Active Care Partnership Ltd v Commission for Social Care and Inspection, Court of Appeal, November 14, 2008, [2008] UKFTT 5 (HESC)

Resolution Date:November 14, 2008
Actores:Active Care Partnership Ltd v Commission for Social Care and Inspection
 
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Active care partnership limited-v-Commission for social care and inspection [2008] 1360.EP-JP-Before-Mr. Simon Oliver(Deputy Principal Judge)Dr Jill Low (Specialist Member)Mrs Jenny Lowcock (Specialist Member)DecisionHeard on 2nd to 5th September 2008 at Care Standards Tribunal, Pocock Street, London SE1 0BW.The decision was announced on 5th September 2008RepresentationThe Appellant was represented by Mr Phillip Engelman of counselFor the Respondent: Mr Roger McCarthy QCAppeal1. This is an appeal against an order made by Mr N. J. White, a Justice of the Peace in Nottingham, on the evening of 7th August 2008 pursuant to Section 20 of the Care Standards Act 2000. That order cancelled the registration of Active Care Partnership Limited “ACP” in relation to the Alton Centre, Irchester, Northamptonshire, “the home”. It also cancelled the registration of Jacqueline Curtis-Bates, the registered manager of the home. We are dealing in this appeal with the cancellation of the registration of ACP.The Law2. The test that the Justice of the Peace has to apply in determining whether or not to exercise the powers of closure in section 20 of the Act is whether “it appears …that, unless the order is made, there will be a serious risk to a person’s life, health or well being” in which case “the justice may make the order”. In determining the appeal we, as the Tribunal, need to apply the same test.3. The section 20 test is disjunctive. That is, an order may be made based on any one of the identified risk areas and the serious risk is as it affects one or more person (so that risk to one person may be a sufficient basis for an order). The Justice of the Peace found that there “will be a serious risk to persons well being and health.”4. On an appeal against a section 20 order the tribunal has to look at each of the risk elements. The risk may be to any one or more of those at the home. A risk is serious for the purposes of section 20 if it justifies closing the home Hillingdon v McLean (CO /159/88 pp 16 G-17A (Phillips J). To answer the question of serious risk it is necessary to look ahead at what was likely to happen if an order was not made (McLean p20A).5. Any consideration of risk and its seriousness includes the nature of the risk and the degree of risk. Section 20 does not require proof that any person will die or that their health or well being will be further damaged; it requires sufficient evidence to show a sufficient risk.6. In Jain v Trent SHA [2008] 2 WLR 456, [2007] EWCA Civ 1186 at paragraph 79, Lady Justice Arden suggested that it was implicit in the serious risk requirement that “there should be a significant risk that the residents will suffer harm within the timescale that would otherwise be required under the ordinary procedure…That question involves making a judgment on a number of matters, including the vulnerability of the residents, the seriousness of the shortcomings of the home and how long it would take the proprietors to put them right”. 7. Both sides agree that the test is identified by Arden LJ, namely a significant risk of harm “within the time scale that would otherwise be required under the ordinary procedure…”8. An appeal to this tribunal is by way of rehearing and not a judicial review of any past procedure (see Appiah-Anane v NCSC (2002) 96.NC). The question for consideration is whether there was a serious risk etc at the date and time of the order. Any evidence which throws light on the statutory question may be admitted for consideration [HMCIS v Spicer [2004] EWHC 440 (Admin)].The Background facts9. ACP was the registered proprietor for the home. The registration was as a care home with nursing for up to 40 younger adults (18-65) of either sex with physical disabilities and learning disabilities. Service users included those who were severely disabled and who had long term disabilities such as Multiple Sclerosis and Huntingdon’s disease. As at 7th August 2008 there were 28 service users living at The Alton Centre. The registered manager was Jacqueline Curtis-Bates (who at the time of this hearing had not appealed the cancellation of her own registration although we were told that she was intending to do so). We were told that Ms Curtis-Bates was being investigated by one of ACP’s operational managers, Ms Sandra Bishop. Ms Curtis-Bates attended the hearing throughout as an observer and did not give evidence.10. We were told by Ms Maggie Hannelly (CSCI Business Relationship manager) that there had been previous concerns about the learning disability element of the Alton Centre up to October 2007. This had lead to the rationalisation if ACP’s registration on the site with learning disability clients being based at Thorpe Life Centre, directly connected to Alton Centre which catered for physical disabilities. She informed us that Jacqueline Curtis-Bates had become