Active care partnership limited

-v-

Commission for social care and inspection 
 [2008] 1360.EP-JP

-Before-

Mr. Simon Oliver
(Deputy Principal Judge)
Dr Jill Low (Specialist Member)
Mrs Jenny Lowcock (Specialist Member)

Decision

Heard on 2nd to 5th September 2008 at Care Standards Tribunal, Pocock Street, London SE1 0BW. 

The decision was announced on 5th September 2008 

Representation
The Appellant was represented by Mr Phillip Engelman of counsel 
For the Respondent: Mr Roger McCarthy QC

Appeal 
1.	This is an appeal against an order made by Mr N. J. White, a Justice of the Peace in Nottingham, on the evening of 7th August 2008 pursuant to Section 20 of the Care Standards Act 2000. That order cancelled the registration of Active Care Partnership Limited “ACP” in relation to the Alton Centre, Irchester, Northamptonshire, “the home”. It also cancelled the registration of Jacqueline Curtis-Bates, the registered manager of the home. We are dealing in this appeal with the cancellation of the registration of ACP.

The Law 
2.	The test that the Justice of the Peace has to apply in determining whether or not to exercise the powers of closure in section 20 of the Act is whether “it appears …that, unless the order is made, there will be a serious risk to a person’s life, health or well being” in which case “the justice may make the order”. In determining the appeal we, as the Tribunal, need to apply the same test.

3.	The section 20 test is disjunctive. That is, an order may be made based on any one of the identified risk areas and the serious risk is as it affects one or more person (so that risk to one person may be a sufficient basis for an order). The Justice of the Peace found that there “will be a serious risk to persons well being and health.”

4.	On an appeal against a section 20 order the tribunal has to look at each of the risk elements. The risk may be to any one or more of those at the home. A risk is serious for the purposes of section 20 if it justifies closing the home Hillingdon v McLean (CO /159/88 pp 16 G-17A (Phillips J). To answer the question of serious risk it is necessary to look ahead at what was likely to happen if an order was not made (McLean p20A).

5.	Any consideration of risk and its seriousness includes the nature of the risk and the degree of risk. Section 20 does not require proof that any person will die or that their health or well being will be further damaged; it requires sufficient evidence to show a sufficient risk. 

6.	In Jain v Trent SHA [2008] 2 WLR 456,  [2007] EWCA Civ 1186 at paragraph 79, Lady Justice Arden suggested that it was implicit in the serious risk requirement that “there should be a significant risk that the residents will suffer harm within the timescale that would otherwise be required under the ordinary procedure…That question involves making a judgment on a number of matters, including the vulnerability of the residents, the seriousness of the shortcomings of the home and how long it would take the proprietors to put them right”.

7.	Both sides agree that the test is identified by Arden LJ, namely a significant risk of harm “within the time scale that would otherwise be required under the ordinary procedure…”
8.	An appeal to this tribunal is by way of rehearing and not a judicial review of any past procedure (see Appiah-Anane v NCSC (2002) 96.NC). The question for consideration is whether there was a serious risk etc at the date and time of the order. Any evidence which throws light on the statutory question may be admitted for consideration [HMCIS v Spicer [2004] EWHC 440 (Admin)].

The Background facts

9.	ACP was the registered proprietor for the home. The registration was as a care home with nursing for up to 40 younger adults (18-65) of either sex with physical disabilities and learning disabilities. Service users included those who were severely disabled and who had long term disabilities such as Multiple Sclerosis and Huntingdon’s disease. As at 7th August 2008 there were 28 service users living at The Alton Centre. The registered manager was Jacqueline Curtis-Bates (who at the time of this hearing had not appealed the cancellation of her own registration although we were told that she was intending to do so). We were told that Ms Curtis-Bates was being investigated by one of ACP’s operational managers, Ms Sandra Bishop. Ms Curtis-Bates attended the hearing throughout as an observer and did not give evidence.

10.	We were told by Ms Maggie Hannelly (CSCI Business Relationship manager) that there had been previous concerns about the learning disability element of the Alton Centre up to October 2007. This had lead to the rationalisation if ACP’s registration on the site with learning disability clients being based at Thorpe Life Centre, directly connected to Alton Centre which catered for physical disabilities. She informed us that Jacqueline Curtis-Bates had become the registered manager of the Alton Centre as part of this reorganisation in October 2007. At that time the Alton Centre had been regarded as an adequate service, requiring only an annual inspection. 

11.	ACP is an organisation with multiple registrations (44). It is a subsidiary company of Southern Cross Healthcare Group. That Group has over 35,000 residents in over 730 homes. 

12.	As a result of information received by Mr Andrew Jepps (commissioning manager for Northamptonshire County Council (NCC)) on 1st August 2008 concerning serious allegations relating to the Alton Centre he set up and attended inter-agency strategy meetings on 4th and 5th August to discuss the Alton Centre and other homes which are not relevant to this appeal.

13.	CSCI became aware of the concerns of other agencies about this home during the course of two meetings. The first strategy meeting was called by NCC and took place on 4th August. The second meeting took place on 5th August 2008. Given the nature of the concerns raised in the meetings a decision was made by CSCI to inspect the Alton Centre and to particularly focus on medication, nutrition, wound care and medical and nursing intervention issues. We need to note that as a result of CSCI’s restructuring and reduction in both staff numbers and frequency of inspections, the lead inspector for this home had been made redundant and there were staffing difficulties within CSCI. It is an indication of the reduced level of resources within CSCI that concerns were only identified and pursued when matters were brought to their attention by other agencies.

14.	CSCI inspected the Home twice. First, on 6th August when recommendations were made. As a result of the concerns it was decided on the morning of 7th August to follow up the issues that had been identified the previous day. The manager was asked to identify individuals whose care included medication, nutrition and wound care. Immediate requirements were issued by CSCI on 6th August which related to wound care, management of diabetes and support for eating and drinking. The inspection on 6th August 2008 lasted for 5½ hours, involving 3 inspectors.

15.	A significant number of matters and services users gave CSCI cause for concern on 6th August 2008. The matters of concern during these visits included care plans, nutrition and hydration, treatment and management of pressure sore wounds. 
 
16.	The second inspection started at about 1pm on 7th August. On arrival CSCI inspectors found that a service user, MB, whose condition had given rise to particular concern on the previous day, had died. The manager had indicated that an urgent GP call out would be arranged to deal with his chest infection but it had not been.  

17.	CSCI’s serious concerns were discussed immediately, at 1.45 pm on 7th August, on the telephone with ACP’s managing director, Mr Farmer. He was in Warrington at this time. There was some disagreement about the time of the telephone call but that is not an important issue for us to determine. We know that a call was made and that a meeting was set up.  A meeting to include ACP representatives was agreed for 2pm, to be held in Northampton. After a further telephone call from Ms Hannelly to Mr Farmer at 3.45 pm, two ACP representatives arrived at 4.15 pm. We note that in her evidence Ms Hannellly said that the 2pm meeting was to be a strategy meeting and that although the two representatives from ACP arrived at 3.30pm they did not meet CSCI until three-quarters of an hour later. Things were clearly happening very quickly at this time and we do not see there to be any merit in criticising the arrival time of the ACP staff.

18.	A meeting was held with representatives of ACP, the Primary Care Trust and Northamptonshire County Council at 4.15 pm. An indication was given by the two representatives of ACP that an action plan was being formed. The two representatives were Lorna Weston and Patricia Wood. The action plan appeared to involve identifying additional support that could be put into the home. However, they appeared to be looking for guidance. In her evidence to us Sara Morrison made it clear that it is not the job of CSCI to tell an organisation what to do. She said that CSCI were regulators, not educators. Ms Patricia Wood informed us that her role was to deal with any project in any ACP home in the country, that if she could not deal with a concern she would call upon two operation managers, Ms Bishop and Ms Galloway, both of whom were nurses. Likewise, if she needed additional resources she would telephone either the operations director or Mr Farmer and expect them to be provided.

19.	Ms Wood said that in a telephone conversation with Mr Farmer she had been asked to assemble a team, address the concerns that had been raised and was beginning to make telephone calls to get nurses into the Alton Centre. These were managers of other homes in the ACP group in Leicester and Birmingham.

