Gertrude Masabo
Appellant

v

Secretary of State for Health
Respondent

[2010]1737.PVA/1738.PC

Before:-

Ms Melanie Lewis  (Tribunal Judge)
Mr David Braybrook
Ms Linda Redford

Heard at Leeds SSCSA on 6, 7 and 8 December 2011.  

The Appellant, Mrs Gertrude Masabo, was represented by Ms Penny Maudsley counsel, instructed by Davies Gore Lomax, solicitors, accompanied by Ms Hamblin on behalf of the solicitors. She was supported by her friend Mrs. R. Chabu. 
 
The  Respondent was represented by Ms. Samantha Broadfoot , counsel instructed by the Treasury Solicitor represented the Secretary of State accompanied by. Mr. Andrew Dakoutros, pupil barrister.

Appeal

1.	Gertrude Masabo (“the Applicant”) appeals under section 86 of the Care Standards Act 2000 (“CSA 2000”) against her inclusion in the list of persons considered unsuitable to work with vulnerable adults kept by the Secretary of State pursuant to s81 of the CSA 2000 and against inclusion on the list of those unsuitable to work with children kept by the Secretary of State for Children, Schools and Families under the provisions of Section 1 of the Protection of Children Act 1999 (“PCA 1999”) The effect of the inclusion on the PoCA list was that she would not be able to carry out work to which s 142 of the Education Act 2002 applies and her name was also added to the Education Act list, commonly known as “List 99”.

The Law

2.	The appeal is made against two decisions taken by the Secretaries of State in their letter to the Appellant dated 28 September 2009, namely:

(1)	the decision by the Secretary of State for Health to confirm the Appellant’s inclusion on the Protection of Vulnerable Adults List (“the PoVA List”);
(2)	the decision of the Secretary of State for Children Schools and Families to confirm the Appellant’s inclusion on the Protection of Children Act List (“the PoCA List”).

3.	The letter also notified the Appellant that the effect of inclusion on the PoCA List was that she would not be able to carry out work to which s. 142 of the Education Act 2002 applies and her name was also added to List 99. Section 81(1) of the Care Standards Act 2000 (“CSA 2000”), which was in force when the letter was issued, required the First Respondent to keep a list of individuals who are considered unsuitable to work with vulnerable adults. No one could be placed on that list except in accordance with Part VII of the CSA 2000. 

4.	Section 82(2) of the CSA 2000 requires those providing care to vulnerable adults to refer individuals to the First Respondent if, inter alia, the provider had dismissed the worker on grounds of misconduct “which harmed or placed at risk of harm a vulnerable adult”.

5.	The Respondent, having considered the information submitted with the reference and any observations or information submitted to him which he considered relevant [s. 82(6)], was obliged to confirm a worker’s inclusion on the PoVA list if he was of the opinion [s. 82(7)]:

“(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and
(b) that the worker is unsuitable to work with vulnerable adults.”

6.	Similarly, when the letter was issued, the Secretary of State for Children Schools and Families was obliged to keep a list of individuals who are considered unsuitable to work with children, pursuant to s. 1(1) of the Protection of Children Act 1999 (“PoCA 1999”). Where an individual was put on the PoVA list, he/she could also be listed on the PoCA list under s. 2C of the PoCA 1999.

7.	Once an individual was confirmed on the PoCA list, then by virtue of Regulation 8 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, he/she was also entered onto a list of those not entitled to carry out work to which s. 142 of the Education Act 2002 applies (i.e. related to the provision of education). 

8.	On 12 October 2009, the relevant provisions of the CSA 2000 and the PoCA 1999 were repealed to allow for the introduction of the new barring regime under the Safeguarding Vulnerable Groups Act 2006. However, savings and transitional provisions as set out in the Safeguarding Vulnerable Groups Act 2006 (Commencement No. 6, Transitional Provisions and Savings) Order 2009 (S.I. 2009/2611) mean that the Appellant still has available to her the mechanism under the CSA 2000 and the PoCA 1999 for appealing against the PoVA and PoCA listings respectively. 

9.	By virtue of these provisions, the Appellant may still appeal against a PoVA listing under s. 86(3) of the CSA 2000, which states:

“If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely:

(a)	that 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, the Tribunal shall allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list.”

