Crawford and Another v Suffolk Mental Health Partnership Nhs Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Kitchin,Lord Justice Laws |
| Judgment Date | 17 February 2012 |
| Neutral Citation | [2012] EWCA Civ 138 |
| Docket Number | Case No: A2/2011/1051/EATRF |
| Court | Court of Appeal (Civil Division) |
| Date | 17 February 2012 |
[2012] EWCA Civ 138
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Birtles Sitting with Two Lay Members
Royal Courts of Justice
Strand, London, Wc2a 2ll
Lord Justice Laws
Lord Justice Elias
and
Lord Justice Kitchin
Case No: A2/2011/1051/EATRF
UKEAT/0338/10/DA
Mr Robin Howard (instructed by Attwells Solicitors LLP) for the Appellant
Mr Peter Wallington QC (instructed by The Law Offices of Richard Hemmings) for the Respondent
Hearing date : 13 January 2012
The appellants, Mrs Crawford and Mr Preston, were both nurses employed by the respondent Trust until their employments were terminated on 13 March 2009. The reason for their dismissals was alleged gross misconduct arising out of the way in which they handled a patient known as JE on the evening of 22 September 2008.
Following a complaint about the handling of that patient they were suspended and indeed the police were notified of potential criminal offences. There was an investigation, leading to disciplinary proceedings, and the whole process took some 6 months before their ultimate dismissal.
They lodged a complaint to the Employment Tribunal that they had been unfairly dismissed, and that was successful. The Trust in turn successfully appealed to the Employment Appeal Tribunal (HH Judge Birtles presiding) who overturned the ET decision and remitted the matter for a fresh determination by a different tribunal. The appellants now seek to restore the decision of the Employment Tribunal.
The facts.
The essential facts are as follows. The Westgate Ward at the West Suffolk Hospital in Bury St Edmunds is an admission and assessment ward where patients are admitted from home or from residential care or other hospitals. The patients are principally suffering from depression, anxiety or dementia.
On the night of 22 September 2008 the two appellants, together with two health care workers, were the only staff taking care of 17 patients. It was clear from the handover notes from the previous shift that particular difficulties had been experienced in relation to the handling of JE. He was 87 and suffered from dementia. On the day in question he had been agitated, aggressive, hitting things, spitting, swearing, throwing drinks, kicking and punching, and generally requiring particularly close attention. It was noted that the safe handling technique used by the staff on the previous shift had caused skin tears on his arms to be opened. Medication had to be administered forcibly because he was refusing both food and medicine.
Ms Paula Jeffrey, a very experienced staff nurse, had been concerned about the way in which JE had been treated on the day shift. She wrote a report immediately after the shift to the matron saying that JE was being cared for in "a less than best way", that he had required on occasions 2 to 1 observation for safety reasons, and that as a result the other patients had only their basic needs attended to. Ms Jeffrey was on her way out of the ward, having written this report, when she noticed night staff in the dining room surrounding a chair in which JE was sitting. She said he was restless and trying to get out of the chair. She noticed that the chair was secured to a dining room table by a sheet or two and that there was another sheet across his stomach. She says that she was shocked by this although she did not say anything to the nurses at the time. This was on a Monday evening. Surprisingly, she did not make any complaint about this until she next came on shift on Thursday 25 September when she reported to the Ward Manager, Mrs Helen Jackson, what she had witnessed on that previous Monday.
Mrs Jackson sensibly asked Ms Jeffrey to make a statement as soon as possible, and Ms Jeffrey did. Mrs Jackson contacted the Human Resources Officer and also discussed the incident with her Line Manager, Ms Sue Howlett. Mrs Jackson and Ms Powell from Human Resources saw the four members of staff, including the two appellants, on the following day. They were asked about the incident and were suspended pending further investigations. The reason for the suspension was the "alleged assault of a client on Westgate Ward on 22 September." Mrs Jackson was plainly shocked by the alleged actions. She raised the matter with certain hospital consultants, including the patient's own consultant, but they were far more sanguine about it. It appeared to cause them little concern; Mrs Jackson noted that they were not "shocked, angry or even mildly emotional about the allegation". She felt that they were not treating the incident seriously enough.