20.	After that meeting a decision was taken by Ms Hannelly on behalf of CSCI to apply for a Section 20 order.  An agreement was reached (to which CSCI was not a party) between Northamptonshire County Council (being the local community care authority) and the Northamptonshire Teaching Primary Care Trust to the effect that, from the end of 7th August 2008 they would be running the home together. At the hearing we were informed that this arrangement could not continue for much longer. CSCI did not sanction this agreement but was aware that the arrangements were made to ensure there was an interim arrangement pending the conclusion of this appeal. It is understood that what has happened is that another (non ACP) person has taken over the manager’s role and two trained nurses and one carer (non ACP) have been added to every shift. 

21.	In his evidence to us Mr Jepps said that whilst the PCT and NCC were providing additional staff they were only committed to this until 15th September. It was Mr Jepps who co-ordinated the support that was given to the home. He asked Wendy Hoult to identify the main areas of concern and Karen McLeod to take on the management role. He told us that if we were to uphold the magistrate’s order, NCC would need three days to move all the residents although work had already been done to match individuals with appropriate placements.

22.	On or about 8th August 2008 Active Care Partnership issued Judicial Review proceedings in the High Court. These came before the judge on 11th August 2008. As a result of an agreement reached at that hearing, those proceedings were stayed and the appeal to this tribunal was pursued. A directions hearing was set for 4.30pm on the afternoon of 12th August 2008 before the President, His Honour Judge Pearl, who gave directions to enable the appeal to be heard very quickly. A timetable was established that led to the hearing being set down for 5 days between 1st and 5th September 2008, with the first day being a reading day. We had two lever arch files containing the core bundles: one for the 34 witness statements and the other comprising about 480 pages of exhibits. Also available to us were 32 ring binders containing documents concerning individual service users.

NCC OBSERVATIONS FOLLOWING ON FROM 7th August 2008 
23.	The NCC Project Manager (Wendy Hoult) went to the home at midnight 7th August, and initially stayed until 8am on 8th August. She points out that two service users with chest infections were straight way put on antibiotics.

24.	She noted (all of which, except for the latex gloves, were accepted by ACP).
•	Latex gloves were not in use at the home (but old style plastic gloves)
•	No aprons seemed to be available
•	There was very limited alcohol gel.
•	Care plans were not clear as to whether residents had PEG feeds, whether they were nil by mouth or not.
•	Weight charts for July 2008 were only half completed
•	Staffing numbers were inadequate.
•	Not all the necessary medication was in stock.
•	There was no accident /incident book (although it was later accepted that this might have been removed by the Community Health Team and so was not a complaint/criticism)

25.	The NCC Registered manager of NCC Community Support Team (Karen McLeod) has managed the home since 14th August. She has worked at the home 10th August, 13th August, 14th August-16th August, 18th and 20th – 21st August and since. 

26.	She points out that: 
•	2 hoists were needed as there was inadequate equipment, 
•	care plans were standardised with insufficient individual information, 
•	only two working hoists, 
•	lack of shower chairs, 
•	shower chairs very basic (no foot rests so some residents would slip off during showering), 
•	inadequate control and recording of medication.

27.	All of the matters set out in the preceding paragraph were accepted by APC. Ms McLeod also stated that weighing scales had not been calibrated since 2002, leading to a reasonable possibility of inaccuracy impacting on accurate view of residents’ weight. This was not accepted by ACP.   During the evidence it transpired that whilst the scales might not have been calibrated for some time, they were, in fact, accurate when the calibration was done.

28.	In relation to the hoists, Mr Whyte explained that when he arrived at the Alton Centre on 11th August he realised that hoists were needed as 3 of the 5 were not working. As far as he was aware these were delivered on 15th August. He was aware that one of the ACP managers brought two from her home and that 2 were provided by the PCT.

29.	In contrast Ms McLeod said that on 14th August she asked a representative of Southern Cross to provide more slings and hoists. By 19th August it had not arrived, staff indicated that some of the showers in the home did not work so that service users had to be taken from one part of the building to another to be showered. This, it was said gave rise to mobility problems and lack of dignity. Ms McLeod also stated that manual handling required reorganisation, residents had been given children’s cups to drink from, residents were not allowed to have the security code of building (indicating that there was no choice for residents) and that some residents locked in their bungalows at night. This situation represents a fire risk.

30.	Relatives of service users informed the NCC Operations Manager J Oehlman of a number of serious concerns. An example, it is said, was that one service user’s husband was asked by a member of staff to sign a DNR form [if his wife should choke] in front of his wife and daughter in law (he refused).

31.	Corby Hospital Matron Shelly Bone who worked at the home 8th, 11th and 13th to 15th August found care plans to be mixed up and incomplete. She saw no day to day operational management or governance in place. She said that staff were difficult to locate. Staff did not wear aprons. She was told that there was usually a shortage of trained nurses on duty. She was told by a member of staff that turn charts were being completed retrospectively.

CSCI’s case
32.	CSCI state that the evidence in this appeal indicates that the serious risks related to all 3 limbs of section 20 (life, health and well being).  CSCI’s case is that there was obvious and immediate risk to one or more service users at the home at the time of the application. Serious deficiencies were highlighted by 3 inspectors within a few hours of entry to the home. ACP did not seem to be aware of the risk areas, although later Mr Farmer later admitted that serious risks existed. 

33.	ACP’s obligations will have been well known to it and its manager. It is an experienced and well resourced organisation. It has no dispensation or special consideration because of the size of its organisation. 

34.	CSCI invited the tribunal to consider whether systemic or institutional failures caused or contributed to the serious state of affairs at the home on 7th August. We were asked to consider whether ACP spent enough money on staffing, equipment and the overall running of the home?  Did it pay any or any sufficient attention as an organisation to what was going on at the home?

35.	It is inevitable, argues Mr McCarthy on behalf of CSCI, that the situation found by the inspections could not have arisen without various failures to comply with the Care Homes Regulations 2001.

36.	Areas identified as substandard by CSCI included:

•	Wound care
Inconsistent and fragmented approach to care provision
Care plans inaccurate and lacking in necessary detail.
Failure of records to provide adequate detail steps which had been taken to care for wounds and to respond to changing conditions.

•	Medical input
Evidence of insufficient steps to secure medical input for service users

•	Nutrition and hydration
Not being adequately handled.
Care plans sparse and incomplete detail
Observation of (a) inadequate assistance to or supervision of service users at meal times (b) inadequate supervision of service users at meal times despite fact that swallowing was a risk factor for some service users
Fluid provision was deficient.
Provision of food supplements was deficient
Inadequate food provision to a service user who was suffering weight loss was only corrected following CSCI intervention.
Poor diabetic management
A service user who was an uncontrolled diabetic was receiving poor care and management.

•	Medication management 
There was a lack of careful oversight and management in a number of respects.

•	Nursing leadership/competence
There was an apparent lack of appropriate and competent nurse leadership and clinical management within the Home.
There was insufficient proactive nursing and a failure on behalf of nursing staff to respond adequately to service users changing or deteriorating conditions. 
Despite concerns about the circumstances of the past death of a service user (RL) on 15th July there was no adequate indication that the home had reflected on the need for clarity about feeding and supervision requirements.
Despite concerns about the condition of a service user (ME) to hospital with a serious wound condition there was no indication that the home had taken any steps to ensure that management had taken appropriate steps to ensure that care plans and treatment regimes were appropriately focussed. 

37.	CSCI state that, as a result of the inspection, ACP’s proposal on 7th August was to put a team into the home, review the care planning infrastructure and decide what action to take. It was proposed that an additional nurse should be at the home and that a team should come into the home, investigate and consider what to do. CSCI are critical of this proposed plan of action because, it is argued, there was no indication (a) that the representatives of ACP had any prior knowledge of the obvious and serious problems which had been seen during the inspections or (b) that there was any prior plan in the Home or within ACP to deal with them. 

38.	CSCI are also critical that there was no specific concession by ACP that the Home had been misconducted in the past.  Mr McCarthy gives as an example of ACP’s response to past issues how he says ACP considered the death of a service user. On 15th July 2008 RL died. It is said by Mr McCarthy that ACP’s response to RL’s death was to decide that if anything needed to change as a result, it was to wait until the coroner had completed his report. Further, it appeared to CSCI from the meeting on 7th August 2008 that ACP was reliant on CSCI for the details of the problems at the Home. There was no satisfactory proposal or specific action to deal with any specific area of concern given to inspectors at the meeting during the afternoon of 7th August 2008.

