AW v Disclosure and Barring Service

AW’s evidence was that, when the night shift took over from the day shift, or vice versa, there was a “handover”, both by way of the outgoing team speaking to the incoming team about information relevant to the service users in their care, and by means of the two teams going round to see the service users individually in their rooms.

The night staff’s duties included giving personal care to service users, including changing their incontinence pads, and putting them to bed. Once service users had gone to bed, the night staff would do things like clean the service users’ clothes and clean the communal areas. Whilst doing this work, night staff were expected to check on service users - and if the service user was wet due to incontinence, the night shift would change their pads and reposition them.

In the morning, night staff would provide personal care to the service users that were awake; night staff would check at around 6 am to see who was awake, and if they were wet, night staff would change the service users before “handover” to day staff.

TH was in his late 50s; AW first worked with him in 2015; he had mental illness, learning disability and physical disabilities. TH was supported with personal care and preparing of food. AW’s evidence was that TH was difficult as a patient. AW’s evidence was that TH had a history of physical assault on staff. AW’s evidence was that TH had physically attacked her in her first few months of working in the home and was regularly racially abusive to her (and other support workers who were black). AW’s evidence was that TH regularly told her “get lost”, “I hate you” “I don’t want you” and verbally threatened to harm her.

AW’s evidence was that TH would allow some staff to perform personal care, but not others; that the care home arranged for TH’s preferred members of staff to come in early in the morning to attend to his personal hygiene; that AW’s previous manager had arranged matters such that, for AW’s safety, AW did not have to attend on TH; and that the manager at the time of the relevant incidents (GB) was aware of this.

JB was in his late 30s; AW first worked with him in 2015; JB had mental illness, learning disability and physical disabilities; JB had complex needs and required personal care including feeding and bathing; he did not have “capacity”. JB struggled to sleep both day and night and would often scream. JB had communication difficulties; he could not verbally express his needs.

There was a “spot check” (i.e. an unannounced visit by the home care management (TT and GLP)) in the middle of the night. PK and AW (the night shift) were at first slightly frightened/discombobulated by people coming into the home in the middle of the night (the care home was in a relatively quiet, remote setting). The “spot check” lasted about half an hour.

There was a “handover” by AW and PK to the incoming day staff on the morning of 17 March, as per the usual routine as described by AW above.

At the start of the night shift, PK and AW were told that JB had had a covid vaccine injection during the day and been drowsy since then. They were told that JB needed to be supported intermittently (15 to 30 minutes), to monitor any side effect of the injection. JB was in bed asleep at the start of the night shift; he was intermittently awake; he seemed very lethargic; at the 10 pm check JB was not fully asleep but appeared very tired in bed; when AW checked his pad, it was dry; she repositioned him back to bed. At about midnight during intermittent checks, JB was observed to be half awake; AW noticed that he was wet; his pad was changed; she repositioned him back to bed and he slept. JB was wet again at 4:25 am and AW changed him then. At about 6:45 am AW checked JB’s pad; JB was fully asleep at the time. AW’s evidence was that JB’s pad was “damp” but not wet; she decided that it was not necessary to change the pad, particularly as this would (or might) wake JB up. AW’s evidence was that JB’s care plan sanctioned not changing JB’s pad in these circumstances.

AW denied making the entry on JB’s “bowel monitoring chart” showing a check at 5:30 am; she said it was not her handwriting. AW also said she might have made a mistake by writing 5:30 am rather than 2:35 am, which was when (according to the “daily records”) she checked on JB (as it was around this time that the “spot check” occurred, which caused some discombobulation on AW’s part).

TH appeared to be awake most of the night, looking at family photos. He slept intermittently. The last check AW and PK did was at 7 am: TH was awake, his side light was on, he was sitting on his bed, AW entered the room whilst PK was standing by the door. TH appeared physically well. AW spoke with him; he asked who was coming to attend to his personal care that morning; AW replied that she was about to go for handover and after handover one of the day staff would come to support him. There was no vomit on TH. TH declined personal care from AW (or PK), as he usually did.

