EK v Secretary of State, Court of Appeal - Protection of Vulnerable Adults, March 29, 2007, [2006] EWCST 716(PVA)

Resolution Date:March 29, 2007
Issuing Organization:Protection of Vulnerable Adults
Actores:EK v Secretary of State
 
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EK v Secretary of State [2006] EWCST716(PVA) (29 March 2007)

EK

-v-

SECRETARY OF STATE

[2006] 0716 PVA

[2006] 0717 PC

Before:

Ms Liz Goldthorpe, (Nominated Chair),

Dr James Lorimer

Mr Peter Sarll

Heard on February 27th, 28th and March 1st 2007 at The Care Standards Tribunal (the CST), 18 Pocock Street, London SE1 OBW.

REPRESENTATION

For the Appellant.

Ms Nadia Miszczanyn, Legal Officer, UNISON

For the Respondent.

Ms Lisa Busch of Counsel instructed by the Treasury Solicitor

APPEAL

1. The Appellant appeals the two decisions of the Respondent contained in a letter to the Appellant dated 29 March 2006 (the Decision Letter). Firstly (the first Appeal) to confirm him on the Protection of Children Act list (the POCA list) and secondly (the second Appeal) to confirm him on the Protection of Vulnerable Adults list (the POVA list).

2. The Decision Letter also notified the Appellant that the effect of inclusion on the POVA list also meant that the Appellant would not be able to carry out work to which s.142 of the Education Act 2002 applies and that his name had been added to the Education List.

PRELIMINARY MATTERS

3. On 24 October 2006, the President, His Honour Judge Pearl, made directions under Regulations 8(1) and 6(3A) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 (the Regulations) that both the First and the Second Appeals would be heard together at an oral hearing, and giving directions as to documents to be served with relevant deadlines. On 15 December 2006 the President extended these timescales and vacated the original date for hearing on 10-12 January. On 24 October 2006 he also made a Restricted Reporting Order under Regulation 18(1) of the Regulations and a direction under Regulation 27(1) that the decision would be published in an edited form.

4. At the conclusion of the hearing, the Tribunal reaffirmed that the Restricted Reporting Order should remain in force until further order. Since the outcome of these appeals have potential relevance to the imminent, but entirely separate, Nursing and Midwifery Council Fitness to Practise proceedings against the Appellant, the Respondent accepted that anonymity was appropriate in the interests of fairness and justice to avoid any potential identification of the Appellant prior to those proceedings. Furthermore, the Tribunal has determined, following the reasoning in CN -v-Secretary of State [2004] 398.PC, to protect the private lives of the Appellant and the vulnerable adults concerned. Accordingly an Order was made which prohibits the publication (including by electronic means) in a written publication available to the public, or at the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify the appellant or any vulnerable adult) and that this decision of the Tribunal will be published in an anonymised edited form in accordance with Regulation 27.

BACKGROUND

5. The Appellant, who is now aged 60, has been resident in the UK for 34 years. He qualified as a mental health nurse Level 2 in 1975 and Level 6 in 1981 and has practised as a registered mental health nurse (`RMN') in the UK for many years. In 1990 Mr K started working for the W Health and Social Care Trust as a Community Psychiatric Nurse (`CPN'). He formally retired from full time nursing in March 2006 and has not worked as a nurse since.

6. From 1998 onwards, in addition to his substantive NHS post, Mr K took on additional weekend shifts at two nursing homes in order to meet his financial obligations, including the support of family members who live overseas. These included shifts as a Staff Nurse at M Nursing Home until 2003, and at A Nursing Home from 2000 to 2002. In August 2002 he was began work as a Nurse in Charge at the R Care Home, run by the PC Consultancy, for 6 hours on Saturday and Sunday nights.

7. In February 2003 Mr K, who was the Night Staff Nurse in charge at the M Care Home, was suspended from duty as a result of an incident involving bruising to an elderly resident. The only report of this incident is in the CRB check disclosed by Mr K, which states that a doctor's report concluded this was not an accidental injury, but no further action was taken against Mr K or any of the two other members of staff on duty due to insufficient evidence. In August 2003 Mr K also started working at O House, a care home run by BUPA, initially as a Bank Nurse and subsequently for 11 hours on a Saturday as a Night Staff Nurse. Ms G, the Night Manager at the R Care Home gave a reference for this job, as did the former Deputy Care Manager at M Care Home, who described him as `very suitable'.

