Walsh & Anor v Commission for Social Care Inspection [2009] UKFTT 18 (HESC) (16 February 2009)
 Schedule 1 cases: Establishments and Agencies - Cancellation of registration (proprietor/manager)

In the Health Education and Social Care Chamber

Decision of the First Tier Tribunal Care Standards

Jeremy Walsh and Sally Anne Roberts
Appellants

v

Commission for Social Care Inspection
Respondents

[2008] 1261.EA
[2008] 1262.EA

Before:
Mrs Meleri Tudur (Chairman)
Mr James Churchill
Mrs Helen Hyland

Decision

Sitting at the Magistrates Court, Cirencester between 26 and 30 January 2009.

The Appellants were represented by Mr Peter Barrie of Counsel, instructed by Rickerbys, Solicitors, Cheltenham.

The Respondents were represented by Ms Kate Brunner of Counsel, instructed by Anthony Collins Solicitors LLP, Birmingham.

The Tribunal heard oral evidence from:-
For the Respondents:
Mr D Jones
Mrs J Patrick
Mr B Brown
Ms S Goldsworthy
Mr D Francis

For the Appellant:
Mr P Jackson
Mrs J Vials,
Mrs M G Tiley
Mr H H Ghalamkari
Mrs L McNee 
Ms L Nkomonde
Mrs S Roberts

The Tribunal also considered a substantial amount of written material presented by the parties.

1.	The Law

1.1	Section 14 of The Care Standards Act 2000 provides that:

“(1)	The registration authority may at any time cancel the registration of a person in respect of an establishment or agency –
(a)	………………………..;

(b)	………………………..;

(c)	On the ground that the establishment or agency is being or has at any time been carried on otherwise than in accordance with the relevant requirements;

(d)	On any ground specified by regulations.

(2)…..

(3)	In this section “relevant requirements” means:-

(a)	any requirements or conditions imposed by or under this Part; and

(b)	any requirements of any other enactment which appear to the registration authority to be relevant”

1.2      Section 22 of the Care Standards Act 2000 provides that:

“(1)	Regulations may impose in relation to establishments and agencies any requirements which the appropriate Minister thinks fit for the purposes of this Part and may in particular make any provision such as is mentioned in subsection (2), (7) or (8).”

1.3	The Care Homes Regulations 2001 (“the Regulations”) came into force on the 1 April 2002 and extend to England only.  They apply to care homes that are not specifically excluded from the provisions of the Regulations.

2.	Preliminary Matters
2.1	On the 28 May 2008, the Deputy President of the Tribunal made a Restricted Reporting Order under Regulation 18(1) of the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002 prohibiting the publication (including by electronic means) in a written publication available to the public or in the inclusion in a relevant programme for reception in England and Wales of any matter likely to lead members of the public to identify any service users.  At the conclusion of the hearing, the Tribunal confirmed that the Restricted Reporting Order should remain in force until further order, pursuant to Rule 14 (1)(b) of The Tribunal Procedure (First-Tier Tribunal) (Health Education and Social Care Chamber) Rules 2008 which came into effect on the 3 November 2008, replacing the Protection of Children and Vulnerable Adults and Care Standards Tribunal Regulations 2002.
 
2.2	Applications were made at the hearing for submission of late evidence.  Ms Brunner applied for leave to introduce a new witness, namely Mr David Francis, Business Relationship Manager for CSCI, who was responsible for the final decision to pursue cancellation of the Appellants’ registration.  Mr Barrie opposed the application, but accepted that in the light of queries he had  Mr Francis’s evidence was likely to be relevant to the appeal. The Tribunal concluded that in the light of issues raised by Mr Barrie at the start of the hearing, and in order for the Tribunal to consider when making its decision, the best available evidence, it was appropriate that the application should be allowed.

2.3	Mr Barrie made an application in respect of a document compiled by Mrs Roberts from inspection reports by CSCI across the group of homes falling into Blanchworth Care Homes Limited group.  Mrs Roberts is one of the Directors of Blanchworth Care Homes Limited and the company has 15 homes, owned by various combinations of individuals within the company, but falling under the umbrella of the group and administered centrally from the head office at The Cider Mill, Blanchworth.  The Tribunal refused to allow the document to be put to Mr Francis in cross examination when he had not had an opportunity to read it, but agreed that it could be introduced by Mrs Roberts in her evidence, once it had been disclosed to the Respondents.

2.4	Further written evidence, omitted from the bundle, but referred to within other documents was inserted, namely three medication administration records (MAR) (referred to in the Notice of Proposal but not included in the Tribunal bundle).

2.5	Mr Barrie requested the inclusion of two emails from two of the service users’ GPs, obtained during the hearing in response to the enquiries made by the Appellants in respect of the correct administration of medication.  Ms Brunner objected to the application, on the basis that the Appellants’ instructions to the authors had not been disclosed.  The Tribunal allowed the application indicating that it would give to the evidence such weight as it considered appropriate.