In cross examination, some emphasis was put on the following evidence of AW’s:

“Daily records” for JB recorded as follows (all entries were made by AW except the last one, at 7:30 am):

JB’s “bowel monitoring chart” recorded as follows:

“Daily records” for TH recorded as follows (all entries were made by AW except the last one, at 8 am):

The near-contemporaneous documentary evidence from PK largely corroborated what AW said about TH being highly uncooperative with AW, and sometimes violent. It indicated that PK was standing behind AW, at the door, when AW interacted with TH. Like AW, PK denied that there was vomit on TH at the end of the night shift on that morning.

The near-contemporaneous documentary evidence from IG and ER indicated that there was a “handover” from the night shift staff on the morning of 17 March.

IG’s account was that, at the handover, AW and PK said that TH always declined personal care, was aggressive, used bad language and was moaning at them. ER’s account was that AW and PK had said that TH had racially abused them.

IG’s and ER’s accounts was that they attended to TH at 8 am on the morning of 17 March. When asked what she found in TH’s room, IG’s response was

“ER found him, she went to administer meds and ran to me saying he was soaking wet soaking, been sick during night and there was poo. I went to the room and the sick was dry, when you are just sick you can smell it but it was not smelling, room smelt of poo. Wee was leaking from sheet/bed onto the floor”.

When then asked how TH was, IG responded: “He was sitting on his bed and crying.”

When asked what was said about JB “in handover”, IG’s first response included that AW had said that JB was “not changed as he was asleep”. When then asked if she had been told by the night staff in the handover (or around that time) that JB was wet, IG is recorded as saying:

“Actually she didn’t say he was soaking wet but just before they left JB came out of his room and he was soaking wet. AB came in to the office to tell GB, and after AW heard and came in to the office, AB me and GB, she said I gave you handover to say JB was wet in his bed, I said you didn’t say that and that should not be handed over you should change him and she got angry”.

ER’s account was consistent with the above.

GB’s account speaks of a meeting with AW, PK and IG on the morning of 17 March “discussing the events of the previous night” (she says this meeting followed the staff having a handover). The meeting finished just after 7:30 am. AB then went to attend on JB; soon after, AB came to GB and made her aware that JB was sodden in urine; AW was just leaving and “called out” that she had handed over (to IG) that JB was wet; GB took photos of JB’s top, and the stain on his bed, at around 7:50 am. Shortly after this, IG asked GB to come see TH. GB reported that, when she visited TH at around 8 am, TH said he was “not happy”, and was sitting in wet pyjama bottoms and a wet bed; his top had dried vomit on it and there were deposits around his mouth. With TH’s permission, GB took photos of TH and his bed. In response to being asked whether anyone came to see him in the night, TH shook his head.

GB’s email to GLP of 7 April 2021 stated: “there is nothing in the guidance to say [JB] should not be woken up. JB hardly wakes when he’s changed, he is semi-conscious, and goes straight back to sleep afterwards. Since I’ve been doing the nights I regularly change him around 0100-0200 and he goes straight back to sleep”.

AB’s account, concerning both JB and TH, was consistent GB’s, IG’s and ER’s, as summarised above.

The record keeping issue in this “discussion” was that AW had not completed required documentation regarding an injury; specifically, it had not been recorded that there had been a deterioration with an “old” injury and that additional support was needed from the district nurses.

DBS’s counsel emphasised the following evidential points:

We find that the “daily records” for the night of 16-17 March 2021 are a reliable record of what AW did for JB that night: she checked on him six times, at roughly two hour intervals; she changed him when she found him wet at around midnight and again at around 4:30 am.

Based on a combination of the 6:45 am (or thereabouts) entry in the “daily records” and AW’s oral evidence (which, in large part, we found reliable and credible), we find that at around 6:45 am, AW again checked JB, and, finding his pad to be damp but not entirely wet, made a “judgement call” to the effect that it was in JB’s best interests not to change his pad because so-doing risked waking him up, and it was not strictly necessary to change his pad at that stage. AW’s judgement in that matter was very much coloured by her understanding that the care home sanctioned not changing JB’s pad in such circumstances, given that JB had a history of difficulty sleeping. We find that it was wrong for AW to say that this point was formally written in to AW’s care plan; however, we on balance believe her when she says that she believed this was an approach sanctioned by the care home. To be clear: the approach which AW believed was sanctioned by the care home was one that applied only where it was not strictly necessary to change JB’s pad; in other words, if JB had soiled his pad (with faeces), or if his pad was entirely wet (as opposed to just damp), AW’s understanding, we find, was that the pad had to be changed – even if JB was woken up in the process. It was only because the pad was damp, rather than wet, that AW thought it was proper, and sanctioned by the care home, to delay changing it and avoid any risk of waking JB up as a result of changing the pad.

