Close v The Secretary of State for Health, Court of Appeal - Protection of Vulnerable Adults, March 10, 2008,  EWCST 852(PVA)
|Resolution Date:||March 10, 2008|
|Issuing Organization:||Protection of Vulnerable Adults|
|Actores:||Close v The Secretary of State for Health|
Close v The Secretary of State for Health  EWCST 852(PVA) (10 March 2008)
The Secretary of State for Health
Application No.  852.PVA
The Secretary of State for Children Schools and Families
Application No.  853.PC
Mr John Reddish (Chairman)
Ms Bridget Graham
Ms Helen Hyland
Hearing dates: 27, 28 and 29 February 2008
On 8 December 2006 the applicant appealed under section 86(1) of the Care Standards Act 2000 against the decision of the Secretary of State for Health to include her in the list kept under section 81 of the 2000 Act (the “POVA” list) and also appealed under section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Children Schools and Families to include her in the list kept under section 1 of the Protection of Children Act 1999 (the “POCA” list).
At the hearing Miss Maya Lester of Counsel, instructed by Miss Geraldine Haack of the Treasury Solicitors, represented the Secretaries of State. The applicant represented herself.
The Tribunal heard oral evidence on behalf of the Secretaries of State from:
Mrs Lynne Gough, a company director who was employed as a social care worker by Rhondda Cynon Taff County Borough Council at Clwyd Wen Respite Care Home for Adults with Learning Disabilities between 1996 and 2006; Mr Stephen Gullidge, a Care Home manager who was employed as a social care worker at Clwyd Wen from July 1996 until January 1997 and from May 2000 until May 2004; Miss Louise Thomas, a child care worker who was employed as a social care worker at Clwyd Wen from 24 February 2003 until June 2003; Mr Glynn Llewellyn, a community care worker who was employed as a social care worker at Clwyd Wen from January 2002 until May 2003 and Ms Zowie Crandon, a phlebotomist and support worker who was employed as a social care worker at Clwyd Wen from January 2001 until May 2003.
The Tribunal also received written evidence on behalf of the Secretaries of State from:
Mr Robert Gatis, the Director of Community Care for Rhondda Cynon Taff County Borough Council; Ms Sian Gurner; Ms Carol Gould; Ms Rachel Trehane Howells; Ms Caroline Lidster; Ms Helen Jones and Ms Arlene Price, all of whom were social care workers at Clwyd Wen in April 2003; Ms Elizabeth Carpenter, who was a social care worker at Clwyd Wen until February 2003; Mrs Meryl Morris and Mr Paul Morris, the parents of Mr Adam Morris; Mr John Cousins, a Paramedic with the Welsh Ambulance Service and Dr Rupert Evans, a Consultant Physician at the University Hospital of Wales.
The Tribunal heard oral evidence from the applicant herself.
The Tribunal also received written evidence on behalf of the applicant from:
Mrs A, the mother of a former service user at Clwyd Wen; Mrs Josephine O’Grady, a former social care worker at Clwyd Wen; Mrs G, the mother of another former service user at Clwyd Wen and Ms Karen Claridge, a social care worker who worked with the applicant in Pontypridd during 1993-4.
The Tribunal also read the documents submitted by the parties comprised in two binders, sub-divided into 39 sections and including time sheets, care plans, records of disciplinary hearings, correspondence with the applicant, guides for service users and staff and other miscellaneous documents disclosed by Rhondda Cynon Taff County Borough Council; the analyses of staff rotas prepared by or on behalf of the applicant; the written decision of the Employment Tribunal dated 23 August 2007; the formal record of HM Coroner’s Inquisition into the death of Mr Adam Morris dated 16 October 2006; counsel’s note of the outcome of that Inquisition dated 17 October 2006; a summary of all of the evidence obtained by the police during their investigation of the circumstances surrounding the death of Mr Adam Morris and the transcripts of the interviews of the applicant conducted by police officers on 18 September 2003.
On 27 April 2007 the President made an order, pursuant to regulation 18(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002, prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to the identify any service user. That order applied until the conclusion of the hearing. The Tribunal decided to extend the order indefinitely in respect of all service users at Clwyd Wen save for Mr Adam Morris. The Tribunal was satisfied that such an order would be appropriate to safeguard the welfare of the vulnerable adults concerned and to protect their private lives. The Tribunal received representations to the effect that the restricted reporting order need not be extended to cover the identity of Mr Morris because, following his death on 2 May 2003, his name appeared in many reports of proceedings in the criminal courts and HM Coroner’s Court and became widely known. The Tribunal invited Miss Lester and Miss Haack to obtain the views of Mr and Mrs Morris as to whether they had any objections to their deceased son being identified in reports of the proceedings in this case. Miss Lester informed the Tribunal that they had no objections.