2.6	At the start of the hearing, it was submitted on behalf of the Appellants that they had never sought to contest the alleged breaches, but were opposing the cancellation on the basis that the incidents set out in the Notice of Proposal were not sufficiently serious to warrant closure of the home.  At the Tribunal’s request, the Appellants completed the Scott Schedule, indicating that all eight breaches of the Regulations alleged in 2005 were admitted; all five  breaches identified in February 2006 were admitted, but it was submitted that the storage of prescription medicine had been dealt with by the Action Plan; three May 2006 allegations were admitted but one was submitted to have been dealt with in the Action Plan; all six allegations made in May 2007 were admitted, although it was submitted that it was the deployment of staff rather than their number that was in issue; 12 of 14 allegations made following the 12-14 November 2007 inspection were admitted.  It was submitted that one of the remaining two allegations was denied because the home had been following the appropriate guidance at the time and the second related to the same issue of staff deployment (rather than numbers) as in May 2007; 11 of 12 allegations made following the pharmacist inspection of the 21 November 2007 were admitted, and it was submitted that service users being asleep in the dining room was not a failing; two alleged breaches of regulations in January 2008 were admitted; 12 alleged breaches in May 2008 were admitted and 11 of 12 alleged breaches in December 2008 were also admitted with a factual dispute on the remaining one, with reference to the actual time of administration of medication.  In response to the latter, Ms Brunner confirmed that there was a half hour difference between the two times recorded by the Pharmacy Inspector and the document produced subsequent to the inspection by the Appellants, but that the principle of late administration of medicine remained even if the fact of the actual timing was incorrect.

3.	Background
3.1	Gloucester Care Centre was first registered under the Registered Homes Act 1984, on the 29 January 1999, with Mrs Sally Anne Manby Roberts named as the Registered Provider.  In 2002, the home was re-registered with Mrs Roberts and Mr Jeremy Walsh (“the Appellants”) as partners and identified as the Registered Provider.  Mr Walsh has not taken any active part in the day to day running of the home and Mrs Roberts was identified on the certificate as the Responsible Individual.

3.2	Ms Ntokozo Lorraine Nkomonde has been the Registered Manager at the home since January 2007, and had been the Acting Manager since July 2006.

3.3	The home is a registered care home providing nursing care for 40 persons over the age of 65.  28 beds are registered for persons with dementia and 12 for persons with sensory impairment (SI).  The certificate includes conditions for three additional named service users under the category of SI under the age of 65 and an additional named service user under the category of dementia under the age of 65 years. 

3.4	The home was first rated as a “poor” service in February 2006, and although it received an “adequate” rating following an inspection in June 2006, has attained “poor” ratings since then.  The official rating was suspended following the confirmation of the Cancellation Notice in February 2008.

3.5	Following an inspection in November 2007, CSCI made a referral to Gloucestershire County Council under the safeguarding and protection of vulnerable adults procedure and consideration was given to the making of an immediate application to the magistrates for closure of the home under Section 20 of the Care Standards Act 2000.

3.6	On the 19 November 2007, Mrs Roberts gave an undertaking to CSCI that she would not admit any further persons into the home until 4 December 2007; that she would co-operate fully with Gloucestershire County Council and the Primary Care Trust to ensure the safety and wellbeing of people currently living at the home and ensure that the immediate requirements made in respect of the home on the 13 November 2007 were fully addressed. 

3.7	At the date of the hearing, there were 27 service users: 8 SI and 19 dementia. 

4.	The Cancellation Decision
4.1	The Notice of Proposal to cancel Mr Walsh and Mrs Roberts’s registration relied on the grounds set out in Section 14(1)(c) of the Care Standards Act 2000, that the home is being or has been carried on otherwise than in accordance with relevant requirements.
 
4.2	On the 4 December 2007, Notices of Proposal to Cancel the registration of both Appellants were issued in identical terms.  The Notices identified five breaches of the Care Home Regulations 2001: Regulation 10 – failure to carry on the care home with sufficient care, competence and skill; Regulation 12 – failure to ensure that the health needs of service users are properly identified and met; Regulation 13 – failure to arrange appropriate health care intervention for some service users and failure to make arrangements for administration, handling and safekeeping of medication and Regulation 18 - failure to provide nursing and care staff in appropriate numbers and who are competent and skilled to meet the needs of service users.

4.3	The Appellants submitted written representations to CSCI against the Notice of Proposal dated 7 January 2008.  The representations did not dispute the factual contents of the allegations made nor did it contradict the findings of the inspectors in respect of the alleged breaches.  The representations outlined changes to the delivery of services at Gloucester Care Centre that were either in place or proposed in order to improve the delivery of care services to the residents.

4.4	The Notices of Proposal and the written representations were considered by Sarah Norman, the Regional Director of CSCI West Midlands who had not previously had any involvement in the case.  In a letter dated 13 February 2008, she explained her conclusions on the basis of the evidence, that the Appellants were not denying any of the alleged breaches, but were proposing improvements to the systems in place.  She concluded that serious breaches to the Regulations cited in the notice had taken place over a prolonged period “..which have had a very serious impact on the safety and wellbeing of residents at Gloucester Care Centre.”  The Notice of Proposal to cancel their registration was upheld.

4.5	The Appellants lodged an appeal against the decision on the 7 March 2008 and on the 28 May 2008, the Deputy President of the Care Standards Tribunal issued directions which included the completion of a Scott Schedule.  

4.6	The case was originally listed for hearing commencing on the 29 September 2008.  Because of indications that the situation at Gloucester Care Centre was improving, the parties agreed to a three month adjournment of the hearing to allow the Appellants an opportunity to show that they could make and sustain sufficient improvements to enable the Cancellation Notice to be withdrawn.  The President of the Care Standards Tribunal issued an adjournment notice and stayed the proceedings to the week commencing the 25 January 2009.

4.7	Following an unannounced inspection in December 2008, the Respondents concluded that the improvements to the quality of care at Gloucester Care Centre had not been sustained and the case proceeded to final hearing on the 26 January 2009.

5	The Issues.
5.1	The Appellants presented their appeal on the basis that the central issue for the Tribunal is whether the quality of care at the home at the time of the hearing is so poor that the closure of the home must be ordered for the protection of the service users.  It was submitted on their behalf that the past failings were of less significance than the quality of the present care provided to the service users.
 