10.	An appeal may also still be brought against a PoCA listing under s. 4(3) of the PoCA 1999, which is in similar terms to s. 86(3) of the CSA 2000 save that unsuitability to work with vulnerable adults is replaced with unsuitability to work with children.

11.	The burden of proof regarding misconduct is on the Respondent. Once misconduct is shown, the burden of proof is on the Appellant to show that she is not unsuitable: Sini Joyce [2009] UKFPT 4 (HESC), paragraphs 51 and 59. A similar test applies to the Appellant’s inclusion on the PoCA List, save for the fact that the word ‘child’ should be read for ‘vulnerable adult’ and the appeal lies under Section 4 (3) of the Protection of Children Act 1999. The standard of proof is a balance of probabilities that is defined in Re: H [1996] AC563 and refined in Re: B Children [2009] 1AC11.

“Misconduct”

12.	In Angella Mairs [2004] 269 PC, a case dealing primarily with an appeal against a PoCA listing, the Tribunal set out a number of principles on what constitutes “misconduct”, including [para 109]:
(1) “Misconduct is not defined in the [PoCA 1999] nor is the term qualified by any adjective such as ‘serious’ or ‘gross’.” 
(2)	 “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, 4 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”.
(3)	“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 standard of conduct expected from members of that profession (Doughty v. General Dental Council [1987] 3 All E.R. 843)”.
(4)	“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 being, for example, dishonest or disgraceful.”

“Harm/risk of harm”
13.		By virtue of s. 121 of the CSA 2000, “harm” means “ill-treatment or the impairment 	of health”.

“Unsuitability”
14.		Not all those found guilty of misconduct will be held to be unsuitable to work with adults or children. As the Tribunal made clear in Angella Mairs, each case must be looked at on its own facts and in context, and the judgment as to unsuitability will involve [para 111]:

“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 performances, 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.”

15.	In making this assessment, the Tribunal, whilst not intending to provide an exhaustive list, held that the following factors may be relevant [para 111]:

“(a) the number of incidents constituting the misconduct established;
 (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 potential to harm;
 (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.”

16.	Moreover, unsuitability must be judged by the Tribunal at the date of the hearing [para 111]

The Evidence: 
 
17.	In determining this appeal we had regard to the two bundles of evidence, including the Grounds of Appeal and Response.   We were assisted by both Counsel, who helpfully prepared written closing submissions.   Ms Maudsley confirmed that she was not pursuing any argument that the decisions were unlawful on Human Rights grounds. 

18.	 We were hearing this appeal four and a half years after the incident in question and much of the evidence was in written form.  On behalf of the Respondent we heard from Mr Linvall Hermitt the Acting Safeguarding Practice manager for North West Ambulance Service NHS Trust. We listened to the audio recording of the Appellant making the 999 call, when she failed to state that she was a registered nurse in charge and when she followed the instructions of the operator to carry out cardiopulmonary resuscitation (CPR).  She did not say that she had already tried CPR, which is a key issue in the case.  We also heard evidence from Mrs Wendy Wood who was the manager of Oaklands Nursing Home in 2006. She is now employed by Southern Cross Healthcare as a Service Quality Advisor.   The four care assistants who had been on duty had given witness statements to the police at the time and had been called as witnesses at the inquest. We read those documents.

19.     The Appellant has given a number of accounts about the key incidents over the years, which it will be necessary to examine in some depth.  She adopted her statement prepared for this appeal. She was cross examined at some length by Ms Broadfoot, albeit with a  break for lunch. We additionally heard short evidence from a character witness, Mrs Godfredah Bapanda, who trained with the Appellant in Zambia. They both came to the United Kingdom in 2003, but have not worked together here.    We also heard oral evidence from Ms Sheilah Rengert, Independent Nurse Adviser who adopted her report dated 3 November 2010, but modified her position in the light of certain factual issues. 

Grounds of Appeal and Response:  

20.	This appeal arises from an incident during the evening, night and early morning of 9 and 10 July 2006 when the Appellant was the registered nurse on duty at Oaklands, a dual registered nursing and care home.   A critically ill patient, Mrs Ann Stokes, aged 65, died. The case arises as it is alleged that the Appellant’s response was grossly negligent and not that which could reasonably be expected from an experienced nurse. 

