DECISION
TM
V
Secretary of State
[2009] 1691.PVA
[2009] 1692.PC

Panel   Tribunal Judge Nancy Hillier
	   Ms Linda Redford (Specialist member)
	   Ms Janice Funnell  (Specialist member)

Hearing held at Pocock Street, London on 14,15,18,20,21 and 22 July 2011 with deliberations on 27 July 2011
The Appellant attended the hearing and was represented by Ms Althea Brown of Counsel.
The Respondent was represented by Ms Samantha Broadfoot of Counsel.
The panel heard the following oral evidence under oath:
Professor Hodkinson, Consultant in Geriatric Medicine and Emeritus Professor. BM,BCh,MA,MRCP,DM,FRCP 
Margaret Moody MBA, PGCE, Registered Nurse and District Nurse with specialist area of clinical practice in the care of older people in care homes. Consultant Nurse Adviser to Bomar Services. 
Colin Doyle  RNMH, MSc, BSc, Cert MHS, IHSM. Clinical services development manager at Hospital C
Alan Grandin- former employee at home B
Mark Collier B.A Hon’s, RGN, ONC, RCNT, RNT, V300 Lead Nurse/Consultant in Tissue Viability at Pilgrim Hospital, Lincolnshire.

TM did not give oral evidence. The Tribunal was provided with a core bundle of documents in ten files and an additional 3 files containing extensive disclosure and other documentation in relation to each of the three residents alleged to have been the subject of neglect. 

APPEAL

1.	TM applies under s 86(3) of the Care Standards Act 2000 (CSA) for the Tribunal to determine the issue of whether her name should be included in the list maintained by the Secretary of State of those unsuitable to work with children and vulnerable adults. She has been provisionally listed since August 2006.

Preliminary matters
2.	On 20 July, during the course of the final hearing, Ms Brown applied for the panel to admit a statement from Mrs D, the daughter of a resident at home B during the time when TM worked there. The resident was not one of those alleged to have been the subject of neglect. Mrs D had made a statement to the police supportive of TM on 13 September 2006. The statement was in the bundle, but TM had not indicated that Mrs D would be called to give evidence. Ms Brown told the panel that she had asked that a statement be taken from Mrs D on 18 July and a statement had been taken on 19 July. Professor Hodkinson and Margaret Moody had by this stage given their evidence. The panel considered the new, unsigned statement, and applied the duty under the overriding objective in Rule 2 and the need to deal with cases fairly and justly, avoiding delay and acting in a proportionate manner. The panel refused the application. The reasons for the refusal were that it would be unfair to the Respondent, who wished to challenge the additional material, to admit it after two witnesses had given evidence, and the potential delay which would be caused by the need to recall the witnesses could be substantial and would in any event be disproportionate because the additional material was of very limited, if any, relevance to the issue of suitability. The new statement referred to teams of nurses and gave a different view of the manager of home B, matters which could only have peripheral relevance to suitability. The panel concluded that the original statement, and a letter from Mrs D, were made when events were very fresh in Mrs D’s mind, and were very supportive of TM, already formed part of the evidence. They could be relied on by TM therefore there was no prejudicial effect on her case if the new statement was not admitted. The Respondent on the other hand, would be caused potential prejudice by the admission of new matters mid hearing. The balance of fairness, therefore, meant that the statement should not be admitted.

The Law

3.	The provisional listing was made pursuant to Part VII of the CSA. Following the Appellant’s provisional listing in August 2006 Part VII was repealed in its entirety by Schedule 10, paragraph 1 of the Safeguarding Vulnerable Groups Act 2006 which came into effect on October 12 2009 pursuant to the Safeguarding Vulnerable Groups Act 2006 (Commencement No 6, Transitional Provisions and Savings) Order 2009 (SI 2009/2611). The case therefore falls within the transitional provisions which continue to give effect to the relevant provisions within Part VII of the CSA.
4.	There is no dispute between the parties that TM was a care worker within the meaning of s80(2) of the CSA and that the three residents who were the subject of misconduct allegations made by the Respondent in this case were “vulnerable adults” within the meaning of s80(6). 
5.	Under s86(2) of the Act an individual who has been provisionally listed for more than nine months may, with the leave of the Tribunal, have the issue of his inclusion in the list determined by the Tribunal.
6.	The question for the Tribunal on an appeal under s86(3) is whether it is satisfied that 
a)	The individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and
b)	That the individual is unsuitable to work with vulnerable adults.
7.	The burden of proof in respect of misconduct is on the Respondent.  However, if misconduct is proven, then the evidential burden is placed upon the Appellant to prove on a balance of probabilities that she is suitable to work with vulnerable adults.
8.	The standard of proof is on a balance of probabilities as refined in In re B (Children) [2009] 1 AC 11.  In that case Baroness Hale concluded (at 70-72):
“[the standard of proof] is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies. As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability.”
9.	If the Appellant successfully challenges the PoVA listing, the PoCA listing falls away automatically.  
Meaning of misconduct
10.	Misconduct is not defined in the statutory scheme nor is it qualified by any adjective, such as “serious” or “gross”. The Tribunal in Angella Mairs v Secretary of State [2004] 269.PC (upheld by Leveson J in the Administrative Court at [2005] EWHC 996 (Admin)) stated, at paragraph 109:
“The Tribunal is not confined to consideration of misconduct by commission. An individual applicant can be guilty of misconduct by omission.  
Misconduct is not defined in the 1999 Act nor is the term qualified by any adjective such as "serious" or "gross"…
In principle, a single act of negligence could constitute misconduct (per Webster J in R v. Pharmaceutical Society of Great Britain ex p. Sokoh (1986) "The Times" 4th December) but in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling.
In the context of a profession, for there to be a finding of misconduct there must be a falling short, whether by omission or commission, of the standards of conduct expected from members of that profession (Doughty v. General Dental Council [1987] 3 All E.R. 843).
It is not helpful to attempt to further refine ‘misconduct’ by reference to any adjective having moral overtones. The word ‘misconduct’ does not necessarily connote moral censure. An individual can be ‘guilty of misconduct’ without, for example, being dishonest or disgraceful.
An individual is not guilty of misconduct if he or she was unable to avoid the improper act or omission complained of or was in a position where it was impossible to avoid breaching the relevant code of conduct ... [but] ... misconduct is only extinguished when the extenuating circumstances rendered proper performance of a duty impossible as opposed to more difficult…”
Test of unsuitability
11.	At paragraph 111 of Mairs the Tribunal stated:
“Unsuitability must be judged by the Tribunal at the date of the hearing. The judgment will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm. The Tribunal may have regard to:
(a) the number of the incidents constituting the misconduct established for the purposes of section 4(3)(a) of the Act;
(b) the gravity of that misconduct;
(c) the time that has elapsed since that misconduct;
(d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child;
(e) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and
(f) extenuating circumstances surrounding the misconduct.
This should not be regarded as an exclusive list. The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad.”
Background

12.	TM was born in South Africa in 1953. She qualified as a registered general nurse in 1983 and a psychiatric nurse in 1990. She also has a diploma in community nursing 1997. 
13.	Operation Jasmine was set up in October 2005 to investigate the injuries to and subsequent death of a resident at a care home in Wales. During the course of this investigation concerns were raised about a resident at B Care Home. That resident died so the investigation was widened to include the B home and to consider a number of deaths that had occurred there between 2002 and 2006. TM, a Registered Mental Health Nurse, worked at the B home from 5th April 2004 to 5th October 2005.  On 19 July 2006 TM was arrested by the police in relation to allegations of manslaughter in connection with the circumstances surrounding the alleged neglect of vulnerable adults whilst she was employed at B care home.  She was referred to the Secretary of State by the Care Standards Inspectorate for Wales (as it then was) by letter dated 16 August 2006 under section 84 of the CSA.  By a letter dated 22 August 2006, TM was provisionally included on the PoVA list under section 81, and a secondary listing was made on to the PoCA list.
14.	On 26th November 2009 TM applied for permission to have the issue of her provisional inclusion on the PoVA and PoCA lists determined by the Tribunal pursuant to s.86(2) of the CSA.
15.	13 April 2010 there were 63 suspicious deaths under investigation in Operation Jasmine, 24 of which took place at home B. TM was originally investigated in connection with 2 deaths and was released from her initial bail reporting in April 2008. In August 2010 the police indicated that evidence gathering would be completed by the end of 2010 and referred for expert opinion and thence to the CPS. The Respondent’s application for a stay of the proceedings until April 2011 was dismissed at that time. TM was informed during the course of this hearing that no charges were to be brought against her in respect of WH, one of three residents about whom the respondents seek findings of misconduct.
16.	TM is only one of a number of nurses and others who have been investigated in relation to home B and Operation Jasmine. Others are provisionally listed but have not sought to have the issue of listing to be determined by the Tribunal. 

17.	TM’s application dated 26th November 2009 for permission to have the issue of her provisional inclusion on the PoVA and PoCA lists determined by the Tribunal pursuant to s.86(2) was granted on 25th August 2010. On 9 September 2010 Tribunal Judge Hillier made a Restricted Reporting Order under Rule 14(1)(b) prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify the Appellant, any service user or establishment connected with the Appeal, or any person involved in the management or provision of care at any such establishment and directed that the Appellant’s name shall be redacted to TM.
18.	The case was initially listed for hearing on 21 March 2011. There had been several applications for disclosure made against the relevant police force. Three days prior to the hearing further material was disclosed which was potentially highly relevant to TM’s case. Mrs Hobcraft, who represented TM during the initial proceedings applied for an (unopposed ) adjournment and for permission to file further expert evidence. The hearing was adjourned to July, and Ms Brown was instructed on behalf of TM due to Mrs Hobcraft’s unavailability. 
19.	 TM did not file a statement of her evidence for the final hearing, however her initial Counsel, Mrs Hobcraft, produced a summary of her admissions and denials in relation to the misconduct allegations which were incorporated into an overall document by Ms Broadfoot which formed part of the bundle and which is reproduced below. At the hearing TM did not give oral evidence.  Ms Brown informed the panel that this was on legal advice. The panel gave continued opportunity to TM to give oral evidence with appropriate self incrimination warnings, right up until the end of closing submissions when the option to adjourn until the outcome of all police investigations was known was canvassed by the panel but was declined by TM
20.	The Panel were informed during the preparation of the decision that no criminal charges are to be brought in respect of EE and EJ.
Issues

21.	 In addition to the findings sought as denied by TM in her closing submissions Ms Brown raised the issue of whether the Respondent had sufficiently particularised the findings of misconduct sought against TM, and whether the matters alleged constituted misconduct. Further, in relation to the admissions made by TM both in her response to the misconduct findings sought and in police interviews, Ms Brown put in issue both the actual extent of the admissions, the weight to be placed upon them and whether they amounted to misconduct in any event. In addition, the parties did not agree the extent to which the background of serious failings at home B was relevant to the issue of TM’s alleged misconduct and suitability.