On 30 September the Vulnerable Adult Protection Committee, Strategy Meeting met and they determined that the police should investigate the incident. All this involved some delay in the hospital's investigation since it was resolved not to take matters further until the police had responded. On 30 October the police informed Mrs Jackson that their investigations had been completed and, not surprisingly, they concluded that no further action would be taken. At that point the internal investigation was instituted but the terms of reference were not given to the claimants until 1 December. They were then amended a short time later, in part at the instigation of the union representatives acting for the appellants. As a result the scope of the investigation extended beyond the incident itself. The investigators were asked to identify the policy and practice for the care of clients on the ward, particularly during the night; and also to determine whether there had been a breach of confidentiality by any of the named employees.
The persons asked to investigate were Ms Sue Tiller, PA to the Service Development and Business Manager, and Mrs Cox, a retired service manager for Older People's Services. They interviewed the four members of staff against whom the allegations had been made. They also interviewed Ms Jeffrey and Mrs Jackson. The investigation was concluded in January 2009. They found that the chair was tied to the table and that attempts were made to secure the patient to his chair with a sheet, although they did not say that they had been successful. They recommended that the incident be dealt with under the Trust's disciplinary policy. They also, however, recommended that areas of development for the individuals should be identified, and appropriate training should be provided.
There was a disciplinary hearing which began on 9 March before the Service Manager for Rehabilitation and Recovery, Mr Mansfield. He alone was to make the decision as to what, if any, disciplinary sanction should be imposed. It was agreed that there should be separate hearings for each member of staff, taking place over four successive days. A number of witnesses were called and they were all present on the day Mr Preston's case was under consideration, but by agreement with Mrs Crawford's union representative, only Ms Jeffrey and Mrs Jackson attended her hearing.
The allegations against each of the appellants were as follows:
"..the patient, JE, was observed in the dining room…seated in a chair near to a table with one bed sheet tied around the upper part of JE's body and the chair and one bed sheet tied around the lower part of the chair encircling the arms of the chair. The sheet around the lower part of the chair was securing the chair to the table."
It was then asserted that:
"This treatment did not afford the patient, JE, dignity and respect, safety and security, and is a serious breach of good practice."
And that:
"The treatment of patient, JE, was not reported by you nor was any attempt made by you to release patient, JE, from this situation."
This treatment was alleged to be a breach of the Nursing and Midwifery Code of Professional Conduct; gross misconduct under paragraphs 7.4 and 7.12 of the respondent's Disciplinary Procedure; and a contravention of the Trust's Code of Conduct and the Prevention of Management Aggression Policy. In Mr Preston's case it was also alleged that as shift co-ordinator, he was ultimately responsible for the care and treatment of JE.
Paragraph 7.4 of the Disciplinary Rules provides that gross misconduct includes:
"Any verbal or physical assault on a patient … arising out of employment with the Trust"
Paragraph 7.12 states that:
"Contravention of professional codes of practice is professional misconduct."
Paragraph 7.6 is also relevant to this appeal. It identifies as misconduct:
" any act or failure to act which affects the health and safety of a patient, member of the public, …."
The appellants accepted that they tied JE's chair to the table. However, they denied tying him to the chair with the sheet across his chest.
In the course of Mrs Crawford's hearing, she gave an explanation as to how the sheet had been wrapped around JE's chest. In order to test this evidence, Mr Mansfield and the senior HR adviser, Ms Verzijl, went to the relevant chair and Ms Verzijl sat in the chair while Mr Mansfield attempted to wrap the sheet around her in the manner described by Mrs Crawford. They did not believe that it could have been wrapped in the way she explained. Neither Mrs Crawford nor her representative were informed that this experiment was being undertaken.
Mr Mansfield found that each of the allegations was proved and the appellants were notified in what were, for the most part, identical letters dated 12 March. The letters gave further particulars of his findings as follows:
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