R (National Care Standards Commission) v Jones
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 21 April 2004 |
| Neutral Citation | [2004] EWHC 918 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 April 2004 |
| Docket Number | CO/491/2004 |
[2004] EWHC 918 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Sullivan
CO/491/2004
MR BRUCE SILVESTER (instructed by MILLS AND REEVE) appeared on behalf of the CLAIMANT
MS MELANIE MCDONALD (instructed by CAROL TRIPLETT) appeared on behalf of the DEFENDANT
Introduction.
This is a statutory appeal against a decision of the Care Standards Tribunal ("the Tribunal") dated 2nd January 2004 allowing the respondent's appeal against the appellant Commission's decision to refuse to register him under Part II of the Care Standards Act 2000 (the "2000 Act") as the manager of Middlefield House, a residential care home which caters for the needs of young adults with severe learning disabilities.
Background.
The background is set out in the Tribunal's decision as follows. The respondent (the appellant before the Tribunal):
"… who is now 45 years old, joined the nursing profession some twenty years ago as a care assistant. He became an Enrolled Nurse (Mental Health) in 1985 and a Registered Nurse (Mental Health) in 1989. In August 1995 he took over the management of Lowfield House, a home for adults with physical and learning disabilities, owned and operated by a company called Prime Life Limited. Early in 1998 allegations were made about the appellant's conduct in 1996/7 towards service users at Lowfield House. The appellant made a statement to the police and in or about September 1998 he received a letter from the police indicating that, on the advice of the Crown Prosecution Service, the matter was to be taken no further. There would also have been investigations by the South Humber Health Authority and the North Lincolnshire Social Services Department, which the Tribunal heard produced similar results. The allegations were also investigated by Prime Life Limited.
"In 1999 the appellant moved to Middlefield House, an establishment which, as had Lowfield House, needed a good deal of re-organisation to improve the management and provide a better quality of life for the residents. The appellant did not need formal registration under the Registered Homes Act 1984, then in force, but Lincolnshire County Council operated a voluntary registration scheme and the appellant achieved such 'voluntary registration'.
"By July 2000 the appellant's professional body, formerly the United Kingdom Central Council for Nurses, Midwives and Health Visitors, had become the Nursing and Midwifery Council (hereinafter 'NMC') and had decided to consider the allegations made against the appellant in early 1998.
"In April 2002 the new regime of the Care Standards Act 2000 came into force, its regulations (unlike its predecessor) required the appellant to be registered and he applied for such registration on 14th April 2002.
"The Professional Conduct Committee of the NMC held a hearing on 14th, 15th and 16th October 2002 about the appellant's conduct towards service users at Lowfield House in 1996/7, found the appellant guilty of four counts of misconduct and cautioned him as to his future conduct, the caution to remain on his record for five years. The four counts of misconduct were i) hitting a resident on the penis with a pen (to discourage him from masturbating), ii) wheeling a resident into the dining room with a waste-paper bin on her head, iii) forcibly administering medication to a resident and iv) kicking a resident on her buttocks.
"As part of the standardised process of assessing 'fitness' which is being developed by the respondent, the applicant was sent a 'Fit Person Questionnaire', which he completed on the 9th January 2003 and he attended on the 22nd January 2003 for the required interview with two officers of the National Care Standards Commission."
In section 3 of the fit person questionnaire the applicant for registration is required to disclose certain matters. In addition to being required to disclose matters such as criminal convictions, the form says this:
"In addition please indicate below whether you have ever been:
"Charged with any offence, or been subject to an investigation by police."
The respondent answered no to that question:
"Subject to any form of complaint, dismissal or disciplinary proceedings …"
The respondent answered no to that question also. The form contains a declaration:
"I hereby declare that the information detailed above is accurate to the best of my knowledge. I understand that a false declaration may lead to refusal of this application".
The form containing that declaration was signed by the respondent. The Tribunal noted that in refusing registration and in opposing the respondent's appeal, the Commission had relied on three matters. Firstly, his inadequate knowledge and understanding of the applicable legislation, regulations, standards and principles; secondly, the findings of misconduct made by the Professional Conduct Committee of the Nursing and Midwifery Council in October 2002; and thirdly, the respondent's failure to disclose those findings or antecedent investigations principally, but not exclusively, on the form in which he applied for registration.
Before the Tribunal, the Commission placed reliance upon material non-disclosure in the application form, but it was also submitted on behalf of the Commission that:
"The Findings of the NMC also go to the Appellant's 'integrity and good character' as he denied three of the charges found proved against him so he was obviously disbelieved by the Committee."
The Tribunal's decision.
The Tribunal summarised the evidence given on behalf of the Commission and the respondent and then set out its findings. The Tribunal had reservations about the fit persons interview and the use of the pro-forma. Having explained those reservations in some considerable detail, it said this:
"1. The Tribunal therefore found the fit person interview to have serious inherent defects. It was also clear that the appellant whose background was largely 'hands-on' with a minimum of theoretical input was at a disadvantage in a theoretical discussion. The appellant is undoubtedly one of those who are much better at handling a situation than at putting that situation into its theoretical context.
"2. Against these deficiencies in the respondent's procedures, there must be weighed the appellant's admission of substantial gaps in his knowledge of the legislative framework and, perhaps to a lesser extent, in his administrative work and supervision and appraisal of staff.
"3. The four counts of misconduct are an obvious matter of weight against the appellant, involving as they do, abusive behaviour towards vulnerable service users. The Tribunal did not of course hear the evidence about those incidents and so felt bound to a degree by the conclusions of those who did. The NMC considered a caution to be the appropriate penalty, clearly taking the view that the offences were not so grave as to necessitate the end of the appellant's career as a nurse. The Professional Conduct Committee took into account the appellant's significant contribution to learning disability nursing and his commitment to practice development and patient care.
"4. The Tribunal noted that the complaints were the only complaints to have been made against the appellant during a nursing career now of some twenty years, including eight as a manager, and arose on an occasion (rare in the appellant's career) of some staff discontent. The Tribunal did not share the respondent's view that it was effectively powerless to do anything after the findings were made known; it could, for example, have imposed conditions restricting or even suspending the appellant's activities at Middlefield House. That it chose not to do so indicates, in the Tribunal's opinion, the respondent's sharing of the NMC's view as to the proper reflection of the gravity of the offences.
"5. That the appellant had been dishonest in answering the question on his application form about previous complaints and investigations was an inescapable conclusion. The appellant admitted as much and, to his credit, in the last resort did not seek to make excuses but said that he was not proud of his conduct, regretted it and would not do the same again. There were relevant features in the background to the falsehoods. The appellant, no doubt to a degree, saw the complaints as trouble-making by a disgruntled ex-member of his staff, as was suggested in the enquiry at the time by Prime Life Limited. Authority in general had not moved with alacrity to deal with the matter. The police and the Crown Prosecution Service had taken six months to decide to do nothing. If, as Mr van Herrewege appeared to think, the South Humber Health Authority and North Lincolnshire Social Services had conducted any sort of investigation, neither had taken any apparent action as a result. Nobody had brought the matter to the attention of the appellant's professional body, the NMC, until July 2000, some two and a half years after the events occurred. The pace of its prosecution of the matter was such that, by April 2000 when the appellant filled in the offending form, the complaints had not been heard, a date set for the previous month having been cancelled. For what it is worth, Prime Life Limited too had carried out an investigation, though it is right to record that the Tribunal was not favourably impressed by either its thoroughness or its recording. It appears to have been conducted, in the main at least, by a personnel officer, whose qualifications and experience in...
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