5.2	Mr Barrie on behalf of the Appellants submitted that closure should be a remedy of last resort which should be used only when it is truly necessary and when it is demonstrated that risks of serious harm to residents if the home remains open clearly outweigh the risk of harm to the residents and to the wider community if the home is closed.

5.3	During the course of the hearing, Mrs Roberts produced a list of possible conditions which might be attached to the Registration Certificate by the Tribunal to enable the registration to continue.  These included possible conditions such as identifying Mrs McNee as the manager and imposing an obligation that she should submit an application to become the registered manager and changing the registration to residential care only.  It was stressed to the Tribunal that these were suggestions and that Mrs Roberts was prepared to accept any condition which the Tribunal might consider appropriate. 

6	The alleged breaches
6.1	In view of the admissions made by the Appellants that there had been a significant number of breaches of the Regulations during the period from 2005 to 2008, the evidence at the hearing focussed on the most recent breaches and the findings of the inspections conducted between November 2007 and December 2008.  The Respondents relied on the breaches described in the Notice of Proposal as the basis of the decision with particular concerns regarding the arrangements for the administration of medicines; wound/ pressure sore care and staffing.

6.2	Mrs Janice Patrick is the lead inspector and has been involved with Gloucester Care Centre since May 2006. She identified in her evidence a recurring problem relating to staffing.  The issue was first raised as a requirement in May 2006, and was the subject of complaints during the following summer.  Although the overall rating for staffing was “adequate” in May 2008, Mrs Patrick explained her continuing concerns and her view that there was insufficient staff to provide appropriate care and stimulation to the residents even then.

6.3	During the inspection on the 12-14 November 2007, half of the residents had chest infections, causing a much greater burden on the care staff than usual and the staffing numbers were found to be dangerously low compared to the needs of the service users.  An immediate requirement was issued to the Mrs Roberts, as the Responsible Individual.

6.4	Evidence was presented both in writing and orally, at the hearing, of an inspection by Mrs Patrick and Ms Goldsworthy on the 6 May 2008, when they arrived at the Gloucester Care Centre at about 9.45am.  Despite repeated knocking, they failed to gain access through the front door.  After some ten minutes, they were able to gain access through a side door in the SI Unit, which was propped open by a fire extinguisher.  They made their way through to the dementia unit, which is run as a separate part of the home.  On gaining access to the ground floor, they were met by one of the residents, who was very confused and naked, in the hallway.  One of the inspectors went in search of a member of staff but was unable to find anyone on duty.  The other found a blanket and comforted the resident, who was already cold to the touch.  When a member of staff was found, the inspectors were informed that there were only three members of staff on duty that morning because of sickness and the Registered Manager’s absence.  There were, at the time of arrival of the inspectors, five other residents sitting, unsupervised, in the lounge area and a further nine waiting to be brought downstairs. 

6.5	Staffing has been a significant problem for a prolonged period.  An Immediate Requirement was issued following the inspection in November 2007 and additional staff put in place and maintained to December 2007.  Shift times were changed by the reinspection in January 2008, but the Inspector recorded that there were still reduced numbers of staff on duty from 7pm.  The staffing outcome following the inspections on the 12 and 13 May and 18 June 2008 was again “Poor” because of the negative impact of repeated shortage of staff on those living in the home.  At the unannounced inspection in August 2008, Mrs Patrick discussed the staffing situation with the Registered Manager, who had been assisting with the care work that morning.  Ms Nkowale confirmed that she considered that a further member of care staff was required during the mornings as the staffing levels had been dropped back following the previous CSCI inspection.  The Inspector concluded in her notes that improvements in the staffing could be seen but that the situation was still fragile and the improvement must be maintained.

6.6	The report noted that there were two senior managers and the Registered Manager assisting with care at the home at the time of the August inspection  and that this had an impact on the smooth running of the home.  During a random inspection on 29 September 2008, one member of care staff had phoned in sick, and the Registered Manager had been told by head office to work as part of the care team from 7am to 1pm.  The Manager confirmed that the home was running predominantly with 6 members of staff.  On the inspection in December 2008, the home was once again a carer short due to illness, as well as the cook, and a peripatetic cook had been arranged.  The Registered Provider stated during a telephone conversation with the inspector that she considered there to be sufficient staff on duty to meet the needs of the residents as she considered the home to be staffed over and above the requirements.  At 10.30am, two residents had not received their morning medications and at 10.50am there were three residents who had not yet come downstairs and had not had their breakfasts.  The inspection report raised issues about the training and supervision of staff, particularly new staff and ensuring staff competency.

6.7	Mrs Patrick gave evidence about her inspections at Gloucester Care Centre and in oral evidence expressed her regret at the outcome of the December 2008 inspection, confirming that the situation was nowhere near that which she found in November 2007, but nevertheless sufficiently bad to warrant the decision to close the home.  On cross examination, she stated that although the home appeared to be going in the right direction during the summer, there still remained shortfalls, and what she sought were sustained improvements and not firefighting by the senior management of Blanchworth Care Homes Ltd.  She stated in evidence that the Respondents had not sought to pursue the cancellation of the Registered Manager’s registration because they were of the view that she lacked sufficient autonomy to make significant changes to the regime.

