Dixon v Secretary of State for Health  [2005] EWCST 621(PVA) (21 March 2007) 

Dianne Dixon

-v-

Secretary of State for Health

[2005]621.PVA
[2005]622.PC

Before;
Mrs. Carolyn Singleton (Chair)
Ms. Margaret Diamond
Mr. Mike Jobbins

Hearing: 19th, 20th, 21st March 2007

Decision

Application

1. The applicant appeals under s4(1)a of the Protection of Children Act 1999, against the decision of the Secretary of State for Health to include her on the Protection of Children (PoCA) list and under, s 86 of the Care Standards Act 2000, against the decision of the Secretary of State for Education and Skills to include her on the Protection of Vulnerable Adults (PoVA) list. Both these decisions are dated 16th September 2005.

Representation

2. The applicant was represented by Mr. Spragg of counsel and the respondent was represented by Ms. Patry-Hoskins of counsel.

Burden of Proof

3. It was accepted by both parties that the burden of proof lay with the respondent.

Preliminary matters

4. Prior to the hearing of the evidence and having heard applications from counsel for both parties the tribunal directed that evidence from Margaret McNish and Valerie Young, both of whom had failed to make statements, be excluded under regulation 14(3)(b) and(C) and that evidence from Elsie Alderson should not include comments relating to the mental health of witnesses for the respondent or their ability to do their job under regulation 14(3)(C).

The Law

5. Appeals against inclusion in the PoVA list are governed by s.86 of the Care Standards Act 2000. That section provides that:

         If on an appeal......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 the 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.....

6. Thus, in order to dismiss the appeal, the tribunal must find:

(i) that there was misconduct,
(ii) that the misconduct harmed a vulnerable adult or placed a vulnerable adult at risk of harm and
(iii) that the individual is unsuitable to work with vulnerable adults.

7. There is, therefore, a three stage test which must be satisfied before the appeal can be dismissed. As stated at paragraph 3, the burden of proof rests with the respondent. The standard of proof is the civil standard, that is, the balance of probability.

8. In this case, the decision to place the applicant on the PoCA list was as a result of her inclusion on the PoVA list. S4 of the Protection of Children Act 1999 provides for an individual to appeal against inclusion of his name on this list. This section establishes the same test as set out in paragraph 5 above but with reference to children rather than vulnerable adults. 

9.Witnesses for the respondent

Hilary Middlemass - Ms. Middlemass was a care assistant at Valley View Care Home in 2004. On 6th March 2004 she was working on the night shift with the applicant who was a Senior Care Assistant. One of the resident’s in the Home at that time was a lady ES. Ms. Middlemass told the tribunal that ES had never been aggressive to her and she had never witnessed her being aggressive to other residents or staff members. She was not aware of any mental health issues with regard to ES although she was aware that she had a tendency to wander at night.
During the course of the night shift of 6th to 7th March 2004 Ms. Middlemass witnessed an incident involving the applicant and ES She reported this incident on the 7th March 2004. 
Ms. Middlemass made a hand written statement of what she had seen on 7th March. She  subsequently made a statement to the police with regard to the allegation on 14th March and made a further statement to solicitors for the respondent on 25th May 2006.
In the statement made on 7th March 2004, Ms. Middlemass stated that ES had been found wandering along the corridor at 2.30 am. She was asked by the applicant what she was doing and replied that she required to use the toilet. She was, however, heading for the smoker’s lounge. Ms. Middlemass alleged that the applicant told ES that she had a toilet in her own room and then pulled her out of the smoker’s lounge. ES asked the applicant not to speak to her like that and then struck the applicant in the face. Ms. Middlemass alleged that the applicant slapped ES whereupon ES went to strike the applicant again. The applicant then slapped ES again and pushed her in the back forcing her to the floor.
In her statement to the police on 14th March 2004 Ms. Middlemass  gave details of what had allegedly happened but made no mention of the applicant pulling ES out of the smoker’s lounge.
In her statement to the respondent’s solicitors dated 25th May 2006 Ms. Middlemass recounted her version of the incident but added that one of the blows she alleged was struck by the applicant forced ES’s forehead to strike the wall whereupon she slid down the wall to the floor.
In her evidence in chief Ms. Middlemass was asked to describe whether the blow to ES that caused her to fall was a slap or a punch. Her reply was that there was some force and she slid down the wall to the floor. She was sure that ES had hit the wall and that her forehead connected with the wall. However, when it was pointed out to her that her statement to the police and the first statement made by her on 7th March 2004 made no mention of the wall, she stated that she had not hit the wall, just slid down it. Under cross-examination she reiterated that ES’s forehead had in fact hit the wall but accepted that there had been no apparent injuries from this. There were, therefore, considerable inconsistencies in the evidence of Ms. Middlemass, both written and oral.
The tribunal noted, with concern, that Ms. Middlemass stated that she had received no training whatsoever for the job she was carrying out, including those training courses that are mandatory.

