The appellant was a staff nurse at an elderly care unit. KS was referred to the ISA by the Dept. of Health. He was placed on adult barred list.
ISA found two of the allegations unsubstantiated but three other allegations were upheld on “the balance of probabilities” that he had engaged in “relevant conduct” which endangered a vulnerable adult:
- deliberately inflicted pain on one patient by pinching his nipples and at least one previous occasion
- deliberately inflicted pain on another patient by pinching his nipples on a number of occasions
- behaved in a strict and authoritarian manner with patients and staff.
The CPS had not prosecuted, the ISA stated this was irrelevant as they considered matters on a lower standard (the balance of probabilities).
Appealed on the basis that 1) “strict and authoritarian” is not defined anywhere as “relevant conduct – error of law 2) that the ISA had wrongly decided the facts – error of fact.
The court made observations on the practice of “rolled up hearings” – permission and substantive hearing, referred to observations in SB v ISA [2011] UKUT 404 (AAC)
Permission
Error of Fact: Tribunal said just because there is denial by an appellant does not mean that a mistake of fact is plainly arguable. “Such a denial may be entirely devoid of merit.” [para 25]
Error of Fact Permission Test: “…it is the Tribunal’s view, at least on the facts of this case, that the denial by the Appellant, together with the admitted defects in the strength of the evidence, that it is at least arguable that the Appellant has acted upon a mistake of fact upon which the decision was made, even if the Tribunal on the basis of the evidence decides, that the Respondent made no error of fact on which the decision was made.” [para 25]
The NMC had found “no case to answer” – Tribunal said they were “not influenced either way by the decision taken by the NMC.” [para 26]
Appellant gave evidence; Tribunal watched DVD of evidence; convinced Tribunal that permission in relation to the mistake of fact should be granted. (para 26)
Error of Law: Arguable case that “behaving in a strict and authoritarian manner to staff and patients” is not relevant conduct. [para 26]
Error of Law
Relevant Conduct: “It is our view that an allegation that a person is strict and authoritarian to staff and/or to patients by itself would not normally amount to ‘relevant conduct’ so as to engage the protective measures of the SVGA 2006. The issue is whether this behaviour ‘intimidates patients or puts them in fear.’ If it does do so, then it falls within the definition of ‘relevant conduct.’” [para 42]
Procedural Flaws in the minded to bar letter: Appellant claimed minded to bar letter’ does not provide any specific allegation relating to ‘strict and authoritarian manner with patients and staff’ and so it was impossible for the Appellant to respond to the allegations. Tribunal found it was “abundantly apparent to us that the Appellant was aware of the allegations against him” [para 44].
Challenge on the basis of lack of reasons: The Barring Decision Making Process document sets out very clearly the reasons for the decision to place the Appellant’s name on the adults’ barred list. [para 51]
Proportionality
The ISA has an inherent power to reconsider its decisions – to be amended by the Protection of Freedoms Bill to make this express [para 57].
““In circumstances where an individual is found to have mistreated vulnerable elderly patients in his care, by deliberately inflicting pain on them on more than one occasion, and by definition, to have lied about that ever since, it cannot be said that it is unreasonably onerous or oppressive to prevent that individual from working with vulnerable adults. Applying the more structured approach, it is submitted that the essential question is whether the legitimate aim of protecting vulnerable adults could be achieved by some lesser means than placing the Appellant on the list. The protection of other such vulnerable adults can only be achieved by placing the individual on the adults’ barred list. This is not a case where the individual has admitted to wrongdoing, and has demonstrated to the ISA or the Tribunal that he has learnt from his mistakes or taken steps to ensure that similar conduct will not happen in the future. There is no ‘partial’ listing. In those circumstances, it cannot possibly be said to be disproportionate for such an individual to be included in the list.”
59. We agree entirely with the observations made by Ms Davies in this submission, and indeed it is this point which sets the factual basis of the present case apart from the factual basis in the case of SB v ISA (see paras 64 ff).
60. We do not believe that there has been an error of law, and that ground of appeal is dismissed.”
Mistake of Fact
The ISA must make an error of “material fact” [Para 61]. Tribunal found the evidence “compelling” (para 64). “Putting the totality of this evidence together, we are satisfied on a balance of probability that the Appellant did pinch CW’s nipples in the way which is alleged… We do not believe that the Respondent made a mistake of fact in deciding, on a balance of probability, that CW had his nipples pinched on that evening.” [para 65]
Regarding the second victim and Hearsay evidence, “It is indeed the case that much of this evidence is hearsay evidence, and accordingly we accept that it should not be given the same weight as direct evidence. However, we are entitled to consider it, together with the other evidence which we have seen relating to DM.”
Inconsistency in comments/interviews by appellant “Ms Davies suggests that the most likely explanation for the inconsistency is that the account was untrue, and that the Appellant had forgotten what he had said by the time of the disciplinary investigation. Whilst we would not be prepared to go that far, we do believe that the two accounts undermine to some extent the credibility of the Appellant. We simply do not accept that the minutes of the disciplinary hearing are simply a typing error. The name CW appears five times.” [para 75]
With respect to the “strict and authoritarian behaviour”: “There is more than sufficient evidence in the documents that we have seen to arrive at the conclusion that the ISA have not made a mistake of fact on which the decision was made relating to the Appellant’s general attitude to patients (acting in a strict and authoritarian manner) of such a degree that it intimidated patients.” [para 80]
Appeal dismissed [para 81]
Tribunal made a direction that there would be no publicity of any matter likely to lead members of the public directly or indirectly to identify any person who has been involved in the circumstances giving rise to the appeal (rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698)).
