R A v The Chief Constable of Kent Constabulary
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 08 March 2013 |
| Neutral Citation | [2013] EWHC 424 (Admin) |
| Docket Number | Case No: CO/13787/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 March 2013 |
[2013] EWHC 424 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/13787/2012
Stephen Broach (instructed by Royal College of Nursing) for the Claimant
Dijen Basu (instructed by Kent Police Legal Services Department) for the Defendant
Hearing dates: 15 February 2013
The Claimant applies for judicial review, and makes a claim under the Human Rights Act 1998, in respect of the Defendant's decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate ("ECRC") dated 12 th October 2012. Permission was granted by David Elvin QC, Deputy High Court Judge, on 16 th January 2013, and an order for expedition was made. Stadlen J ordered on 20 th December 2012 that pursuant to CPR Rule 39.2, no person shall identify the Claimant, and she shall be called A in these proceedings. That order remains in force.
On 3 rd August 2012, the Defendant received a request from the Criminal Records Bureau (the "CRB") for an enhanced check to be made in respect of the Claimant concerning her proposed employment by Nightingales 24 7 as a registered nurse.
By virtue of s.113B(4) Police Act 1997, the Defendant was required to provide any information which:
a) he reasonably believed to be relevant for the purpose described in the statement, and
b) in his opinion, ought to be included in the certificate.
On 12 th October 2012, the Defendant's entry in the ECRC was in the following terms:
" Other relevant information disclosed at the Chief Police Officer(s) discretion
Kent Police holds the following information which we believe to be relevant to the application of [A] (date of birth 03/12/1961).
The information relates to the alleged mistreatment of several elderly and vulnerable adults resident in the care home in which [A] worked as a Registered General Nurse. Kent Police believes this information to be relevant to an employer's risk and suitability assessment when considering [A]'s application for the position of Registered Nurse involving regular contact with children and vulnerable adults because, if [A] were to mistreat individuals in her care, this could occur in a similar environment when working as a Registered Nurse with children and/or vulnerable adults.
The information held by police is that:
Between 15/09/2010 and 04/04/2011, [A] allegedly pinched the cheek of the first injured party, an 85-year-old female resident of the care home, in order to force her mouth open, and then pour tea into her mouth.
On 29/03/2011, [A] allegedly dismissed an allegation made by the second injured party, an 81-year-old female resident of the care home, who asked why [A] had hit her.
On 01/04/2011, [A] allegedly failed to attend to the third injured party, another 81-year-old female resident of the care home, who was thought to have suffered a fit.
On 01/04/2011, [A] allegedly put a flannel into the mouth of a fourth injured party, a 76-year-old female resident of the care home.
On 24/05/2011 [A] was interviewed by police and denied all the allegations.
On 18/06/2012 [A] appeared at Maidstone Crown Court to answer four separate charges of ill-treat/neglect care of person who lacks capacity of donee of lasting power of attorney, and was found not guilty of all charges, no evidence being offered, and the case was dismissed.
After careful consideration, Kent Police believes that this information ought to be disclosed because the alleged incidents occurred less than two years ago and the injured parties were all vulnerable adults in a care home environment. There is concern that children and vulnerable adults under the care of [A] may be subjected to mistreatment. It is therefore concluded that the impact of [A]'s right to privacy is outweighed by the potential risk posed to children and vulnerable adults and disclosure of this information is necessary, justified and proportionate to safeguard the vulnerable group.
On 12/09/2012 a letter was sent to [A] giving her the opportunity to make representations about the above information. On 02/10/2012 a letter was received from the Royal College of Nursing, on behalf of [A]. They referred to the fact that [A] was acquitted at court and the prosecution offered no evidence against [A] following careful consideration of the evidence and issues in the case, including a statement that had recently been received which they considered would significantly undermine the reliability of two of the main prosecution witnesses. The Royal College of Nursing added that [A] has an exemplary record and a stated commitment to the care and welfare of patients."
