Rai (Rainworth Manor Private Hospital) v Commission for Health Audit Inspection (Healthcare Commission) [2003] EWCST 253(EA) (7 February 2005)

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England and Wales Care Standards Tribunal

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URL: http://www.bailii.org/ew/cases/EWCST/2005/253(EA).html
Cite as: [2003] EWCST 253(EA)

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Dr Sudaram Rai

(Rainworth Manor Private Hospital)

Commission for Health Audit Inspection

(Healthcare Commission)

[2003] 253.EA

Before

Rev Maureen Roberts (Chairman)

Dr Christopher Treves Brown

Mr Jeff Cohen

On 18^th and 19^th October 2004

Sitting at Nottingham Magistrates Court

Carrington Street

Nottingham

Reviewed on 24th January 2005 by the same Tribunal

sitting at Care Standards Tribunal, Pocock Street, London

Review hearing summarised at Appendix 2.

The Appellant did not attend.

The Respondent was represented by Mr M Mullins of Counsel instructed by Messrs Bevan Brittan.

Witnesses: Mrs Rona Pickles, Regional Manager (North) Private and Voluntary Healthcare Directorate, Healthcare Commission, Mr Christopher Curran, Senior Professional Adviser with the Private and Voluntary Healthcare (PVH) Team, Healthcare Commission, Mr Anthony Deery, Head of Mental Health for the Private and Voluntary Healthcare Division of the Commission for Health Audit and Inspection (known as the Healthcare Commission)

BACKGROUND

The Appellant is a medical practitioner and chairman of Manor Care Group based at The Medical Complex, Rainworth, Mansfield. Through the Manor Care Group, he runs 8 care establishments (Nursing Homes) in addition to the premises which are the subject of this appeal.
Rainworth Manor (the premises), is purpose-built and was used as an Elderly Mentally Ill (EMI) and Nursing Home until December 2001. At that time, the Appellant closed the premises for some 4 months to prepare the building and make the necessary application for its use as a low secure unit for adult mental Illness and rehabilitation.
A registration certificate was issued on 14.03.02 by the North Nottinghamshire Health Authority for "34 beds with the category of registration for patients liable to be detained under the Mental Health Act 1983 aged 18 years upwards". It is noted that the maximum number of patients at the premises was 26.
The Tribunal accept that the Appellant was entitled to believe at this point that his premises, facilities and staffing were in order and up to the then current standards. The premises and proposals for running the hospital had been inspected. For example, certain requirements for staffing were laid down; that there must be 2 registered nurses on duty during the day and 1 at night and that the nurse in charge must have a minimum of 1 years experience with the resident group of the home.
The responsibility for the registration of such independent hospitals passed to the National Commission for Care Standards (NCSC) in April 2002 and further guidance about minimum standards was issued by the National Commission for Care Standards. On 1 April 2004, the responsibility for registration and inspection was transferred to the Commission for Health Audit Inspection a body known as the Healthcare Commission.

EVENTS LEADING TO THE ISSUE OF THE NOTICE OF PROPOSED CANCELLATION ON 07.11.02 (the Notice)
There was a complaint to the Nottingham office of the National Care Standards Commission (NCSC) from the Police in July 2002. They were concerned by the number of patient absconsions. As a result, there was a visit by the Locality Manager of the Nottingham Office of the NCSC, and a colleague on 29 July 2002, which resulted in some recommendations about record keeping and escorts. On 4^th November 2002, there was a further complaint by the Police, confirmed in writing to the newly appointed Regional Manager for Private and Voluntary Hospitals, Mrs Pickles. The Police were concerned about patients absconding, lack of suitably qualified staff, and risks to patients and the public.
Mrs Pickles took up post on 07.11.02 and arranged a visit on 19.11.02. She then did a formal 2-day inspection (4^th and 5^th December) with a colleague. The findings were discussed with the then manager and the Appellant. Of the National Minimum Standards for Independent Health Care (32 core standards and 47 mental health standards) only 12 standards were met.
Subsequently, there was a Pharmacy inspection on 13.01.03, which revealed significant shortcomings and that none of the minimum standards inspected were met. The Mental Health Act Commission visited on 19.12.02 and subsequently they issued a critical report making significant recommendations on 13^th January 2003.
There were further complaints from the commissioning authorities. These were investigated and substantiated in whole or in part. After extensive inspections, meetings with the Appellant and his advisers, on the 18th June 2002 the Respondent considered seeking an emergency magistrate's order to cancel the Appellant's registration. However, the Respondent decided that if the Appellant could appoint a management consultant who had the right experience and who understood the risks of running a hospital for low security psychiatric patients, that person would have day to day charge of the hospital. This would allow the Appellant to address the other issues. A consultant suggested by the Respondent was not considered suitable by the Appellant. When the Appellant found a consultant the Respondent rejected that person as he had been struck off the Solicitors Roll while practising as a solicitor some 20 years previously.
The Respondent took the view that the Appellant had failed to secure a recovery plan for the premises and that the risks remained high. It was decided to proceed by way of the notice dated 11.07.03. In the event the Appellant decided to close the home on 01.08.03 as his public liability insurance expired on that date. The home has been closed since that date.
On 12^th September 2003 the Appellant sent a formal response and appeal to the NCSC. In that response he accepted the Respondent findings and admitted the shortcomings. He proposed a new scheme for the premises and gave the names of a proposed manager and RMO. He also gave his account of the events leading to the notice of cancellation. On 18^th November 2003 Beverley Cole, Acute Services Manager, Private and Voluntary Hospitals (PVH), wrote to the Appellant to say that she upheld the notice of proposal to cancel. On 24^th December 2003 the Appellant lodged his notice of appeal to the Care Standards Tribunal. The Respondent reply to this was dated 02.02.04.