6.8	Mr David Jones, Pharmacy Inspector had been involved at Gloucester Care Centre since 2005.  During his initial inspections in 2005, he raised issues about the storage and administration of medications, having identified a significant discrepancy in the stock balance in relation to Oramorph tablets.   He noted that improvements had occurred during the period between 2005 and 2008 and when he next visited in January 2008 he confirmed that the immediate requirements issued in November 2007 had been met.  The purpose of his inspection was to identify whether improvements had been made after the November inspection.  At that inspection, Mr Jones identified another stock discrepancy, with Diazepam tablets found missing.  He issued an immediate requirement and Mrs J Oaten, one of the directors of Blanchworth Care Homes Ltd undertook a review of the medication situation.  She reported back to Mr Jones that there were other discrepancies with some Zopiclone tablets also missing.  Mr Jones advised her to liaise with the Controlled Drugs Liaison officer at Gloucestershire Police in case a criminal offence had been committed.  At the same inspection, Mr Jones discussed with the Registered Manager, Ms Nkomonde the importance of ensuring four hourly intervals between dosages of medication both for safety reasons and to ensure effective treatment.

6.9	Mr Jones undertook another inspection on the 18 June 2008, when he found that improvements had been made and his previous requirements met.  He did not need to issue any new requirements following that inspection but made recommendations in the inspection report regarding the importance of ensuring that medication was administered at not less than four hourly intervals and the importance  of ensuring an even distribution of medication throughout the 24 hours for effective treatment.

6.10	At his last inspection in December 2008, Mr Jones found several issues arising in relation to the administration of medicine.  Medications which should have been administered at 8am were being administered in the dementia unit at 10.45am with the medication round in the SI unit starting at 10.20am.  The lunchtime round of medication in the dementia unit began at 1.45pm, which meant that medication was being dispensed at less than the four hourly intervals.  Administration directions for medicines to be taken 30 minutes before food was being ignored and Mr Jones gave evidence that the same concerns had been raised by Mr Brown, the Pharmacist Inspector at the inspection in November 2007.

6.11	On undertaking a review of the medication records, Mr Jones discovered that the home’s stock of soluble Paracetamol had run out on the 16 November.  This was regularly administered to one resident, who screamed when hoisted, unless she was administered analgesia.  The stock had not arrived until the 20 November and had not been recorded as received on Mr Jones’s second inspection, on the 21 November.  The resident had therefore been without her medication for a period of about five days. The home was also without prescribed dressings for two residents for whom they had been prescribed.  A similar finding had been made by the inspectors in November 2007, when a service user had been without anti-psychotic medication for a period of five days indicating a record of poor stock control.

6.12	Mr Jones noted, in his evidence, that there were areas of good practice still evident but that the good practice that he had noted in June 2008 had not been sustained nor the advice he had given, actioned.  He concluded that the weaknesses identified may put people living in the home at unnecessary risk and he made further requirements as a result of his inspection.
6.13	Mr Brian Brown, Lead Pharmacist Inspector for the South West Region, gave evidence about his inspection of the home in November 2007.  He found several issues of such concern that he issued a Code B notice on the Deputy Manager because he believed that he had seen sufficient evidence to believe that an offence had been committed in that arrangements had not been made to ensure the safe administration of medicines in the home. Following the inspection, four requirements were made and a report was issued with the same four requirements contained in it.  In oral evidence at the hearing, Mr Brown was adamant that it was impossible to quantify the risk of harm to elderly dementia patients of regular administration of medicine at less than the four hourly interval recommended by the British National Formulary (BNF).  He disputed vehemently the suggestion that the administration of one tablet of Paracetamol at less than a four hour interval did not present a real risk of harm to the service user.  He confirmed that the nurses’ inability to grasp the importance of following guidelines on medication administration and their failure to ensure adequate stock control was a very serious issue.
	
6.14	The final area of concern was the failure of the home to ensure that health care needs were identified and appropriate care provided, including wound care and pressure sores.  The issue had been raised in November 2007, but despite some improvements, on the inspection in December 2008, a resident identified by her Waterlow assessment as “high risk” of developing pressure sores was not receiving adequate pressure relief care, despite the matter being drawn to a care worker’s attention by one of the inspectors.  On the same inspection wound care was found to be deficient, and prescribed dressings out of stock.  Following the inspector’s enquiries a late prescription was obtained, but the inspectors concluded that if they had not been present, then the wounds would not have been redressed on that day.

6.15	Following an inspection in August 2008, no immediate requirements were issued and the Respondents were sufficiently reassured about the progress being made to improve the care provided at the home, to agree to an adjournment of the Tribunal hearing listed for the last week in September 2008 for three months, in order to ascertain whether the situation could be sufficiently improved for the Notice of Proposal to be withdrawn.
6.16	Mr Francis explained his position as at the date of the hearing on the basis that the Respondent had a regulatory role, to ensure that the very vulnerable population of elderly dementia and SI homes receive at least adequate levels of care.  He gave evidence very clearly that it was his view that the home should close, because the Registered Provider had been offered every opportunity to put its house in order and to make the necessary changes but that they had failed to do so.  He explained that in his view the Respondents had been reasonable to allow a three month adjournment of the Tribunal hearing in order to give the Appellants the opportunity to show that they were capable not only of making improvements to the quality of the care offered but also of sustaining those improvements.  The December inspection had in his view confirmed that such improvements were short term and not sustainable, and consequently, it had been his decision that a line had to be drawn and the closure order pursued.  He too, expressed his disappointment at the outcome of the December inspection but he was resolute in his decision that in the light of that outcome the home should be closed. 
6.17	On cross-examination, Mr Barrie raised with Mr Francis the issue of the quality of care across the Blachworth group of homes.  In response, Mr Francis gave evidence that the Respondents had been sufficiently concerned about patterns of poor provision across the group to conduct a meeting to consider whether action could be taken against the group as a whole rather than against individual homes.  It had been concluded that such action was not possible under the legislation and that the Respondents would have to focus on individual homes and they had done so.  He compared the senior management of Blanchworth Care Homes Ltd to a chef watching several pans at once and rushing around trying to keep the lids on them as they boiled over, an exercise that can only be effective in the short term.
6.18	Mr Francis went on to describe how he was called back from a meeting in London in November 2007, to consider whether an emergency application could be made to close Gloucester Care Centre under Section 20 of the Care Standards Act 2000, in the light of the inspectors’ findings.  Serious consideration had been given to this course of action, but difficulties in arranging placements for the service users at such short notice had tipped the balance in favour of a decision to close the home on notice.  The situation had also been temporarily reprieved by Mrs Sally Roberts’ undertakings to allow support from the Gloucestershire County Council and Primary Care Trust and not to allow new service users into the home.  Mr Francis confirmed in oral evidence that Gloucestershire County Council and the Primary Care Trust had now made arrangements to offer placements to all the service users and were confident that the service users in the SI unit could be relocated together as a group.