Findings Sought / admissions
22.	The Respondent filed a response to the application which identified misconduct and unsuitability as grounds for opposing the application. Later, Ms Broadfoot drafted documents entitled “Basis upon which the Appeal is opposed” in respect of three residents at the B home, firstly EJ and EE and later, with permission on 4 January 2011, in respect of WH.  TM, through her Counsel, responded to each allegation. These allegations and the responses were combined in one document as follows:
EJ:
a.	Ignored care plan 13 and then failed to inform others of this major change; 

•	Denied

b.	Failed to reposition EJ at two hourly intervals during the night; or ensure that it was done;

•	Denied

c.	Failed to record EJ’s position during the night so that staff could be satisfied that she was changing position;

•	Qualified Admission. 
•	The Appellant admits that she failed to record EJ’s position during the night, but that this has to be seen in the context of the approach and ‘culture’ of recording notes at home B as documented in the reports of Prof H.Hodkinson and M.Moody
.
d.	Failed to properly record the actual care delivered or ensure that it was adequately recorded by others;

•	Admitted

e.	Failed to provide adequate or any care or ensure that it was given by others;

•	Denied

f.	Failed to notice that the ulcer was deteriorating from 26 October 2005 onwards;

•	The Appellant, during her care of EJ, never saw the ulcer, for that reason this particular is denied.

g.	Failed to review the need for a night pressure relief regime in light of that deterioration.

•	The Appellant, during her care of EJ, never saw the ulcer, for that reason this particular is denied.

h.	Failed to summon medical help during the night of 31 October 2005 or the morning of 1 November 2005.

•	Admitted.  With the benefit hindsight, the Appellant accepts that she could have called the General Practitioner for advice and/or assistance during the night of 31 October 2005 or the morning of 1 November 2005.

•	It is denied that these matters amount to misconduct placing a vulnerable adult at risk of harm.
EE:
a)	Failed to make any or any proper records as to the condition of the PEG site;
•	The Appellant’s view is that this particular contains two allegations – 1) failure to make ‘any records’ and 2) failure to make ‘any proper records’.
1) Denied.
2) Admitted that failed to make proper records, however this must be seen in the context of the ‘culture’ of record keeping that occurred at home B at the relevant times
b)	Failed to appreciate or act upon the fact that management of the problem around the PEG site would depend on accurately recorded observations.
•	Denied
c)	Failed to appreciate or act upon the risks of an infection around the PEG tube;
•	Denied
d)	Failed to recognise or act upon the progressive worsening of the state of the PEG site;
•	Denied
e)	Failed to look for a proper assessment by a doctor, particularly from 8 August 2005 when the site began to weep.
•	Qualified admission. 
•	With the benefit of hindsight, the Appellant accepts that she could have asked for a Doctor to be contacted. 
f)	Failed to discuss the problem in any meaningful way with the other trained members of staff.
•	Denied
•	It is denied that these matters amount to misconduct placing a vulnerable adult at risk of harm
WH:
a)	Failed to reposition WH at regular intervals either during the day or night; or ensure that it was done;
•	Denied
b)	Failed to record WH’s position during the night so that staff could be satisfied that he was changing position;
•	The Appellant admits that she failed to record at times WH’s position during the night, however this must be seen in the context of the ‘culture’ of record keeping that occurred at Home B at the relevant times.
•	The Appellant denies that staff could not be satisfied that he was changing position.
c)	Failed to properly record the actual care delivered or ensure that it was adequately recorded by others;
•	The Appellant admits that she failed to properly record the actual care delivered at times
•	The Appellant denies that she failed to ensure that it was adequately recorded by others.
d)	Failed to provide adequate or any care or ensure that it was given by others;
•	Denied
e)	Failed to respond appropriately to being told that WH was in pain and/or failed to notice that he was in pain and then failed to act appropriately.
•	Denied
•	It is denied that this matters amount to misconduct placing a vulnerable adult at risk of harm
•	It is denied that these matters of any of them mean that the Appellant is unsuitable to work with vulnerable adults
23.	In addition, the Respondent sought to rely on admissions made by TM in her police interviews and for weight to be placed on such admissions as statements against self interest. These admissions in interview included:
•	knowledge of the care plans for the three residents.
•	assertions that she was aware of the contents of the notes of the previous shift(s)
•	knowledge of pressure ulcers and their management
•	knowledge of the NMC Code of Conduct and record keeping obligations and an assertion that whilst employed at home B as a nurse she complied with them.
•	understanding of Waterlow scores and the fact that the three residents were at high risk of developing ulcers
•	knowledge of symptoms of infection and practice in respect of contacting a GP
•	that in relation to WH
o	on 7 June 04 a GP should have been called out for him, 
o	on 13 June 04 she knew that he was in pain but didn’t do anything about it, 
o	on 21 June 04 she should have called a GP for him
o	on 25 June 04 she should have implemented a care plan for him, 
o	on 28 July 04 she should have made an entry on the care plan for him, 
o	on 11, 21 and 22 August 04 she should have called a GP for him,
o	“several days” before 4 September 2004 and on 4 September she should have called a doctor to examine him

Evidence
24.	The panel read all material in the core bundles and on the suggested reading lists prior to the hearing. Ms Brown asked that the panel also read the contents of the 3 additional files on the first day of the hearing. The panel declined to delay the hearing but read these three files during the first days of the hearing. In addition the panel also read the documents referred to by Counsel and witnesses and read around them. All that evidence, together with the oral evidence and extensive written and oral submissions made by Counsel, were considered by the panel during their deliberations.
EE
25.	EE was born in November 1919. She was married to ME who died in 1979. They had no children but EE had 3 nieces who helped to look after her. EE’s memory started to deteriorate in about 1994 and the following year she was diagnosed with vascular deterioration causing dementia. EE spent about 2 years in a care home but by mid-1997 she was assessed as needing a nursing home and was transferred to home B.  In 2003 she developed major difficulties with swallowing and on 3 March 2003 she had a PEG tube inserted in hospital, following which she returned to home B.
26.	On 22 July 2005 a care assistant noted that EE’s PEG feed was leaking and on 26 July there was a note by a carer of “belly button weeping...” From 6 August onwards EE’s notes record that the PEG site looked sore.  On or around 5 September 2005 a swab was taken from the site and a nurse note dated 12 September 2005 refers to results being received showing that the site had tested positive for MRSA and Candida.
27.	On 16 September 2005 the nurses’ note stated: “EE’s condition deteriorated at lunch time today, epileptiform attack, rigor, colour grey, shock, GP contacted transferred to hospital 4:30pm.”
28.	EE was collected by ambulance.  One of the paramedics noted on arrival at the home that EE seemed very hot, that the dressing over the peg site was badly soiled, stained by a yellow fluid and smelled gangrenous. EE was admitted to hospital where hospital staff recorded that her general condition was poor, she looked unclean and her hair was matted and unkempt.  Her mouth was “in an awful condition, it was very dry and her tongue was very thick, her lips were dry” and it appeared to a nurse that she was dehydrated. The PEG site was described as “very inflamed and dirty looking, it was pusy” (sic).
29.	EE’s condition deteriorated and she died on 30 September 2005, her death being certified as due to “1a; septicaemia, 1b; infected PEG site, 2; dementia”.
30.	Ms Moody reported for the police investigation team on shifts that TM worked between 20.7.2005 and 16.9.2005, the expected level of care of EE and the level of care that can be identified from reading the records available. She notes that EE’s physical needs were increasing, she had no verbal communication and generally failed to respond to verbal stimulus. Further, EE’s ability to perform daily tasks for herself had totally declined to a level where she required full assistance from care staff for all her daily living needs. 
31.	During the relevant period TM worked 27 shifts, and Ms Moody prepared a table of relevant entries in the nurse’s daily statement records that TM made relating to the care delivered to EE. 

   Date 	Shift	Entry in the Nurse’s Daily Statements.	
23.07.05
	Day	EE in a quiet settled mood mouth care done, PEG feed regime met Personal hygiene needs met all care given. 	
26.07.05	Night	No entry in the care records.	
27.07.05	Day	No entry in the care records by TM.	
28.07.05	Day	EE noisy at time but settled, PEG feed regime followed. Personal hygiene needs met  care given.	
29.07.05	Day	No entry in the care records.	
30.07.05
	Day	EE making noise on and off. PEG feed regime met Personal hygiene needs met care given. 	
31.07.05
	Day	EE quiet and settled. PEG feed regime met Personal hygiene needs met care given.	
01.08.05
	Day	EE making noise on and off. PEG feed regime met Personal hygiene needs met care given. 	
02.08.05
	Day	EE quiet and settled mood. PEG feed regime met Personal hygiene needs met care given. 	
03.08.05	Day	No entry in the care records by TM.	
04.08.05	Day	No entry in the care records by TM.	
07.08.05 	Day	EE in a quiet settled mood. PEG feed regime followed. Personal hygiene needs met care given.	
08.08.05
	Day	EE in noisy mood on and off. PEG feed regime followed Personal hygiene needs met all care given. 	
09.08.05
	Day	EE quiet and settled mood today. PEG feed regime followed Personal hygiene needs met all care given. 	
10.08.05
	Day	EE quiet and noisy at times. PEG feed regime followed Personal hygiene needs met care given.	
28.08.05	Night	EE in a quiet settled mood. Slept well regular checks done all care given.	
29.08.05
	Night	EE in a quiet settled mood less noisy. PEG feed regime followed. Slept well regular checks done all care given.	
30.08.05
	Night	EE in a quiet settled mood. Slept well regular checks done antibiotics commenced nil new observed.	
31.08.05
	Night	EE in a quiet settled mood. Slept well regular checks done. All nursing needs met.	
03.09.05
	Night	EE noisy early night but settled down. Slept well regular checks done. All care given. 	
04.09.05
	Night	EE much improved marked Antibiotic to be completed slept well regular checks done care given.	
05.09.05	Night	EE noisy early night, Slept well, all care given.	
06.09.05
	Night	EE noisy, mouth and toilet done, slept well, regular checks done all nursing care needs met.	
09.09.05
	Night	EE quiet, and PEG feed regime followed slept well regular checks done all care given.	
10.09.05
	Night	EE quiet less noisy PEG feed regime followed, slept well regular checks done mouth care done all nursing care needs met.	
11.09.05
	Night	EE quiet less noisy PEG feed regime followed, slept well regular checks done. All care given. 	
12.09.05
	Night	EE quiet less noisy PEG feed regime followed, slept well regular checks done and isolation measures maintained, care given.	
32.	Ms Moody commented that TM is an experienced qualified registered nurse familiar with care practices in Wales. She had undertaken at least 11 training sessions from October 2004 to August 2005, nine of which related directly to care delivery. Although TM stated in her police interview that she had not undertaken formal training in caring for a PEG site Ms Moody records that she was instructed on the care of the PEG during her induction period, and in any event was clearly aware of her responsibilities to check the skin area around the PEG for changes because she described those responsibilities in police interviews.
33.	Ms Moody commented that the failure on 26.07.2005  to record any care that was delivered in the daily nurse’s statement and failure by TM to comment upon the fact that the night care assistants had reported. “Belly button weeping cleaned the best I could, reported to qualified” was negligent and a failure to follow NMC guidance since “ I would have expected TM to have examined EE and recorded her findings to alert the other registered nurses”
34.	The care assistants made two entries in the records referring to EE’s navel weeping or looking sore (26.07.2005 (night) and 31.07.2005). TM had worked six shifts during this time and recorded in EE’s nurse’s daily statement on 4 occasions without any comment on the state of the PEG site. Further, TM was on duty and caring for EE on 01.08.2005 and  02.08.2005 but failed to document when the PEG was set up, taken down or comment on the condition of the PEG site. Ms Moody concludes that TM’s entries in the nurses’ daily statements therefore lacked sufficient detail to demonstrate the care that was delivered or that EE received the standard of care expected of a registered nurse.
35.	Ms Moody’s opinion is that the entries are repetitive and do not demonstrate the actual individualised or personalised care that was delivered or should have been delivered. TM stated in her police interviews that by 07.08.2005 she had observed the infected PEG site but Ms Moody comments that TM had clearly failed to record her findings, contact the GP or contact the family which was “negligent”. Further, the lack of sufficient detail in TM’s entries would mean that staff would be unable to make any judgement about the need for future care of EE, if the “Homeward” nurse were needed or the GP should have been contacted. Ms Moody concludes that failure to give details about the size of the reddened area, the severity of it and any discharge, taken with a failure to discuss the matter with the GP is evidence “poor practice and negligence towards the care of EE” 
36.	Ms Moody also records that there is no evidence that EE was repositioned during the night shifts because the repositioning charts have consistently not been completed. The last entry of the day shift is recorded at 1800hours and the next entry being at 0800hours the following day. In her opinion this lack of evidence is a serious failing by TM who was responsible for supervising and ensuring care staff worked to the care plan and to the required standard.
37.	Ms Moody reports “Failure to record adequate care delivered contravenes the NMC guidelines which say effective records should be factual, consistent, and accurate. It also states that record keeping is central to demonstrating that care is of a standard expected. It is my opinion that the care for EE during these nights was wilfully negligent. The outcome is clear evidence of repeated acts of poor professional practice and sub-standard care resulting in institutional abuse and a failure by TM to safeguard EE from harm.”
38.	In respect of the final four night shifts worked by TM on 9th10th 11th and 12th September 2005 Ms Moody comments that although concerns were being raised by others that the condition of the PEG site was deteriorating, TM continually failed to examine and record any changes or concerns  when administering the night medication. TM refers to the “PEG regime being followed” but fails to explain which part of the care plan (4) she was following leading Ms Moody to conclude “[it] is my opinion that her performance was seriously below the standards to be expected of a competent registered nurse and in my opinion was wilfully negligent. The outcome is clear evidence of repeated acts of poor professional practice and sub-standard care resulting in institutional abuse and a failure by TM to safeguard EE from harm” 