PREPARATION FOR TRIBUNAL HEARING
Prior to the hearing there was a Directions hearing on 23.06.04 concerning the exchange of witness statements, setting a further Preliminary Hearing and setting the hearing date of 18.10.04. By a letter of 20.08.04 the Appellant indicated that he was going to call 16 witnesses. The Respondent indicated they had 14 witnesses. On 21.09.04 there was a further preliminary hearing, dealing with a request by the Appellant for an adjournment, on the grounds of his ill health, which was refused, and some further directions for the preparation of documents. In addition the Appellant had given as a ground of appeal 'that there could have been a racist element' and he was required to supply objective evidence of this by the 1st October otherwise he would be barred from raising this allegation as a ground of appeal. No further evidence was submitted on this allegation. The Respondent prepared the Tribunal Bundles. As of 18.10.04 no witness statements had been received from the Appellant. The Respondent included 3 letters from individuals supporting the Appellant.
On 5^th October the Tribunal received a faxed letter from the Appellant to request an adjournment, as follows:

'due to my current state of health I have been unable to obtain all the necessary witness statements or undertake the requirements of the Tribunal. As stated during the telephone hearing, I do not feel that I am in a position to be able to obtain and present all the necessary information required for a fair hearing.

I will provide a doctor's certificate by post, which will confirm my current state of health. May I kindly request that in the interests of justice, you grant an extended period of time to produce all necessary documents and postpone the hearing.'

He provided a medical certificate with a description of his illness as 'IHD (Ischaemic heart disease) Stress, awaiting angiogram'.
The Tribunal replied:

'I regret to inform you that the President is unable to grant an adjournment in this matter and the case is to proceed as arranged. You were aware of the hearing dates for some considerable time and the applications for adjournment have been refused already. The matter would need to be dealt with and it is not in your interest or in the interests of the Respondent for the case to be postponed for what might well otherwise be an indefinite period.

The case will proceed on the days that have been booked (18^th – 29^th October 2004 for a period of 10 days), and if no further documentation is forthcoming from yourself, the Tribunal will have to decide the case on the basis of the papers and witnesses presented to them by the Respondent.'
Representations were made to the Tribunal Office.

(1) On the 14th October by the Appellant, via a solicitor's letter, for an adjournment on the grounds of his continuing ill health and enclosing two letters from a consultant cardiologist and a letter from his GP;

(2) On the 15th October by the Respondent that Mr Cohen, a member of the Tribunal, should be replaced on the grounds that he might be perceived to be biased, as he knew three of the witnesses for the Respondent. In particular it was put to us that Mr Cohen had known Mr Curran for some time.

16. Both these applications were refused by the Tribunal which held:

(1) The Appellant has been unwell with a heart complaint for some considerable time (since June 2002 on his information). He has had a long time to prepare the case and has known of the hearing date for months. Due regard to his health could be made in the arrangements for the hearing by adjusting sitting times and breaks. The matter, of the proposed notice of cancellation and the subsequent appeal, need to be dealt with and it is not in the Appellant's or the Respondent interests for the case to be adjourned with no foreseeable date for hearing in view.

(2) Mr Cohen, as Head of Policy for the Mental Health Act Commission (MHAC), had worked in the MHAC at the same time as three of the Respondent witnesses, who were part time commissioners at that time. Mr Curran worked as an independent inspector for MHAC from 1996 to 2000. Mr Cohen was at MHAC for some 5 years until he changed jobs in 2002. There had been little contact since then and the relationship was a professional one; in those circumstances the Tribunal did not consider there was any real possibility of bias in the mind of a fair minded observer.

THE HEARING
The Appellant did not appear by 10.30am on 18.10.04. The Tribunal started the hearing and heard brief submissions by Counsel for the Respondent for the Tribunal to consider the paper evidence and indicate the witnesses it required to give live evidence.
The Tribunal retired briefly to consider the arrangements for the hearing and was given a message by the Tribunal Office that Appellant's daughter had telephoned at 10.25 to say that the Appellant had set out for the Tribunal but had become unwell and had been taken to hospital.
The Tribunal Office endeavoured to obtain further information by phone without success, and at midday the Tribunal arranged for a letter to be sent to the Appellant's home address by courier, and to his work address by fax, asking him or a member of his family to give the Tribunal further details of what had happened and concluding:

'The Tribunal have adjourned the hearing until TUESDAY 19 OCTOBER 2004 AT 10.00 am. The Tribunal are minded to proceed in your absence, not least because the stress of these proceedings are going to continue to affect your health for the foreseeable future. The Tribunal considers that you can make arrangements for representation or an observer to the proceedings.'
The Tribunal received a faxed letter from the Appellant's daughter; she gave us details of his illness and concluded:

'Dr Rai will be unable to arrange representation as he is still at the hospital. I am surprised that the Tribunal has assumed that Dr Rai can make arrangements from his hospital bed in light of my telephone call stating that he had practically collapsed and that an ambulance was present. I am even more surprised that the tribunal is going ahead.