21.	The Appellant’s case was in summary that she had 30 years unblemished record as a nurse, but at the time in question had been placed as in an invidious position. Her case relied on organisational failures by her employer and insufficient experienced staff being available to support her. She had not had a sufficient hand over from the day nurse when she came on shift.  She should not have had to have overall charge when there were 42 residents, two of whom were critically ill.  She was not familiar with the set up in the home and had had difficulty summonsing a Care Assistant when she needed help. She was not clear about what to do in an emergency and had had no updated induction training on key issues for Oaklands.  She had not been adequately briefed on the emergency procedures and when she called the GP, rather than placing an immediate 999 call, it was what she believed was required of her by her employer.   She had not known how to get an outside line.  The Appellant had been referred for investigation by her professional body, the Nursing & Midwifery Council (NMC), and investigations are ongoing.  A one off error of judgement did not equate with all–round incompetence as a registered nurse nor did it warrant being completely barred form working with vulnerable people. 

22.	The Respondent’s case relied upon the conclusions of Ms Sheelagh Ward and the reasons for dismissal. The reasons for dismissal were:

(a)	Failure to take appropriate action following significant deterioration in a service user’s condition and that she had delayed calling the emergency services by some thirty minutes;
(b)	Failure to administer CPR when appropriate;
(c)	Failure to make arrangements to allow the paramedics to access the building resulting in an eight minute delay to treatment; and
(d)	Failure to complete the service user’s records. 

The failures identified were so serious and demonstrated such lack of judgement that they themselves made the Appellant unsuitable for work with vulnerable adults or children in the future. Further and in addition, the Appellant attempted to shift some of the blame for her shortcomings onto the Care Assistant colleagues. Any organisational failings, could not remove the need for the Appellant’s conduct to be assessed in the context of the fact that she is a registered nurse and on her own account very experienced.  During the hearing Ms Broadfoot examined the inconsistent accounts given the by Appellant, which she ultimately submitted showed at least a lack of insight and at worst dishonesty.  

The Background facts not in dispute:  

23.	The Appellant is from Zambia where she qualified as a nurse and midwife. She has 5 children and was in continuous employment from 1979, when she qualified. Between 1999 and 2002 she was the Sister in charge of what her CV describes as a busy medical ward at Luanshya Hospital, caring for patients with cardiac, renal and diabetic conditions.

24.	In 2003, following the death of her husband, the Appellant came to the United Kingdom on a work visa, to work as a nurse.  Between 2003 and 2004 she undertook an adaptation course. In 2004 she commenced work as a registered general nurse at the Hope Hospital in Manchester, working on the spinal unit.  However she was only working 20 hours per week so applied to Arden Court Care Home as a bank nurse. It was run by  Ashbourne  Healthcare, part of the Southern Cross Healthcare Group. 

25.	On 24 September 2004 the Appellant commenced work as a bank nurse.  By the time that she commenced this extra work was working 37.5 hours per week in her main employment at Hope Hospital.  On 2 February 2005 she underwent a full Southern Cross induction training.  This did not include Cardiopulmonary Resuscitation (CPR), but the Appellant updated her training in March 2006 and learnt about the new Guidelines from the European Resuscitation Council which recommended 30  compressions followed by two breaths rather than the previously accepted 2 breaths followed by 15 compressions.  It was both a practical and theoretical course.  The Appellant usually worked four to five night shifts per month, based at Arden Court, but sometimes eight to nine night shifts per month

26.	 The late Mrs Ann Stokes became a resident at Oaklands in 2005.  The home had a dual registration as both a nursing home and a care home. She had a long history of medical problems and was in a weakened and dehydrated state. On 11 June Mrs Stokes was admitted to hospital. On 3 July she was discharged back to Oaklands with a naso-gastric feed in situ. The Appellant was aware that the tube position needed to be observed on a half hourly basis, by checking the litmus paper. She had not seen the ‘risk assessment’ prepared by the staff nurse following discharge but the observation can be seen recorded by other staff in the nursing Kardex.. 