39.	 In her oral evidence Ms Moody stressed that the actual description of the PEG site by TM was very important so that others could see exactly what was going on. When cross examined by Ms Brown she accepted that she had not seen records for every single night in the relevant period, however she stressed that she had seen every record removed from home B, so had therefore considered all available records. She also agreed with Ms Brown that TM was not responsible for the quality of the recording forms themselves and that some attempt had on occasions been made at best practice. Equally, it was difficult to single one nurse out from a group of 14 or 15 all failing to deliver appropriate care if TM was carrying out good nursing care as she stated in her interview. Ms Moody remained of the opinion however that TM had not carried out the good care she claimed –“I do doubt her. I am very concerned about the lack of recording”. In particular she felt that the records which were completed in respect of night shifts were simply completed in the morning, and that TM had deliberately confused the issue of the infected PEG site and the problem of the PEG tube leaking.
40.	Ms Moody stressed that when “qualified” was informed about the issue they should have made a full entry in the notes. Even if it wasn’t TM she had failed to maintain an adequate follow up monitoring of the site which had deteriorated, because once it was infected it was her responsibility as a nurse to deal with it when she was on duty. 
41.	In Professor Hodkinson’s report dated 6.6.09 he also concluded that TM’s care of EE was inadequate, especially in relation to management of her PEG site. When cross examined by Ms Brown he agreed with the Coroner’s recording of EE’s cause of death. He stated that the PEG site had an inherent risk of infection and that when it became infected TM should have been proactive to contact the GP and make sure EE was examined. Earlier hospitalisation “would have increased [EE’s] chances.”
EJ
42.	EJ was born in November 1917.  She was married and had a daughter and she remained fit and healthy until the age of 82 when her memory started to deteriorate. She remained in her own home with outside help until 2001 when she collapsed and was admitted to hospital. In November 2002 she was admitted to Nursing Home H where she remained until it closed on 26 August 2005. EJ was then transferred to home B.
43.	At the time of transfer to home B EJ was very frail. She had poor mobility, was doubly incontinent, confused, withdrawn and had impaired communication.  She also required feeding and her Waterlow score on 13 August 2005 was 18, showing her to be at high risk of developing pressure ulcers. Her Waterlow score rose to 21 by 11 September 2005. On 7 October 2005 a body map shows a small sacral ulcer of 1 cm diameter which deteriorated over time.
44.	EJ was admitted to PC Hospital on 1 November 2005.  On arrival the admission nurse documented: “buttocks red and grade IV area noted ... very offensive and sloughy on arrival”. EJ was noted by the admitting nurse to be dehydrated, unresponsive and emitting an offensive smell.  The doctor stated that the smell “was so invasive she had to be moved to a private cubicle to protect her dignity and for the comfort of other patients on the ward.”
45.	EJ was seen by a consultant the following day who recorded that she was unconscious, profoundly dehydrated and only responding to painful stimuli. EJ’s pressure ulcers deteriorated and photographs of them were taken. She died on 30 November 2005. The cause of death was noted as sepsis due to infected pressure ulceration of her back consequent upon immobility and dehydration. Ischemic Heart Disease was listed as a contributory cause.
46.	Mr Collier was asked to comment in his written report as to EJ’s susceptibility to pressure ulcers. He highlighted various factors which could be relevant, including the fact that EJ had been taking multiple medications for a prolonged period of time resulting in an altered skin tolerance to the effects of pressure (increased risk), that she had been subject to prolonged periods of immobility/prolonged sitting, and that it appeared her pressure relieving equipment may not have been appropriate (there being a disparity in the evidence about whether she was nursed on an “air flow” mattress or a normal mattress). He reported “ It has long been established that pressure ulcer prevention is a twenty four hour care objective and that in order to achieve the same, patients support surfaces with similar properties should be used on both the patients bed and any seat that they may use at the same time i.e. they should be compatible, as evidenced in the NICE Guidelines (2003). In this case it could be argued that there is little evidence to support the fact that this equipment was being provided for the ongoing care of this patient (increased risk).”
47.	Mr Collier also commented that EJ’s low serum albumin levels on admission to hospital were consistent with marked malnutrition of a long standing nature. This, taken with evidence of dehydration, incontinence and poor supervision of care planning / patients personal hygiene were all factors which in his view increased the risk of pressure ulcers.

48.	Mr Collier was also asked to report on whether there was any evidence that EJ’s pressure ulcer was consistent with prolonged sitting? His response was “In short Yes. The position and extent of the non-blanching hyperaemia - as reported on EJ’s admission to Hospital - would be consistent with her sitting in a chair in a slouched position for a prolonged period of time.”

49.	Mr Collier reported that ongoing management of all wounds, including all pressure ulcers, would be to reassess any wounds and redo any required dressings during daylight hours. He states” The only time that a wound be changed during a night shift would be if clinically indicated, such as due the amount of exudate being produced by the wound being excessive or if the dressing materials were soiled or contaminated in such a way as to increase the patient’s risk of further wound contamination e.g. the integrity of the dressings had been breached. If this was the case than it would be expected that the attending nurse would also complete a full reassessment of the wound at the same time as change the dressings.”

50.	In his oral evidence Mr Collier stressed that EJ’s polypharmacy, and the fact that she was sedated, were both relevant to the increased risk of pressure ulcers. He believed that the “slump effect” of prolonged sitting was more likely to be a factor in relation to EJ’s sacral ulcer and stated that 2 or 3 hours in an inappropriate position can cause significant damage and commented that the tissue viability nurse, Susan Reed, had felt that the ulcer was consistent with EJ being left in a sitting position.  He also commented that the charts did not indicate whether EJ was being moved during the day in a meaningful manner, but agreed that charts which recorded something going on were better than charts where there was no indication of anything going on.
51.	Unlike Professor Hodkinson Mr Collier had seen ulcers as large as the one photographed on EJ’s sacrum, but he felt that the pressure ulcer would have taken some time to develop and agreed with Professor Hodkinson that the ulcer was therefore likely to have been caused at B home. Further, he felt that on balance EJ’s death was likely to be sepsis from the pressure ulcer. Ms Brown suggested to him that it was not possible to determine from the records whether the correct procedures to control infection and relieve pressure were carried out at B home and he agreed. She asked ”Do you think it’s likely they were done?” to which he replied that it was “not inconceivable”. In his opinion it was impossible to tell where the infection originated, and, whilst the symptoms described on EJ’s admission were consistent with infection from the ulcer, there was also the issue of faeces being observed on her back at the time of admission and the fact that EJ may have had a chest infection. 
52.	Mr Collier explained that in essence he differed from Professor Hodkinson because it is very difficult to be precise when knowledge about pressure ulcers is evolving all the time. “It comes down to what we know. I would not be as definitive as him because the notes do not give enough detail.
53.	Ms Moody was instructed to report on the shifts that TM worked between 10.10.2005 and 1.11.2005 in respect of EJ, the expected level of care for EJ and the level of care that can be identified from reading the records available. She reports that by October 2005 EJ’s mental and physical needs were increasing and her ability to perform daily tasks for herself had declined to a level where she required full assistance from care staff for all her daily living needs. 
54.	Ms Moody provided a table of entries made by TM on night shifts over the relevant period. These entries were to cover pressure ulcer management

   Date 	Entry in Records 	
10.10.2005	No entry by TM in the care records 	
11.10.2005	EJ in a quiet pleasant singing mood, slept well, regular checks done care given”. 	
12.10.2005	EJ in a quiet settled mood, slept well, regular checks done care given”. 	
13.10.2005	EJ in a quiet settled mood, antibiotics still continued, all care needs met”.	
16.10.2005	EJ in a quiet settled mood, slept well, regular checks done care given	
17.10.2005	EJ  in a settled singing mood, slept soundly, regular checks done all care given”.	
18.10.2005	EJ in a quiet pleasant mood, slept well, regular checks done, all care given”.	
19.10.2005	EJ in a quiet mood, no vomiting noted. Slept well, regular checks done, all care given”.	
22.10.2005	EJ in a quiet alert mood, slept well, regular checks done, all care given”.	
24.10.2005	EJ talking to herself most of the night. Having conversations with us as we speak. Slept well, regular checks done, all care given”.	
25.10.2005	EJ in a quiet alert mood, slept well, regular checks done, all care needs met”.	
26.10.2005	EJ slept well, regular checks done, all nursing care needs met”.	
27.10.2005	EJ in a quiet settled mood, slept well, regular checks done care given”.	
30.10.2005	EJ quiet & settled slept well, nothing new to report”.	
31.10.2005	EJ remains quiet and not drinking well. Fluids dripping through the mouth. Vital signs checked at midnight BP 94/44 Pulse 114 Resps 32 Temp 37.5˚c. Blood sugar 4.3mmols per ltr.  Tepid sponge and blankets reduced as she was very hot. Sips of fluid given at regularly and was maintained during the night. Gradually settling at 0700, vital signs BP 94/50mmhg; Pulse 93b/m: Resps 28b/m; Temp 37.1˚c slept well care given” 	