The ambulance and hospital crew had both asked Dr Rai whether his attack was caused by any increase in pressure on him at this current time.

As I feel that showing my father the letter will only serve to put increasing pressure on him, and would not wish to be responsible for the consequences of such, I will inform him of it when he is out of hospital and feeling better.'

We considered all that she said on the Appellant's behalf.
The Tribunal decided to proceed with the hearing. This was a decision that was not taken lightly. We accept that it is a fundamental principle of justice that the Appellant should have every opportunity to make his representations to the Tribunal and that if he wishes to attend in person to represent himself and ask the Respondent witnesses questions and put his side of events, this should be facilitated if at all possible.
As we have indicated, if the Appellant had attended, the Tribunal proceedings would have been conducted in such a way as to adjust sitting hours and provide breaks for him.
Against this we have to weigh the issue of delay, the Appellant's conduct of the case to date, his continuing ill health, and his extensive admissions to the allegations.

a. The original notice of proposed cancellation was dated 11.07.03 and after submissions the decision was upheld on 18.11.03. The premises effectively ceased to operate on 01.08.03. We noted that the establishment was not closed by the Respondent and could have continued to operate, although we realise that placing authorities would have been reluctant to use a facility under a cancellation notice. There have been some moves to restart the unit. Firstly, the Appellant in his September 2003 submissions put forward a 'Proposal for Long Term Secure Mental Health Services at Rainworth Manor (Statement of Purpose) together with a proposed new manager and RMO. This was not proceeded with by the Appellant. Presently there is a private Health care group which has approached the Respondent with a proposal to run a male only low secure unit at the premises with the Appellant solely supplying the premises. It does not assist the Appellant or Respondent to have any further delay and it may assist the Appellant to have this matter disposed of to facilitate the present proposal proceeding.

b. The Appellant is a qualified doctor and businessman with other Care Homes. However, he has not prepared his case in accordance with the directions, e.g. no witness statements. He has asked three times for an adjournment, on one occasion by a lengthy solicitor's letter dated 14.10.04, when he had known the date for the hearing for a considerable time. We have to say that this lack of preparation (which may be due to his ill health) concerned us and might be thought to suggest an unwillingness to have a final hearing.

c. The Appellant has been suffering from an ongoing heart condition, since June 2002, and certain letters from his consultant, and a medical certificate and letter from his GP were produced to us to explain why he could not attend the Tribunal and request an adjournment. The Tribunal is sympathetic to the Appellant and his ongoing health problems, which on his own admission have probably contributed to the difficulties leading to the proposed cancellation of his registration. However, the information and medical evidence is incomplete and the Appellant has attended both directions hearings and has instructed solicitors at various points in the proceedings. No date or time scale is given for investigation and treatment. It is not satisfactory to adjourn indefinitely on this basis.

d. Finally, and of considerable significance for the Tribunal, was the letter and response to the Notice of Proposal to Cancel Registration from the Appellant to NCSC dated 12.09.03. In this he says: 'I do not dispute the charges laid down in the report and I recognise the serious nature of the report but would cite the following.' He then gives 13 points in mitigation of his situation. He goes through each Regulation cited by the Respondent and accepts that he has failed to reach the standard or provide what was required but then states that this was either because of family and health problems and/or will now be rectified by a management team with right expertise.
On balance, therefore, we concluded that while any Tribunal would be reluctant to proceed in the absence of the Appellant, especially when he has indicated a desire to attend, this has to be balanced against the need for a matter to be resolved in a reasonable time scale. Into this balance we place the issues as recorded above and the fact that we have the basis of the Appellant's case in his admissions of 12.09.03 and subsequent correspondence.

ORAL EVIDENCE
The Tribunal heard from the witnesses listed above. We made enquiries to see if it was possible for Mr Alan Milligan of the Mental Health Act Commission to attend. He was not available, however we had his report of 13.01.04. and his witness statement. In the following section the Tribunal has summarised its findings. In Appendix 1 to this decision, we have set out the main contents of the Respondent Proposed Notice of cancellation citing the regulation and the breach of the regulation. We have given the Appellant's response as a direct quotation from his document of the 12th September 2003. We considered that this was a fair way to give full expression to the Appellants evidence in his absence.