39.	CSCI state that on 7th August 2008 there were a number of serious risk areas for the service users at the Home which carried an immediate potential impact. However, from CSCI’s perspective, at the meeting on the afternoon of 7th August 2008 ACP did not have any offer which would eliminate the risks or sufficiently reduce them within any acceptable time table. The 4pm meeting, it is said by CSCI, was an opportunity for ACP to show that there were available steps that could be taken which could safely allow the matter to be put off for a little while. 

40.	It was as a result of these failures to understand and urgently address the identified concerns that CSCI took the decision to apply for the Section 20 Order.

41.	On 11th August ACP exhibited an Improvement Action Plan (dated 10th August) after the first hearing in the judicial review as part of their documentation for the Court in those proceedings. It has at no stage been discussed with CSCI. All of the areas covered by it (1-10) were basic obligations which should all have already been in place at the home say CSCI. The review and assessment and improvement processes were described as being due to start on 11th August. The timetable for completion was not specified. There appears to be a later document entitled “ACP Recovery Action Plan” which appears in the documentation prepared for this appeal. CSCI are concerned that it too has not been discussed with or submitted to CSCI and that it was only seen by CSCI on 26th August as part of the disclosure process for this appeal. It is unclear whether or not there was a plan prior to that produced on 10th August.

42.	It is argued by CSCI that it was apparent that the problems at the home were a pervasive aspect of the overall running of the home and not confined. They had an actual or potential impact on a range of service users. They showed a range of basic failings of approach. 

43.	It is CSCI’s case that the brief history of events, the care of various service users and the lack of competence at the home in a number of obvious areas did not provide a safe basis on which to leave the future running of the home to ACP. ACP’s response to the CSCI concerns on 7th August provided no real basis for a confident prediction that it would correct the risks within an appropriate timetable or to an appropriate standard.

ACP’s case
44.	APC appeals on the following grounds. First, applying the test identified by Arden LJ in Jain, ACP contend that there was no good reason to close the Home given the ability of ACP, a division of Southern Cross, to implement all necessary action to ensure that the problems identified by CSCI were rectified. They refer in particular to ACPs proposals which were set out at short notice by them on 7th August at a meeting at NCC to (a) provide a team of senior staff (b) provide a full and detailed Action Plan - which has now been provided (c) to undertake disciplinary process in respect of any member of staff who was found to have shortcomings. This offer was rejected by CSCI without any proper consideration, and was not referred to by them in their application to the Magistrate.

45.	Second, the Magistrate was given materially incorrect information and there was a breach of the duty of full and frank disclosure which must lead to the discharge of the Order.

46.	Third the closure was disproportionate. Notice should have been given of the application to the court to ACP so that they could have made representations before the Justice of the Peace. Further, the closure decision was made without reference to the interests of residents who were not consulted upon it.

47.	ACP accepts that there have been various shortcomings in the running of the home, in particular that relating to pressure sore management.  ACP also accepts that there has been a failure by the manager to follow the ACP’s/Southern Cross’ policies on wound management, and a failure to lead the staff on this. The manager has been suspended, pending disciplinary process. ACP accepts that these most unfortunate failures should not have occurred.

48.	ACP is part of the Southern Cross Healthcare Group which runs many care homes. It was, and is, in a position to commit all necessary resources of staff and money to ensure that all problems identified by CSCI, are, and could have been, dealt with. 

49.	ACP refers in particular to the Action Plan which, if it had been allowed, would have been implemented. It constituted a through-going review of all Care Plans and their implementation, and a daily audit by senior staff of all services provided by the Home.

50.	Thus applying the Jain test, argues Mr Engelman, such problems as existed could have been dealt within the relevant time frame, so as to make the draconian remedy of closure unnecessary. This coupled with the interest of the residents, the great majority of whom wish to remain in the home, speaks against closure.

51.	Mr Engelman says that CSCI do not explain why, despite the meeting on the 7th August 2008, ACP’s offer was rejected. Nor why they elected to seek emergency closure without notice. 

52.	ACP says that the problems could have been dealt with in the time scale for slow procedure, but that opportunity was not given to them. However applying the test set out by Arden LJ (see above) and looking at the position now, it is plain beyond doubt that any risk of harm could be, and could have been, averted, argues Mr. Engelman for ACP.

The Issues for us to determine

53.	CSCI argue that a number of service users’ condition, needs and care have given rise to serious concern. Significant details were available by the time of the magistrates order. More details of the risks and problems which were present in the home at the time of the cancellation procedure became apparent since NCC and NTPCT began to run the home. This has led CSCI to receiving information from other agencies as to the state of the home’s facilities, arrangements, staffing and procedures. These are not fully accepted by ACP. 

54.	The matters concerning the service users formed a considerable part of the evidence we heard. Whilst some of the matters raised by CSCI were accepted, not all were. We think that it is appropriate, therefore, for us to determine those issues. We will deal with each service user in turn, referring to them by initials. We will first set out the evidence relating to service users that is agreed. We will then identify the two service users where there is some dispute and our findings in relation to those disputed matters. Because much of the evidence was agreed, there is little in dispute.

55.	Likewise we will set out our views about the meeting on 7th August and the evidence given to the tribunal in respect of ACP’s proposals. 

56.	First, to put the evidence into context, we need to set out those people from whom we heard evidence. We will then refer to their evidence in relation to specific individuals and the conclusions we reach.

The Evidence heard

57.	We heard evidence from the following witnesses:
From CSCI:
Sara Morrison		CSCI Regulation Manager
Katrina Derbyshire	CSCI Regulation Inspector (nurse). Was the
lead inspector
Ruth Wood		CSCI Regulation Inspector (social care)
Carole Burgess	Regulation Inspector
Maggie Hannelly	Business Relationship Manager, CSCI. 
			Managed the inspection and decided to 
			apply for the s 20 order

From Northamptonshire County Council:
Karen McLeod		Manager Community Support and 
			Communications Team
Wendy Hoult		Project Manager for Continuing Health Care
Andrew Jepps		Head of Planning and Commissioning
Michelle Bone		Modern Matron
 Rose Barlow		Nurse, service development lead north 
			Northamptonshire

From ACP:
Nick Farmer		Managing Director of ACP
Patricia Wood		Project manager, Southern Cross (social worker)
Stewart Whyte		Clinical lead, Southern Cross (nurse)
Deidre Cunningham	Project manager, ACP (nurse)

58.	We make the following preliminary comments about the evidence we heard. Our first comment is that we did not hear from Lorna Weston, the line manager for Ms Curtis-Bates. That came as a surprise given that her statement was in the bundle. We were told by Mr Farmer (at 5pm on Thursday) that she had resigned from her position “about a week ago” after she had written her statement but that her resignation had nothing to do with this case. 

59.	In her statement Lorna Weston comments that she undertakes “independent audits of various aspects of delivery of care in the home. I am not a nurse and I therefore rely on information that is given to me by the qualified nurses at the Alton Centre and I rely on that information to be true and accurate.” Given that the Alton Centre is a nursing home with nursing care required, it would have been expected that the named person would have been medically qualified. 

60.	As the named person for the home, Lorna Weston would have been responsible for visits in accordance with regulation 26 and should have prepared monthly reports to be kept at the home. No such reports were found at the home.  They were provided to us during the course of the hearing, however. Mr Whyte said that he had looked at the regulation 26 reports and was surprised to note that there was no information on them (or indeed on the regulation 37 forms) relating to pressure sores – as there should have been. Notification should have been given for any pressure sores at grade 3 or above. As a consequence, there was a lack of information passed to the operations manager.

Evidence concerning service users that was agreed
61.	The evidence relating to ME was all agreed and so we do no more than report it as it forms part of CSCI’s case. ME was admitted to the home on 7th April 2008. She was a MS sufferer, wheelchair bound and long term catheterised. On 29th April ME’s Care Coordinator, Sheila Buckley, indicated to the manager that a physiotherapist assessment was needed. This was mentioned again on 13th May as was the need for exercise (the home did not arrange an assessment and there does not appear to have been any exercising).

62.	ME’s daughter had expressed concern to the home about a pressure sore on 27th June; her regular discussions with the manager show that inadequate attention was being paid to ME. 

