woman from Fulham” kissing “him” (presumably, Frank Sinatra). The evidence is thus somewhat confused. It seems to us probable that something was said by PM to the dementia patient, in a humorous or lightly teasing vein (from his point of view), involving Frank Sinatra (who, PM tells us, the patient in question was a great fan of), and, for whatever reason, it “landed badly”. Whatever was said (by PM) may not have been, specifically, about the patient “running over” Frank Sinatra – but, whatever it was, it upset the patient. Accordingly, in our view, there is no material factual mistake here as, even if DBS had made a finding in line with what we have just said is, probably, what happened here, it would not have affected the outcome (as it would have been a further example of PM’s insensitivity/inappropriateness with vulnerable adults, albeit not malicious, and generally well-meaning).

The sole ground on which permission to appeal was given was that DBS’s made mistakes in its 2020 probationary period findings, and those mistaken factual findings were material to its decision to include PM in the barred lists. That ground has not been made out, either because there were no mistakes, or the mistakes made were not material. DBS’s decision is accordingly confirmed.