THE ISSUES IDENTIFIED BY THE RESPONDENT AND THE APPELLANT'S RESPONSE
A number of Authorities (for instance, the HC, MHAC, pharmacy inspector for the HC, the Police and Commissioning Health authorities) all recorded a number of failings in the fabric and management of the hospital. In his letter of 12 September 2003 Dr Rai accepted that all these many criticisms were justified. While we have set out the evidence in the Appendix the admissions inevitably limited our role to issues of fairness in the way the Authorities have carried out their duties. We did, however, also invite the witnesses to comment on Dr Rai's complaint that he had been a victim of racial prejudice. He had not, in fact, offered any specific evidence on this matter (as required in the Order of 21.9.04), but we felt, nevertheless, that justice required that we consider the issue. We record that the witnesses did not accept that Dr Rai had ground for complaint on this matter. On the contrary, we concluded, as recorded in the findings and reasons section of this decision, that the Respondent hoped until well on in the case, until the early summer of 2003, that the situation could be 'rescued'. Their problem was always that, for whatever reason, Dr Rai's promises to improve the situation in accordance with their wishes were not honoured. Inevitably, that sapped their trust in his ability to improve the situation.

FINDINGS AND REASONS FOR THE TRIBUNAL'S DECISION
When making our findings we have reminded ourselves that the burden of proof in these proceedings rests with the Respondent. We also note that there was a considerable bundle of documentary evidence produced to us before the hearing, together with some additional documents during the hearing. We have not set out all the evidence in this decision. Indeed, as noted, the Appellant accepted the Respondent case. Thus the fact that only the main points of that evidence are included in our findings should not be taken to mean that we have not taken into account all the evidence and arguments put before us.
The Appellant replied by way of explanation. It was his case that the Respondent had not acted fairly, had not given him enough time to remedy outstanding points and that these matters could still be put right. We investigated these issues with the witnesses.
The Appellant is very experienced in running EMI/Nursing Homes. The premises were, until December 2001, such an establishment. A low secure unit provides for a very different clientele. We accept that the Appellant was entitled to believe that he had set up a satisfactory service in March 2002 when he was first registered. He thought the facilities were adequate and so, initially, did the placing authorities. It is not clear how many of them had visited prior to placing clients. Bearing in mind the service which the Appellant claimed to offer in his brochure, we accept that what was provided, fell short of this.
We heard from the witnesses listed above and found their evidence to be sound and professional. They all had extensive experience of the operation and inspection of secure units in the NHS and private sector. Mrs Pickles had experience in the North of England and Mr Curran and Mr Derry had experience nationally.
The clients at the premises were aged 20 – 50, mainly men; all, save two, subject to detention under the Mental Health Act. The secure environment is required because of mental health and related behavioural and forensic risks. We accept the evidence of the main concerns of the Respondent which resulted in risk to patients, staff and the public.
One critical question was whether the Appellant had been given enough time to remedy the situation. We accept that he knew what was required from the inspection 4/5 December 2002. The areas of concern had been communicated to him verbally after the inspection and confirmed in the written Inspection report sent in January 2003. In April a one page action plan was sent by the Appellant to the Respondent indicating a time scale for remedying outstanding breaches of regulations. We further accept that by the 18 June 2003, when the Respondent considered an emergency closure order, the situation was critical. In the next 23 days (until the making of the order on the 11July 2003) there was an attempt to continue the operation of the premises by employing an outside consultant.
A firm suggested by the solicitors acting for the Respondent, called BML, were not considered suitable by the Appellant. He chose another firm of consultants. The Respondent rejected this firm on the ground that the principal had been struck off the Solicitor's Roll some 20 years previously (for dishonesty) and that he had not disclosed this information to the Respondent. We find the rejection of the consultant on that ground alone to be a harsh decision. In further evidence it appears that in the context of the whole situation that decision reflected the Respondent lack of confidence in the Appellant to make the vital and urgent changes within a reasonable timescale. The high degree of caution by the Respondent with regard to the appointment of an external consultant was understandable in the light of the very significant number of breaches of the regulations and the vulnerability and level of risk which this group of patients present.
The Tribunal noted that an eminent local consultant forensic psychiatrist (Dr Baruah) did make an attempt to help the Appellant. In April he was contacted, however his involvement was fairly at arm's length and he only attended some meetings towards the end of the process. At one stage, on 30th April 2003, the Appellant wrote that the doctor was the Consultant Clinical Director for the premises. This did not appear to be the case.
We accept the evidence that sufficient time was given to remedy matters which were so urgent that they needed to be attended to immediately for the safety of all concerned. Despite all efforts, by 11.07.03 Rainworth Manor was no longer a safe environment for patients or staff. Urgent matters had not been addressed. On 12 September 2003 the Appellant in his response to the notice to cancel, attached a plan or proposal for the future of the premises. This has not been acted upon and we noted the current negotiations for the possible future running of the premises as set out above.
We conclude that the Appellant is not a fit person to run a low secure unit. We note that the Appellant has made much of family stresses (illness and a bereavement in India) and his own long-standing heart complaint. We have considerable sympathy with him about these issues but they do not detract from the fact that he did not ensure, in his absence or when unwell, that his establishment was being run to the required and necessary standards.
We were invited by the Respondent to make a formal finding that the Appellant is physically unfit to run the premises. We decline to make such a finding because:

(a) Regrettably, we have had to hear this appeal in the absence of the Appellant. Whilst we consider that he had notice of all the issues we have looked at and expressed his views on them, he does not have notice of this issue;

(b) We do not consider we have sufficient medical evidence about the Appellant's health to make such a finding.
Finally, we appreciate that the Appellant may have continued with this appeal, in part to 'clear his name'. While we uphold the decision and dismiss the appeal, we accept that the Appellant was acting with the best of intentions and that he was not sufficiently experienced in the clientèle of such a unit and greatly hindered by family and health problems.