63.	On 15th July ME’s care coordinator Sheila Buckley received an email from the manager saying ME had been seen by a doctor concerning a “small pressure sore to sacrum” and had been admitted to hospital. 

64.	ME was admitted to Kettering General Hospital at 7.15 pm 15th July. The wound was debrided under general anaesthetic. On 22nd July the service manager at the hospital indicated that the pressure sore had been “badly infected”. ME had at no time been nursed on an air mattress at the home. This had been requested by ME’s daughter and the manager said it had been ordered.

65.	The hospital dispute the manager’s description of a small sore as it was quite odorous. Kettering General Hospital graded the sore as grade 5. We had evidence of the gravity of necrosis described in our papers. 

66.	ME’s daughter’s overall concerns show that her mother received poor care. Her repeated attempts to get suitable care for her mother all related to specific concrete issues. Her discussions with the staff show that there were not enough staff.

67.	Again, the evidence relating to JC was fully agreed. We set it out as it was relied upon by CSCI. JC required nursing intervention for wound care. The CSCI inspector was very worried on 6th August about the inadequate handling of his wound care. A photograph had been taken on 3rd July of a pressure ulcer on the left heel. On 27th July a swab had shown that the heel was infected with Streptococcus Group A and MRSA. An ongoing wound assessment chart was then started on 28th July. There was no documentation relating to his treatment between 3rd and 31st July (although the manager and staff went through the process of looking for it). Photographs on 31st July showed a significant deterioration to the heel since 3rd July. There was no mention at all of a heel wound on his care plan.

68.	JC’s Care Manager at NCC is Sally Allen. She saw him on 4th August (when he already had MRSA). He had two pressure sores the heel and one on his bottom (both grade 4 and the latter with MRSA) He was being nursed in a room on his own but there were no sufficient hygiene arrangements (nowhere to dispose of apron, no alcohol gel, nowhere to wash hands). She used her own antibacterial gel. 

69.	The evidence relating to ALS was agreed as well. ALS was a Huntingdon’s Chorea sufferer. He was experiencing weight loss. Due to his religion he did not eat beef or pork. His care plan stated that he required assistance with eating and drinking, but he was able to propel himself around the centre in a wheelchair. His food needed to be served in an attractive manner and he needed regular fluids. 

70.	On 6th August he was sitting at a dining table with a plate of sandwiches in front of him. He did not eat them but was ignored by staff between 1250 and 1325; they were then taken away He held a drinking cup out towards staff (indicating that he wanted a drink) at 1310. This request was ignored by staff and the cup was taken away at 1335. He could not have eaten the pudding put in front of him but it was only cut up by a member of staff so that he could eat in when a CSCI inspector pointed this out.  

71.	The evidence relating to ED was agreed. It was agreed that ED has a personality disorder, mental health problems and paralysis of lower limbs. MAR sheet showed that 14 different medications prescribed but only 6 given as prescribed.. Discussion with staff revealed that ED refuses medication. 

72.	Diazepam had been commenced on 5th June 2008. Diazepam was to help calm him (he suffered from negative thoughts and feelings). It had run out on 21st July but a further prescription had not been obtained by the home. The warning for this medication indicates that if it has been taken for more than 2 weeks (which it had) it should not be stopped abruptly (which it was). This was a medication he was prepared to take.

73.	Some sheets showed that particular medication being taken when it was clear from stocks that it had not been (- antipsychotic medication Risperidone and anti-convulsant medication Topiramate). The home did have a scheme for dealing with ED refusals, but did not implement this scheme.

74.	The evidence relating to JP was agreed. JP had a high risk moving and handling assessment, was not able to communicate, her nutritional risk assessment showed cause for concern and need for monthly monitoring. Her weight had dropped from 80kg in Feb 2008 to 71.5 kg in July 2008. She had not been weighed in June 2008. There was no evidence at all that JP’s weight loss had been acted on, nor any professional advice sought. The Registered Nurse on duty was seen by the CSCI inspector to write in a weight for June 2008 into the care plan (after the care plan had been seen). She wrote in the same weight as for July (71.5kg).
  
75.	Later it emerged that her husband had been being asked by a member of staff to sign a DNR form [if his wife should choke] in front of his wife and daughter in law. 

Evidence concerning service users that was not agreed
76.	The evidence relating to RL was not agreed. RL died at the home on 15th July 2008. A post mortem was held. It reported the following (which can only have come from staff accounts of what happened): RL “was in the lounge area when given his dinner at about 12.40 .When staff returned approximately 30 minutes later he was found in the chair where his meal had been served. Presumed dead so ambulance called….”

77.	There were aspirated gastric contents in the bronchii of the right lung with bilateral bronchial congestion. The material was in the brochii was granular.

78.	The pathologist reported “This advanced degree of multiple sclerosis would have impaired the deceased’ gag reflex predisposing him to aspiration of material whilst eating and drinking “.

79.	It is obvious that RL’s advanced MS meant that he needed to be supervised during meals and that he needed soft food to be prepared for him. The home had not carried out necessary assessments to assist him with his swallowing problem. RL’s care plan made no reference at all to any feeding problems nor to the need for any supervision.

80.	The report to the coroner shows that he was given his meal and then left. He was not seen until 30 minutes later; death was confirmed at 13.17.  

81.	RL’s death and its circumstances were reported to CSCI the same day. (as required under reg 37 of the Care Homes Regulations). Any serious incident has to be reported to CSCI on a Reg 37 form.

82.	In discussion with CSCI on 7th August had been said by ACP that what happened to RL had no had relevance to other service users. CSCI argue that this was wrong – and refer to the details of MB.  Sara Morrison said that she was told by Ms Hannelly in the meeting on 7th August 2008 that ACP had decided to wait for the coroner’s reports before deciding whether to do anything further. 

83.	Mr Whyte told us that he did not see evidence that RL needed assistance with eating food and that his weight profile showed no abnormality. Had there been a deterioration in his condition his ability to eat would have changed. Mr Whyte did accept that there was a gap between what the records said and what was happening and that it was ambiguous from the file documentation what was actually required. In relation to RL’s death, he did not accept that it was caused by choking on food as the coroner’s report said that death was by gastric aspiration, not choking (gastric aspiration being food particles from the stomach rather than recently ingested food becoming lodged).

84.	Having seen many of the reg 37 forms, it is clear that they were not completed in detail and so it may have been the case that matters of concern were effectively under-reported, thereby not alerting CSCI to matters that might have prompted an earlier intervention if they had been aware of the details.

85.	We are equally concerned, given the evidence of Sara Morrison, that either there was false recording in the records or that there was a failure to up-date care plans. We know, for example, that RL’s last care plan was dated 25th January 2007 and that, as was accepted by Mr Whyte, there was no speech and language therapy assessment of RL’s swallowing difficulties. Indeed, Sara Morrison noted that there was no evidence in the care plan of the need to be supervised for meals. Ms Morrison told us that she would have expected to see a SALT assessment for RL’s gag reflex. Ms Morrison also told us that she had learnt at the strategy meeting on 4th August that the police were going to seize the care records of RL. She believed that the death of RL and possible police investigation was an important part of the trigger for the application for the section 20 order. Ms Morrison said that she did not look at RL’s case file but obtained her information from a third party. In cross examination Ms Morrison did accept that RL was predisposed to gag.

86.	In addition Ms Morrison said that her impression was that what was happening in the care home was not reflected in the paperwork for example it was said that wounds were healing when they were not. She felt that she could not rely on any record.

87.	Mr Whyte was not critical of RL’s care. He was satisfied that from the documentation he had seen, RL’s care plan and medical needs were being met. 

88.	The evidence concerning MB was also not accepted in full. MB died at the home during the night of 6th/7th August. He was a MS sufferer and was visited by Sally Allen NCC Care Manager on 4th August. She had a discussion with his father about the significant difficulties he had with swallowing food. It is not accepted, as contended by CSCI that the manager appeared to know little if anything about these and responded that MB would have to have soft food. 