6.19	On the basis of the evidence presented, the Respondents expressed their view that the Appellants had shown themselves incapable of making and maintaining improvements and continued to fail to provide a basic level of care, despite the repeated interventions and requirements of the inspectors, and the additional support offered not only by external agencies following the November 2007 inspection but also from the senior management team of Blanchworth Care Homes Ltd.
6.20	It was submitted on behalf of the Respondents that cancellation remained justified and is the only option available to safeguard the service users.  The concerns about medication have been central since 2005 and the nature of the clientele means that they have complex needs with nursing care meaning that they are entirely dependent on the home for the administration of medicine.  Staffing has been an issue since 2006 and last minute staff absence is a regular occurrence at Gloucester Care Centre which is causing significant problems.  Responsibility has now moved to the home manager for resolving short notice absences, but there is no clear system in place to reduce the possibility of dangerously low staffing levels at critical times.  Staff competency is also an issue that has not been proactively addressed and action taken has been reactive rather than proactive.  The Respondents were adamant that there are no conditions that the Tribunal could impose which would service to protect the residents and ensure their safety.
7.	The Appellant’s case
7.1	In both their written representations and their appeal to the Tribunal, the Appellants maintained that the breaches were historical and that new systems and procedures were being implemented in order to ensure that there should be no further breaches of the Regulations.
7.2	Mr Barrie submitted that the Tribunal should not look at the history of the case but should concentrate on the present care provision and conclude that a closure order was not a proportionate response to the current situation.
7.3	Mrs McNee gave evidence about her input at Gloucester Care Centre following her transfer there in July 2008.  She is employed as the Director of Care for the Blanchworth Care Homes Ltd, and has worked in that position for 11 years. She carries out Regulation 26 visits across all of the company’s homes.  From November 2007 until July 2008 she had been delegated to another of the company’s homes in order to assist in putting right areas of concern and had succeeded in raising the standard from “Poor” to “Good” over the course of six months.  In about July 2008, she set up an office in Gloucester Care Centre so that she could be on site to assist the Registered Manager in putting in place the necessary changes to improve the standard of care provided there. She described her involvement at the home and the steps that she had taken in order to help the Registered Manager to overcome the difficulties encountered prior to the issue of the Notice of Proposal.  She produced the Action Plan in response to the Inspection Report of July 2008 and undertook a review of the competency of all the Registered Nurses at the home.  The outcome had been that she had found the competence of one of the nurses to fall well below the expected standard, and the Nurse had agreed to step down from her position to that of a care worker from the 18 July 2008, and had subsequently resigned.  Mrs McNee had undertaken a review of all the home’s care plans and rewritten them so that they were up-to-date and comprehensive, showing a clear link between the assessment of service users and the care plan.
7.4	Following the positive indications in August 2008, Mrs McNee formed the view that the situation had moved forward considerably and she expressed her view that the staffing tool used by the company to identify staffing needs together with the central system for ensuring additional staff at short notice had worked well.  She explained that there had been a change during the last few months so that the Registered Manager now has more autonomy over staffing levels if there is a shortfall.  She outlined possible strategies that could be put in place in order to ensure that Gloucester Care Centre remained open:  she was prepared to submit an application to be registered as a manager herself, with Ms Nkomonde stepping down to become her deputy, or alternatively to remain working from an office within the home to offer the current manager ongoing support for two or three days a week.  She expressed her confidence that in another six months there would be further improvements and that the inspectors had seen unfortunate incidents that were unusual on their inspections rather than the norm, she encountered on a daily basis.
7.5	In relation to the issue of stock control, Mrs McNee gave evidence that she had found in November 2008 that the last dose of a daily medication had been administered to a service user without a new stock having arrived.  She described in positive terms how the staff had explained to her that they had contacted the surgery to obtain a fresh supply on that day. She described new procedures put in place to ensure that stock was ordered in time and confirmed that she had attended training from Pharmacy Plus early in January 2009 which she had also utilised to put better systems in place for medication administration and stock control.
7.6	Ms Nkomonde gave evidence about the changes that she had put in place as a result of the inspectors’ findings.  She indicated her acceptance of responsibility for the situation that had developed in Gloucester Care Centre, where she had been initially a deputy manager and then from 2006, the Registered Manager.  In oral evidence, she suggested that she was prepared to stand down from her post in order to enable someone else to take her place if that would secure the continuation of the provision there.  She had not been present at the home on the date of the inspection in December 2008 and had been disappointed when she heard of the outcome.  She confirmed her view that the situation had improved at Gloucester Care Centre and that there were sufficient staff to respond to the needs of the service users, particularly now that the numbers had reduced with no new admissions since November 2007.
7.7	Mr Ghalamkari of Pharmacy Plus the pharmacy responsible for the printing of the MAR charts and dispensing the residents’ medication, gave evidence that he had been called into Gloucester Care Centre in January 2009 to provide advice and training to staff on medicine administration.  He confirmed that the pharmacy had been servicing the home for at least five years but that this was the first time that they had been requested to go in to provide training and advice.  He confirmed his view that the administration of medicine at less than four hour intervals at a low dose presented a lesser risk than it would have been had it been administered at a full dose.  He also confirmed that to administer medication at less than four hourly intervals in contravention of the BNF guidance would not be competent nursing in terms of that medication.  He expressed the view that in his experience, it was very rare for nurses to note down the time of dosages being administered, and an example of good practice in place at Gloucester Care Centre.  It was, however, definitely not competent nursing in his view if dosages were being administered at less than four hourly intervals on a regular basis, placing elderly residents at an unquantifiable risk of harm.