We uphold the decision of the Healthcare Commission. Our decision is unanimous.

We have reviewed our decision and unanimously decided not to exercise our powers under regulation 26. The original decision is upheld, subject to the two minor alterations made under regulation 25 (1) (c) and to the re-numbering of our original Appendix to be Appendix 1 and the findings of the review hearing Appendix 2.

Appeal Dismissed.

Rev Maureen Roberts (Chairman)

Dr Christopher Treves Brown

Mr Jeff Cohen

Date: 7 February 2005

Appendix 1

Notice of proposed cancellation (11.7.03) and the Appellant's response (12.9.03)

The Notice of proposed cancellation stated - "The Provider has failed to carry on the Hospital in an effective and responsible manner to ensure that regulatory standards are achieved and maintained. In particular, it is the concern of the Commission that the Provider does not show the level of understanding required of a fit person responsible for the running of an independent mental health hospital with dependent vulnerable service users.

The Commission is only obliged as a statutory minimum to make one visit per year to each independent hospital. It has however, made at least 13 visits to the Hospital since November 2002. This level of supervision is unsustainable from a regulatory point of view but illustrates the high degree of concern the Commission has about standards of care in this establishment.

The Commission carried out a statutory .inspection of the Hospital on 4 and 5 December 2002. This highlighted 22 requirements and 5 recommendations. The timescale for action in respect of each requirement and recommendation has now passed. Of the 70 National Minimum Standards tested, it was identified that there were 40 occurrences of major shortfalls (Score 1) and 16 occurrences of minor shortfalls (Score 2) indicating the degree of non-compliance. The major shortfalls were across all facilities and services within the Hospital. It is the Commission's view that the general standard of care has not improved since then."

It then highlighted breaches under 13 Regulations. In reading the written evidence and hearing the witnesses in this decision we have listed the Regulations and given an example of an area of shortfall and recorded the Appellant's response

1. Regulation 9 and Regulation 45: Policies and procedures

The Respondent stated that the Appellant did not have policies for 11 areas, e.g. patients who abscond, prevention of suicide.

The Appellant's response:

'I as the registered provider accept that the hospital did not have policies and procedures covering a number of key areas of operation. The unit does have a policy and procedure manual, placed in an accessible position and available to staff. This is available to inspectors and contains other important policies and procedures. I accept that there was a failure in meeting the standards for registration in this respect. The manager was however accountable for the delivery of the requisite services to those standards.

In order to ensure this situation is dealt with effectively I intend to work in partnership with a management team who have the necessary expertise and experience to guarantee that the unit meets and exceeds the basic minimum standards set. I will turn over responsibility for the day to day running and strategic direction of the hospital to this team. The new management team will establish a policy and procedures committee who will have overall responsibility for devising, updating, implementing and monitoring policies. This group will be chaired by the Director of Rainworth Manor, Mr J A McDonald.'(It was noted at the hearing that Mr McDonald had subsequently withdrawn form his association with the Appellant)

2. Regulation 10: Fitness of Registered Provider

For example - Issues about ligature points and the management of keys remained outstanding from December 2002 until the issue of the notice of proposed cancellation.

The Respondent stated 'Dr Rai has consistently claimed that he would raise standards at the Hospital but the Commission's view is that his failure to deliver on these assurances reflects on his good character and integrity to operate the Hospital. It is the view of the Commission that Dr Rai has failed to provide a safe and therapeutic environment for the patients and is therefore unfit to run the establishment.'

The Appellant's response:

'The Commission rightly criticises me as the registered provider for failing to address safety issues in a timely fashion as had been promised at the inspection visit by the Commission on 4 and 5 December 2002.

This was due to the same factors outlined in 3.2.1 above, that is that neither I nor the manager had sufficient knowledge and experience to effectively run the operational side of this service. The sudden and overwhelming nature of the problems compounded matters in respect to a highly specialised type of care. This was also at a time when I was addressing family matters and went through a period of ill health.

The partnership with a management team who have the necessary expertise and experience to effectively and safely run the unit will ensure that such a grave and catastrophic situation does not arise in the future.'

3. Regulation 11: Appointment of a Manager

An acting manager was appointed in May 2002. The Respondent did not receive an application for this person and were informed that he had been referred to the Nursing and Midwifery Council regarding fitness to practice issues.

The Appellant's response:

'I as the registered provider fully accept that the interim arrangement made following the resignation of the Manager on 22 May 2002 was far from ideal.'

4. Regulation 13: Registered Person

General requirements under this heading were concerns about insufficient staffing, lack of training and system for the safety and protection of patients and staff. Twelve specific incidents were detailed and three concerns by NHS organisations who had placed patients.

