Wright v Secretary of State For HealtH v Secretary of State, Court of Appeal - Protection of Vulnerable Adults, October 21, 2008, [2008] EWCST 655(PVA)

Resolution Date:October 21, 2008
Issuing Organization:Protection of Vulnerable Adults
Actores:Wright v Secretary of State For HealtH v Secretary of State

Wright v Secretary of State For HealtH v Secretary of State [2008] EWCST 655(PVA) (21 October 2008)

Schedule 5 cases: Protection of Vulnerable Adults list - Inclusion on PoVA list





[2006] 655.PVA


Mr. Andrew Lindqvist (Nominated Chairman)

Mr. Peter Sarll

Ms. Caroline Joffe

The appeal was heard on the 17th, 18th, 19th and 22nd September 2008 at Bicester Magistrates Court, concluding submissions were heard on the 23rd September 2008 at the Care Standards Tribunal, Pocock Street, London.

Mr. Jamie Carpenter of Counsel, instructed by Ms Helen Caulfield of the Legal Department of the Royal College of Nursing, appeared for the appellant.

Miss Zoe Leventhal of Counsel, instructed by the Treasury Solicitor, appeared for the respondent.

The appeal

  1. Mrs Wright appeals under section 86 of the Care Standards Act 2000 against the decision of the Secretary of State made on the 22nd of November 2005 to confirm her name on the list of individuals who are considered unsuitable to work with vulnerable adults, kept by him under section 81 of that Act (' the PoVA List ')

  2. Mrs Wright's name was subsequently included (under section 2(c)) on the list of individuals who are considered unsuitable to work with children, kept by the Secretary of State under section 1 of the Protection of Children Act 1999, (' the PoCA list ').

  3. It follows automatically from her inclusion in the PoCA list, that Mrs Wright is subject to a direction under section 142 of the Education Act 2002, prohibiting many sorts of educational work (commonly known as inclusion in ' List 99 ').

  4. At a directions hearing on the 10th of April 2008, the Deputy President ordered that Mrs Wright's appeal be treated as being against her inclusion on the PoVA and PoCA lists and List 99.

    Preliminary matters

  5. Mrs Wright's inclusion on the PoVA list resulted from alleged misconduct in 1999 to 2003. The referral took place on the 10th of October 2004. The material provisions of the Care Standards Act 2000 came into force on the 26th of July 2004. Mrs Wright sought a judicial review of the Secretary of State's decision on the grounds that alleged misconduct occurring before the coming into force of the relevant provisions could not be the basis for a referral made after the provisions came into force. Other points and parties were concerned in the judicial review application, but so far as this appeal (which was stayed pending the outcome of the judicial review application) is concerned, the rejection of that contention by the Administrative Court established the Secretary of State's power to make the decision and cleared the way for the hearing of Mrs Wright's appeal.

  6. On the 27th of April 2006 the President directed a preliminary hearing and on the 23rd of June 2006 he ordered a stay of the appeal pending the outcome of the judicial review application. The Deputy President lifted that stay on the 10th of April 2008 and gave directions about disclosure and the exchange of witness statements and a restricted reporting order prohibiting the identification of any vulnerable adult. The time for compliance with those orders was extended on the 16th of May 2008.

  7. Despite the extensive and detailed order of the 10th of April 2008, all was not in order at the start of the hearing on the 17th of September. Counsel explained to the Tribunal that the Secretary of State had served a further statement of Mrs Maxine Tiffin on the 15th of September. The appellant did not object to such late service as she herself then wished to call two further witnesses, however, Mrs Tiffin's statement included allegations involving a Mrs H, and the appellant wished to see the notes and records concerning her. They were amongst the documents to be disclosed in the orders of the 10th of April 2008. Miss Leventhal told the Tribunal that Mrs H’s notes and records had been sought but could not be found.

  8. Mr Carpenter also raised the question of disclosure of any notes made by the Secretary of State of interviews of witnesses prior to the making of their statements.

  9. The Tribunal suggested that it should hear Mrs Tiffin's evidence and decide whether an adjournment to make further efforts to obtain Mrs H's notes was really necessary. Mr Carpenter said that that would leave his point about the disclosure of the Secretary of State's notes prior to the interviews unresolved and Miss Leventhal expressed reservations because of the possible need to adjourn for some time and continue with Mrs Tiffin's evidence at the adjourned hearing.

  10. The Tribunal adjourned for an hour to enable Counsel to consider the position. Counsel returned to say that Mrs H's notes were not in the hands of the current or previous owners of Brooklands, the nursing home at which she had resided and the appellant had been employed. The notes should not have been anywhere else and short of contacting numerous authorities around Oxfordshire, nothing further could be done to find them. Mr Carpenter, with some understandable reluctance, agreed that no proportionate effort could now be made to find Mrs H's notes.