7.8	Mrs Roberts gave oral evidence about the provision and her view of the standard of care offered there.  She stated that she visited the home about once a month and considered the inspectors’ findings to be harsh.  It was her view that the provision at Gloucester Care Centre was now at least adequate and she considered the closure to be a disproportionate response to the findings of the inspectors.  She produced a list of conditions for consideration by the Tribunal and gave evidence that she was prepared to do whatever was considered necessary by the Tribunal in order to keep Gloucester Care Centre open.  She stated that she considered the staffing tool to be a good measure of the staffing requirements of the home, and confirmed her view that staffing was not a problem.  She did not consider that the inspectors’ concerns about the administration of paracetamol at less than four hourly intervals to be an issue of sufficient concern to warrant the closure of the home.  
7.9	Evidence in support of the Appellants was called from three relatives of service users living at Gloucester Care Centre, with a number of letters included within the Tribunal bundle.  Mr Peter Jackson expressed his view that the home was good and caring and that he did not perceive his mother, who is a service user, to be at any risk there.  He stated that there had been improvements in the last six months, which included the staff being more diligent in letting him know what was going on and inviting him in to discuss his mother’s care plan.  He acknowledged that prior to the summer of 2008, he had concerns about the provision, mainly about the condition of the furnishings and lack of staffing, which meant that very often it would take a very long time to get someone to come and open the door to gain access.  He expressed his concern about a move to a new home, because his mother had been through a similar experience before, although she had recovered quite quickly, once she had moved to Gloucester Care Centre.
7.10	Mrs M G Tiley gave evidence that she was very happy with her mother’s placement which started about two years ago.  She praised the care offered by the staff and described her mother’s contentment at the home.
7.11	Mrs Vials gave evidence about the care offered to her mother-in–law.  She and her husband visit three times a week and she also works as a dementia support worker.  She praised the personal care offered by the staff and the humour and respect that they show the service users as individuals.  She acknowledged that there were shortcomings and that she has been keeping on to staff and to Mrs Roberts about the lack of resources.  Despite this she felt that the staff appreciated input from the service users’ families and she considered that she was now more involved in care planning than previously.  She expressed her real concerns about the unavailability of alternative placements and the difficulties that she had encountered when looking for another placement during the summer of 2008.  She felt that other agencies were not making appropriate provision and that the care sector lacked the places to accommodate the residents if Gloucester Care Centre was closed. 
8	Reasons for decision
8.1	We considered all the evidence presented, both orally and in the documentation presented to the Tribunal.  It is not necessary to make findings of fact in respect of the breaches admitted, and we find on the basis of the evidence that the allegation that service users were sleeping in the dining room is upheld, having been observed by Mrs Patrick, and is a breach of Regulation 18, as it is indicative of there being insufficient or inadequate staff leading to a lack of stimulation and activities for the service users.  In relation to the factual dispute about the administration time of medication, we find that the document presented to the Tribunal by the Appellants indicates that the time recorded for administration was 9.30 and 10 and not 10 and 10.30 as recorded by Mr Jones in his notes.  
8.2	The test to be applied by the Tribunal in cancellation cases is in three parts: whether cancellation was justified at the time of the Notice; if so, whether the cancellation is still justified taking into account the current state of compliance and the likelihood of future breaches and whether cancellation is proportionate, taking into account the likely effect on service users and others.
8.3	We considered the evidence first of all in support of the allegations upheld in the Notice of Cancellation.  We then, considered the seriousness of the allegations overall, to decide whether the allegations which were found proved, justified the cancellation of the Appellant’s registration.
8.4	We do not consider that it would be appropriate simply to dismiss the past history of the case as historical.  In order to reach a balanced view about the prospect of improvements in the future, then we consider that it is right for the Tribunal to look at the track record at the home for making and maintaining improvements, in response to the matters drawn to their attention by the inspectors.  We also took into consideration the number of times that the management had indicated that changes had been put in place or would be put in place in response to the inspectors’ expressed concerns.
8.5	In our view, the breaches relied on in the cancellation notice were all of significant seriousness.  The major concerns were the administration and management of medicines, the inability to obtain appropriate healthcare and staffing.  The administration of medicine is a major issue, particularly in a home where nursing care is provided to the service users. There will always be a need for appropriate systems to ensure the safe administration of drugs and to ensure that stocks are maintained.  A failure to do so immediately places the service user at risk of harm.  Similarly, the securing of appropriate healthcare and the identification of need in an extremely vulnerable sector, where service users may not be able to express their distress or pain very clearly, goes to the root of ensuring the welfare of those users.  It is our view that ensuring the welfare of the service users by recognising, for instance, the importance of preventing pressure sores and tending wounds, amount to basic nursing care, and the failure to make that provision is a fundamental flaw in the provision of the service.   Issues surrounding the question of appropriate staffing levels and the competence of staff are also fundamental to the provision of the service.    All of these identified issues were of sufficient seriousness to place very vulnerable adults at risk of harm, and in our view, to have caused harm, albeit unquantifiable harm. The length of time over which failings had been found was also significant, in that there had been requirements issued since 2005, there had been a “poor” rating since 2006 and no clear improvement in the quality of the provision at the inspection in 2007. These two conclusions led the Tribunal to the conclusion that the breaches did merit the cancellation notice being issued in respect of them.
