Petition Of Mrs Iris Hallam For Judicial Review Of Decisions By The Scottish Commission For Regulation Of Care
| Jurisdiction | Scotland |
| Judge | M.G. Thomson, Q.C. |
| Neutral Citation | [2005] CSOH 95 |
| Date | 15 July 2005 |
| Docket Number | P907/04 |
| Court | Court of Session |
| Published date | 15 July 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 95 | |
| P907/04
| OPINION OF M G THOMSON, QC (Sitting as a Temporary Judge) in the petition of MRS IRIS HALLAM Petitioner; for Judicial Review of decisions by the Scottish Commission for the Regulation of Care otherwise known as The Care Commission in relation to complaints against Hempriggs House, Wick, Caithness and the Petitioner's status as a fit person to act as Manager of Hempriggs House, Wick, Caithness ________________ |
Petitioner: Connal, QC, Robert McDonald, Solicitor Advocate; Shepherd & Wedderburn, WS
Respondent: A J Carmichael; Simpson & Marwick
15 July 2005
INTRODUCTION
[1]The petitioner was the manager of Hempriggs House, Wick, a residential home for the elderly ("the Care Home"). She is a Registered General Nurse. She was employed by Mr Forrest-Jones, who was the proprietor of the Care Home. He and Mrs Forrest-Jones were registered by the Highland Council in terms of the Social Work (Scotland) Act 1968 as the service providers at the Care Home.
[2]The respondent is the Scottish Commission for the Regulation of Care, otherwise known as the Care Commission, which was established by the Regulation of Care (Scotland) Act 2001 ("the Act"). Section 6 of the Act provides inter alia:
"(1)The Commission shall establish a procedure by which a person, or someone acting on a person's behalf, may make complaints (or other representations) in relation to the provision to the person of a care service or about the provision of a care service generally."
In fulfilment of this requirement the respondent has produced the "Care Commission Complaints Procedure ("the Complaints Procedure"). The Complaints Procedure sets out various key principles including:
| " |
|
It is explained that complainants do not have to pursue a complaint through the local service provider's own complaints procedure before lodging a complaint with the respondent, although the respondent would encourage individuals, in the first instance, to pursue a complaint through the local service provider's complaints procedure wherever possible.
[3]The Complaints Procedure explains that complaints may be investigated in a number of ways including inter alia:
| " |
|
Under the heading "Investigating a Complaint" the Complaints Procedure provides for a complainant to be interviewed and for the content of the interview including the listing of each complaint to be accurately recorded. That record and all notes of interviews are to be treated as confidential. The Complaints Procedure then provides:
"The complainant and any person complained against (including the service provider) should be given a reasonable opportunity to express their views on the subject matter of the complaint and to respond to allegations made against them. The precise timing of seeking such response, in the course of the investigation, is a matter for the discretion of the investigating officer."
[4]The Complaints Procedure provides that once a complaint has been investigated a report is to be prepared by the Care Commission Officer for the Complaints Resolution Officer. The latter is then required to telephone or to write to the complainant with a "Proposed Resolution" detailing the nature of the complaint, how the complaint was investigated, the conclusion (whether the complaint is upheld, not upheld or partially upheld) and the expected outcome. The complainant is required to state whether or not he or she accepts the conclusion. The next Key Stage of the Complaints Procedure is the final decision by the Regional Manager:
"A Final Decision will be prepared by the Complaints Resolution Officer for issue by the Regional Manager which takes account of the Proposed Resolution and the Complainant's Statement [the complainant's acceptance or otherwise of the Proposed Resolution], where applicable, together with any subsequent discussions between the Care Commission and the complainant. The Final Decision will be communicated to the complainant and the party complained against. Where a complaint has been upheld or partly upheld, an Action Plan and timetable for implementation will form part of the Final Decision.
The complainant will be advised at this time of their right to seek a review if they are not satisfied with the Final Decision...."
The party complained against is given no right to seek a review.