55.	Ms Moody comments that on the 10.10.2005 there is no entry in the care records relating to the care EJ received during the night, indeed there were no entries for that month.  Ms Moody stated that as the registered nurse on duty TM was responsible for the record keeping. TM said in her police interview that she was made aware during handover from day staff on 11.10.2005 that EJ had developed a pressure ulcer and Ms Moody comments that she must have been aware through experience and the instructions in EJ’s care plan 13 of the need to reposition EJ two hourly during the day and at least 4 hourly during the night. Whilst Ms Moody notes that TM said in police interview that repositioning charts were not in place at the time in fact there are partially completed records on file commencing 3.8.2005 and covering 17 days in August, 7 days in September and all of October. These commenced at Home H prior to EJ being admitted to Home B.  Ms Moody was concerned that TM said in interview that EJ could move herself and therefore did not need repositioning during the night, only requiring pressure relief during the day. Others were of the contrary view that EJ was in fact immobile. Ms Moody concluded that on TM’s evidence she demonstrated a failure to understand EJ’s needs and to deliver the appropriate care by ensuring she was frequently repositioned during the night.
56.	Ms Moody reports that the NMC guidelines provide that it is a nurse’s professional responsibility to ensure that nursing care for every resident is planned in a systematic way to reflect each individual’s problems and to achieve specific goals of care. Further, the NMC document “Guidelines for Records and Record Keeping” state that “record keeping is an integral part of nursing, midwifery and health visiting practice. A care plan is a tool of professional practice and one which should help the care process. It is not separate from this process and it is not an optional extra to be fitted in if circumstances allow.” The document also identifies a number of factors that contribute to effective record keeping. Records should be factual, consistent, and accurate. It also states that record keeping is central to demonstrating that care is of a standard expected.
57.	Ms Moody points out in her report that many of TM’s entries do not detail the actual care delivered and as such constitute poor practice and are meaningless to anyone but the author as they are not in terms that can be measured. She gave an example of the entry might be “was asleep each time we looked in on her” or “each time we turned her she was asleep” which is meaningful and informs the reader of the care delivered. There are no details in the entries by TM of EJ’s needs being met in relation to personal care and pressure area care, and there is no mention of the condition of her skin when she was repositioned or her incontinence pad changed. Ms Moody concludes “The evidence suggests that care did not actually take place which is supported by evidence of the continued deterioration of the pressure ulcer.”
58.	Ms Moody was also very concerned that even though EJ was doubly incontinent, there is no evidence of her having her pad changed during the night on any night when TM was on duty during the 15 night shifts. There are four nights when entries were made on the fluid balance chart to indicate that EJ was wet at 2200 hours and again at 0600 hours leading Ms Moody to conclude that EJ received no hands on care during the night.
59.	Ms Moody reports that the handover from day staff on 31.10.2005 should have made TM aware that EJ’s condition had seriously changed and that the GP should have been called if there was no improvement. In her opinion TM should have called the GP when she first came on duty due to the high respiration rate, low blood pressure and high temperature. She would also have expected TM to inform the family of EJ’s poor condition. 
60.	In Ms Moody’s opinion TM’s record keeping and care of EJ over this period fell below the professional standard of record keeping and care expected of a nurse in her position: “Her performance was seriously below the standards to be expected of a competent registered nurse”
61.	When questioned by Ms Brown Ms Moody agreed that, on the basis of her police interviews, TM demonstrated knowledge of the nursing which EJ required and that she was one of the few employees who referred to the care plans on record entries. The difficulty arose in inconsistency of records and their accuracy.
62.	Professor Hodkinson reported in respect of EJ on 29.4.09. He followed the development of a pressure ulcer from 7.10.05 where it was described in a body map as a 1cm ulcer through to 10.10.05 by which time it was 2cm and “deep” to photographs taken when EJ had been in hospital for some time and which showed a large patch of dead tissue which he said was “horrific”, stating “I’ve never seen one as bad as that”. He criticised TM for her lack of adequate record keeping in respect of this ulcer, especially since she apparently thought that EJ could turn herself but did not tell the other nurse this. He felt that this would mean that the other nurses would assume EJ had been turned to relieve the pressure when in fact she had not. Further, the care plan made it clear that 2 hour turns were needed : “It’s basic common sense” and the failure to turn and record turns was a contributory factor to the development of the ulcer.
63.	Ms Brown cross examined Professor Hodkinson about the information he had available to him when he wrote his report. He confirmed that he had read most if not all of the inspection reports for Home B and he was aware of the criticisms of the home and its management. He agreed that there were no effective management systems, inadequate staff training and there was concern about staff competence levels in respect of care for pressure ulcers and PEG sites
64.	Professor Hodkinson agreed with Donna Francis and Mark Collier that incontinence could cause damage to the skin but he explained that in his opinion the cause of the ulcer is pressure which causes the tissue to die below the skin and which then becomes visible on the skin. He stated that all of these factors were taken into account in a Waterlow score and the more ill a person is the more likely they are to develop ulcers. He as clear in is view that “there are pointers to sores and causes of sores. The sores are caused by pressure”. In his opinion, inorder for the ulcers to heal the pressure must be removed, the slough (stringy skin) be removed and the person turned regularly.
65.	Ms Brown suggested to Professor Hodkinson that since the ulcer developed from 18cmx14cm to 50cmx30cm when EJ was admitted to hospital, that damage may have been caused whilst EJ was in hospital. He replied that deterioration of the ulcer was inevitable. There was extensive deep damage which had developed and whilst he could not exclude the possibility that further damage occurred after admission, he felt it was less likely. He could not give exact rates of deterioration because this was a large area of damage which could deteriorate at a slower rate than a smaller area. 
66.	Ms Brown suggested to Professor Hodkinson that the ulcer was likely to be due to EJ’s care during the day at B home rather than at night when TM was responsible for her care. Professor Hodkinson disagreed because there were records of EJ being moved and raised to a standing position during the day shifts whereas there was little evidence of turning at night. In his opinion it was therefore more likely that the damage had been caused by “the difficulties of the night regime”. Ms Brown challenged Professor Hodkinson on his assessment of the day time recordings because she said they did not say that EJ had actually walked. He responded that there was information about repositioning during the day whereas there was frequently no information about night time turning. He said that in his opinion if things are not recorded it is more likely that they have not been done.  

WH
67.	WH was born in February 1933.  He was a miner who did not marry and who lived at home with his parents until his mother died in 1984.  WH’s health began to deteriorate around that time and he went to live with his niece. On 1 November 1999 he was admitted to home B. WH had been a heavy smoker and drinker and had experienced sporadic mental health difficulties.
68.	By 2004 WH was unable to communicate, was immobile and needed full nursing support. He was admitted to hospital with a chest infection in March 2004 and in April a PEG feed tube was fitted.  He was discharged back to home B on 19 May 2004.  On 25 May 2004 it was noticed that he had an unbroken but red area over his right hip and over the course of the following weeks further pressure ulcers were noted.  There are nursing references by July to grade 3 and 4 ulcers on his feet, red areas on his buttocks and a wound on his left third finger.  There are several references to WH being in pain and shouting out or screaming.
69.	On 29 August WH was noted to be “chesty at times” and he was seen the next day by the duty doctor and prescribed antibiotics.  His condition deteriorated and he was admitted to hospital on 5 September 2004 where he was treated for pneumonia.  On admission he “looked extremely poorly”, was unresponsive and responded only to pain by opening his eyes. He was also noted to have numerous pressure ulcers.
70.	 WH died on 21 September 2004.  The cause of death was certified as pneumonia and cerebrovascular disease.
71.	 Mr Collier was asked to comment in his written report on whether WH was susceptible to the development of pressure ulcers. He reported that WH’s dementia, drug regime and his long term hypertension could increase risk. In addition he noted that WH was being fed by PEG tube and there were therefore nutritional issues which could also be relevant especially since research indicates that a patient can loose up to three times their daily intake of protein through exuding pressure ulcers (either single deep lesions or multiple superficial lesions). He states”... and in this situation it is not uncommon that despite the best preventative measure being undertaken, that pressure ulcers already present further deteriorate and that further skin breakdown may occur.”  
72.	Mr Collier also reported that WH’s incontinence could be a risk factor increasing his susceptibility to pressure ulcer development, whether by use of emollients or the effects of urine or faeces on the skin. He concluded that WH “… had been unwell for a prolonged period of time prior to his final admission to hospital and that as result, as his medical condition deteriorated (albeit probably very subtly over time in the period between his hospital admissions – May to September 2004) his risk of pressure ulcer development and associated complications would have increased for the specific reasons highlighted above. However, as has previously been stated, the B Care Home at the time did not appear to have any Pressure Ulcer Prevention Policy or Grading System if a Pressure Ulcer unfortunately developed in operation available to staff during the period in question and that in general the overall supervision of care within the home was poor.  In addition there is little evidence to suggest that any staff were provided with appropriate additional training in this important aspect of nursing care (it could be argued that as a minimum, any subject of this nature would require at least a dedicated full days training just to cover the basics and in order that attendees had the opportunity to grasp the concepts and issues being introduced) nor where they (the staff) given any guidance as to how to fully document any care that they had given to any patients in a meaningful way. All expert reports appear to agree that the accepted culture within the home was not acceptable and that the managements approach to the recruitment of staff, induction programmes and the ongoing training needs of the staff employed was below what would have normally been expected in this sort of care setting.”

73.	In his oral evidence Mr Collier disagreed with Professor Hodkinson about the assertion that the pinna pressure ulcer was more likely to have been caused when WH was lying in bed because a pressure relief mattress would be less pressure than a hard chair. 
74.	Ms Moody was asked to report by the police on the specific shifts that TM worked between 20.5.2004 and 05.09.2005 relevant to WH, the expected level of care for him and the level of care that can be identified from reading the records available.
75.	She records that by May 2004 WH’s physical needs had increased to a level where his ability to perform daily tasks for himself had totally declined and he required full assistance from care staff for all his daily living needs. He developed pressure ulcers from early June 2004. She records “There are a number of entries by registered nurses working the night shift detailing their concerns such as 07.06.2004 “WH in quiet mood seemed to be in pain and complaining of his legs when asked, his left heel on the inner aspect has a blister” or 08.06.2004 “protective cover on heel applied” or 21.06.2004  “skin red possible breakdown of sacral/bum area, made comfortable on side cream applied” and 25.06.2004 “observe for skin breakdown, certain areas red”