8.6	We then considered whether the continuing breaches since November 2007 were sufficiently serious to warrant closure.  We identified additional concerns from the evidence presented about the Appellants’ inability to take on board the seriousness of the situation, as indicated by Mrs Roberts’ attempts to play down the importance of correct medication administration.  Mrs Roberts sought to persuade the Tribunal that the administration of Paracetamol at less than four hour intervals was of little consequence, with minimal risk to the residents.  Not even her own evidence from the service users GPs stated that there was “no risk”.  We take the view that to try to diminish the relevance of this finding by the inspectors reflects a lack of insight into the importance of detailed and structured systems to cover the safe administration of all medicine, including Paracetamol, particularly in a home where there had potentially, been two crimes committed through poor drug administration systems.  We preferred the evidence of the pharmacy inspectors, as supported by the Appellants’ own witness Mr Ghalamkari, that the regular administration of medicines containing Paracetamol at less than four hourly intervals and contrary to the BNF guidance does present a risk of harm that is unquantifiable.  It is at the same time an indication of the sloppy practices in relation to medication, which is a potential risk to the service users.  What underlines the inability of the Registered Provider to address the situation is that this issue had been raised by Mr David Jones on numerous inspections, as advice, recommendations and requirements, yet nothing had changed.  
8.7	Similarly, stock control is a major issue and should have been addressed as a matter of urgency following the inspection in November 2007.  Despite the recommendations, the requirements and advice provided in this area, there were significant discrepancies, and the fact that in December 2008, the home had once again found itself in a position where it had administered the final dose of a daily medication to a service user without obtaining the following day’s supply is indicative of a serious problem.  We were not reassured by the evidence from Mrs McNee, as she was, that the nurses had been able to put right the situation with a late prescription on that day.  It was, in our view, another example of “firefighting”, with the service users’ welfare, once again, in jeopardy.  Furthermore, we heard evidence from Mr Ghalamkari that Pharmacy Plus have been the home’s pharmacists for the last 5 years, and have been offering training throughout that period but were only called into the home in January 2009: a clear indication of a very belated reactive response to the problems, rather than a proactive one.
8.8	There were several examples of the Appellants’ reactive rather than proactive responses to the issues identified by inspectors at Gloucester Care Centre: staff shifts were changed only after the November 2007 inspection; nurses’ competence was appraised by senior management only after issues were raised in the May 2008 inspection; Mrs McNee was moved into the home to work from July 2008 after the unsatisfactory inspection in May 2008 and Pharmacy Plus were called in to deliver training only in January 2009.  Finally, a list of possible conditions were produced at the hearing with an indication that the Appellants would do that which was required by the Tribunal in order for the home to remain open.  Reacting to issues once they are drawn to the management’s attention is not an effective way of running a home nor does it ensure that any necessary changes are put in place and maintained.  The failure to manage proactively, identifying potential issues and addressing them before they become a problem is part of the care, competence and skill required to meet the requirements of Regulation 10 and the other breaches of Regulations identified by the inspection reports are the outcome of that failure.  
8.9	Mrs Roberts’ evidence confirmed very clearly that she did not accept the views of the inspectors that the home did not have appropriate staffing levels or an appropriate system for addressing emergency staff shortfalls.  She stood by the staffing tool that she used, confirming her own perception that Gloucester Care Centre was staffed over and above the level necessary to meet the needs of the service users, despite the findings of the inspectors.  In our view, this is a serious difficulty that underlines Mrs Roberts’s inability to address the problems arising in Gloucester Care Centre at an appropriate level: she believes that the staffing level is adequate and that there is no problem with the arrangements for calling in emergency cover when a member of staff is unexpectedly absent from work.  Yet on every unannounced visit by the inspectors between November 2007 and December 2008, the home was understaffed and unable to carry out its normal duties because of a shortage of staff.  The Registered Manager herself told inspectors that she felt the staffing ratio was too low.  Yet, Mrs Roberts evidence was that this was the exception rather than the rule.  For the same problem to occur by coincidence on four separate occasions when the inspectors have been present suggests that it is rather more than an exceptional problem.  Although it was submitted on her behalf that the issue was the deployment of staff rather than their numbers, she did not draw our attention to any evidence that she had been proactive in seeking to improve the staff deployment within the home to address the difficulties as she perceived them. 
8.10	Mrs Roberts’s inability to grasp the seriousness of the inspectors concerns both in relation to the administration of medication and staffing levels and competency, indicate a lack of insight into the needs of the particularly vulnerable client group for whom she claims to be able to make suitable provision in the future.  The document she produced from the inspection reports across the group underlined the impression that the resources are overstretched and that the senior management of the group of homes have been unable to put in place changes at Gloucester Care Centre which have led to a sustained improvements in the quality of the service.