[5]Sections 7-9 of the Act provide for registration of care services by the respondent. Section 10 empowers the respondent to serve an "improvement notice" on the provider of a service registered under the Act and section 12 empowers the respondent to cancel the registration of the care service after the expiry of the period specified in an improvement notice. Section 13 enables the respondent to give notice of its intention to vary or remove or to impose a condition on the registration of a care service. Section 16 entitles the recipient of a condition notice to make written representations to the respondent, concerning the latter's proposal, and section 17(3) requires the respondent if it decides to implement a proposal in relation to which it has given a person a condition notice, to give that person notice of the decision. Section 20 of the Act gives the person who has received notice under section 17(3) of a decision to implement a proposal, a right of appeal to the sheriff against that decision.
[6]Section 29 of the Act empowers the Scottish Ministers to make Regulations in relation to care services generally and in particular "as to the persons who are fit to provide, or act as manager in relation to, a care service;". The Regulation of Care (Requirements as to Care Services) (Scotland) Regulations 2002 ("the Regulations") have been made under the powers conferred by section 29. Regulations 6 and 7 are concerned with the fitness of providers and managers respectively. "A person who is not of integrity and good character" or "a person who does not have the skills, knowledge and experience necessary for managing the care service" would not be a fit person to act as a manager in relation to a care service. The respondent has produced guidance, "Guidance to Care Providers", to help service providers to apply the "fit person" test under the Regulations.
[7]In March 2003 Mr Forrest-Jones conveyed the Care Home to City Properties Direct Limited ("the Company") of which he was a director. At about that time he, on behalf of the Company, agreed with the petitioner that she would become the service provider of the care home and that from 1 April 2003 she would lease the Care Home from the Company. The parties reached agreement in principle on the terms of a five year lease of the Care Home. By January 2004 the parties were still negotiating the terms of the draft lease but had not yet entered into a formal lease. On 5 June 2003 the petitioner applied to the respondent to be registered as the care provider of the Care Home. No decision on that application was issued.
[8]On 12 January 2004 the respondent wrote to the petitioner ("the decision letter") in the following terms:
"Dear Mrs Hallam
Complaint against Hempriggs House (Care Home)
I now enclose our response to a complaint regarding the above. I list below the substance of the complaint, the method by which the concerns were investigated, our conclusion and expected action.
1.Substance of complaint:
Denial of medical treatment to a resident.
Forcible detention of resident.
Mrs Hallam's 'bullying' style of management.
2.Method of investigation:
Ali Dallas and Keith Philips Care Commission Team Leaders
investigated the complaint by interviewing Dr Coull, complainant, Mrs Hallam, complained against and eleven members of the care staff of Hempriggs House Care Home.
The care staff were interviewed in Hempriggs House and those that requested it were interviewed at a neutral venue.
The Police were also involved in some of the investigations following some of the allegations. The Police found no evidence of the allegation regarding assault, at the time of writing they were still investigating the allegations regarding the service users finances.
3.Conclusion - complaint upheld/not upheld/partially upheld
Denial of medical treatment
This element of the complaint is upheld.
Forcible detention of resident
This element of the complaint is not upheld.
Mrs Hallam's 'bullying' style of management
This element of the complaint is upheld.
4.Expected action and timescale for implementation
The consistency of the statements made by the care workers interviewed would indicate that there are serious issues surrounding the management of Hempriggs House. The number of incidents that the staff raised brings Mrs Hallam's 'Fit Person' status into question.
The findings will be brought to the attention of the proprietor who will be required to ensure that the manager of the service is a fit person in terms of the Regulation of Care (Scotland) Act 2001 and the subordinate legislation in Statutory Instrument 2002 No. 114. The Regulation (Requirements as to Care Services) (Scotland) Regulations 2002 Fitness of managers 7-(1)(2)(d) as a condition of the services registration.
The Care Commission Complaints Procedure provides the complainant with the right...
To continue reading
Request your trial