89.	On 6th August Sally Allen spoke to the Registered Nurse at the home “I asked if (M) was on bed rest, she said alternate days. I asked why he was not on daily bed rest, was this because of his potential problems of chest infections, she said I suppose so”   

90.	During the CSCI inspection of 6th August it was found that MB had a severe chest infection; he was clearly very ill. CSCI staff were told that a doctor was due to visit the service user the next day. It is not accepted by ACP that later enquiries have shown that this was untrue and that no such visit had been arranged by the home. Due to this service user’s general condition and breathing difficulties CSCI as clear that emergency medical attention must be sought for this service user. The manager promised MB, MB’s father and CSCI that urgent medical attention would be obtained for him that day. That promise was not kept. 
91.	ACP do not accept that the home did make a call to the GP surgery that afternoon but were told by Tracey Sutton (the GP’s receptionist) that it was too late in the day for a doctor call out and they should call 999 for an ambulance. Nor do ACP accept that neither the manager nor anyone else at the home did so. That MB died that night is a matter of record.

92.	CSCI entered the Home at 1.30pm on 7th August for a further inspection and discovered what had happened. ACP do not agree that there had been no notification to CSCI “without delay” (reg 37 CHR) nor that the first notification was on 8th August. ACP do not agree the contention made by CSCI that the regulation 37 report was untrue- it said that a home visit had been booked for 7th August - it had not. It stated that MB had had recurrent chest infections.

93.	The manager admitted that they had felt that MB’s condition was better and she did not instruct the night staff to contact an out-of-hours doctor. The notes seen on 7th August stated that a GP visit for 7th August had been arranged on 6th August (It is not accepted by ACP that this was untrue, as is alleged by CSCI). 

94.	Much of the dispute about the evidence concerning MB relates to the relationship that the Alton Centre had with their local GP. From what we heard and read (the GP did not give oral evidence but did prepare a short statement) we were concerned to note that there seemed to be a poor relationship between the GP herself and the Centre. There seemed to be a very poor response by the surgery to requests for visits by the GP and an unwillingness to act other than in a way that required the intervention of others. Of course, the failure of the GP to undertake a visit, whilst totally unsatisfactory, was not the key point. If the home had been told to contact the emergency service, the issue is why it was not done.

95.	We note that Katrina Derbyshire informed us that she was aware that the GP was somewhat difficult about home visits. Ms Derbyshire had a conversation with MB’s father on 6th August who had told her that MB’s condition had been deteriorating for about 4 weeks, that he had seen a variety of different people and was on antibiotics, which did not seem to be working. Ms Derbyshire said that when she saw MB it was clear to her that he had a bad chest infection, was making a bubbly noise and was confused. She was also aware that MB had a urinary tract infection. Ms Derbyshire’s chief criticism was that the manager of the home failed to secure emergency medical treatment for MB when she had heard her assure MB and his father that she would. 

96.	When Ms Derbyshire returned on 7th August she was gravely concerned both that MB had died and that the emergency doctor had not been contacted when assurances had been given that that would happen. 

97.	Having not heard from either the GP or the manager it is difficult for us to draw any firm conclusions about this matter. However, we have to work from the basis that Ms Derbyshire is telling the truth. We are satisfied that the normal GP was contacted and that the Home was told that it was too late for a house visit. We are very critical of the attitude of the GP about this – having a care/nursing home as part of the practice may well require anti-social hour visits. However, if the GP was not going to come (and it was clear that she was not) it would have been entirely appropriate for the emergency doctor to have been called, as was promised.

98.	Of course, it has to remain a matter of conjecture as to whether or not the attendance of either the GP or emergency doctor would have made any difference to MB. Even if he had been seen there is always the possibility that he might have died in any event. Sadly we shall never know. However, we too are critical of the failure to call the emergency doctor when that was expressly promised.

99.	Mr Whyte was ”not happy” with MB’s care. Indeed he was very critical. He felt that MB’s pressure sores were mismanaged having been wrongly graded and that there was a failure to follow good practice. He thought that, as a result, MB was becoming toxic (as seen by the fact that he was confused and disorientated) with an infection even though he was receiving copious amounts of antibiotics. Mr Whyte told us that the documentation was inaccurate and had not tracked the gravity of the pressure 

sores, the photographs were not dated and there was no wound assessment chart for any of MB’s wounds so there was no idea if the number, grade or size of the sores.

100.	Part of the evidence concerning GC was agreed. It was agreed that GC suffered from type 1 diabetes. She had had several hospital admissions because of diabetic instability. There were no sufficient plans in place on 6th August for management of the situation and actual delivery. Questions to members of staff about her care showed a lack of relevant knowledge. Checks of blood sugar levels did not correlate to the times her insulin was prescribed on the MAR sheets, nor were checks carried out in relation to meal times.

101.	It was also agreed that on 6th August an immediate requirement relating to diabetic management for GC was made. On 7th August the manager said that she had overnight revised GC’s care plan to include management of diabetes. She said that all the information had already been in the care notes. It had not (CSCI had already checked). The Registered Nurse did not know of the revision on 7th August. 

102.	It was not agreed that GC has a catheter and is occasionally incontinent of faeces. The daily care records for GC showed an open sore on her bottom on 31st July. There was no recorded indication that the any development had been noticed before 31st July nor that any advice had been sought to prevent or reduce the risk of an ulcer developing.

103.	Likewise it was not agreed that GC was noted on 8th August after NCC involvement to be chesty requiring GP attention. She was admitted to Kettering General Hospital for stabilisation of blood sugar levels and insulin administration. She had pressure sores (more than one) assessed at grade 1 to 2. We need to determine the matters outlined in these two paragraphs.

104.	Ruth Woods told us that she was not aware that the GP had given instructions to the home to the effect that insulin should not be given to GC if her blood sugar was between 4 and 7 mls. She was aware of the manuscript document in GC’s file that seemed to give the details of the treatment required as she was shown it in reply to her question as to how the home dealt with hypoglycaemic attacks. However, it was Mrs Woods’ view that the manuscript document did not amount to instructions as they were not set out in an appropriate way, the document was not dated and it was not signed.

105.	Mr Whyte was critical of the instructions given by the GP. He was not sure where the manuscript document had come from and, although Michelle Bone was told by the staff that the GP had advised verbally what to do, he was not sure exactly where the instruction had come from. As far as he was concerned, insulin should have been administered even if the blood sugar levels were between 4 and 7mls. He thought that the recording of blood sugar levels was unsatisfactory and, for example, although blood sugar was taken at 5pm, she was not given food until 6pm. Mr Whyte told us that, having heard the evidence, he was satisfied that GC’s diabetes was mismanaged.

106.	Whilst we can see that the document was lacking in formality, it does seem to us that it was a set of instructions of sorts for the staff to follow. Its lack of formality is more a criticism of the GP than the care staff.

Meeting on 7th August 2008
107.	Whether it was agreed or not between Ms Hannelly and Mr Farmer that the meeting would take place at 2pm in Northampton is not material to our decision. It was agreed that a meeting would take place and it was agreed that ACP would be represented at it. What is of more concern is, as Ms Hannelly told us, the first time Mr Farmer became aware that CSCI had concerns about the Alton Centre was when she telephoned him on the afternoon of 7th August. It appeared that there had been no report of CSCI’s visit the previous day sent to the senior management team of ACP. Ms Hannelly told us that she had raised with Mr Farmer in the telephone conversation issues of nursing competency. Mr Farmer said that he would address these issues urgently. Ms Hannelly was left with the understanding that the person who attended the meeting would be able to discuss what needed to be done in more detail and would be more specific about actions to be taken.
  
108.	It was the discussions that took place before, during and after this meeting that led Ms Hannelly on behalf of CSCI to decide to apply to close the home. It is said by CSCI that the ACP senior management would (or should) have been aware of the CSCI inspection on 6th August and the immediate action notices that were given. There was no specific indication from ACP itself on 7th August that it had already identified errors at the home and/or considered itself to be at fault as an organisation. We accept that the effect of its limited response on the day was that it would delegate staff to investigate and decide on what it considered ought to be done in future. 

109.	Of the staff who attended the meeting in Northampton on behalf of ACP, It is clear from Patricia Wood’s evidence that she is not a nurse. Lorna Weston is also not a nurse. Therefore two non-nurses went to a meeting where concerns about nursing care were to be discussed. Ms Wood had not been at the home prior to being required to attend the meeting and had not been told of any problems at the home. Ms Hannelly told us that she felt that Ms Wood and Ms Weston were concentrating on care planning and infrastructures rather than promoting the well being of the residents – something Ms Hannelly specifically asked about. Indeed both Ms Wood and Ms Weston mentioned a project team being put in place.