the registered manager of the Alton Centre as part of this reorganisation in October 2007. At that time the Alton Centre had been regarded as an adequate service, requiring only an annual inspection.11. ACP is an organisation with multiple registrations (44). It is a subsidiary company of Southern Cross Healthcare Group. That Group has over 35,000 residents in over 730 homes.12. As a result of information received by Mr Andrew Jepps (commissioning manager for Northamptonshire County Council (NCC)) on 1st August 2008 concerning serious allegations relating to the Alton Centre he set up and attended inter-agency strategy meetings on 4th and 5th August to discuss the Alton Centre and other homes which are not relevant to this appeal.13. CSCI became aware of the concerns of other agencies about this home during the course of two meetings. The first strategy meeting was called by NCC and took place on 4th August. The second meeting took place on 5th August 2008. Given the nature of the concerns raised in the meetings a decision was made by CSCI to inspect the Alton Centre and to particularly focus on medication, nutrition, wound care and medical and nursing intervention issues. We need to note that as a result of CSCI’s restructuring and reduction in both staff numbers and frequency of inspections, the lead inspector for this home had been made redundant and there were staffing difficulties within CSCI. It is an indication of the reduced level of resources within CSCI that concerns were only identified and pursued when matters were brought to their attention by other agencies.14. CSCI inspected the Home twice. First, on 6th August when recommendations were made. As a result of the concerns it was decided on the morning of 7th August to follow up the issues that had been identified the previous day. The manager was asked to identify individuals whose care included medication, nutrition and wound care. Immediate requirements were issued by CSCI on 6th August which related to wound care, management of diabetes and support for eating and drinking. The inspection on 6th August 2008 lasted for 5½ hours, involving 3 inspectors.15. A significant number of matters and services users gave CSCI cause for concern on 6th August 2008. The matters of concern during these visits included care plans, nutrition and hydration, treatment and management of pressure sore wounds.16. The second inspection started at about 1pm on 7th August. On arrival CSCI inspectors found that a service user, MB, whose condition had given rise to particular concern on the previous day, had died. The manager had indicated that an urgent GP call out would be arranged to deal with his chest infection but it had not been.17. CSCI’s serious concerns were discussed immediately, at 1.45 pm on 7th August, on the telephone with ACP’s managing director, Mr Farmer. He was in Warrington at this time. There was some disagreement about the time of the telephone call but that is not an important issue for us to determine. We know that a call was made and that a meeting was set up. A meeting to include ACP representatives was agreed for 2pm, to be held in Northampton. After a further telephone call from Ms Hannelly to Mr Farmer at 3.45 pm, two ACP representatives arrived at 4.15 pm. We note that in her evidence Ms Hannellly said that the 2pm meeting was to be a strategy meeting and that although the two representatives from ACP arrived at 3.30pm they did not meet CSCI until three-quarters of an hour later. Things were clearly happening very quickly at this time and we do not see there to be any merit in criticising the arrival time of the ACP staff.18. A meeting was held with representatives of ACP, the Primary Care Trust and Northamptonshire County Council at 4.15 pm. An indication was given by the two representatives of ACP that an action plan was being formed. The two representatives were Lorna Weston and Patricia Wood. The action plan appeared to involve identifying additional support that could be put into the home. However, they appeared to be looking for guidance. In her evidence to us Sara Morrison made it clear that it is not the job of CSCI to tell an organisation what to do. She said that CSCI were regulators, not educators. Ms Patricia Wood informed us that her role was to deal with any project in any ACP home in the country, that if she could not deal with a concern she would call upon two operation managers, Ms Bishop and Ms Galloway, both of whom were nurses. Likewise, if she needed additional resources she would telephone either the operations director or Mr Farmer and expect them to be provided.19. Ms Wood said that in a telephone conversation with Mr Farmer she had been asked to assemble a team, address the concerns that had been raised and was beginning to make telephone calls to get nurses into the Alton Centre. These were managers of other homes in the ACP group in Leicester and Birmingham.20. After that meeting a decision was taken by Ms Hannelly on behalf of CSCI to apply for a Section 20 order. An agreement was reached (to which CSCI was not a party) between...

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