P.C.Robson - P.C.Robson had been the officer investigating the allegation. She told the tribunal that the decision not to obtain a statement from ES was made on the advice of Dr. Nanda. In her interview by the police the applicant had raised self-defence and made no admissions. The decision not to prosecute had been made by the CPS who had taken the view that there was no realistic prospect of conviction.
In  cross-examination she confirmed that her report, which appears at document 145a of the papers, notes that there were no visible injuries to ES

Elizabeth Forster - Ms. Forster was the manager of Lodge Care Home at the time of the incident. Lodge Care Home was a separate unit which shared the same site as Valley View Care Home and was owned by the same organization. She was called in to investigate the incident. She attended a disciplinary hearing involving the applicant on 8th April 2004. The meeting lasted about half an hour including a ten minute break, during which the applicant gave an explanation of what had happened.
Much of Ms. Forster’s evidence related to the need to complete care plans for each resident, the accident book, an incident form and, most importantly, an accountability sheet, which would inform staff working the shift following an incident of what had happened. The applicant had failed to complete any of these. In Ms. Forster’s view, this demonstrated a total lack of responsibility on the part of the applicant. Both a service user and a member of staff had been abused and other staff members needed to know, both for their own protection and that of the service user, for whom a fall could lead to complications. Ms. Forster acknowledged that the accurate completing of forms and records had been haphazard at Valley View. She was shown a number of sheets, each of which should have had an entry for day and night shifts. Many dates were not recorded at all. Ms. Forster was critical of the lack of record keeping at Valley View and described the standard of training as “appalling”. Within 24 days of this incident, the manager, Chris Nixon, having been given the option of resigning or facing dismissal, had resigned and Ms. Forster had been installed as manager. In her own words she had been brought in “to sort out the mess”. However, her view of the incident, even if the version of the applicant was correct, that is she had acted in self-defence, was that the applicant had behave inappropriately and was not suitable to work with vulnerable adults. The incident itself together with her failure to report it meant that Ms. Forster would not consider her to be suitable for employment as a carer. The copy care records in the tribunal papers, such as they were, did, however, reveal that ES had presented difficulties at Valley View during her stay. Several entries referred to her being aggressive to other service users, wandering into other people’s room and using alcohol and offering it to other residents. 

10. Witnesses for the applicant 

Linda Metcalfe - Ms. Metcalfe had been the deputy manager at Valley View at the time if the incident and had been responsible for the initial assessment of  ES on her admission. Ms. Metcalfe had described ES as “pleasantly confused”. Evidence had already been given by Ms. Forster as to the omissions in the care records and the incidents of aggression from ES had been noted as referred to above. However, document 196 of the papers is a Clifton Assessment for ES completed by Ms.Metcalfe on 10/04/04, that is after many of the aggressive incidents recorded in the care records and, particularly after an incident involving another resident LN where ES had assaulted her. Notwithstanding that, the assessment by Ms. Metcalfe stated that ES was rarely or never objectionable to others. Ms. Metcalfe could offer no explanation for her assessment of ES.

Elsie Alderson - Ms. Alderson is a carer and was employed at Valley View at the time of the incident. She regularly worked with the applicant for two years. She described her as very professional and had never seen her be aggressive or raise her voice. The applicant was, she said, excellent at her job. She did, however, confirm that the applicant had made no mention of the incident involving ES.

Diane Dixon - the applicant confirmed that she had worked as a carer for approximately 5 years and had not been the subject of any disciplinary procedures prior to this incident involving ES. On the night in question she had been the senior carer on duty with Hilary Middlemass and Kath Field. Early in the morning of 7th March she was with Ms. Middlemass when they saw ES wandering in the corridor. As she was some distance away, she shouted to her “Where are you going?” ES was heading to the lounge saying she needed the toilet. The applicant told the tribunal that she eased ES towards her own room telling her that she had her own toilet there, whereupon ES struck out at her. At that point the applicant raised her hands to block the blow but, in doing so, hit ES on the shoulder and she fell to the floor. She denied grabbing ES by the wrist, slapping her in the face or hitting her in the back. She also denied that ES’s forehead had hit the wall. She was consistent in her evidence that it had been a reaction to seeing ES try to strike her and had been an attempt to fend off that blow. This account was consistent with her statement of 14the December 2005 and her interview with the police shortly after the incident occurred. She did confirm, however, that she had been “mortified” by what had happened. She stated that she apologised to ES, lifted her to her feet, checked her over and took her to the toilet before returning her to bed, She then checked her through the night. According to the applicant ES had no redness or bruising and that, had she complained of pain, she would have called for medical attention for her. However, she confirmed that she should have reported it and that, once it became the subject of a disciplinary procedure she did nothing to defend her job. In her own words she knew she was going to be sacked and she felt she deserved it. She accepted that she should not have raised her hands but did not feel that she could have done anything differently because everything had happened so fast. She had had no opportunity to back off or to defuse the situation.