The Facts
The Claimant is an experienced registered nurse who qualified in Nigeria and held senior nursing positions. On relocating to the UK in 2006, she worked in various nursing homes in the UK, as a nurse registered with the Nursing and Midwifery Council.
In September 2010 she was employed by Southern Cross Healthcare as a staff nurse on night duties at C Nursing Home. It was a 32 bed care home, with nursing, for patients over 65 years of age suffering with dementia and physical ailments. They were all vulnerable and needed high levels of care. Some of them displayed challenging behaviour.
Allegations were made against the Claimant by health care assistants (identified by initials) who worked with the Claimant. Some allegations were made to their employer, Southern Cross, who referred the matter to the police. Further allegations were made to the police. In summary, the allegations were:
a) CH alleged that, between 15 th September 2010 and 4 th April 2011, the Claimant forced a patient to drink by pinching her cheeks together and pouring tea into her mouth, which then flowed down the patient's cheeks and neck. The Claimant denied this allegation.
b) MB alleged that, on 1 st March 2011, a patient asked the Claimant "Why did you hit me?" and the Claimant's response was to laugh and say "I'm going to beat you in a minute". The patient told the health care assistant that she did not like the Claimant. MB said she had previously seen the Claimant grab this patient by the top of her arms and push her into her bedroom. The Claimant denied these allegations. The patient denied that she had been hit, although she was found not to have capacity to give evidence on this matter.
c) SL alleged that, on 1 st April 2011, when a patient was observed having a minor fit, the Claimant was asleep on duty and could not be woken. The Claimant subsequently altered the patient's notes, to remove the reference to a fit, saying that the patient was twitching. The Claimant denied these allegations. The patient had a chronic condition which caused her eye lid to twitch; she had been seen by the GP recently and given medication for this. Sometimes this developed into a fit. SL, who is not a qualified nurse, had wrongly recorded a fit, and the Claimant explained her mistake to her.
d) SL alleged that, on 1 st April 2011, the Claimant pushed a soapy dirty flannel into a patient's mouth for a couple of seconds, when a patient was yelling during a bed wash, and told her to shut up, and then laughed. When challenged by SL, the Claimant told SL to shut up. The Claimant denied these allegations.
e) SL, MB, CH and RH alleged that the Claimant regularly slept for hours on shift leaving them to work alone. The Claimant denied this allegation, stating that she was far too busy with nursing duties during the night to sleep for long periods. She explained that the staffing rota was one nurse per floor, but because of staff shortages, she frequently had to carry out nursing duties, such as medication rounds and attending to patients, on two floors. This was why the health care assistants could not always find her on their floor.
The Claimant said that the allegations were made maliciously because the health care assistants resented the way in which she managed them, for example, telling them off for failing to use gloves and aprons to ensure hygiene and avoid cross-infection; incorrect manual handling techniques; slack working, such as over-long smoking breaks.
The patients concerned did not have mental capacity to give evidence or attend court. When interviewed, they either could not speak at all, or did not give a reliable account.
On the basis of these allegations, the Claimant was suspended and following an investigation and a disciplinary hearing, she was dismissed on 14 th April 2011. Southern Cross referred the case to the police and the Independent Safeguarding Authority.
On 24 th May 2011 the Claimant was interviewed by police and denied all the allegations in detail. She also said that the health care assistants who had made the allegations had a grudge against her because the Claimant had rebuked them for unprofessional working practices and they considered that she was too strict.
The Claimant appealed against her dismissal under her employer's internal appeal procedure. Mrs Broom, a Manager, was appointed to conduct an investigation. She considered the material obtained in the initial investigation; conducted interviews with MB, SL, and a bank nurse, JT, on duty at the same time as them, and the Claimant. She examined the care home records. She concluded in her report:
"Both carers have made serious allegations about this nurse, and have sustained these both in writing and at interview. However, apart from their word, there is no other...
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