The Appellant's response:

'It is with great regret that I as the registered provider concede that the findings of the National Care Standards Commission, i.e. the provider was unable to safely and effectively manage the hospital, is true. This was due to a lack of experience and knowledge of specialised low secure forensic services on the part of both myself, as the registered provider, and the registered manager.

The lack of clinical governance and risk management systems led to a failure to manage risk effectively in the unit and to monitor and identify signs of failure. The number of serious incidents should have been monitored, examined, analysed and acted upon.'

The Appellant continued by saying that a highly skilled and competent management team will provide the way forward.

5. Regulation 15: Quality of Treatment and Other Service Provision

This area focused particularly on shortcomings in the pharmacy service, e.g. Form 38s incorrect, no record of receipt of medication, strips of tablets seen loose.

The Appellant's response:

'The failure in pharmacy provision is accepted without reservation and is attributed to the overall poor state of management of the unit and lack of competence and skill in the organisational functioning of the hospital.

Once again I as the registered provider concede to having failed to discharge properly the responsibility of identifying that matters were not being addressed as per expectations.'

6. Regulation 16: Care and Welfare of Patients.

On 10.07.03 a sample of 5 sets of patients' records examined and found no evidence that care was planned in a patient-centred way.

Appellant's response:

'I as the registered provider fully accept the findings of the report that little evidence of care planning in a patient-centred way was found. This reflects the endemic and terminal nature of the day to day management of the unit. I also accept my part in this, in particular the failure to recognise the problems, including the matters contained in paragraph 3.2.7 below.'

7. Regulation 18: Staffing

The provider has consistently failed to provide sufficient numbers of appropriately qualified persons, e.g. failed to ensure sufficient RMNs on duty and on occasion there has been no RMN on duty. Also failed to provide training, e.g. restraint and control, resuscitation.

The Appellant's response:

'I as the registered provider fully accept the criticism made in this section by the National Care Standards Commission. The lack of competence and skill with this client group of the manager has led to a wholly unacceptable level of provision for a very vulnerable client group in terms of expertise.'

8. Regulation 19: Fitness of Workers

The Hospital has not carried out Criminal Record Bureau checks in respect of any of its staff. There was no evidence of references being followed up, PIN numbers checked, or a HR policy.

The Appellant's response:

'The manager had responsibility for ensuring that staff were recruited and retained. This included following good human resources practice and carrying out all necessary checks. I acted upon the correspondence from the manager. However checks with the CRB for example were taking nine months to return.'

In evidence to us the Respondent stated that as far as it could check the Appellant had never had this establishment registered with the Criminal Record Bureau. The Tribunal found that there seemed to be some confusion as what the status of registration with the bureau was.

9. Regulation 21: Records

The Hospital had failed, e.g. to keep the Mental Health Act records, and that Forms 38-39 were not always a true record of treatment being given to patients.

The Appellant's response:

'It is accepted that failure to maintain statutory records required by the Mental Health Act occurred and that it is wholly unacceptable. Other breaches in administration should also have been addressed. Once again the operational failures were due to a complete failure in the management of the hospital.'

10. Regulation 25: Fitness of Premises

The Hospital does not provide sufficient security for a low secure unit (windows could be forced open, airlock doors did not work). Premises in a poor state of repair.

The Appellant's response:

'It is acknowledged and accepted by me as the registered provider that there are some failings in the premises. I had been in the process of addressing these failings at the time of the report and felt that the timescales which I was expected to work to by the Commission were unrealistic, particularly when giving consideration to the need for a thorough risk assessment of the premises. I have undertaken to remedy these now that the decision has been taken to commit to the continuation of the service (contingent upon the outcome of the deliberations of the National Care Standards Commission and its support).'

11. Regulation 28: Notification of Events

It was said that numerous occurrences had come to the Commission's attention via third parties and that the provider had not adhered to time scales to notify the Respondent of incidences.

The Appellant's response:

'It is fully accepted that there has been a failure to follow the correct procedures in regard to events that should be reported to the Commission.'

12 Regulation 44: Safety of Patients and Others

No evidence of an audit of accidents and incidents had taken place. The Hospital had continually failed to conduct a thorough risk assessment of individual patients.

The Appellant's response:

'The findings of the National Care Standards Commission are accepted.'

ISSUES RAISED BY THE MENTAL HEALTH ACT COMMISSIONERS

13 Carrying on other than in accordance with the requirements of the Mental Health Act 1983. Six areas were highlighted from the Mental Health Act Commission's report.

1 Failure to comply with S17 (leave) provisions,

2 S20 renewal of detention carried out on one occasion without RMO consulting other persons who have been professionally involved with the patient.

3 Uncertainty about the identity and training of Hospital Managers,

4 Uncertainty about who was performing duties of Mental Health Act Administrator (if anyone).

5 No policy to inform patients of their rights under the Mental Health Act 1983

6 No policy on consent for treatment under Part IV of the Mental Health Act.

The Appellant's response:

'It is accepted that amongst many failures at Rainworth Manor were failures to adequately comply with the expectations of the Mental Health Act Commission and to carry out the discharge of responsibilities in accordance with the Code of Practice. Once more these failings are attributed to the gross management failings prevalent at the time.'