It follows that we have found, on the balance of probabilities, that the urine-sodden state that JB was unfortunately found in, sometime after 7:30 am that morning, is something that had occurred after AW’s check at around 6:45 am.

We find that there was a “handover” to day staff at around 7:15 am on 17 March 2021 but this was done via day staff and night staff speaking to one another, but without a physical examination of the service users. In this respect, we have not found AW’s evidence wholly credible, on the balance of probabilities: whilst we believe her that there was a “handover” (and this is also very much corroborated by the notes of the various investigation minutes), we find that this was not done in as thorough a way as is suggested by the care home’s standard operational procedures document i.e. there was no “walk round” to each of the service users. We note that this failure to do a “walk round” at “handover” was not AW’s fault: we find that, in all likelihood, it reflects a pattern into which the support workers at the care home had fallen, and we think it equally probable that the care home was fully aware that “short cuts” were being taken by staff at “handovers” in this way.

We find it probable that, in the “handover” meeting with the day staff on that morning, AW conveyed, in essence, everything that she had written in the “daily records” over the night – including the fact that she last changed JB’s pad at around 4:30 am, and that she had not changed his pad at around 6:45 am, as it had not been sufficiently wet. In making this finding, we rely on AW’s oral evidence, which in general we found to be credible, as well as intuitive common sense: if AW had written something in the records, it is likely that she would convey the essence of that information to those taking over, at the oral “handover”. We put less weight on the recorded views of IG, ER and AB to the contrary (that AW did not tell them that JB’s pad was damp but not wet at around 6:45 am) in documentary evidence, given that it would have been in their interests to deny being given full information by AW, and that we had no opportunity to test their evidence, as they were not called as witnesses.

We find it probable that the 5:30 am entry in JB’s “bowel monitoring” was a simple error on AW’s part: the other entry for the same night, at 11.58 pm, exactly mirrors the time at which she checked on JB and changed his pad per the “daily records” (which, as we say above, we find to be an accurate record of the care given to JB over that night); we find AW to be, generally, credible, and we see no benefit (or other rationale) to her inserting “5:30 am” on a false basis.

In parallel with our findings in relation to JB above, we find that the “daily records” for the night of 16-17 March 2021 are a reliable record of what AW did for TH that night: in essence, she looked in on him periodically (six times overnight) to ensure he was still breathing (when sleeping) and (when awake) that he was generally “okay”. We find that, in the morning (and exactly as recorded in the “daily records”), AW “approached” TH for personal hygiene (i.e. making it quite clear, by body language, that she was offering to do this for him), but that TH reacted (as he was very well known to do, by all who worked at the care home, including its management) by making it clear that he did not want AW to help him (and in doing so, abused her verbally, in all likelihood by reference to her (non-white) race). We find that AW could not “force” TH to accept help from her; and we also find, for the avoidance of doubt, that the care home management was aware of the problem with TH not wanting to receive personal care from AW (and others on night shift who were not “white”) and relied on the fact that there were support workers on the day shift who TH would accept personal care from.

In parallel, again, with our findings in relation to JB above, we find that at the “oral” handover to the day shift, AW probably conveyed, in essence, everything that she had written in the “daily records” over the night – including that TH had been approached for personal care at 7 am and had refused to be helped by AW or by PK.

DBS accepted in its skeleton argument for the hearing that its core factual finding about 11 March 2021 was not one on which its decision was based; it follows that this factual finding is irrelevant for the purposes of the Upper Tribunal’s jurisdiction in this appeal.

Turning to DBS’s other core factual findings, on which its decision was based, we find that DBS made mistakes in all of these:

In the light of our factual findings, it seems to us the only decision that DBS could lawfully reach would be to remove AW from both barred lists.

It follows that we have directed DBS to remove AW from the barred lists.