8.11	The Tribunal heard evidence from Mr Francis that CSCI had held a meeting to consider the results of inspections across all of the homes in the Blanchworth group and this meeting had concluded that there was a pattern of similar concerns in other homes in the group.  This raised a question about the capacity of the group’s management to maintain standards in homes across the group and about the methods it used to deal with daily management problems.  The Appellants had submitted late evidence showing CSCI ratings for all their homes covering assessment in the area of Management and Administration.  Analysis of these figures revealed that at no time from February 2006 to May 2008 had the Gloucester Care Centre scored an average of 3 or more (3= ‘meeting the Standard’) in this area and on all occasions its average score fell well short of this.   The Tribunal were not convinced on the evidence of Mrs Roberts and Mrs McNee that it could be safely assumed that their promises of effective management action would bear fruit and be sustained when their own evidence above demonstrated consistent poor performance in this area - in spite of their efforts to improve matters. Mrs Roberts, in particular, was unable to offer any explanation for CSCI’s frequent discovery of staff shortages, nor did she appear to accept that these had contributed to the poor care the inspectors found. In her view, the problem lay in the way staff was deployed, not in numbers alone. Whatever the truth of this view, we were clear on the evidence presented, that aspects of the care in the home had fallen seriously short over a long period of time and for this her overall management must be held accountable. 
8.12	Is it therefore, proportionate to consider closing Gloucester Care Centre now?  In his submissions, Mr Barrie sought to deflect the attention of the Tribunal from the past history at the home and to focus on the future prospects.  To conduct an effective balancing exercise, we conclude that we must look at the past history, and the changes made, in order to identify the prospects of real, sustained improvements in the future.  Although Mr Barrie sought to persuade us that how long it takes to make changes is not a relevant consideration, we bear in mind that the home in question is the home of the service users every day throughout that period.  The length of time taken to make sustained changes for the better is relevant to our conclusions to the extent that every day that service users must put up with less than adequate standards of care is a day too long.
8.13	We consider that it is relevant to look at the efforts made by the provider at a time when the home has been under intense scrutiny by the Respondent and subject to micro management and intensive additional support to try to assist them to put their house in order.  What we have found is that despite that intense scrutiny, micro management and additional input from both Blanchworth Care Homes Limited’s senior management and external agencies, they have been unable to make a significant and sustained improvement.
8.14	The Appellants sought to persuade the panel that no real harm or risk of harm had been identified.  We did not accept this submission and would look to the evidence of pressure sores, the risk of long term damage from regular maladministration of drugs, pain through no analgesia, and the effects of the disruption to the dose of antipsychotic drugs and unavailability over lengthy periods of prescription drugs for patients.  All of these are examples of both risk of harm and actual harm to the vulnerable adults in their care.  The risk of future harm is, in our view, a very real risk, given the inability of the Registered Provider to address the shortfalls and very specific requirements set out by the inspectors.
8.15	We heard clear evidence from three of the service users’ relatives about their concerns in the event that the home should close.  We are aware of the dangers of moving confused and demented elderly service users from their home, but did not hear specific expert evidence in this case on the potential effect on the particular client group.  We were informed by Mr Francis that the service users living in the SI Unit could be moved together as a group and that Gloucestershire County Council were identifying placements for the other service users.  On balance we have concluded that the risk of their remaining in a poor care environment, given the seriousness of the allegations and the inability of the Appellants to address the problems, is significantly greater than the risk of transferring them to alternative accommodation. 
8.16	An appeal to the Tribunal is a re-hearing; we conduct a merits appeal, after hearing all the evidence and, by section 21 of the Act, we have a range of decision-making powers, which include confirming the cancellation, directing that it shall not have effect, varying any condition in force in respect of the establishment or directing that it shall cease to have effect, or directing the imposition of a new condition as we think fit.  We have considered all of the conditions identified by Mrs Roberts as possible solutions to the difficulties at Gloucester Care Centre.  Whilst she, as Registered Provider, could have put in place any of the conditions suggested at any time during the last 18 months to ascertain whether they would make a real difference to the situation but she did not choose to do so.  We could not identify any condition to impose, either from her suggestions or going beyond that list, which we were confident could do more than the statutory scheme already in place to protect vulnerable service users.  The obligation on the Registered Providers is clear from the legislation and the Regulations.  If the Registered Providers do not choose to accept the findings of the regulatory body, and to deal effectively with the problems identified under threat of closure, then the imposition of a condition seeking to do the same job is, in our view, unlikely to be effective.
8.17	If we were to allow the home to remain open, then we have no confidence and no evidence to instil in us any confidence, that the attempts to improve the standard of provision will continue, particularly if the Respondents were to reduce their input into the home.  If the Registered Provider is unable to respond with some urgency and sense of purpose to the ultimate threat of closure, then we are left in no doubt that the efforts to sustain improvements will not continue if that threat were removed. 
8.18	We have concluded therefore that Mr Barrie’s threshold of closure being the last resort, relevant only when it is really necessary to protect the residents from serious risks of harm, is met.  The object of the legislation is to ensure the protection of vulnerable people in care.  In an emergency, where there is a serious risk to life, health or well-being, the Commission can secure immediate cancellation by application to a magistrate under section 20 of the Act. They were at that position in November 2007 in respect of Gloucester Care Centre and decided instead to pursue cancellation on notice.   This has provided the Appellants with every opportunity to correct the shortfalls and to put in place effective systems, but they have failed to do so.  The fact that the Respondents provided them with an extra three months stay of the proceedings in the hope that they would show sustained improvements is an indication of their reasonableness in this case.  We conclude that actual risk of harm still remains to the service users if Gloucester Care Centre is allowed to remain open.  
8.19	It is the decision of the Tribunal that the appeal is dismissed.
Dated the 14th February 2009.

Meleri Tudur, Tribunal Judge
James Churchill
Helen Hyland