27.	On 9 July 2006 the Appellant was on duty as the nurse in charge at Oaklands Nursing Home. She had worked a night shift there once before, about ten days previously when Mrs Stokes had been in hospital.  She was the only qualified nurse, so the person in charge, for forty-two residents, assisted by four Care Assistants.  She thought that she had worked with just one of them before. It was accepted that on that evening there was no Senior Care Assistant on duty upstairs, who would have been able to assist with the administration of medication (drugs round) relieving the workload for the Appellant  downstairs.  

28.	The post Mortem report records that Mrs Ann Stokes died 5.30 am on 10 July 2006. 

29.	The daily information record (daily record) records that at 05.00 hours on 10 July ‘Ann felt floppy and weak while changing her BO (bowels open).’

A further entry at 05.35 hours stated ‘Went to check Annie. Found she was not breathing, pulse was very faint. Called GP surgery. Advised to call 999.’

A further entry at 06.10 hours states ‘Ambulance crew 999 came while I was getting instructions on the phone from 999. Call crew attended to Ann. No vital signs present, GP and next of kin informed.’

These entries were not made by the Appellant until about 7am on 10 July 2010. The ambulance record shows that it arrived at 06.08 am but the crew could not gain entry until 06.17 am. 

30.	A key report was prepared by Ms Sheelagh Ward, Independent Nursing Consultant, at the request of the police on 9 June 2007. She concluded that the Appellant was in breach of her duty of care as it relates to the Code of Professional Conduct NMC 2002 by:-

(1)  	Failing to make a 999 call immediately following Mrs Stokes’ deterioration at 		05.00 hours on 10 July 2006;
(2)  	Leaving Mrs Stokes alone between 05.00 hours and 05.35 hours;
(3)    	 Failing to commence First Aid by giving cardiopulmonary resuscitation 			(CPR) at 05.35 hours or placing Mrs Stokes in the recovery position prior to 		cessation of breathing;
	(4)	Failing to call for assistance in the home or instructing a Care Assistant to 			call 999 at 05.35 hours;
	(5)       	Failure to ensure the ambulance crew had easy access to the home;
	(6)     	Failure to ensure that Mrs Stokes was observed at half hourly intervals 			throughout the night;
	(7)         Failure to ensure that Mrs Stokes’ resuscitation status was completed in 			the records prior to the commencement of the shift;
(8)        Failure to check the BM following Mrs Stokes’ deterioration at 05.00 hours. 
	(9)  	Failure to complete Ms. Stokes’ records accurately

Accordingly, she concluded that the Appellant’s actions were grossly negligent and below the normal standards of practice expected of any reasonable practitioner in 2006. 

31.	Additionally, Ms Ward concluded that Southern Cross/Ashbourne Healthcare should have provided written instructions of what to do in a medical emergency. Whilst there is no issue that Mrs Stokes was in a very weak state at the time of her death, there was no evidence of a ‘Do Not Resuscitate’ (DNR) notice in her nursing records. Ms Ward concluded that there was a failure to ensure that the resuscitation status was completed on Mrs Stokes’ nursing record.  The issue of CPR training needed to be clarified. In her oral evidence Wendy Wood said that these issues were addressed following this incident.  Mrs Rengert was critical of the lack of continuing risk assessment and poor records. The unannounced inspection by the Commission for Social Care Inspection (CSCI) in March 2006 also highlighted the need to improve care plans but the unannounced inspection in September 2006 acknowledged that the home had worked hard to improve care plans.  Further they had made sure that there were clear instructions on the telephone to dial ‘9’ for an outside line. 

32.	On 17 September 2007 the police confirmed that no further action was being taken to prosecute the case. With her previous legal advisors the Appellant had attended for a detailed police interview on 31 August 2006 but had made ‘no comment’ throughout. 

33. 	On 9 and 10 March 2009 the Coroner conducted an inquest into the death of Mrs Stokes. The Appellant attended and was represented by Counsel as was Southern Cross Healthcare. The Coroner heard evidence from the deceased’s son, the Appellant’s GP, the Consultant who had cared for Mrs Stokes during her last hospital admission, the Pathologist and the four Care Assistants who had been on duty that night. She additionally heard evidence from Mrs Ward. 