76.	Ms Moody calculated that TM worked a total of 74 shifts (both days and nights) in the relevant period. On the day shift TM made four entries in the nurse’s daily statement commenting about WH’s mood, a leaking catheter, PEG regime being followed and meeting his personal hygiene needs. There was no entry in the nurse’s daily statement on 23.05.2004. During night shifts TM made what Ms Moody describes as “stereotypical” entries as on 25.05.2004 “WH in quiet mood slept well during the night – all care given” and 26.05.2004  “WH in quiet mood – obey instruction when talked to and reply through smiling – 2 hrly check and position change – slept well all care given”. There is no mention by TM in the notes of factors such as the removal of his catheter or the prescription of Amoxycillin which occurred at this time. She further notes an entry made on 28.05.2004 apparently by TM “WH in quiet mood, regular 2 hour checks done slept well during the night all care given” and that TM relates each sentence to a care plan number.
77.	 Ms Broadfoot asked Professor Hodkinson his opinion as to the relevance of WH’s vascular disease, as highlighted as a possible aggravating factor by Mr Collier. Professor Hodkinson replied that that could only be relevant to WH’s legs, but certainly not to pressure ulcers on his ear. He described the number of ulcers as “outstanding”
78.	When cross examined by Ms Brown on the basis that he had failed to consider relevant factors such as WH’s drug regime, his alcohol history and his pvd Professor Hodkinson stressed that these matters were “flags” for pressure ulcers, not cause of them. In his opinion pressure ulcers are caused by pressure, and since WH had a very high Waterlow score he was at high risk. He said that this meant that TM should have been aware of the need to be meticulous with preventative measures. In his opinion she had not recorded turning WH so it probably didn’t happen. 
79.	Ms Brown suggested that the pressure ulcer on WH’s ear could have been caused when he was sitting in a chair during the day. Professor Hodkinson’s opinion was that it was more likely to have occurred at night when he was lying down, because there was more pressure for a more prolonged period, although he agreed that “It’s not a certainty either way”.
80.	Ms Brown asked Professor Hodkinson his view of the notes which referred to WH shouting and queried whether that necessarily indicated that he was in pain. Professor Hodkinson replied that in his opinion this was a “red herring” raised by the police and he agreed that it can be difficult to distinguish between dementia and pain. Ms Moody commented in her evidence in chief that, although there were references to pain, the records “don’t tell us anything. Why was he in pain? Where? What was done? It was hard to make assumptions but the overall picture was one of pain.”
81.	Ms Brown suggested that TM had done what was necessary for WH, however Professor Hodkinson denied this as, in his opinion, the turning regime would have made a difference to WH if it had been carried out. He said that the failure to record made him “extremely sceptical” that the turning had occurred. 
82.	Ms Moody agreed with Ms Brown’s suggestion that even if TM’s records were inadequate they may be accurate. Ms Brown then suggested that the outcome for the three residents including WH should not be taken as an indicator of the care they were given. Ms Moody disagreed strongly because the outcome for each had helped her to form an opinion.
Suitability
83.	Professor Hodkinson was clear that the management of B home was inadequate and there was little training for staff. Ms Brown also informed him that there were no job descriptions and questioned whether, as an RMN TM’s role would be as clear as that of an RGN. In his view the roles in the context of B home would be very similar. “When she’s the only nurse on at night she had a clear responsibility to ensure EJ was turned in accordance with the care plan”. 
84.	Ms Brown pointed out that TM had come from overseas and this was her first job in the UK. Professor Hodkinson stated that at the relevant time TM had been at the home for 18 months and that she was fully aware of her professional duty to keep up to date. He agreed that the endemic problems at home B with pressure damage were “mitigation” in respect of misconduct but maintained his opinion about TM’ responsibility in the care of these three residents. He concluded “It’s easier to transgress in that sort of culture but it does not absolve [her] responsibility”
85.	Professor Hodkinson agreed that the annual inspection reports for home B demonstrated over 39 requirements year on year including training for tissue damage and that there was an endemic problem with pressure ulcers.
86.	Ms Moody agreed with Ms Brown’s suggestion that problems with record keeping are matters which can usually be addressed with training. In this case however she felt that home B had a lot of support from CSIW and district nurses and that TM herself understood that there was a problem but her care and record keeping fell below standard.
87.	Ms Brown suggested to Ms Moody that in subsequent employment at Hospital C Mr Doyle had reported that TM was an excellent nurse. Ms Moody felt that in her hospital employment TM was not subject to the stresses of dementia care and the sheer number of residents to care for as there were at home B. TM had failed to communicate in any meaningful way in very important communication records which she felt had put residents at risk. She said she had tried to be fair on TM as an RMN – “I’d have been much harder on an RGN”
88.	Mr Doyle provided a statement dated 15 March 2011 and gave oral evidence on behalf of TM who had worked at hospital C following her resignation from home B. He explained that all the patients TM worked with were men detained under the Mental Health Act, some of whom had been transferred from prison. TM worked in a low security unit with patients who were working towards discharge. The men involved were all vulnerable adults with behaviour problems or criminal histories, some had Autistic Spectrum Disorder (ASD) but all were verbal. When TM joined the staff she was appraised by the acting ward manager, and at the end of her probationary period Mr Doyle prepared a report on her performance based on the reports and assessments of her work. He said that he was happy to approve her probationary period. He had seen her on the ward because he visited two or three times per week and would check the care note summaries on a weekly basis. Mr Doyle had never had to speak to TM about any problems.
89.	When cross examined by Ms Broadfoot Mr Doyle stressed that the low security unit was not necessarily less challenging. He looked at some of the induction documents which showed that they had all apparently been completed at the same time and said that, although he was embarrassed about the induction documents, he was nonetheless confident that the assessment of TM was accurate. Ms Broadfoot showed him some of the documentation completed by TM at home B. He said “It’s not very informative at all. The “quiet and settled” type of entry was something I saw many years ago. It’s not adequate. Record keeping should be congruent with ability” 
90.	Mr Grandin was called to give evidence on behalf of the Respondent. He had prepared a statement dated 16th March 2011. He explained that in his opinion TM had a poor attitude towards residents and was aggressive towards them at medication times. He explained that he now works as a trainer, but prior to working at home B he had no experience of working in nursing or care homes. He could not remember when he had started work at the home. He had previously been a plasterer and had been introduced to the job via the job seekers disability officer. He had worked as a carer, but did not work on his own with residents as he didn’t feel comfortable. Looking back he felt the majority of staff at home B were good but the home was not “run as it should’ve been”.
91.	Mrs D, the daughter of a resident, was not called to give supportive evidence due to her ill health.

Submissions

92.	 Ms Broadfoot and Ms Brown agreed on the applicable law which is set out above.
93.	Ms Broadfoot submitted that the objective of the PoVA list is simply to lessen the risk of harm to vulnerable adults from those working or having extended contact with them. It secures that objective by preventing a person who has been guilty of misconduct that harmed a vulnerable adult, or risked the same, and who is unsuitable to work with such adults, from being in a position having extended and/or unsupervised contact with vulnerable adults.
94.	Ms Broadfoot reminded the panel that all evidence should be taken into account and weight may in principle be given to evidence which is hearsay evidence or  where the person has not attended to give oral evidence. She suggested that more weight can in principle be given to evidence given by a witness who attends to give evidence than one who does not.
95.	In respect of Mr Grandin’s evidence Ms Broadfoot  suggested that Ms Brown had fallen foul of the the general rule  that a party is required to challenge in cross-examination the evidence of any witness of the opposing party if he wishes to submit to the court that the evidence should not be accepted on that point citing Phipson on evidence: 
“This rule serves the important function of giving the witness the opportunity of explaining that any contradiction or alleged problem with his evidence.  If a party has decided not to cross-examine on a particular important point, he will be in difficulty in submitting that the evidence should be rejected.” 
96.	In respect of TM’s police interviews Ms Broadfoot said that whilst these have not been adopted nor accepted as accurate by TM both parties have referred to their content and the material is part of the evidence. Since TM relies on some of the hearsay exculpatory statements made by her in those interviews, Ms Broadfoot submitted that they should be treated with caution whereas admissions should  be given more weight as they are statements against interest: “The general rule both in civil and criminal cases is that any relevant statement made by a party is evidence against himself: R v Erdheim [1896] 2 QB 260, 270 per Lord Russell.  
“Whatever a party says is evidence against himself... what a party himself admits to be true may be presumed to be so.”
97.	Ms Broadfoot also submitted that the panel could draw an adverse interest from TM’s failure to give evidence. And she drew our attention to the Court of Appeal in Wiesnewska v Manchester HA [1998] :
 “From this line of authority I derive the following principles in the context of the present case:

(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness's absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”