  11. Mr Carpenter's point about the Secretary of State's notes had been raised for the first time on the 11th of September. As Miss Leventhal pointed out, it was arguable that such notes were not subject to disclosure. As the point had been raised so recently she had not had time to consider the position either generally or in respect of any particular note/s the Secretary of State may have made. The Tribunal decided that the point had been raised too late to justify an adjournment at the appellant's behest.

    The evidence

  12. The hearing commenced at 2 p.m. on the 17th of September. In her opening submission, Miss Leventhal set out eight allegations of misconduct on which the Secretary of State relied; they had been made known in a document on the 7th of July 2008 as directed on the 10th of April. In summary, they were,

    i) Force feeding of tablets and liquids

    ii) Placing call bells out of reach

    iii) Leaving a service user on a commode for too long

    iv) Rough turning of service users

    v) Rough and unprofessional catheterisation of a service user

    vi) Casual and excessive administration of Lactulose

    vii) Carelessly causing or permitting scalding with hot drinks

    viii) Failing to disclose convictions for dishonesty in relation to benefits.

  13. The Tribunal heard oral evidence from Mrs Maxine Tiffin, Miss Passmore Kwenda,, Ms Caroline Kirby, Miss Margaret Websdale, Mrs Audrey Brooks, Mr Mark Taylor, and from the appellant Mrs June Wright. All those witnesses had made written statements. In addition, there were written statements before the Tribunal by Miss Janine Cross for the respondent and Ms Jean Clowry for the appellant and there were testimonial statements for the appellant made by Ms Cynthia Ntabeni, Ms Irene Wyngaardt, Mrs Edna Sparks, Ms Pauline Holden and Ms Jenny Gregory. Further documentation ran to some 1500 pages, of which about a hundred were referred to in the course of the hearing.

    The background

  14. The eight allegations arose out of Mrs. Wright’s employment at Brooklands Nursing Home in Banbury. There were in fact two establishments (Brooklands 1 and Brooklands 2), both run as part of the same business by a Mr. and Mrs. Brooks when Mrs. Wright went to work there in 1999. All the events with which the Tribunal was concerned happened at Brooklands 1, 14 Dashwood Road in Banbury. It consisted of accommodation for about 22 residents in single or shared rooms on three floors. The residents needed care of a variety of reasons, some temporarily for example while recuperating after operations, some permanently, for example the terminally ill or those suffering from dementia. The day at Brooklands was divided into two shifts, the day shift from 8 a.m. to 8:30 p.m., and the night shift from 8:30 p.m. to 8 a.m. At night, one nurse and one care assistant would be on duty, by day there would be one nurse and more care assistants to meet the residents’ needs during their waking hours.

  15. Mrs Wright joined the staff at Brooklands in June 1999 to work on the night shift. She had qualified as a State Enrolled Nurse in 1970, and, with some career breaks and variety, had over 20 years nursing experience when she went to Brooklands.

  16. It is clear that, if Mr Carpenter's criticism of Brooklands as dysfunctional is a little harsh, relationships were to say the least strained. Mrs Tiffin, who otherwise admired Sister Websdale’s ability and professionalism, at one point asked to be transferred to Brooklands 2 get away from her. There was evidence of shouting between Mrs Wright and Mrs Brooks. Ms Kirby described Mrs Wright as a ' horrible woman '. Mrs Wright described Mr and Mrs Brooks as irresponsible. Mrs Brooks found Mrs Wright to be insubordinate and confrontational.

  17. The administration of Paracetamol to a resident, Mrs S, and the disagreements surrounding it provided, in the Tribunal's view, an insight into the workings of Brooklands at the time. Mrs S, like a number of the residents, had a prescription for Paracetamol as required. According to Mrs Brooks, the day shift had reported that Mrs S was very sleepy and difficult to rouse in the morning, increasingly after the appellant's nightshifts.

  18. On the 2nd of November 2002, Mrs Brooks wrote to Mrs Wright asking her not to give Paracetamol to Mrs S. Mrs Wright wrote a note in reply, that she was giving Mrs S her prescribed dose of Paracetamol as needed to keep her comfortable. Mrs Brooks, perceiving no improvement in the situation, discussed it with her husband (who was in charge of non medical administration) and he wrote, but did not send, a letter dated the 7th of April 2003 suspending the appellant for giving Paracetamol to Mrs S as a result of which she could not be woken on the 5th of April

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