VP v Secretary of State, Court of Appeal - Protection of Vulnerable Adults, October 31, 2008, [2008] EWCST 1251(PVA)

Resolution Date:October 31, 2008
Issuing Organization:Protection of Vulnerable Adults
Actores:VP v Secretary of State

Care Standards Tribunal 1VP-and-SECRETARY OF STATE FOR HEALTH[2008] 1251.PVA[2008] 1252.PCBefore:Mrs. Carolyn Singleton (Chairman)Ms. Michele TynanMr. Tim GreenacreThe hearing took place at the Magistrate's Court, Loughborough on 21st and 22nd October 2008.RepresentationThe Appellant, VP, appeared in person. The Respondent was represented by Ms. Leventhal of counsel.DECISION1. This appeal was brought under s86(1) of the Care Standards Act 2000. The Appellant appealed against a decision by the Secretary of State to place her name on the Protection of Vulnerable Adults (PoVA) list, the Protection of Children Act (PoCA) list and the list kept under s142 of the Education Act 2002, also known as List 99. 2. At a directions hearing before His Honour Judge Pearl on 24th July 2008, a Restricted Reporting Order under Regulation 18(1) was made together with a further Order under that Regulation excluding members of the press and public from the hearing. Facts of the case3. The Appellant was employed as a care worker by Carewatch Care Services Ltd. She was dismissed from that employment on 5th March 2007 following a disciplinary hearing. The reason for her dismissal was that she had falsified client log books on four occasions. She was dismissed for gross misconduct.4. On 10th April 2007 she was notified of her provisional inclusion on the PoVA list and PoCA list. She replied with her observations on 19th April 2007. On 18th February 2008 she was confirmed on both lists and List 99. She appealed to the Care Standards Tribunal in an appeal form which was undated but received by this Tribunal on 17th April 2008.The Law5. Section 86(3) of the Care Standards Act states:If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely -(a) that the individual was guilty of misconduct (whether or not in course of his duties) which harmed or placed at risk of harm a vulnerable adult; and (b) 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.6. There is, therefore, a three stage test and the appeal will succeed if the tribunal is not satisfied on all three aspects of the test. In other words, the Tribunal must be satisfied, on the balance of probabilities, on misconduct, harm or risk of harm and unsuitability.Burden of proof7. Following the case of DG v Secretary of State [2006], the burden of proof is on the Respondent to satisfy the Tribunal on the questions of misconduct and harm or risk of harm. If satisfied on those stages of the test, the burden shifts to the Appellant to demonstrate her suitability to work with vulnerable adults and children.Evidence for the Respondent8. The Tribunal heard from Louise Richards. She is the Care Manager of Carewatch. Her statement is at pages 60 to 67 of the bundle. She had joined Carewatch in August 2005 as manager and indicated that when she joined the organization she felt things could be improved. This became apparent through more rigorous spot checks than had been taking place before, and as a result of these checks, some bad practices had come to light. These included the fact that carers were not always signing the log sheets. Also, the log sheets were not being completed with sufficient information. Carewatch have a written policy for maintaining records. A copy of the policy is in the care worker handbook, a copy of which was given to the Appellant.9. On 1st November 2005, the Appellant had been given a verbal warning after taking her young child to the home of a service user whilst she was working. On 12th December 2005 she was given a written warning relating to two incidents involving service users. She had not completed the log sheet in respect of cleaning calls she should have made and, where care was provided, had completed the log sheets inadequately, merely stating ``all's well'' or ``all care given''. The importance of detailing information in the log sheet was...

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