98.	Ms Broadfoot reminded the panel that TM was registered by the South African Nursing Council as a general nurse in1983 and her CV demonstrates that she was experienced in the supervision of staff and the “supervision of patients quality care”. As to her specific experience in nursing the elderly, the covering letter for TM’s job application through the agency stated:
“T has numerous diplomas within the nursing field as a well as a broad range of practical nursing experience... Her wealth of knowledge and experience would make her an asset to any nursing team, as well as her excellent communication and social skills.  She hopes to pursue a position in care of the elderly, as this is a field she understands and enjoys.” 
99.	Further, in her police interviews, TM stated that she had experience with the elderly, sick and frail in South Africa, and she had knowledge about PEG feeding and PEG sites. Ms Broadfoot also pointed to evidence that TM had knowledge of pressure ulcers and in interview could set out pressure ulcer management.
100.	Ms Broadfoot submitted that the Respondent relied on the NMC Code of Conduct and TM’s duties and obligations at home B as she explained them to demonstrate the standards expected of her. TM had said that her role was to supervise the carers in everything they did, to check the turn chart records (since turning was done by the carers) and sign them off. She described an obligation to check all the paperwork as well and said that although she was not provided with an actual role description for a qualified nurse, she knew what to do. It was the Respondent’s case that even though TM knew her responsibilities, she ignored them.
101.	When asked about her compliance with the Code of Conduct in police interview TM clearly stated that while she was at home B she complied with all aspects of the code.
102.	Ms Broadfoot pointed out that all the experts agree that the record keeping was poor and stated that the question for the Tribunal is what conclusions can be drawn from those records where there is either a lack of detail or indeed any entry at all? She said that the starting point is “…that well-known adage “if it’s not recorded, it’s not done”, something which Mr Doyle, called on behalf of TM, had endorsed. In this case she submitted that there are systematic absences of documents for example on the on night turn charts “which are far more consistent with a conclusion that the night turns were not occurring, especially where there are counter examples which show that in some cases those types of records were completed.” Further, TM told the police that her practice complied with the NMC Code of Conduct so the absence in the notes of a significant matter “enables the Tribunal to be more confident in finding that it is more likely than not that the relevant care which is not referred to was not given.” Finally, Ms Broadfoot pointed out that there were examples of much fuller note writing by TM which demonstrated that TM knew how to do it properly but had not done it.
103.	As to suitability Ms Broadfoot stated that TM’s failings were widespread and very serious, even if confined to lack of record keeping, given the context of the particular vulnerability of these residents, TM’s extensive experience in nursing, her promotion in her CV of particular qualities and her understanding of the Code on record keeping. Further, she said in interview that she had adhered to the code on record keeping when plainly she had not. Ms Broadfoot therefore submitted that the evidence demonstrated a pattern of indifference or recklessness to the residents which makes her wholly unsuitable to work with vulnerable adults both then and now.
104.	Ms Broadfoot accepted that the context of home B and the failings of management and other staff is relevant and it can be mitigation. However, Ms Broadfoot stressed that TM did not say she could not do her job or that it was impossible to do her job properly. Indeed she stated that she worked to NMC standards.
105.	The Respondent accepted that a very different picture was painted by Mr Doyle, but cautioned against placing too much weight about an opinion formed in a very different context with a  completely different client base on ”a tiny ward of 12 residents, none of them displaying any of the difficulties associated with older people.  There was very limited evidence as to what challenges would be faced by a nurse in such a situation.”
106.	In addition Ms Broadfoot suggested that there must be some doubt cast on the induction and training documentation provided which Mr Doyle frankly admitted was ‘embarrassing’ and not how it should be done at all.  She said that Mr Doyle’s evaluation of TM was from a distance and largely second hand as reported to him by his senior staff. 
107.	Ms Broadfoot concluded “The Appellant puts forward no positive case save through Mr Doyle (who is not in fact best placed to know) and reliance upon a reference letter accompanying a police statement from Mrs D that she did a good job…The Tribunal have not been able to form any first-hand impression of TM because she did not give evidence.”  Mr Grandin, who had worked with TM was asked only two questions relating to the last paragraph of his statement. “ It was not put to him that he was lying, that he was mistaken or that by reason of his lack of professional qualification, he was not in a position to make such an assessment.  If a party does not cross-examine a witness that is their tactical choice.  But in the absence of challenge, his evidence carries a great deal of weight and is highly relevant to the matters under consideration.” 
108.	In her oral submissions Ms Broadfoot urged the panel not to adjourn the matter to give TM the opportunity to reflect on any findings because she had not made an application for a split trial, and had always indicated that she would not file a witness statement, until the last minute. Ms Broadfoot described the decision not to give evidence as a “high risk strategy” in the circumstances where the evidential burden regarding suitability rests on the appellant.
109.	In respect of misconduct, Ms Broadfoot stressed that she did not have to prove actual harm; a risk of harm to a vulnerable adult is sufficient and she submitted that the evidence clearly demonstrated that in the circumstances of these three residents the fact that TM didn’t fill in the appropriate records adequately or at all and the fact that she did not check that the carers were doing their job all put them at risk.
110.	In respect of particulars of findings sought Ms Broadfoot submitted that the particulars regarding EE and EJ had been produced in 2010 and the WH particulars were filed in early January 2011. She criticised Ms Brown for raising the issue of particularity at the end of the hearing, and for apparently suggesting that some of the matters TM admitted in interview should not be considered as misconduct.
111.	Ms Brown explained that TM wanted to know whether she could work so she had exercised her right to have the tribunal decide upon the listing. She had raised the question of particularity at the end of the case because “it is not for TM to assist the Secretary of State”. She criticised the allegations as vague or meaningless and submitted that the panel could not make findings on them as a result, because the allegations were not phrased as a breach of professional standards. She conceded that the panel were entitled to consider the NMC guidelines as part of our assessment of misconduct but stressed that the Respondent should present the case on the basis of a proven duty and a proven breach of the duty.  
112.	Ms Brown also suggested that the panel should give little weight to the admissions made by TM during her police interviews given the circumstances of the interviews and the nature of the questions. She told the panel that TM did not file a statement or give evidence on legal advice.
113.	Ms Brown referred the panel to the decision of Sir George Newman in R (ex parte Marshal) v The Nursing and Midwifery Council [ EWHC] 2931 (Admin) which, she submitted, rejected an approach to crafting allegations based on a notional duty and demonstrated that lack of particularity in the allegations meant that they  are fundamentally flawed 
114.	Ms Brown criticised Professor Hodkinson’s view that an absence of records leads him to an inference that the TM had made a conscious decision not to carry out turning. She said:”In the absence of evidence of a conscious decision it follows that there can be no failure to record this decision.  However the fact that no record (of the decision) was made does not permit any inference that others (who would have been aware of the care plan?) were denied any opportunity to question the purported decision.”
115.	Ms Brown submitted that any assertion that TM ought or should have done something is no more than speculation and does not give sufficient regard to the fact that the records are unreliable and that there was no established practice or duty imposed on TM. 
116.	Ms Brown criticises Ms Moody for asserting that TM should have known through “training and experience” of the need for regular repositioning during the day and night because she said Ms Moody fails to consider whether TM was realistically in a position to “deliver on this” against the backdrop of a whole scale failure by home B’s management to have in place any meaningful care planning and/or evaluation processes.  She also described Ms Moody’s assertion that TM must take responsibility for her own practice as “irrational” especially since she was aware TM had had no PoVA training and was therefore “completely unfamiliar with the whistle blowing provisions.” And further she said that Ms Moody failed to consider that TM’s first impression of what nursing standards in the UK consisted of was determined by her experience at home B.
117.	Ms Brown submitted that allegations such as “Failed to appreciate or act upon the fact that management of the problem around the PEG site would depend on accurately recorded observations” were “vague and meaningless.” but accepted that TM did not record her observations and actions “as comprehensively as is required.” 
118.	It was also submitted on behalf of TM that since she was not the only nurse involved in the care of residents “the extent to which responsibility was deferred to others in senior nursing posts has to properly weighed before concluding what, if any, residual duty TM had and what in real terms she could be expected to do if senior managers who were also aware took no action or at least didn’t take such action as may or may not be alleged in this allegation.” In this respect Ms Brown felt that Ms Moody had imposed responsibility on TM on a strict liability basis and irrespective of the circumstances. This was unfair, she said, because the NMC guidelines do not operate as strict rules of practice. She suggested that the extent to which the guidelines are incorporated and interpreted “will be greatly affected by the organisational and operational systems/protocols in place.” And she reminded the panel that Professor Hodkinson had stated “It is easier to transgress in an environment of transgression”
119.	Ms Brown said that the Respondent’s approach had been to ‘track backwards’ by looking at the outcomes for each of the three relevant residents and then, with the benefit of hindsight and “a great deal of frankly sweeping assertion” to reach firm conclusions on assumed facts. She criticised this approach because the assumptions frequently had no substance in fact. Ms Brown submitted that the evidence of Professor Hodkinson and Ms Moody demonstrated that it could not be definitively established whether or not WH was or was not in pain on any particular occasion. It was plain, she said, that TM had administered pain relief to WH and reviewed whether it had been effective when in her professional judgment it was appropriate to do so.
120.	Ms Brown submitted that even where TM makes admissions of failings these should not be held by the panel to be misconduct because of the extenuating circumstances of the extensive failings at home B which she described as dysfunctional and failing. She stressed that there were no effective, reliable, consistent, reviewable, monitored or recorded systems in place at the home and, set against that background, TM’s task was practically impossible.
121.	Ms Brown submitted that the evidence of Mr Collier should be preferred to that of Ms Moody and Professor Hodkinson. She suggested that Professor Hodkinson did not have the in-depth knowledge of the various risk factors which could be directly relevant to the development of a pressure ulcer and had disregarded any other causative factors in reaching his conclusions and was “so determined to advance his case he failed to properly review the medical records he had been asked to consider.”
122.	Ms Brown also submitted on behalf of TM that since the records produced related to only three residents it was not possible to analyse whether anyone else at home B used night turn charts and what if any monitoring of the forms was being undertaken. Further, the lack of records, which she described as “appalling”, had led, she opined, to Ms Moody and Professor Hodkinson to speculate and reach conclusions which were “irrational”. She therefore concluded “Crucially there was no proper basis to assert that the Appellant had not delivered the care she said she had given and Ms Moody agreed that had TM given the level of care she referred to in her interview such care was appropriate. Her reason to doubt her stemmed from the failure to record – a circular argument that became no more cogent, compelling or probative with repetition.”
123.	Ms Brown criticised Ms Moody’s approach of analysing the shift rotas and record entries and “seeking to attribute blame based on the frequency of shifts worked” as wholly inappropriate, because, she submitted,  “The reality is that no reasonable assessment of the quality of care can be divined from equating the number of hours spent working on a shift and the eventual outcomes for that patient over a period of weeks/months.”
124.	Ms Brown submitted that the Respondent had failed to prove misconduct because each of the three residents had been nursed or cared for by various individuals and therefore it was not possible to conclude that any specific harm to any of them had been caused by TM’s acts or omissions. She wrote” The fact is this Tribunal is asked to decide whether or not and or to what extent any alleged act or omission of the appellant created a risk of harm by reference to the balance of probabilities. It is submitted that this is impermissible. The crucial factor missing being the absence of a causal link between the matters alleged and the alleged harm or risk of harm. Even then the nature of the risk or harm has not been properly particularised but is argued to be inferred as a necessary outcome of not adhering to NMC guidelines.”

125.	In respect of suitability Ms Brown submitted that the evidence of Mr Doyle about TM’s work at hospital C gives the tribunal balanced and rational evidence because it demonstrates that when placed in a properly functioning environment, operating in accordance with accepted standards, TM “delivered to a high standard”. She also suggested that Mr Doyle’s evidence demonstrates that good practice “is only really possible with rigorous monitoring and reinforcement” and that the fact that there was a  different environment does not detract from his evidence. Further, Ms Moody had agreed that problems with record keeping could be remediable with training and placement in an appropriate care setting. 
126.	In addition, Ms Brown urged the tribunal to take Mrs D’s evidence into account because it is direct evidence of the quality of care offered by TM to a resident and about her demeanour within the home.
 
127.	In her written submissions Ms Brown quoted extensively from the reports of Stephen Young and other professionals in connection with investigations into the wider functioning of home B and to the decision in Puretruce v National Assembly of Wales [2004] 0371 EA-W which concerned home H. She concluded: ”This is a very disturbing case. It is characterised by a litany of failure to safeguard the requisite level of care at a residential care home for elderly and vulnerable people. It is submitted that the real ‘blame’ should be reserved for the owners, managers and regulators that have failed both the Appellant and the residents.” 

Tribunals Conclusions with reasons
Failure to give evidence.
128.	Ms Brown confirmed in her closing submissions that TM had not given evidence on the basis of legal advice. It had been made clear throughout the proceedings that if TM gave evidence she would be given appropriate warnings about self incrimination and that the panel would be alive to the fact that she was subject to an ongoing police investigation. TM chose not to file a statement or give evidence on her own behalf in respect of both the allegations and the question of suitability.
129.	The panel were concerned that TM would not have the opportunity to consider any additional findings made over and above her admissions, to reflect on them and to provide evidence about the timing and degree of her recognition that her conduct had constituted misconduct. Further, the panel were aware that the CPS intended to finalise their decision making process in respect of EE and EJ within a short period, having decided not to bring any charges in respect of WH. The panel therefore raised of its own motion the possibility of an adjournment following the decision on misconduct to allow TM to give evidence herself on suitability. Ms Broadfoot opposed the issue on behalf of the Respondent. Ms Brown took instructions and was given time with her client during her closing to fully consider the position with her client. Ms Brown informed the panel that TM did not wish to give evidence on suitability and wanted the panel to make a decision on the evidence before it. The panel recognise that TM has the right to choose not to give evidence herself and therefore proceeded on the basis of making a decision on the evidence before it.
130.	The panel considered the submissions made on behalf of the Respondent that an inference should be drawn from TM’s failure to give evidence. Having given TM every opportunity to give evidence and being satisfied that she was represented by Counsel who had no doubt advised her of the evidential difficulties which this may place her in and the potential prejudice to her case the panel we applied the principles of Wiesnewska v Manchester HA [1998] P.I.Q.R. P324, to the case. We concluded that the strategy employed by TM of challenging the evidence in respect of misconduct without putting forward a positive case or explanation other than through exculpatory statements in her police interviews, and the strategy of seeking to satisfy the evidential burden on unsuitability on the evidence of Mrs D and Mr Doyle alone inevitably weakened her case. The decision to do so was on legal advice, and we concluded that to draw adverse inferences against her for following that advice would not be fair or just in the circumstances.

Insufficient particularity in respect of allegations.

131.	This was a matter raised by Ms Brown on the final day of the hearing during her closing submissions. She relied on R ( ex parte Marshal) v The Nursing and Midwifery Council [ EWHC] 2931 (Admin) . In that case the court found that the conduct committee had proceeded with a case on the basis of an undefined “hierarchy of nursing.”  This phrase was neither defined nor was it made clear what bearing it had on the issues in the case. The responsibility of the nurse who was the subject of allegations was simply taken as read with no definition and no consideration of how her responsibility arose. 
132.	The facts of the case related to the death of an elderly man who was kept all day on a trolley in an Accident and Emergency bay under the control of three nurses due to unavailability of nursing beds. He had a perforated ulcer which caused his death despite surgery later in the day. The nurse concerned was a grade E nurse and the other 2 were grade D. The case hinged on the responsibility for a grade E nurse for the acts and omissions of her grade D colleagues. The transcript demonstrated that the responsibility was not defined nor was it put in cross examination or developed in any way. There was also no reference to nursing guidance or codes of practice. In the particular context of the case the court considered allegations which included charges of “failing to ensure” and Sir George Newman said:
“[59]. When one looks at the charges the matter was in respect of some covered by the content of the charges being "failing to ensure that" and then the charge which in itself would have suggested that she had some obligation to ensure. Again, it cried out for particulars. What is meant by "failing to ensure"? What was it that she should have done in order to ensure?”
133.	In addition, he was concerned that the panel did not investigate the alleged duty, which they apparently took as absolute, nor did they apply the principles to the facts of the case. In the circumstances the NMC had not formulated charges or a case which could be properly met by the nurse.
134.	Ms Brown submitted that if  Marshall is applied to this case it demonstrates that the allegations of misconduct made against TM are “fundamentally flawed.”  Ms Brown was seemingly unaware of the “grounds of opposition” and “further grounds of opposition to appeal” drafted and filed by Ms Broadfoot until the panel took her to them during her closing submissions. She denied that the matter should have been raised at an earlier stage, even when the duty to assist the tribunal under the Rules was pointed out to her by the panel, asserting that there was no duty to assist the Respondent
135.	The panel considered the opening statement, the documentation filed in relation to the response to appeal and the way Ms Broadfoot conducted the questioning and presented the evidence on behalf of the Respondent. We concluded that there could be no doubt in TM’s mind as to the allegations which she faced. The appropriate nursing guidance formed part of the bundle provided to TM and her advisors, was frequently referred to during the case and was referred to by Ms Brown in her closing. Ms Brown specifically conceded that the tribunal could have regard to the guidance when considering the findings of fact. Perhaps even more importantly TM herself had given answers in police interviews which showed she had a thorough understanding of the guidance and of her responsibilities at the home. 
136.	The panel also considered the allegations made in the documentation and the facts set out in respect of the misconduct alleged. Ms Broadfoot makes frequent reference to the NMC guidance and in her written submissions stated that  paragraphs 1.2 – 1.4, 2.5, 4.3 – 4.6, 6.2 – 6.3 and 8.2 – 8.3 were relied on in particular, together with TM’s admissions recorded at paragraphs 21 and 22 of this decision. She stated:

