Smith v Secretary of State for Health, Court of Appeal - Protection of Vulnerable Adults, June 24, 2008, [2007] EWCST 1174(PVA)

Resolution Date:June 24, 2008
Issuing Organization:Protection of Vulnerable Adults
Actores:Smith v Secretary of State for Health

Smith v Secretary of State for Health [2007] EWCST 1174(PVA) (24 June 2008)




2007 1174 PVA

2007 1175 PCA


Ms Liz Goldthorpe, (Nominated Chair),

Mr David Braybrook

Ms Janice Funnell

Heard on 8th and 9th May 2008

at Procession House, Ludgate Hill, London



For the Appellant.

Mr Dyal of Counsel instructed by Ms H Caulfield, Solicitor, Royal College of Nursing Legal Department.

For the Respondent.

Mr Whale of Counsel instructed by Mr D Brown of the Treasury Solicitors


  1. The Appellant appeals under s.86 of the Care Standards Act 2000 the decision of the Respondent dated 31st August 2007 and contained in a letter to the Appellant dated 7th September 2007 (the Decision Letter) to confirm her on the Protection of Vulnerable Adults list (the POVA list – the first Appeal) and a letter on the same date to confirm her on the Protection of Children Act list (the POCA list – the second Appeal).

  2. The basis of the decision to list the Appellant was that her employer reasonably considered her guilty of misconduct, which harmed or placed at risk of harm a vulnerable adult by verbally and physically abusing service users in her care and had failed to divulge the fact she had been previously dismissed from a care home for gross misconduct despite specifically being asked about this on two separate occasions. Furthermore, that she was considered unsuitable to work with vulnerable adults by reason of the nature and number of allegations reported by several witnesses and because the failure to disclose her previous dismissal had denied the home full information when considering her suitability to work in a care position.

    Preliminary matters

  3. On 30th January 2008 the President, His Honour Judge Pearl, made the usual directions for disclosure and witness statements.

  4. The Appellant said she had made a prior application to exclude unsigned and undated notes of interviews with herself, Ms W, and Ms F because the Respondents had no witness now available to give any direct evidence about the timing or manner in which these documents had been created. There was no direction for the exclusion of any documents, and the parties were unable to agree on contents of the Tribunal bundle. Having considered the issue before the hearing, the Chair ruled these documents should be included since the Tribunal could judge what weight to attach to them. At the hearing the Tribunal ruled that the Respondents’ witnesses should not be present during the proceedings save for the purpose of giving their own evidence under oath.

  5. The Tribunal made a Restricted Reporting Order under Regulation 18(1) of the Tribunal Regulations to withhold identification of the service users and their relatives in order to protect their private lives and a direction under Regulation 27(1) that the decision would be published in an edited form.

    Evidence heard

  6. The Appellant gave written and oral evidence. She did not call any witnesses.

  7. On behalf of the Respondents the Tribunal heard evidence from Ms W and Mrs F, health care assistants (‘HCAs’) at the home and Mrs N, mother of a service user who was resident at the home at the relevant time, and Mrs S, Human Resources Manager for the group of homes run by Augustinian Care.

  8. The Tribunal bundle contained several documents from the home’s records, including those relating to the internal investigation of the events described below, as well as registered nursing care contribution sheets, and some accident or incident records. In the course of the hearing the solicitor for the Respondent found an incident sheet on the Treasury Solicitor’s file not previously disclosed to the Appellant or her representatives. This recorded observation of a bruise on resident M, one of the service users who were the subject of the allegations against the Appellant. We requested full disclosure from the home of all similar records for the relevant period. A quantity of further records were produced that contained specific or general information potentially relevant to this appeal. Having carefully examined this, we added a number of these documents as additional evidence for this appeal.

  9. On day two of the hearing, following oral evidence from Mrs W, Mrs N and Ms S, and having considered the late written evidence, the Respondents withdrew part of the allegations made against the Appellant. The Appellant also made a number of admissions during the course of the hearing.


  10. The Secretary of State has a duty under s.81 Care Standards Act 2000 to “…keep a list of individuals who are considered unsuitable to work with vulnerable Adults”. The effect of inclusion on the list is spelled out by s.89 which effectively prohibits employment in a care position and makes it a criminal offence to apply for a job, or do any work in a care position.

  11. Under Section 82 Care Standards Act 2000 an employer has a duty to refer an employee if;

    “(2)(a)…the provider has dismissed the worker on the grounds of misconduct …which harmed or placed at risk of harm a vulnerable adult.”

  12. On appeal the tribunal has to consider the matter as follows;

    “S.86(3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely-

    1. that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and

    2. that the individual is unsuitable to work with vulnerable adults,

    the Tribunal shall allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list”

  13. By s.2C Protection of Children Act 1999 the Secretary of State may consider any person placed on the POVA list for inclusion on the POCA list where the nature of the misconduct against a vulnerable adult is such that the individual would also be unsuitable to work with children.

    Burden and Standard of Proof

  14. The standard of proof is the ordinary civil standard, namely on the balance of probabilities as defined in the House of Lords decision in Re H (minors) (sexual abuse: standards of proof) [1996] AC 563. The confusion caused by dicta in that case suggesting the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned, have recently been clarified by the House of Lords in In re B (Children) FC [2008] UKHL 35.

  15. In paragraphs 31 and 32 of In re B Baroness Hale stressed the importance of oral evidence, “especially from those who were present when the alleged events took place”, stating that in making up their minds whom to believe, judges are guided by many things, “including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses…if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other.” She concluded at paragraphs 70 and 72 that the standard of proof “is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies…As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability”.

  16. In short, there is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. It is this test that we apply.

  17. As set out in PB v Secretary of State [2006] 628 PC there are 3 tests that apply to the determination of an appeal under s.86 of the Care Standards Act 2000. Firstly, the Tribunal must be satisfied there was an act or acts of misconduct and secondly that one or more of those acts have harmed a vulnerable adult or placed them at risk of harm. The burden of satisfying the Tribunal as to misconduct rests on the Respondent.

  18. If the first two tests are both satisfied evidentially, applying the single civil test of the balance of probabilities, the third test is whether the Tribunal is satisfied as to the Appellant’s suitability to work with vulnerable adults or with children. In the cases of Kalchev v Secretary of State for Education And Skills [2005] 589.PVA and DG v Secretary of State [2006] 824 PVA, it was held that the duty to satisfy the Tribunal as to suitability transfers to the Appellant if the Tribunal is satisfied that the person has been guilty of misconduct. We agree, and adopt that approach in this case.


  19. Misconduct is not defined in the 1999 Act nor is the term qualified as ‘serious’ or ‘gross’. We have adopted the principles set out in Angella Mairs [2004] 269 PC, namely:

    • it is not necessary to establish misconduct is either serious or gross

    • a single act of negligence can constitute misconduct, but in most cases will be an incident “forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have know what he or she was doing was contrary to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling."

    • In the context of a profession there...

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