110.	In evidence Ms Wood suggested that immediate action would be taken in responses to coroner’s investigations, deaths or police seizure of files from a home. This is on the basis of common sense. But there is no indication that ACP did take urgent action; therefore by Ms Wood’s terms no common sense approach was taken.

111.	She indicates that someone else had contacted available managers working in other homes. They were all employed at other homes and had registration duties at those homes. She had no idea how much time they would have available nor whether they would need to carry on with those other homes. Mr Farmer confirmed that it was intended that the “action team” would take on the nursing work and that, unlike the PCT, they would not have employed specific nurses.

112.	Ms Wood told us that she had a social work background, not nursing, and had had very limited involvement in the Alton Centre. She had been working in the Thorpe Life Skills Centre from May and although it was physically attached to the Alton Centre, it was through a locked door. She was in Manchester on the 6th and morning of 7th August but was informed by telephone of MB’s death. She arrived at the Alton Centre at about 1.30pm and set off for the meeting in Northampton at about 2.30pm

113.	Mr McCarthy says that this proposal (although CSCI didn’t know this) was totally impractical and poorly conceived. It was even less coherent than Mrs Hannelly knew.

114.	Ms Hannelly was clear in her evidence to us that CSCI were not determined to close down the Centre rather that they were looking for a robust response by ACP. Part of the concerns CSCI had was the poor response from ACP to what had been identified on both 6th and 7th August. Ms Hannelly said to us that her concerns were heightened by the fact that ACP did not appear to have an answer or solution but looked to both CSCI and NCC to tell them what to do For example, there was no immediate reaction to the overnight Immediate Requirements. CSCI saw this as a failure of management. The senior staff at ACP should have been alerted by the inspection on 6th, concerned about the Immediate Requirements served that day and have been taking steps to see what was going on at once. It was, as far as CSCI were concerned, evidence of the failure of management to know what was happening in one of their homes. 

115.	As Ms Hannelly told us, she outlined the concerns CSCI had. She wanted details of what action ACP were going to take, wanted ACP to tell her what proposals they had. However, Ms Hannelly was concerned that the two people attending the meeting wanted her to prescribe what had to be done. This was not her role. She expected ACP to demonstrate that they recognised the shortcomings in the service. Ms Hannelly said that it was clear that there should have been additional nursing staff allocated to the home at once because of the repeated concerns about the health and well being of the residents. 

116.	Given that we did not hear from either Ms Weston or Ms Curtis-Bates, it appears to us that Ms Weston was unaware of what had happened on 6th August (and so was unable to respond adequately) and Ms Woods had not been at the home previously and was only at the meeting because Mr Farmer asked her to attend, Consequently she too had little or no direct information. Whilst Ms Hannelly might have believed that the two ACP personnel at the meeting should have been able to identify what the problem was in the home, this presupposed a sharing of information – something which had not happened, for whatever reason. Ms Hannelly was concerned that to her Ms Woods and Ms Weston did not appear to know what needed to be done to deal with the problems and did not know that their proposals needed to address the needs of the residents. She did not find the level of insight she had expected. She found this all the more surprising given that Mr Farmer had told her that she would get the nursing care she wanted.

117.	Ms Hannelly was not encouraged by ACP’s proposals for the future as she felt that the company had failed on a number of levels. She identified nursing failures, management competency and organisational failure. She was not convinced that the company would be able to things in a proper way as she believed that there had been systemic failure within the organisation and there had been failures over a period of time within the home that should have been picked up.

Matters that emerged after the Section 20 order had been granted

118.	Michelle (Shelly) Bone told us that she found poor liaison between care staff and nurses, an apparent lack of management structure and poor handovers. Rose Barlow told us that one nurse (Rhianet) tried to cover up administering the wrong medicine. Ms Barlow said that a double dose had been given twice. This was not something that a nurse would have picked up, it was more a pharmacist. The concern, however, was that the nurse tried to hide the fact that a double dose had been given. We were also told that although one nurse had been suspended on 12th August, she had returned to work by the start of September.

119.	Karen McLeod explained that over 9 days she had been responsible for the daily running of the building. Her concerns were the delay in the arrival of some equipment and that staffing levels had dropped at the end of August with 5 members of staff going sick on Friday 29th August, with some remaining off on Monday 1st September. The reduced staff levels were because of the uncertainty about the future of the home.

120.	Ms McLeod said that until 14th August Deidre Cunningham was running the home. Ms McLeod found Ms Cunningham to be very helpful. Wendy Hoult also worked with Deidre Cunningham whilst both were there. Ms Hoult thought that Ms Cunningham was incredibly efficient. Both Ms McLeod and Ms Hoult said that there was not criticism of the cares staff.

Proposals made to the Tribunal.
121.	Mr Farmer told us that he had told Ms Hannelly in their conversation on 7th August that he would send in a project team which would include registered nurses and offer direct nursing care. It was Mr Farmer’s intention that the Project Team would implement an Initial Action Plan and then it would be an on-going developmental process.

122.	Mr Farmer told us that both he and Mr Whyte report to Ms Foulkes on the main Southern Cross board and that, despite his recommendation, there is no clinical lead in ACP as there is in Southern Cross. In cross-examination of Mr Farmer it became clear that Ms Cunningham was paid for by Southern Cross although she was part of the ACP “command structure”, albeit that she had no operational responsibility for any of the homes.

123.	Mr Farmer told us that he accepted that on 7th August 2008 there was a serious risk that needed to be dealt with immediately and that, for whatever reason, on the evening of 7th August, ACP were unable to remove that risk there and then. He also said that, in hindsight, the risk had been escalating over time and that the situation was deteriorating. This is an indication to us of the poor senior management structure at the time. We know that Mr Farmer had been in post only since the start of June and his deputy responsible for half of the ACP homes (including Alton Centre), Mr Keighley, had been in post only since the end of June. 

124.	Each month it is necessary for an independent officer to visit a care home and produce a regulation 26 report. This person should have been Mr. Keighley but he had delegated that task to Lorna Weston. Mr Farmer told us that the reg 26 reports did not sound any alarm bells and that looking at them did not tell him that there were any serious problems.

125.	We were first presented with proposals when Mr Farmer gave evidence. However, this was not in reply to questions raised by Mr Engelman or, indeed, in confirmation of the contents of his statement. It came as a result of the panel asking detailed and probing questions of Mr. Farmer. We were asking our questions after 5pm on Thursday 4th September, at the end of the third day of evidence. He told us that the number of staff that would be put in place would be what was required to manage the home.

126.	In replies to questions from the tribunal panel, Mr Farmer undertook to us that:
•	The number of residents would be limited to 19, for the next 6 months
•	Any increase in that number would only be after discussions with CSCI
•	Deidre Cunningham would go into the home for six months, then there would be a registered manager in the usual way
•	There would be 2 RGNs per shift
•	There would be 5 carers on duty during the day and 4 on duty at night.
•	There would be a root and branch review that would be completed within 3 months of the 4th September.

127.	 Mr Whyte gave evidence the day after Mr. Farmer gave his evidence. Mr Whyte is a qualified nurse (including mental health) and is the clinical lead for Southern Cross. Mr Farmer was unable to attend the hearing on the Friday as he was unwell. Mr. Whyte and Ms Cunningham put forward proposals that were different from those proposed by Mr Farmer. We know that Mr Whyte is an employee of Southern Cross and it transpired in cross-examination that the proposals were put together after a conversation the previous evening between him and Kamma Foulkes (executive director of Southern Cross) The result of the conversation between them was presented in Mr Whyte’s evidence. It became apparent that the proposals put forward by Mr Whyte were not discussed with Mr Farmer. We are left wondering why Mr Farmer was not part of the discussion, but cannot draw any conclusions from it, given he was ill on the last day of the hearing. 

128.	Mr Whyte also informed us, after close questioning, that he told Kamma Foulks on about 11th August that he should go into the home. From what we were told it is clear that this suggestion was not taken up by Southern Cross or Mr Farmer. He was not to be part of any action plan put forward by ACP prior to the hearing. He said that that it was not proposed that he would be allocated to the Alton Centre although he assumed that he would have been asked to provide clinical assistance at some point.