1.	Knowledge is a significant part of the assessment of suitability.  The Respondent will say that TM was clearly aware of her responsibilities but ignored them.
2.	TM was sent an NMC Code of Conduct
3.	TM accepted that she had it
4.	Various parts of it were gone through by the police in interview, including record keeping, the duty of care, personal responsibility, delegation, standards of practice and TM stated that she understood each section put to her:  She further stated that in South Africa “we pledge it” [the duty of care].
5.	In terms of recording, TM stated in interview that concerns were recorded and that at handover “each and every client” was discussed. Nurses’ notes were given/available to next nurse following on duty. The same appears to be true of care assistants’ notes.  Following handover TM would then visit every client and ‘check what’s written in the nurse’s statement from the nightshift’.  
6.	She also stated that she would look at all the care plans and that after a day or two days off, she would get an update through the handover and check their files:
“DC650: When you say check T, do you mean check the residents or check their files
TM: No, check their files, you to their files and do whatever information is there if it is a nursing statement, check carers statement informed you check go and see, whatever” .
7.	Finally, she was asked about her compliance with the Code of Conduct:
Officer		...I read out to you earlier on the NMC Codes of Pra,Guidance
TM		Mm
Officer		Whilst employed at B home as the qualified nurse, did you comply with all those qualifica, all those codes
TM		Yes.” 
137.	The panel concluded that the complaint of lack of particularity was not substantiated. Criticism of phrases such as “failed to notice” had to be taken in the context of examples given in respect of the three residents. These were examples  of conduct which the Respondent said failed to meet the standards suggested by the code which TM had accepted was applicable to her. They were not individual “charges” but a summary of the evidence relied on designed to assist the tribunal and TM to identify the issues. 
138.	It was surprising that Ms Brown had made the submission in the way she did, almost as a “surprise” tactic during her closing submissions at the end of the seven-day hearing. It is clear from the Marshall case that the court gave the opportunity to the NMC to rephrase the allegations with sufficient particularity. Waiting to the end of this case to raise the issue so that the evidence had been heard was therefore not in the spirit of tribunal proceedings. If we had found that the allegation of misconduct needed further particularisation the costs of adjournment for further evidence would have been significant and the delay to Ms Brown’s client would have been most unfortunate. We would remind counsel to always consider the type of case they are presenting and to remember that such tactics are inappropriate in a Care Standards tribunal setting.

Assessment of evidence
139.	When considering the interview evidence the panel kept to the forefront of our minds the fact that TM was in a very unfamiliar environment and that she was subject to lengthy questioning on difficult matters. We considered, however, that some of the answers on key factors were repeated in admissions made in the document prepared by Mrs Hobcraft and that those admissions were made in a different environment with the benefit of Counsel’s advice.
140.	We were impressed by the expert evidence given by Professor Hodkinson, Ms Moody and Mr Collier. We did not accept Ms Brown’s trenchant criticism of the evidence given by Professor Hodkinson because, in our view, he was measured, balanced and fair in his approach. For example Professor Hodkinson agreed wholeheartedly with the suggestion that there were endemic wholesale failings at the home, that more senior staff should have been more supportive and he commented that breaches of standards were more likely in such circumstances. He also was fair in his approach to the issue of whether WH shouted on pain or because of his dementia, giving TM the benefit of the doubt and commenting that this was a red herring. We did not detect that he had any agenda to follow or that he had closed his mind to other possibilities. He had clearly spent a great deal of time considering a vast amount of police documentation and had weighed it before forming his opinions
141.	Mr Collier clearly had a passion for his subject and was able to explain the intricacies of pressure ulcers and their management to the panel in a very clear and interesting manner. He was more cautious in his approach than Professor Hodkinson, adding caveats and explaining that the understanding of pressure ulcers and their associated risk factors is developing all the time. He said “It comes down to what we know. I would not be as definitive as him because the notes do not give enough detail”. 
142.	It was unfortunate that it had not been possible for the two experts to meet as requested either in person or by telephone prior to the hearing. They commented in writing on each other’s reports but it would have been helpful to clarify the issues between them on matters in issue. As their evidence unfolded it became clear that some of the differences were of semantics and of degree. For example, they were both agreed that pressure ulcers are caused by pressure and that there are many risk factors which can contribute to susceptibility to pressure ulcers. Further that the residents in this case had high Waterlow scores and required a regime of pressure relief. They agreed that if the pressure relief was not charted then it was less likely to have been carried out, although Mr Collier felt that it was “not inconceivable”. There were some differences in respect of causation for example in respect of the ulcer on WH’s ear. Professor Hodkinson feeling that it was more likely to be caused by lying down without pressure relief and Mr Collier being open to the suggestion that it may have been caused by sitting, and advocating a more cautious approach. 
143.	The panel were also impressed by the evidence of Ms Moody, who had provided tables in her original reports to illustrate the types of recordings which TM made and explained why the recordings were inadequate, fell below the required standard and how individuals were put at risk if accurate recording of their condition and treatment as others would not know whether the condition remained stable or had worsened and would not know whether treatment or pressure relief was needed. Her evidence was balanced, reasoned and careful, and demonstrated sound analysis of the information and application to TM as an RMN rather than imposing higher standards applicable to an RGN.
144.	The Respondent called Mr Grandin to give oral evidence. The panel questioned the relevance of his evidence since the allegations of serious misconduct involving other residents was not pursued and he was being called more as to his opinion of TM’s demeanour and attitude. Ms Brown asked him very little in cross examination, seemingly unaware that a failure to challenge the evidence left her client open to his evidence being accepted in full. The tribunal has of course an inquisitorial role and investigated the expertise of Mr Grandin to give an assessment of TM. We concluded that, as an ex-plasterer with no nursing qualifications, his opinion could not be given the same weight as the other witnesses. There were no findings sought as to TM’s aggression towards residents and the panel concluded that his evidence was of little relevance to our decision.
145.	The panel concluded that Mr Doyle gave evidence to the best of his ability about TM’s suitability to work with vulnerable adults. It became apparent that he had in fact had little direct contact with TM’s work at hospital C, since most reports of her work came via the manager known as  “Busi”. He was clearly very embarrassed about the induction assessment notes which the panel concluded demonstrated collusion between “Busi” and TM (who had signed the records) to fill in documentation retrospectively and in a way which cast doubt over whether the procedures had actually been completed. His assessments of TM were mainly on the basis of notes and assessments made by others, including “Busi” to a large extent and, while he maintained optimistic that the assessments would have been accurate, even having seen the inadequate induction records, the panel could not agree with him and concluded that his evidence was undermined by his lack of direct assessment of TM. It was notable that when he was shown actual recordings made by TM at home B he was apparently shocked by their inadequacy and commented that he had not seen notes of that nature for some years.
146.	Although Mrs D was not called to give evidence due to ill health the panel carefully considered her written evidence. We bore in mind the fact that Ms Broadfoot did not have the opportunity to cross examine her but we could find no reason to doubt Mrs D’s clear view as a lay person that TM was a helpful member of staff at home B who appeared to care well for her mother, and we took her supportive views into account when assessing suitability, as requested by Ms Brown. 