Kathleen Field - Ms. Field worked as a carer at Valley View at the relevant time and continues to do so. She worked with the applicant for  over 3 years on a regular basis. She said that she had never seen her lose her temper or argue with residents. She had never heard any complaints about her. She had witnessed the incident involving Es and the service user LN. The then manager, Chris Nixon, had also witnessed it and had said that she would report it. She had not witnessed the incident in March 2004 because, although she was on duty that night she had been on her break at the relevant time. The applicant did say to her that she would have a black eye the following morning but did not reveal any details of the incident. She did not tell Ms. Field that ES had fallen and Ms. Field confirmed that, had she known that, she would have felt it necessary to report it. This only became known to Ms. Field in cross-examination. Notwithstanding this information Ms. Field stated that her opinion of the applicant had not changed. She described her as a good carer and said she was “class”.

11. Tribunal Findings

The facts of this incident in March 2004 were in dispute. Ms. Middlemass had made three statements which were inconsistent. She did not impress the tribunal as a credible witness. The applicant’s account of what had happened had been consistent throughout. On balance, the tribunal accepted her version of what had happened between her and ES.
That being the case, the tribunal then applied the three stage test as set out in legislation and referred to earlier in this decision.

Had the applicant been guilty of misconduct?
    The tribunal was not satisfied on balance that the actions of the applicant in striking ES amounted to misconduct. It seemed to the tribunal that the raising of the applicant’s hands to attempt to parry the blow being directed towards her by ES was a natural defensive reaction in circumstances where there was little else she could do other than allow ES to strike her. However, the tribunal came to a different conclusion regarding the applicant’s failure to report the incident. It accepted that the management of Valley View at the time in question under Chris Nixon appeared to be cavalier to say the least. She presided over a regime where there had been very little training; even mandatory courses had not been provided for the staff. Ms. Forster had described the training as appalling. Also the completion of records was woefully inadequate. There were obvious gaps in the care records and even serious incidents such as the assault on LN by ES had not been reported. This last incident was something that Chris Nixon had said that she would report herself according to the applicant and Kathleen Field She failed to do it.. She certainly did not lead by example. Notwithstanding that, however, the applicant had admitted herself that she knew she should have reported the incident with ES and that not to report it was irresponsible. The tribunal came to the same conclusion. This was a serious matter with potential consequences for ES, other service users and other members of staff. The failure to report it was misconduct which harmed or placed at risk of harm a vulnerable adult.

The tribunal then considered whether the applicant is unsuitable to work with vulnerable adults. Her character witnesses in the form of Elsie Alderson and Kathleen Field had been fulsome in their praise of the applicant. The applicant herself was obviously enthusiastic about her love of her job. She impressed the tribunal as a person committed to the people in her care. She was clearly mortified by what she had done. She had clearly made no attempt to save her job at the disciplinary hearing which took place after her suspension from work, primarily because of her overwhelming sense of guilt. At no time had she made any attempt to excuse or justify her actions other than stating it was a defensive reaction. The tribunal noted, however, that she had been given no opportunity to explain her actions prior to the disciplinary hearing and, regardless of what the applicant did or did not do, she had, on all accounts, been the victim of an assault by ES and had been offered no support whatsoever by her employers. Ms. Forster had told the tribunal of procedures whereby she should have been given a contact point for support. Instead she was left with no contact, no support and no information as to what was happening. The tribunal concluded that by the time of the disciplinary hearing the applicant had no fight left in her.
On balance, therefore, the tribunal concluded that the appellant is not unsuitable to work with vulnerable adults. For the same reasons the tribunal concluded that the appellant is not unsuitable to work with children. Accordingly the appellant’s appeals in respect of her inclusion on the PoVA and PoCA lists is allowed.

The decisions are unanimous and the tribunal directs that the name of the applicant, Diane Dixon, be removed forthwith from those lists.

The appeals are allowed

Mrs. Carolyn Singleton (Chair)
Ms. Margaret Diamond
Mr. Mike Jobbins