Care Standards Tribunal, 2008-03-27 (NJ v Secretary of State)
| Jurisdiction | United Kingdom |
| Registration Number | 2006/727/PVA |
| Date | 27 March 2008 |
| Court | Care Standards Tribunal |
-v-
Secretary of State for Health
[2006] 727.PVA
[2006] 728.PC
Before:
Mr A Lindqvist (Nominated Chairman)
Mrs C Trencher MBE
Mr T Greenacre
DECISION
Heard on the 4th, 5th and 6th March 2008
For the Appellant: Mr. David Pittaway Q.C. with Mr. Jamie Carpenter, instructed by Mrs. Susan Hotchin, Royal College of Nursing,
For the Respondent: Mr. Alexander Ruck Keene instructed by Mona Fawaz, Treasury Solicitor.
1. The appellant (NJ) appeals against a decision of the Secretary of State made on the 30th of March 2006 to include his name on lists kept a) under section 81 (1) of the Care Standards Act 2000 of individuals considered unsuitable to work with vulnerable adults, (the PoVA list) and b) under section 1 of the Protection of Children Act 1999 of individuals considered unsuitable to work with children, (the PoCA list) and to direct under section 142 of the Education Act 2002 that he be prohibited from teaching or working with children (List 99).
2. NJ is a care worker of some 34 years standing with, until the events giving rise to this appeal, an unblemished record. In March 2004 he was the manager of a small home in the West Midlands for four adult men with severe learning difficulties. On the evening of the 26th of March, one of those four residents (hereinafter ‘A’) made communications largely by gesture suggestive of a sexual assault by NJ. He was suspended forthwith and interviewed by police on the 28th of March and bailed. The Crown Prosecution Service decided that there was insufficient evidence to prosecute NJ, a disciplinary hearing took place on the 8th November 2004 and the 7th December 2004; the decision was to dismiss NJ. In April 2005 his appeal against dismissal was rejected. Six weeks earlier, NJ's employer had made the reference to the Secretary of State, and in May 2005 the Secretary of State provisionally included NJ's name on the three lists. NJ appealed to the Employment Tribunal against his dismissal. After a hearing in November 2005 that appeal was dismissed in February 2006. An appeal to the Employment Appeal Tribunal also failed. NJ's appeal against the Secretary of State's decision was made on the 20th of June 2006.
3. Directions were given on the 8th and 15th September 2006 leading to a Preliminary Hearing on the 25th of October 2006. It was then directed that the appellant have liberty to instruct a neuro-psychiatrist and a physician, that disclosure be made by the parties and by NJ’s employers, that witness statements being exchanged, a bundle be prepared and that the appeal be heard in March 2007. Further delay ensued, further directions were given on the 20th of April 2007 and again on the 25th of June 2007, the latter for extensive third-party disclosure and for a hearing in December 2007. Again, it was not to be, further directions for disclosure were given on the 24th of October 2007 and the hearing date was put back to March 2008.
A restricted reporting order was made on the 25th October 2006 to preclude identification of any vulnerable adult or of the appellant, such order to be reconsidered by the Tribunal at the conclusion of the hearing.
4. The Tribunal heard oral evidence for the respondent of the consultant psychiatrist who had treated A, the vulnerable adult concerned, for some 12 years, of S, one of the two care workers S and T, with whom A had attempted to communicate on the evening of the 25th March 2004. The Tribunal did not hear from T - she was unwell and unable to attend; the respondent’s application for an adjournment so that she could attend was refused shortly before the hearing. However, the Tribunal read the statement of T, it also heard the evidence of a A’s key worker, U, and of an operations manager, V.
5. For the Appellant, the Tribunal heard the oral evidence of the appellant himself and evidence from the police surgeon who had examined A and from B, a nurse who had been much involved in A’s care from 1987 to 1990. The Tribunal viewed a DVD of A’s interview by two police officers, in the presence of U.
6. The Tribunal was impressed by the witnesses who gave oral evidence; each recounted what he or she had observed or heard without attempting to add any gloss or to make points favourable to his or her ‘side’. There were inevitably, minor discrepancies, but they were of little significance. The Tribunal had no hesitation in accepting the evidence of all the witnesses.
7. No issue arose as to the burden of proof, Counsel agreed that the burden was on the respondent to show both misconduct and unsuitability and it is clear from the wording of the Acts (“ if the Tribunal is not satisfied of either……… misconduct and…… that the individual is unsuitable…….. the Tribunal shall allow the appeal”) that that is where the burden lies.
8. Such clear simplicity did not, alas, extend to the question of the standard of proof. Common ground extended little further than the silence of the regulatory provisions on the matter.
9. Mr Pittaway, for the appellant, advocated the criminal standard or, failing that, a heightened civil standard and amounting effectively to the same thing. For the respondent, Mr Ruck Keene accepted a heightened civil standard, but not, either directly or indirectly, the criminal standard. The last piece of common ground between the parties’ advocates was that the so-called heightened civil standard does not represent a third level somewhere between ' balance of probability', and 'beyond reasonable doubt ' (to use the old-fashioned term). The heightened civil standard is one of proof on the balance of probability but with the caveat that the cogency and probative value of the evidence must be commensurate with the nature (including probability) of the finding sought and the gravity of the consequences of such a finding.
10. Mr Pittaway, unable to point to any instance in which a Care Standards Tribunal had applied the criminal standard, argued thus. The allegation against the appellant was a very serious one with grave consequences, if proved. In the cases of R(Doshi) v. Southend-on-Sea PCT [2007] EWHC 1361 (Admin) and the earlier case of R(McCann et.al) v. Manchester Crown Court [2003] 1 AC 787, the criminal standard was held to be appropriate (in the former case. ' it was unwise of the tribunal ' not to adopt it). That was a case of serious sexual allegations against a doctor. The case of McCann, concerned anti-social behaviour orders - again potentially serious in their eventual outcome. In Re a Solicitor [1993] QB 69, a divisional Court held that the criminal standard was appropriate to a complaint of misconduct by a solicitor, at least where the alleged misconduct was tantamount to a criminal offence (as it was in the case of NJ). A lower standard, Mr Pittaway suggested, might result in Tribunals being used to secure findings, where there was insufficient evidence for prosecution. Mr Pittaway’s reserve position was that if the criminal standard were not appropriate, the appropriate standard was the heightened civil standard, which is effectively the same thing. For that he relied on the dicta of Lord Nicholls of Birkenhead, in Re H (Minors) Sexual Abuse: Standard of Proof [1996] AC 563 at p. 586 D-H and of Lord Hope of Craighead in McCann's case at p. 826 E, that the heightened standard could for all practical purposes be indistinguishable from the criminal standard.
11. Mr Ruck Keene resisted with some force, the outright application of the criminal standard, pointing out that no Care Standards Tribunal had followed that course. He said that the facts of Doshi’s case were exceptional, and that only such exceptional facts warranted the criminal standard. As tribunal proceedings were civil in character rather than criminal, the starting point must be the civil standard, which, he accepted, could be heightened as far, effectively, as the criminal standard, but it took an exceptional case to justify the outright application of the criminal standard. In...
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