129.	Ms Cunningham told us that she would work in the Alton Centre for 6 months although that could be longer if necessary. Like Mr Whyte, Ms Cunningham had been involved in telephone discussions with Ms Foulkes the previous evening although none of them had been in conversation with Mr Farmer. The intention is that she would become the registered manager, with an application for registration being made the week after the hearing. In August it had been intended that Ms Cunningham would go in as a project manager. Ms Cunningham told us that she was very familiar with the home as she had been the project manager there from October 2004 when CSCI had concerns before. Ms Cunningham was determined that the problems would not happen again, that there would be more nurses in the organisation, that there would be robust training programmes and that once a new manager had been appointed she would work alongside that person for a while to ensure that the person was suitable.

130.	Mr McCarthy says that there is obviously some internal disagreement within the company - which may stem from the fact that Mr Whyte’s involvement is needed throughout the Southern Cross Group. Mr McCarty contends that it is impossible to see how Mr Whyte can be spared as he will be needed elsewhere. There is no one else to take on his role and although a deputy will be recruited in future it will take 3 months or more. Mr McCarty contends that the proposal that he be at the home for 2 days a week is ludicrous and impractical. It has not been thought out. However, that is what was offered. Mr Whyte said that he had been allocated to the Alton Centre to insure that clinical procedures and policies were followed and implemented, that there was effective management of pressure sores, that nutrition and hydration of residents was looked at and that the nurses’ competencies were within the Nursing and Midwifery Code. 

131.	Mr Whyte also informed us that he would ensure that there was good basic nursing care, a general understanding of needs, effective management, medication needs were met and that there was appropriate monitoring. He intended to audit, monitor and review. He told us that his proposals were:
•	that ACP employs Ms Cunningham forthwith as the manager of the home, with that appointment to last with the requirement that ACP be required to submit an application for registration for Ms Cunningham forthwith, with the position thereafter to be discussed with CSCI;
•	there will be two registered general nurses on duty at all times for six months;
•	there be five care staff on the day shift and four on the night shift for six months;
•	that the resident number will not increase beyond 19 for six months, but any increase or any variation will be discussed with CSCI;
•	that Mr Whyte will attend the home two days per week for six months;
•	but Lisa Lovett would attend the home for two days per week for six months;
•	that the division catering Manager will attend the home every fortnight for six months; and
•	the group quality assurance Manager will attend the home once a month for six months.

Conclusions

Minority decision of Dr Low

132.	I have no confidence in the ability of Active Care Partnership’s higher management to maintain any improvements at the Alton Centre, if in fact they are able to achieve any in the short term. 

133.	Unlike the implications made by some of their witnesses, I cannot attribute the basic responsibility for the failure of the Alton Centre solely to the immediate manager.  While she clearly failed to protect the well-being of some of her residents, it is equally clear that she received inadequate support and supervision.

134.	Overall, witnesses revealed a muddled management structure:  the relationship of ACP to its parent company, Southern Cross, was unclear; there was also a lack of clarity as to who was responsible for what, who was answerable to whom, how communication was conducted and how adequate supervision was secured.  Neither the immediate manager of the Centre, nor her superior, was a trained nurse and neither apparently thought it necessary to seek professional advice.

135.	Evidence was given of neglect, possibly leading in one case to death, in others to dangerous pressure sores and in yet others to chest infection and dehydration.  

136.	The Managing Director, Mr Farmer, was a lamentable witness: he apparently had no idea of what was happening at the Centre or of how to put it right.  This individual was accountable for the health and welfare of the vulnerable residents of the Centre whose state had deteriorated to the extent that he and other witnesses for ACP acknowledged that it presented a serious risk which had to be dealt with immediately.  The immediate manager has been suspended and her superior has resigned.  We were told that ACP are conducting a number of internal investigations.  This process is flawed in that the investigations are being carried out by close colleagues or line-managers, so that there is considerable potential for conflicts of interests and their independence and transparency are questionable. 

137.	It was evident that the higher management of ACP and Southern Cross were unaware of the situation at the Alton Centre, were taken by surprise by CSCI’s actions and did not have a clear and robust plan for improvement.  Instead, the panel was presented with a plan, hastily cobbled together overnight by the responsible board member of Southern Cross during the evening before the panel was due to make its decision without any apparent reference to the Managing Director of ACP, Mr Farmer.  This seemed to be a desperate attempt to keep the Centre open at all costs and to minimise the potential damage to the organisation’s reputation.  

138.	It was proposed that Mr Whyte, employed by Southern Cross as the Group Clinical Nurse Adviser, should spend two days a week at the Alton Centre for a period of six months.  Mr Farmer informed us that Southern Cross has some 750 care homes with about 35,000 residents.  Mr Whyte has overall responsibility for the nursing care in all these establishments and it is difficult to see how he would be able to fulfil these responsibilities at the same time as committing 40 percent of his time to the Alton Centre.  Recruitment of any potential assistants for him would take approximately three months.  This measure did not seem to be practically sustainable.

139.	It was further proposed that Deirdre Cunningham, employed by Southern Cross as a Project Manager, be deployed to manage the Alton Centre for six months.  The organisation has been here before.  This establishment has a chequered history.  Registered in October 2003, it was already receiving poor reports in 2004.  Ms Cunningham was drafted in to rescue it, various administrative and systemic changes were made and she stayed in post until November 2006, remaining at the Centre to induct the new manager.  Even if she were able to once again turn the Centre round in a six month emergency placement, there was no indication as to how a similar deterioration to that uncovered by CSCI at the beginning of August 2008 would be prevented once she had moved on again.  Individual nursing and care staff may be excellent but they cannot be expected to carry an organisation which does not have robust management systems in place.

140.	All the ACP and Southern Cross witnesses professed ignorance of the situation at the Alton Centre until it was brought to their attention by CSCI’s actions.  Ignorance is not in my opinion a defence.  This establishment had been failing over time: they should have been aware of this and taken remedial action before this hearing forced them to do so.

141.	The present climate at the Alton Centre must be one of instability with all the accompanying anxiety for residents.  The rescue package is to last for just six months.  It is unclear what will happen after that.  While I recognise the potential trauma of moving the residents on, this cannot be the sole rational for keeping open a seemingly dangerous establishment.  There are judgements to be made about the balance of risk.  In my view ACP did not demonstrate that the balance was in their favour. 

142.	The local authority and the PCT had in place contingency plans against the closure of the Centre.  All the service users and their relatives had been involved in discussions about possible moves and places had been secured for all the residents.  Arrangements had been made for respectful and dignified transfer.  These placements would be lost if the Centre were allowed to continue in operation for a further experimental six months.  It is my opinion that it would have been preferable to have put these contingency plans into action immediately, thus securing both the residents’ safety and a calm and orderly move to their new homes.

143.	For these reasons I would disallow the appeal.

Majority decision of Mr Oliver and Mrs Lowcock

144.	Like Dr Low, we too have criticisms of the way in which Alton Centre was managed both by the immediate manager and by the wider Southern Cross/ACP management. We likewise do not attribute the basic responsibility for the failure of the Alton Centre solely to the immediate manager. We remind ourselves that we have not heard from Ms Curtis-Bates and so have only heard about her actions from others. We cannot draw any firm conclusions as to Ms Curtis-Bates’ role in all of this without hearing her evidence but feel that we can conclude on what we have heard, that she seems to have failed to protect the well-being of some of her residents. However, like Dr Low we agree that it is equally clear that she received inadequate support and supervision. The lack of knowledge by the senior management of ACP as to what was going was their responsibility as much as that of Ms Curtis-Bates. 

145.	We too agree and accept that the evidence from the APC witnesses revealed a muddled management structure with it being unclear to us the relationship between ACP and its parent company, Southern Cross. We were left with the distinct impression of a lack of clarity within the companies as to who was responsible for what, who was answerable to whom, how communication was conducted and how adequate supervision was secured.  We too were surprised that, given that the Alton Centre was a NURSING home, neither the immediate manager of the Centre, nor her superior, was a trained nurse and neither apparently thought it necessary to seek professional advice.

146.	We agree with Dr Low that the Managing Director, Mr Farmer, was a very poor witness: he apparently had no idea of what was happening at the Centre or of how to put it right.  We bear in mind that he had been in post for a limited while and had been busy restructuring the business. However, this should not have detracted from the important duty he had as managing director of knowing what was happening in his homes. That he did not shows, to our mind, that there was a weak management structure.