8. Whilst working for PC Homes Mr K said he reported concerns about staff time sheet irregularities to management. Prior to the formal investigation, the Matron resigned and subsequently other staff were given a formal warning. According to an unverified, undated and unattributed record, in November 2003 Mr K was given a written warning for 6 months with respect to communication skills and clinical practices. In December 2003 formal ownership of the R Care Home transferred to AC Ltd and, according to the same undated record, Mr K was given a first and final written warning for 12 months for breach of confidentiality in June 2004.

9. In August and September 2004 there were two residents at the R Care Home who required different types of drugs for pain relief. Mrs H, who was dying of cancer and had been admitted to the home on 5 August for end of life care, was originally prescribed varying doses of a slow release painkiller, Morphine Sulphate in tablet form (MST). On discharge from hospital in mid September, Mrs C, who had undergone orthopaedic surgery, was prescribed both paracetamol and co-codamol: it was unclear from the entries on the medication chart that these two drugs should not have been given together. In line with various legislative requirements and professional guidance, care providers must keep a record of medicines currently prescribed for each resident. This includes a Medicine Administration Record (`MAR') chart, which is a record of what medicines are prescribed for an individual, in what dosage and when they must be given. The MAR chart is supplemented by the individual's care plan. Morphine pain relief is governed by the law on the possession and supply of controlled drugs, which requires a separate Controlled Drugs Register to be kept, recording the receipt, administration and disposal of these drugs.

10. On 28 August Mrs H's pain relief medication was changed from 20 mgs of MST to Diamorphine, pain relief in liquid form administered through a syringe driver. This was recorded in the MAR Chart with a line drawn across the end of the entry for MST under a dated column and signing this. The separate box for specifically recording the date of discontinuance was not filled in. On or before 4 September 2004, Ms P, the Matron went on holiday, leaving Ms J, then Assistant Matron, effectively in charge. Ms J was also Mr K's line manager and at about 13.30 on Saturday 4 September she gave him a single demonstration of the procedure required to change this syringe driver. Ms J then left the building at 14.30.

11. At 14.45 Mr K gave Mrs H 5mg of MST, and at 18.15 he gave her Oromorph, a fast acting painkiller. At about 16.00 Mr K telephoned the doctor, as he was concerned that Mrs H was still in pain. Mr K said he realised Mrs H was no longer on MST and reported his drug error to the Doctor when she arrived much later that evening. He also reported the error to Ms G, the Night Manager, to whom he handed over formally at 8 pm. Ms G did not record this drug error in the Nursing Report.

12. On 5 September at 19.00 Mr K again administered Oromorph to Mrs H. Mr K again failed to check the MAR Chart before dispensing this and did not record the fact that he had given it to her, although he recorded it in the Controlled Drugs Register. According to records supplied by the R Care Home during the hearing, on 5 September Ms J was on duty from 8 am until 2 pm with Mr AP and other care staff on that shift included Mr S, a care assistant who still works at R Care Home. Ms J handed over to Mr K thereafter, who was also on duty with Mr S. Mr K did not tell Ms J about his error, nor did he record the errors in the Nursing Report for either 4 or 5 September.

13. On 6 September Ms J says Ms G did not mention anything about these events when handing over to her, but that relatives of Mrs H reported to her that Mrs H had been in considerable pain on 4 September. Ms J says she was then told there had been a conversation between Mr K and Ms G about a possible drug error, part of which had been overheard by Mr S. Ms J says she did not appreciate the full significance of this and did not realise the drug error had been made until she checked the medication records on 11 September.

14. On 12 September Mrs H died and Ms P returned from leave the following day. Having been made aware of the drug error, Ms P took responsibility for carrying out an investigation that day, which included questioning Mr K. The outcome was said to have been a formal medication assessment for Mr K and advice to him of the need for extra training and monitoring of his administration of medicine.

15. Between 20 and 22 September 2004 Mrs C, a resident of the R Care Home, who had undergone orthopaedic surgery, was given doses of co-codemol and paracetamol on four separate occasions, which she was deemed able to self-administer. Mrs C did not take the last dose but Mr K failed to discard the drugs, did not record anything in the Nursing Report and omitted to tell his managers that he had not disposed of the drugs. This failure to record accurately the medication taken by the patient caused such confusion that the staff in charge of the next shift had to telephone him at his home to try to resolve which medication he had indeed given. Mrs C was re-admitted...

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