The Appellant finally submitted:

'I as the registered provider accept with humility that between November 2002 and July 2003 Rainworth Manor did not provide an acceptable level of care and service in accordance with minimum standards set by the regulating bodies.

It is offered that this was not a wilful action and that my seemingly inadequate response as the registered provider post December 2002 was due to the overwhelming nature of the issues. I had started to remedy some of the difficulties by recruiting a senior experienced forensic psychiatrist (Dr Ranjit Baruah) as clinical director. However, events were confounded by the fact that I found it necessary to be out of the country for a substantial period of time to attend to family business and I was also physically ill at this time.

Having now had time to fully consider and accept these failings I would ask to have the opportunity to re-establish credibility and reclaim my good reputation for providing good quality care.

A commitment and undertaking will be made to invest financially in the service and to engage an acceptable and highly qualified management team to fulfil a vision of excellence.'

Conclusion. Under each heading the Appellant admitted the shortcomings of Rainworth Manor and sought on a small number of occasions to blame this on the manager. On each occasion he concluded, that the new management team would put things right.

Appendix 2

The Review Hearing on 24^th January 2005

The Appellant in person

The Respondent was represented by Mr Mullins of Counsel

THE REGULATIONS
Review of the Tribunal's decision. Regulation 25 of the Care Standards Tribunal regulations provides:

(1) A party may apply to the President for the Tribunal's decision to be reviewed on the grounds that -

(a) it was wrongly made as a result of an error on the part of the Tribunal staff;

(b) a party, who was entitled to be heard at a hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear; or

(c) there was an obvious error in the decision.

(3) An application under this regulation may be refused by the President, or by the chairman of the Tribunal which decided the case, if in his opinion it has no reasonable prospect of success.

(4) Unless an application under this regulation is refused under paragraph (3), it shall be determined, after the parties have had an opportunity to be heard, by the Tribunal which decided the case or, where that is not practicable, by another Tribunal appointed by the President.

2. Powers of Tribunal on review. Regulation 26 provides:

(1) The Tribunal may, having reviewed all or part of a decision -

(a) set aside or vary the decision by certificate signed by the chairman; and

(b) substitute such other decision as it thinks fit or order a rehearing before the same or a differently constituted Tribunal.

APPLICATION FOR A REVIEW
On the 4^th November the Appellant wrote to request that the decision be reviewed citing all three grounds of Regulation 25. This was followed by a letter from Solicitors acting on his behalf also requesting a review of the decision but limited to Regulation 25 (1)(b) and the review of the membership of the Tribunal. The Respondent also requested a review under Regulation 25(1)(c) to remove the name identifying one of the management consultants who was involved in the case. We have removed his name and that of the company and corrected one error in a date in the original decision, exercising our powers in Regulation 25(1)(c).
The Chairman, having considered the points raised by both parties determined that the decision be reviewed. A date was set of the 3^rd December 2004 for the review hearing and directions dated 18th November 2004 were sent to both parties. The directions required the Appellant to file, 7 days before the hearing date,

(a) A timescale for any proposed medical treatment and the earliest date when he considers he would be fit enough to attend a hearing.

(b) Having regard to the admissions made in his response of the 12 September 2003, a written statement of his case.

(c) A copy of any witness statement or other document, which he seeks to rely on in support of his appeal.
The Appellant did not comply with these directions and the date of the 3^rd December was vacated. After discussion with his solicitors the date of the 24^th January 2005 was fixed for the hearing. This date was fixed as the Appellant was going to India on the 7^th December 2004 and returning on 20^th January 2005. Shortly before the hearing date the solicitors for the Appellant wrote to the Tribunal Office to say that they were not instructed in the matter. The directions of 18th November 2004 were not complied with by the 24^th January 2005.
The main points of the Appellant's grounds for the review were given in the final paragraph of his letter requesting an 'appeal' dated the 4th November 2004. He wrote -

"I did not accept the Respondent case. I accepted that where the manager and the staff were responsible for most of the issues, ultimately as a registered person I am responsible. The Tribunal mistook it, as I was directly responsible. I appointed the manager and staff expecting them to deliver the proper care policies and procedures and being responsible. Following my ill health from June 2002 I had to undergo surgical procedure to my heart and other problems like bereavement in the family etc., I could not supervise the staff and do the immediate changes as required within the short time scale, Mr Deery was demanding. In any other Caucasian owned unit Mr Deery and Mrs Pickles would have allowed sufficient time for the hospital to continue to do the changes. By the extensive arrangements that I was doing to put forward a new and better team in difficult circumstances while all the Care Standards Officials were telling the staff directly that they are closing down the hospital causing low morale and resignations amongst the staff. To convey the message of doom and gloom they were visiting almost every week. The safety of residents and the staff was paramount and at no time was there any dereliction of the duty from the staff or the management."