34.      The Coroner made the following narrative findings of fact. 

(a)	The Coroner accepted the evidence of the Pathologist that the medical cause of death was cardiac ischaemia.

(b)	The Coroner accepted the evidence of Sheelagh Ward that the nurse in charge should be aware of resuscitation status for each patient. No such decision was taken for Mrs Stokes so resuscitation was the correct procedure. However, on the balance of probabilities the Coroner was not satisfied that resuscitation would have had an effect. 

(c)	The Coroner was not satisfied that the Appellant had attempted CPR. 

(d)	The Coroner reasoned on the balance of probabilities that she was not satisfied that adequate resuscitation and avoiding a delay in contacting the emergency services would not have affected the outcome. However that was not the same as saying that appropriate action would have avoided the outcome. 

35.	On 20 May 2009 the Appellant’s employers held a disciplinary meeting. She did not attend, because she believed they would be bound to adopt the Coroner’s reasoning.  Also she was very stressed by the situation.  On 26 May 2009 the Appellant was dismissed for gross misconduct.

36.	On 16 July 2009 the Independent Safeguarding Authority sought the Appellant’s response which was that she was seeking the matter of her provisional listing determined by the Tribunal. On 28 September 2009 the Appellant was confirmed on both the PoVA and the PoCA lists. 

Evidence in Dispute

37.	Rather than recording individual pieces of evidence, we find that it more logical to look at the chronology of events. This is because the Appellant’s evidence has evolved over time. It is the Respondent’s case that this is in response to her realising what she should or could have done better or in reaction to what was expected of her as an experienced registered nurse. 

38.	When the Appellant made a 999 call at 06.03 am she did not say she was a registered nurse. She did not say that she had tried CPR. The recording shows that there were two points, on the instructions of the operator, when she walked away from the phone, once to follow the instruction to check if the patient’s airways were free and on the second occasion to attempt CPR. The ambulance was despatched at 06.04 am, arrived at the scene at 06.09 am but could not gain admission until 06.17 am. 

39.	The Appellant gave a witness statement to the police on 10 July 2006. She said the patient had been discharged from hospital two weeks previously. At 04.30am she had checked her and she was ‘ok and asleep’ as she had been at 05.00 hours. She had checked her at 05.35 hours and her breathing was ‘very shallow’. The pulse was weak and then she could not find it. She did not say that she had attempted CPR. In her tape recorded interview with the police on 31 August 2006 she was asked a number of questions about CPR as well as other matters. She declined to answer all questions. 

40.	The Appellant underwent an investigation interview with Wendy Woods on 20 September 2007. We read a transcript of the questions and answers which were not challenged in cross-examination. She was specifically asked whether she had had an adequate report about Mrs Stokes and she said ‘No’.  She said that she had checked Mrs. Stokes at 2am and then changed her between 03.00-03.30 pm with a Care Assistant. She was somewhat confused as to whether she had called the GP or dialled 999 first, although she had recorded in the daily information that she had called the GP first. When the thirty minute delay in calling the ambulance was put to her, she suggested that the 05.35 am log must be wrong. She was specifically asked whether she had tried to resuscitate the patient. She responded ‘I called Sarah (care assistant). Disconnected naso-gastric tube from feed and tried to do compressions but the bed was too soft and too high. I then left Ann and went to the phone.’ She said she hadn’t sent Sarah to phone 999 as she couldn’t find her. She was aware of the emergency treatment procedures, in particular that she could not give oxygen unless it was prescribed. When asked why she hadn’t taken action at 05.35 am when Sarah Murray had called her to look at Mrs Stokes and she documented that she was ‘floppy and weak’ she said that the Care Assistant told her that she had been the same since she came back from hospital.  She checked her pulse through the night and she had started chest compressions. 