147.	Mr Farmer seemed to us not to have a clear idea of what was happening in the Alton Centre before CSCI intervened, how to react to the intervention once it had taken place and what he needed to do to persuade us to allow the home to remain open.  We became aware only in questioning from us, for example that the immediate manager has been suspended and her superior (Lorna Weston) has resigned.  We were told that ACP were conducting a number of internal investigations.  In theory that would have been appropriate but we too agree that this process is flawed in that the investigations are being carried out by close colleagues or line-management, so that there is considerable potential for conflicts of interests and their independence and transparency are questionable. 

148.	It was evident that the higher management of ACP and Southern Cross were unaware of the situation at the Alton Centre, were taken by surprise by CSCI’s actions and did not have a clear and robust plan for improvement.  Despite repeated close questioning Mr Farmer was unable to give us details of any plan that would have addressed the concerns that CSCI had set out in the written and oral evidence. Had there been no further evidence for ACP we would have had no hesitation in deciding that the home had to be closed. However, no doubt as a result of our detailed questioning we were presented with a plan, put together overnight by the responsible board member of Southern Cross during the evening before the panel was due to make its decision without any apparent reference to the Managing Director of ACP, Mr Farmer.

149.	Whilst we acknowledge Dr Low’s criticism of the manner in which this plan was formulated, and her view that this seemed to be a desperate attempt to keep the Centre open at all costs, we were satisfied that what was proposed by Ms Cunningham and Mr Whyte was suitable.  Why it could not have been produced earlier is a matter of speculation.  The fact that the proposals were produced on the last day of the hearing was most unsatisfactory but we were not prepared to reject them just because they arrived late. Had they been unsatisfactory we would have had no hesitation in rejecting them. 

150.	In contrast with Mr Farmer we found Ms Cunningham and Mr Whyte knowledgeable and reassuring. They clearly know what they are doing. We are satisfied that the plan put forward is suitable for the residents and that Ms Cunningham and Mr Whyte will employ the right people. For example, we are satisfied that when both Ms Cunningham and Mr Whyte leave the Alton Centre there will remain Registered General Nurses to manage the trained care assistants. 

151.	As is said by Dr. Low above, it is proposed that Mr Whyte, employed by Southern Cross as the Group Clinical Nurse Adviser, should spend two days a week at the Alton Centre for a period of six months.  Mr Farmer informed us that Southern Cross has some 750 care homes with about 35,000 residents.  Mr Whyte has overall responsibility for the nursing care in all these establishments and it is difficult to see how he would be able to fulfil these responsibilities at the same time as committing 40 percent of his time to the Alton Centre.  Recruitment of any potential assistants for him would take approximately three months.  It may seem to an objective observer that the proposal for Mr Whyte to spend two-fifths of his week at Alton Centre might be difficult in the longer term, if that was what was proposed (and made part of our order) that is what ACP are committed to. Whilst a plan thought through at greater leisure might have concluded Mr Whyte’s involvement could have been comprised of fewer days spent at the Centre and gradually becoming a supervisory role, to us the proposal was sufficient to ensure that the staff would be trained, lessons would be learnt and there would never be a repeat of the situation that greeted the inspectors on 6th August.

152.	It was further proposed that Deirdre Cunningham, employed by Southern Cross as a Project Manager, be deployed to manage the Alton Centre for six months.  We agree that the Alton Centre has been here before and has a chequered history.  We agree that Ms Cunningham was drafted in to rescue it the Centre in 2004, various administrative and systemic changes were made and she stayed in post until November 2006, remaining at the Centre to induct the new manager.  Dr Low is concerned that even if Ms Cunningham were able to once again turn the Centre round in a six month emergency placement, there was no indication as to how a similar deterioration to that uncovered by CSCI at the beginning of August 2008 would be prevented once she had moved on again.  That is where think that the combination of Ms Cunningham and Mr Whyte will work. We would expect to see both robust systems put in place and a root and branch review of the management system both within the home and within the company take place so that even the managing director of ACP knows what is happening in the home on at least a weekly basis. Part of the review will almost certainly involve ensuring that individual nursing and care staff are suitably qualified and trained and that the new manager is from a nursing background. 

153.	We agree with Dr Low that all the ACP and Southern Cross witnesses professed ignorance of the situation at the Alton Centre until it was brought to their attention by CSCI’s actions. From the evidence we heard, it was clear to us that this establishment had been failing over time. It is impossible to be clear as to the cause of the failings as we did not hear from either Ms Bates or her line manager, Ms Weston. Given that Ms Bates was not a nurse and the Alton Centre was a nursing home it would have been appropriate to ensure that the line manager had a nursing qualification. Had that been the case we anticipate that someone would have been aware of what was happening in the home and taken remedial action before CSCI applied to close the home on 7th August. Likewise, with the appropriate people in the management of ACP we think that it should have been possible for the company to have devised a clear plan of action prior to the last day of the hearing.

154.	Whilst we understand Dr Low’s concerns about the present climate at the Alton Centre, we are satisfied on the evidence of Ms Cunningham and Mr Whyte that the steps they will take in the coming six months will be sufficient to ensure that the situation found on 7th August NEVER happens again. That is one reason why we decided that we would hear any future applications relating to the home. We know what was found, we know what was promised and we will require answers if there is any further difficulties concerning Alton Centre.  We did not base our decision to allow this appeal on that basis that to move the residents would be harmful to their health. Whilst we are aware that a number of them did not want to move this did not feature in our considerations. If we were convinced that this home could not be turned round or that any improvements were only temporary we would have decided to refuse this appeal. In undertaking the balance of risk Dr Low refers to above, we came to the conclusion that the evidence of Ms Cunningham and Mr Whyte placed it in the favour of ACP. Until that evidence, however, we were not of the same view

155.	If we had thought that all we were doing was keeping the Alton Centre open for an experimental six months after which it would have to close anyway, we would not have allowed this appeal. We came to the conclusion that the plans put forward were sufficient to ensure that the home would remain open long after the departure of Ms Cunningham and Mr Whyte. We accept that the placements that had been discussed with the residents and PCT will have been lost by our decision but we are of the opinion that there will be no need for a move to new homes for any resident. 

156.	On balance, therefore, we are of the opinion that, bearing in mind the words of Lady Justice Arden in Jain we are satisfied that whist the residents are vulnerable, whilst there were clear shortcomings in the home as at 7th August 2008, it will take the proprietors (ACP and Southern Cross) a short time to put them right. Six months might be the length of time spent at the home by Ms Cunningham and Mr Whyte but we would expect this home to be turned round much sooner than March 2009. Given that conclusion, we do not see there to be a significant risk that the residents will suffer harm either within the timescale that would be required under the ordinary closure procedure or, given the intense scrutiny the home has received as a result of these proceedings, at all.

157.	For these reasons we would allow the appeal.

Accordingly, our Majority decision is: 

APPEAL ALLOWED BY A MAJORITY. WE DIRECT THAT THE MAGISTRATE’S ORDER MADE ON 7TH AUGUST 2008 HAS NO EFFECT

We make the following consequential orders:

1.	We impose the following conditions on the registration of The Alton Centre:
a)  that ACP employs Ms Cunningham forthwith as the manager of the home, with that appointment to last with the requirement that ACP be required to submit an application for registration for Ms Cunningham forthwith, with the position thereafter to be discussed with CSCI;
b)  there will be two registered general nurses on duty at all times for six months;
c)	there be five care staff on the day shift and four on the night shift for six months;
d)	that the resident number will not increase beyond 19 for six months, but any increase or any variation will be discussed with CSCI;
e)	that Mr Whyte will attend the home two days per week for six months;
f)	but Lisa Lovett would attend the home for two days per week for six months;
g)	that the division catering Manager will attend the home every fortnight for six months; and
h)	the group quality assurance Manager will attend the home once a month for six months.
3.	We recommend that there are frequent CSCI inspections
4.	We reserve any future case concerning this care home/nursing home/this property to ourselves unless there is good reason not to do so.

Mr Simon Oliver 
(Deputy Principal President)
Dr Jill Low
Mrs Jenny Lowcock

Date: 14th November 2008