THE REVIEW HEARING
At the hearing on the 24^th January 2005 the Tribunal heard submissions from both parties as to whether the decision should be reviewed and, if we proceeded to review, on what grounds it was to be reviewed. The Appellant wanted a review to consider the position of one of the panel members, to pursue allegations of racial bias, and that he was entitled under Regulation 25(1)(b) to a review. After considering all submissions made to us we agreed to review the decision solely on the ground that Regulation 25(1) (b) was met on the facts of this case.
After an hour's break the Appellant gave us his oral evidence in support of his application. He answered questions from the Tribunal and Counsel for the Respondent. We had read the correspondence from both parties. In summary he said that

a. He had consulted solicitors. Initially he saw solicitors provided by his insurers who had given him some advice about the preparation of statements and subsequently he had consulted another firm of solicitors who had helped at various times in the case.

b. He had been too ill to prepare the statements for the first hearing. He had also been too ill to comply with the directions for the review hearing.

c. He considered that many of his former members of staff had been too frightened to give statements, because of fears of repercussions from the Respondent. In particular, qualified and senior staff who might wish subsequently to apply to the Respondent for registration as managers, were reluctant to give statements.

d. He felt that the Respondent had badgered and harassed him and his staff in the months prior to the closure leading to low morale in the staff and difficulties in recruitment. He believed that this was racially motivated.

e. He accepted his overall responsibility for the shortcomings as outlined in the Appendix but blamed the manager for telling him things were all right (when they were not) and for failure to reach the required standards.

f. He also stated that the Respondent was not helpful and that while they inspected and regulated they did not advise or guide.

g. He did not consider that he had been given enough time to remedy the situation. He told us that he had a management team ready to start if the Respondent would register them.

h. The proposed management team consisted of members who were experienced both managerially and clinically with the patient group ie mentally disordered offenders and those needing intensive and /or secure care. The Appellant would relinquish the role of registered provider, which would be taken on by the proposed team. The Appellant maintained that the Respondent obstructed these proposals by not proceeding with the registration formalities

i. He accepted that ill health had played a significant part from April 2003 onwards in his difficulties and that he was not fit today to be a registered proprietor. However he believed that after investigations and surgery due to take place some time in the near future he would be fit enough in a number of months after treatment.

CONCLUSIONS
We reminded ourselves that this is a review of the decision and not a rehearing. Having said that, we were greatly assisted by having the Appellant present, and hearing his side of the matter. The Appellant gave us an explanation of certain matters but did not give us any new or additional evidence. The Appellant stated on a number of occasions that he had been a member of a Tribunal. If this is the case he would have been well aware of the way in which papers were prepared for Tribunal hearings and the procedure at such hearings.
We noted that the Appellant had not complied with the directions for the original hearing or for the review. When he came to the review he stated that he had not brought all the papers with him. He was able to conduct his case and after a break over lunch he gave us a statement of his position and answered questions.
He sought to persuade us that the management team he first proposed was still available and that he could reopen the hospital immediately. However we find that this is not the case. We had seen a letter, at the original hearing, from the key member of that team dated 1st October 2004 plainly saying that he was no longer involved in the hospital and distancing himself from the Appellant. The premises are in a damaged state.
On his own admission the Appellant is not physically fit enough to run such an establishment at present. We note that he is going to have further investigations and surgery. However the timescale and outcome of such treatment is uncertain.
At our original hearing we particularly addressed the questions of time scale and of possible racial bias. We confirm our original findings that in the circumstances the Appellant had been on notice of the breaches since December 2002 and the notice of cancellation was not served until 12 July 2003. This was enough time to put essential matters right, bearing in mind the nature of the patient group at the hospital.
While we appreciate that the Appellant may have felt harassed by the Respondent they in turn were evidently increasingly concerned about the safety and care of the patients and felt that failures were not being remedied quickly enough. We do not find that racial bias played a part in the Respondent actions. We accept the analogy put to us that the Respondent was trying to pull back the Appellant from the cliff edge rather than push him over it.
The Appellant referred us to various Articles of the Convention on Human Rights which he submitted had been breached by the Tribunal. We considered the points raised and do not find that there has been a breach of the Appellant's human rights in the conduct of this case. He has been provided with a fair hearing within a reasonable time by an independent and impartial Tribunal.
We accepted that the Appellant's request for a review satisfied the ground of Regulation 25 (1) (b). In the circumstances of this case we decided that the review must consider whether the Appellant could put forward any new material or evidence that would persuade us that the outcome of the original hearing may have been different, if he had been able to attend, and therefore that we should exercise our substantive powers under Regulation 26. In view of our findings set out above we did not so conclude, and have upheld our original decision subject to the minor alterations requested under Regulation 25(1)(c).

Rev Maureen Roberts (Chairman)

Dr Christopher Treves Brown

Mr Jeff Cohen

Date: 7 February 2005

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You are here: BAILII >> Databases >> England and Wales Care Standards Tribunal >> Rai (Rainworth Manor Private Hospital) v Commission for Health Audit Inspection (Healthcare Commission) [2003] EWCST 253(EA) (7 February 2005) URL: http://www.bailii.org/ew/cases/EWCST/2005/253(EA).html Cite as: [2003] EWCST 253(EA)