Admissions
147.	TM asserted that she knew the care plans for these three residents and understood that all three had high Waterlow scores and were therefore at risk of developing pressure ulcers. She also understood how to manage pressure ulcers and was aware of the NMC code of conduct and the record keeping obligations contained therein. She admitted that she failed to record EJ’s position on the night shift, and “at times” failed to record WH’s position during the night. Further, that she failed to record the actual care that was delivered to EJ or ensure that it was recorded by others and that “at times” she failed to record the actual care delivered to WH. 
148.	TM also admitted that she could have called a GP for EJ on the night of 31 October 2005 or the following morning. In respect of EE she admitted that she failed to make proper records in respect of the PEG site and that “with the benefit of hindsight” she could have asked for a doctor to be contacted to assess the situation after 8 August 2005 when the site began to weep. She asserted that she understood the symptoms of infection and practice in respect of calling for a GP. 
149.	In her police interview TM agreed that she should have consulted a GP in respect of WH on 7 and 21 June 2004, and on 11, 21 and 22 August. 2004. She also accepted that she failed to act on 13 June 2004 when she was aware he could be in pain.
150.	TM states that some of these admissions are “partial” as they have to be seen in the context of failures at home B and denies that the conduct constituted misconduct
Findings 
151.	The panel decided that the oral and written evidence confirmed the series of admissions made by TM both in interviews and through her counsel, and that there was no evidence to suggest that we should question their reliability. In respect of WH we find on a balance of probabilities that TM’s admission in respect of failure to act when she understood he was in pain was more reliable than her subsequent denial, given the context of her care for him and the fact that she did administer medication to him for pain relief from time to time and therefore had an understanding that he may need pain relief on occasion.
152.	We accepted Mr Collier’s evidence that WH was highly susceptible to pressure ulcers and concluded that a competent nurse would recognise that extra care would be needed for someone in his position, especially since his health was deteriorating from May to September 2004. TM worked 74 shifts in this period when WH’s pressure ulcers developed to an “outstanding” degree. We concluded that her notes were stereotypical and conveyed little meaning about WH’s health and the care that he had received. 
153.	We noted that there was a difference in opinion between Mr Collier and Professor Hodkinson about whether WH’s ulcers would have deteriorated in any event as his health declined. We noted that both agreed that there comes a time when a person is near death when there may be little that can be done to prevent deterioration. Ms Brown suggested to Professor Hodkinson that under the circumstances TM had done what she could for WH and we accept his response that a properly carried out turning regime would have made a difference to WH. We find therefore for the majority of the relevant period a correctly carried out turning regime would have assisted WH and would have prevented some  of the deterioration in pressure ulcer damage which was continuing during the period. Whether WH’s pinna ulcer developed during the day or at night is not relevant to our decision because the Respondent does not seek to attribute direct responsibility for that ulcer to TM and a particular episode of her care of WH.
154.	We find that it is impossible to say whether on each occasion care was carried out or whether the care carried out was of a good standard because of the lack of written material to assess. We had to assess whether, on the balance of probabilities, the Respondent could show that adequate care was not given to WH whilst under the care of TM. Again, we considered  the expert view that if something wasn’t recorded then it probably was not carried out (shared by Professor Hodkinson, Ms Moody and Mr Collier) to be insufficient on its own to demonstrate that the evidential standard was met. However, when this evidence was added to:
•	the fact that TM had agreed that not only had she failed to make insufficient recordings in respect of his position during the night and at times failed to record the care given to him, 
•	and that she had on more than one occasion failed to take the advice of the GP as to treatment for WH,
•	 taken with the fact that WH’s condition deteriorated whilst under her care and balanced with the fact that there was no evidence of any appropriate nursing action taken by TM on behalf of WH 
we found on balance that adequate and appropriate care was not given by TM to WH. Further, we found that the standard of care given, and record keeping, fell below the standards expected of an RMN under the Code of Conduct and the guidance contained therein. 
155.	The panel also accepted the evidence of Ms Moody and Professor Hodkinson that TM’s recordings in respect of EE are repetitive and lacking in detail and meaning. We accept the evidence of Ms Moody that such recordings are insufficient to detail the actual care given or which should have been given. We find that it is impossible to say whether on each occasion care was carried out or whether the care carried out was of a good standard because of the lack of written material to assess. We had to assess whether on the balance of probabilities the Respondent could show that adequate care was not given to EE whilst under the care of TM. We considered the expert view that if something wasn’t recorded then it probably was not carried out (shared by Professor Hodkinson, Ms Moody and Mr Collier) to be insufficient on its own to demonstrate that the evidential standard was met. However, when this evidence was added to the fact that:
•	TM had agreed that not only had she failed to make insufficient recordings in respect of the PEG site but that she also “could have” called a GP, 
•	taken with the fact that EE’s condition deteriorated whilst under the care of TM,
•	 and there was no evidence of any appropriate nursing action taken by TM,
we found on balance that adequate and appropriate care was not given by TM to EE and that the standard of care given and record keeping fell below the standards expected of an RMN under the Code of Conduct and the guidance contained therein. For the avoidance of doubt we accept the consensus of expert opinion that TM should have called the GP. Her use of the word “could” would be meaningless as an admission. She could call the GP to a resident at any time. In the final four nights she worked with EE between 9 and 12 September 2005 carers recorded concern about the deterioration of the PEG site but TM failed to examine it or make any adequate recordings of any changes or concerns. We agree with Ms Moody that her performance in this regard fell seriously below the standards required of a competent nurse. 
156.	In relation to EJ, TM admitted that she failed to record EJ’s position on the night shift, failed to record the actual care that was delivered to EJ or ensure that it was recorded by others and that she “could” have called a GP for EJ on the night of 31 October 2005 or the following morning. Both Mr Collier and Professor Hodkinson agreed that the pressure ulcer to EJ’s sacrum had on balance developed at home B and deteriorated in hospital. The undisputed evidence about EJ was that she was a very dependant   resident with a high Waterlow score. Whilst Mr Collier said that it was not inconceivable that correct procedures to control infection and relieve pressure were carried out, on the balance of the evidence we concluded that they were not. We find that the ulcer was caused by pressure at home B and that TM’s records about EJ during the relevant period give no indication of thought or care being given to managing EJ’s risk to pressure ulcers or the developing ulcer. We accept Ms Moody’s opinion that the lack of written evidence, coupled with the deterioration in EJ’s condition when under TM’s care mean that TM’s record keeping and care of EJ fell below professional nursing standards. We do not find it possible to establish whether the ulcer developed during the day or night, however there is some evidence of repositioning during the day and no information about night time turning. In such circumstances we conclude that it is likely that at least part of the deterioration was due to inadequate night time care and recording, and we do not accept the inference of Ms Brown’s questioning of the experts that the ulcer was solely due to EJ’s susceptibility and day time sitting position.
157.	Misconduct
The panel applied the guidance in Mairs to the above findings against TM against the background of the professional guidelines applicable at the relevant time. We did not apply the guidance in a “strict liability” which would in our view be wrong. The guidance gives an indication of the relevant standards appropriate to nursing at the time and is indicative of the duties of a nurse working in a nursing home like home B but we also considered the circumstances at home B and the duties and responsibilities which TM herself felt she had at the time. We reminded ourselves of the dicta in Doughty that “ In the context of a profession, for there to be a finding of misconduct there must be a falling short, whether by omission or commission, of the standards of conduct expected from members of that profession”
158.	We considered the relevant NMC guidance and in particular  paragraphs 1.2 – 1.4, 2.5, 4.3 – 4.6, 6.2 – 6.3 and 8.2 – 8.3 and the responsibilities accepted by TM,  and concluded that the admissions and findings in respect of the three individuals demonstrated that in relation to each of them TM fell short of the relevant nursing standards. In each case we find on a balance of probabilities that the conduct put the residents at risk of harm. In the case of failure to call a GP the risk was that the resident would not receive appropriate assessment and treatment and might therefore suffer further deterioration as a result. In the case of failure to record, the guidance is clear that accurate recording is at the heart of patient care. Ms Moody stressed that recording is the communication tool which enables others to know the resident’s condition, the care they have received, any changes in their condition and the further care they might need. With inadequate records each individual was at risk of not receiving the appropriate care regime, of others being unaware of the care they had received or may need and of any changes in their condition not being noted and acted upon. We therefore concluded that the Respondent had proved misconduct to the requisite standard.
159.	We did not accept Ms Brown’s submission that TM’s failings did not constitute misconduct because of the inadequacies of management and culture at home B. Misconduct is only extinguished where the extenuating circumstances render proper performance of a duty impossible as opposed to more difficult.  Whilst we took into account the fact that it is easier to transgress in an environment such as home B, TM has not at any stage alleged that it was impossible to carry out her role. Indeed she claimed in her police interview that she had carried out her role to a professional standard. In this case the circumstances at the home do not extinguish the findings of misconduct which we have made.
Suitability
160.	Having considered the admissions and findings and the evidence of Mr Doyle and Mrs D as to suitability we find that TM has failed to shift the evidential burden as to suitability and we find that she is unsuitable to work with vulnerable adults and should be listed. In coming to our conclusions we considered the following:
161.	 (a) the number of the incidents constituting the misconduct established in relation to the three residents is significant and occurred over a period of time. The failure to record was not a “one off” but was sustained and put more than one resident at risk.
162.	(b) the failure to record should not be taken to be an administrative slip or a minor transgression. TM clearly knew how to make adequate, meaningful recordings because there were examples in the papers. In respect of these residents her record keeping was crucial and was central to the care they received. The failures put them at risk of harm and amount to serious misconduct. The failure to call a GP to a patient or resident is a fundamental failure of nursing. The striking thing in this case was that this occurred with more than one resident and in the case of WH on more that one occasion;
163.	(c) the time that has elapsed since that misconduct is significant because of the delay caused by the police investigation. Operation Jasmine has been a lengthy and costly exercise, which, in TM’s case, has taken five years to resolve with no charges being brought;
164.	(d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a vulnerable adult is difficult to assess because TM chose not to give evidence or provide a statement despite having been given several opportunities to do so. We give her credit for the admissions made in police interview and through her counsel.
165.	(e) TM’s provisional listing has meant that she has been unable to work. We have not been given any evidence of any steps she has taken to minimise the possibility of there being a recurrence;
166.	(f) extenuating circumstances surrounding the misconduct were something to which we paid particular regard. Home B was a disgrace. There was no proper management, no adequate induction of staff, training or appraisal. There was no system of monitoring staff or picking up on failures. There was a culture of failure to record or make appropriate recordings in respect of residents, with meaningless clichés being copied from record sheet to record sheet.  It is of no surprise that inspections picked up problems year after year, nor is it a surprise that the deaths of residents brought the home to police attention. We bore in mind the fact that TM was from overseas, that this was her first job in the UK, and that others around her failed both her and the residents. Further, we are aware that in a different environment TM appeared to cope without difficulties and of the supportive evidence of Mr Doyle and Mrs D.
167.	Having carefully balanced the evidence as at the day of the hearing we concluded that the extenuating circumstances provide insufficient mitigation for the extensive and prolonged failings which put three vulnerable residents in her care at risk of harm and we conclude that TM is currently unsuitable to work with vulnerable adults.

PoCA

168.	In our original decision dated 6 September 2011 we did not deal with the application for a determination of the PoCA listing. The Respondent made an application under Rule 44 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 for the decision to be amended under the slip rule. The application was declined applying AS v Secretary of State for Work and Pensions (ESA) [2011] UKUT 159 (AAC) because it was not a typing error or slip of that kind.

169.	On 6 October 2011 the Secretary of State made an application for a review under Rule 49 on the ground that the Tribunal had made an error of law and on 17 October 2011 the Tribunal decided that the failure to deal with the PoCA listing was an error of law and that the decision should be reviewed following submissions.

170.	We therefore invited written submissions from both parties which we considered in formal deliberations on 17 November 2011. The appellant submitted that it is not appropriate for her name to be confirmed on the children’s barred list because there is insufficient evidence to make a determination that she may harm a child or put a child at risk of harm and that the determination would be disproportionate to the findings.
171.	The misconduct which we have found proven is equally applicable to misconduct in the context of children, but the question of suitability in each area must of course be dealt with separately as explained in the case  AP v Secretary of State for Education and Skills [2006] EWCST 0742.PC which involved the reverse situation 
172.	In this case we have made findings of "extensive and prolonged failings" and we therefore considered how they could apply to the care of children and consequently to TM’s suitability. We balanced the fact that TM consistently failed to document care given and repeatedly failed to call a GP to the aid of more than one vulnerable adult, which, in our view, demonstrates unsuitability to care for a child or young person in an institutional, care or other setting and a consistent failure of professional judgment against the fact that this was apparently the only setting where TM had been involved in misconduct.  Additionally we considered the question of whether it would be right for a person considered to be unsuitable to work with vulnerable adults to be given a position of trust in respect of children.
173.	We accepted the Respondent’s submission that “public confidence in those working with vulnerable adults or children should be taken into account by the Tribunal, and that society can legitimately expect that those found unsuitable to work with one vulnerable group should also, where appropriate, be prevented from working with another vulnerable group.”
174.	We reminded ourselves of the discussion of the importance of public confidence in CN v Secretary of State [2004] EWCST 398 (PC) [29] 
175.	“We cannot underestimate the importance we attach to public confidence. 	When the Tribunal considers the question of unsuitability, it must look at the factual situation in the widest possible context. It  is our view that it is the clear intention of Parliament that the language of the Act requires us to take a broad view having regard to the degree of risk posed by the Appellant, but 	also to acknowledge that the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children "in a child care position" are beyond reproach.”
176.	We concluded that the findings are directly applicable to a child care setting and that this outweighed the fact that the misconduct related only to the circumstances of the vulnerable elderly adults in her care at the home. This is because the risks are directly referable to the care of children who could be put at significant risk if documentation relating to their care was not completed correctly or appropriate medical help summoned if they were ill.  
177.	The panel concluded that the appellant should not be put in a position of trust in respect of children as to do so would undermine public confidence in the system of registration and that the risks are directly applicable and serious enough to warrant listing. We therefore decided that her PoCA listing should be confirmed.

ORDER
The provisional listing of TM as a person unsuitable to work with vulnerable adults and with children shall be confirmed.
The reporting restriction granted on September 9 2010 shall be continued. There shall be a Restricted Reporting Order under Rule 14(1)(b) prohibiting the publication (including by electronic means) in a written publication available to the public, or the inclusion in a relevant programme for reception in England and Wales, of any matter likely to lead members of the public to identify the Appellant, any service user or establishment connected with the Appeal, or any person involved in the management or provision of care at any such establishment. The Appellant’s name shall be redacted to TM.

Judge Nancy Hillier
Lead Care Standards Tribunal Judge

28 November 2011