41.	The Appellant’s statement for the Coroner’s court is undated and unsigned but the covering letter dated 2 May 2008 from her solicitors confirmed that she had approved it. Attached to it were the Daily Information record sheets showing that the patient had been ‘floppy’. No observation charts, BM (sugar) or BP (blood pressure) had been measured and recorded by the day shift staff. She knew the patient had a NG tube and therefore needed checking every thirty minutes but there were no observation charts running from the day shift. Further attached was the care plan (Daily Information Record) where she had made the entry: ‘4.30 am 10 July 2006 – night shift: appeared to have slept well. NG tube on flow. No vomiting observed. Assisted with all personal hygiene’. 

42.	For the first time the Appellant gave details of the CPR she said that she had attempted. She moved the NG tube to one side. Having checked her mouth was clear of vomit and ensuring the air way was clear she gave mouth to mouth once. She then carried out approximately 25 – 30 compressions. She became tired. The bed was too soft for effective CPR. There was no one to help her move the patient down to the floor. She thought she had already passed away. 

43.	In oral evidence the Appellant said something different. She said that she had attempted to carry out the thirty compressions first and then gave two blows of mouth to mouth, in accordance with the Guidelines from the European Resuscitation Council, on which she had been trained in March that year. In both this statement and her oral evidence she said her first instinct and an automatic response as a nurse was to try and resuscitate, even though she didn’t know the patient’s resuscitation status.

44.	This statement suggests that she telephoned the GP because she believed the patient was dead at that point. She couldn’t find any ‘DNR’  notice when she checked at this point. She had told Mrs Wood that Mrs Stokes had already died by the time that the Doctor came.  

45.	A key issue in this case is why the Appellant didn’t tell the ambulance operator she had tried CPR. In her statement to the coroner the Appellant accepts that she failed to explain herself clearly. She was on the phone and she could hear the door buzzer and presumed one of the care assistants would go to answer the door. 

46.	In her most recent witness statement dated 16 October 2010, the Appellant again emphasised that the hand- over was rushed. She would have expected it to take thirty minutes, not ten minutes.  It was she who read whiteboard and drew attention to the fact that Mrs Stokes had a nastro-gastric tube. The hand over nurse didn’t tell her about any of the other care aspects of the patients or her condition generally, only that it was the second time she had been discharged from hospital. There was no care plan. With hindsight the Appellant appreciated that she should have made sure that the hand -over was sufficiently thorough. The Appellant acknowledged that in the absence of any senior care assistant she had full responsibility for the patients. She was aware that half hourly checks were required on the NG tube. She personally checked Mrs Stokes at 4 am and 4.30 am with her care assistant. There were no notes of this. 

47.	The care assistant, Sarah, called the Appellant to look at Mrs Stokes at 05.30 am. The Appellant did not specifically query why. She observed that the patient’s breathing was shallow. The pulse was weak. It then faded. She said she eventually got the care assistant’s attention, although it transpired in oral evidence that there was a system of buzzers, which could be pressed from each room and the Appellant told us she didn’t know why she didn’t use the buzzer to summons help. In her statement she described that she eventually got the attention of a care assistant to help her use the phone but in oral evidence she said she had worked out how to use the phone herself. 

48.	There was an issue as to why the ambulance crew were delayed gaining evidence. In her statement the Appellant blamed the care assistants, stating they were upstairs and knew what had happened. However, she did not suggest that she had instructed one of them to stay by the door, to let the crew in.

49.	In her statement the Appellant acknowledges that she should have stayed away from work that day as she felt low and unwell, having recently lost her husband and was still grieving. In oral evidence it transpired that he had died in 2003 but that she had learnt in July 2006 that her home in Zambia had been burnt down in March 2006. 

Conclusion and Reasons

50.	In determining this appeal we have had regard to all the evidence written, audio  and oral. If we do not specifically refer to it, it does not mean that we have not considered it. We have kept in mind at all times that this was only the second occasion that the Appellant had worked at this nursing home, that she was the only registered nurse on duty and that she was without a senior care assistant. This case has highlighted a number of organisational issues, in particular for the Appellant’s employer  to make clear emergency procedures, ‘DNR’ protocols on each patient’s file, accessible detailed care plans, which the Respondent has subsequently attended to. The need to dial ‘9’ for an outside line is now clearly marked. 