The material facts found by the Tribunal were as follows:
The applicant was born on 26 February 1968 and is now 40 years old. She is married and has four children. She was employed as a social care worker by Rhondda Cynon Taff County Borough Council from 1987. In 1993 she became a retained fire fighter for South Wales Fire Brigade and then worked, pursuant to a part-time contract with Rhondda Cynon Taff County Borough Council, at Clwyd Wen Respite Care Home for Adults with Learning Disabilities in Miskin.
Clwyd Wen accommodated service users with a variety of physical and mental disabilities, most of whom required extensive personal assistance. The home was principally used to provide respite care for vulnerable adults, who normally lived with their families, at weekends and during holidays but some service users remained living in the home for extended periods.
On 10 May 1998 the applicant’s elder sister, Mrs Deborah Waters became the manager of Clwyd Wen.
For many years, Clwyd Wen provided respite care for Mr Adam Morris. He was a young man (born in October 1979) who had cerebral palsy and a severe learning difficulty. He had multiple disabilities and was wholly reliant on others. When uncomfortable or unhappy he would thrash his limbs and become extremely vocal. During the night he often experienced muscle spasms and would use his considerable physical strength to push himself towards the head of his bed. When this happened, his carers would have to pull him back down his bed and move him into a comfortable position to enable him to sleep.
On an occasion in 1999, when Mrs Gough was the “night sleeping” carer at Clwyd Wen and the applicant was the “night awake” carer, Mrs Gough awoke at about 6.30 a.m. She was concerned to note that there was no noise emanating from the residents or staff downstairs. Mrs Gough went down to the lounge and discovered the applicant asleep on the sofa, covered by a duvet and with her head on a pillow. Mrs Gough woke the applicant and said: “Oh, for God’s sake, Rachel” or words to a like effect, implying that, as both of them were well aware, the applicant should not have been asleep and that the applicant’s conduct was dangerous and foolish. Mrs Gough was deeply unimpressed by the applicant’s behaviour and relations between them were never good thereafter but Mrs Gough did not, at that time, report the applicant’s misconduct to Mrs Waters. She did, however, contribute to the common knowledge of the staff at Clwyd Wen that the applicant was liable to sleep whilst on “night awake” duty, by recounting her experience to some of them.
On many occasions between 2000 and April 2003 Mr Gullidge saw the applicant asleep when on “night awake” duty at Clwyd Wen. Mr Gullidge was able to observe this because, when he was on the premises as the “night sleeping” carer, the applicant lay on the settee in the lounge, covered herself with a quilt and went to sleep before he did.
The applicant frequently referred to the service users at Clwyd Wen as “the wonks”. She was often resistant to suggestions that service users might be given extra help. Her stock answer, given when she was disinclined to exert herself or was indicating to others that they should not take further trouble to assist service users, was: “Fuck ‘em”.
From October 2001 until April 2003, T, a vulnerable adult who had a tendency to self harm when upset, was permanently resident in Clwyd Wen. On several occasions in 2001-2 Mrs Gough saw and heard the applicant swearing at T and taunting her by mimicking her self-harming actions. Mrs Gough and others remonstrated with the applicant about this but preferred to give additional attention to T, to compensate for the ill-treatment she was receiving from the applicant, rather than to report the applicant to higher authority.
On 15 February 2002 Mr Stephen Webb, a Senior Community Occupational Therapist, attended Clwyd Wen and undertook modifications of the bed which was used by Mr Morris when he stayed there. Mr Webb secured the bed rails to the bed frame by using plastic cable ties to prevent Mr Morris moving the rails and creating a gap.
On 31 May 2002 Mr Webb looked again at the bed he had previously modified for Mr Morris because it had been reported to him that Mr Morris had injured his arm on one of the expansion joints of the bed rail. Mr Webb placed foam around the horizontal bars of the rails to prevent this from happening again. During this visit, Mr Gullidge pointed out to Mr Webb that Mr Morris might still be able to become trapped between the headboard...
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