51.	We have further borne in mind that Mrs Rengert, in her written report highlighted some of these failings.   However we cannot accept that the Appellant’s response was the result of organisational failings. Her initial assessment of the Appellant’s responses was based on incorrect facts and an acceptance that what the Appellant said was correct. She had wrongly assumed that the Appellant had previously worked a day shift at Oakland. She was not aware of a buzzer system. She attended only on the third day and had not heard all of the Appellant’s oral evidence. As we will record, she modified some of her answers when cross-examined. 

52.	Overall, the view we have taken of the Appellant’s evidence is that she has failed to give a consistent account, when she could reasonably be expected to do so. The incident centres on a narrow period of time and the issues are not complicated.   The conclusion that we have come to is that, with each piece of evidence, the Appellant has attempted to change her story to set out how she now wishes she had responded. At points when she was cross examined she gave answers that appeared to be what she thought was the response that was required of her, rather than what actually happened. Overall, our view is that a competent and experienced nurse should either have been expected to respond in the circumstances and, if they failed to respond in accordance with the accepted Code of Conduct, to have acknowledged their shortcomings at the first possible opportunity, putting forward any extenuating circumstances. 

53.	The issues relied upon all flow into each other. Nevertheless we make a discrete finding on each issue relied upon by the Respondent. 

(1)	Failure to make either a 999 call or contact Mrs Stokes’ GP immediately following Mrs Stokes deterioration at 05.00 hours on 10 July 2006. 

The Appellant has made much of a rushed hand over.  She said that she had not had time to look at he notes. However, in oral evidence she acknowledged that she knew Mrs Stokes was on a NG tube and needed checking every thirty minutes. She was aware that there were no observation charts on her fluid, BM or BP levels. When cross examined she said that there was nothing further that she needed to know about AS at the handover; it was her professional questioning that elicited the responses from the day nurse; she had all the information she needed. Therefore the observation that she was ‘floppy and weak’ came from her own observation. There was no disagreement between Ms Ward and Mrs Rengert that this should have alerted a competent nurse to the fact that the patient could have suffered an epileptic seizure, CVA or hypoglycaemic attack. Mrs Rengert added that this could also be an indication that the patient’s body was ‘giving up’. 

If the Appellant thought Mrs Stokes had died, or was very near death, then she should have remained with her or arranged for one of the Care Assistants to remain with her, which she accepts she did not. When cross-examined, the Appellant said that she had put her into the recovery position, which she subsequently clarified as turning her to her side but with remaining with her pillows, whereas the recovery position would be without pillows. Mrs Rengeart accepted that that should also have been a trigger to call the emergency services. We accept that either believing that Mrs Stokes was close to death or that her condition had materially deteriorated, were both reasons for either immediately calling the GP or making a 999 call. 

(2)	Leaving Mrs Stokes alone between 05.00 and 05.35 hours

We found this allegation of misconduct proved for the reasons stated above. 

(3)	Failure to commenced first aid by giving CPR at 05.35 hours or placing Mrs Stokes in the recovery position prior to cessation of breathing.

It was uncontentious that the care assistant Sarah Murray came to get the Appellant specifically to look at Mrs Stokes at 05.35. It is also uncontentious that, at that point, she was in the office writing up notes and she came immediately. It is also uncontentious that in the absence of a ‘DNR ‘notice there was a duty to try and resuscitate if the patient was still alive at that point. 

We remind ourselves that it is not the Appellant’s case that she believed that Mrs. Stokes  was dead and there was no point in attempting resuscitation. Her own evidence, we accept on balance, suggests that at 05.35 she was alive, even if fading. The notes as recorded by the Appellant at 00.70 am on 10 July, so very close to the event,  record that her breathing was shallow.  The pulse was weak and it faded off and she couldn’t feel it anymore. This broadly accorded with what she told Wendy Wood on 20 September 2007. 

In her statement to the Coroner the Appellant stated that her patient was not breathing and she couldn’t feel a pulse. The chest was not going up and down. The care assistant’s evidence to the Coroner was that the Appellant had said to her after she made the 05.35 am visit that the patient had ‘just died’. In her most recent witness statement the Appellant said that during the check, Sarah Murray observed that Mrs Stokes’ ‘eyes had become glassy and her breathing had become slower. The breathing was very shallow. The pulse was very weak. It faded and she couldn’t feel it anymore.’ 

Regrettably, we must conclude that the Appellant is not being truthful in stating that she attempted to perform CPR. We must place greater weight on what she said at the time. We have listened to the audio recording of the 999 call. It is not the tone the Appellant used but what she said and what she did not say. She didn’t mention that she was a registered nurse and she did not say that she had performed CPR. When interviewed by the police that morning, albeit in a brief witness statement, she didn’t mention that she had tried CPR. The ambulance crew had ticked ‘No’ to the Bystander CPR box. If there was any misunderstanding, out of what the Appellant described as a situation where she panicked, she took no immediate steps to clarify that she had attempted CPR. As time has gone on, the Appellant’s evidence has become more developed on this point, but has become inconsistent with facts given at an earlier stage. 

Accordingly we are satisfied that at the very least the Appellant should have commenced first aid by either giving CPR at 05.35 hours or placed Mrs Stokes in the recovery position. 

(ii)	Failing to call for assistance in the home or instruct a Care Assistant to call 999 at 05.35 hours and delaying calling the GP and/or ambulance

The Appellant was in a leadership role. A reading of the written evidence would suggest that the appellant had no way of contacting the care assistants, who were all on the upstairs floor. Mrs Wood clarified in oral evidence that there was a buzzer system: a buzzer in each resident’s room that rang and lit a light outside the room. When pressed in cross examination, the Appellant could give no reason why she had not used the buzzer system. She eventually said that she had attracted the care assistant’s attention by shouting out to her. 

We accept that there was a delay of about thirty minutes. Evidence on which we can clearly rely is the timing of the 999 call which was recorded and the despatch of the ambulance is unchallenged evidence. Whilst the 05.35 note was not made contemporaneously, we find no evidence that it was not broadly accurate. 

(iii)	Failure to ensure that the ambulance crew had easy access to the building

Again there was a conflict on the evidence on this point. Overall, we take the view that, as the nurse in charge, it was the Appellant’s duty to instruct her staff and to lead the staff team. If the Appellant thought the front door was open then that would clearly be inappropriate in a care home. If, as should have happened, the door was locked, then she needed to instruct staff members to be on standby to open it. 

Again, regrettably, this is another area on which the Appellant has given clearly conflicting accounts. In her interview in 2007 she stated to Mrs Wood that the ambulance men were buzzing the door but she didn’t hear them. In her statement to the Coroner she said she heard the door and presumed one of the care assistants would go to answer it. We listened to the audio recording and it was agreed that ‘buzzing’ could be heard in the background. She told the operator the crew were there. 

(iv)	Failure to ensure that Mrs Stokes was observed at half hourly intervals throughout the night

The Appellant accepted that she didn’t do half hourly checks. She accepted in oral evidence that she didn’t instruct the care assistants to do them, albeit her statement to the Coroner states the opposite. We therefore accept that the position was that as stated by Mrs Ward between 9 pm and 05.30 am there are seven checks recorded, including the 05.30 am checks. That is seven out of a possible eighteen checks. 

(v)	Failure to ensure that patient’s resuscitation status was known at the commencement of the shift

Overall, we found this the weakest point that could be taken against the Appellant. The Respondent puts this on the basis that having heard from Ms Wood and Mrs Rengert as to the need to ensure the proper documentation relating to resuscitation was completed, that was not the responsibility of the Appellant. With hindsight it is easy to say that the Appellant should have informed herself about the resuscitation status. Following this incident the Home has taken steps to a clearer structural framework. At the time in question there was no obvious coding, easily available to a Bank nurse to establish DNR status. 

(vi)	Failure to check the BM following Mrs Stokes’ deterioration at 05.00 hours

We concluded that the Appellant’s observations at 05.00 hours should have alerted a competent nurse to a possible hypoglycaemic attack and we accept that the Appellant should have checked Mrs Stokes’ BM levels.

(vii)	Failure to complete Mrs Stokes’ records accurately

It is self-evident that accurate record keeping is essential. In her CV the Appellant  acknowledges this and  states that  part of her role as Staff Nurse at Hope Hospital was  “Ensuring legibility and accuracy of nursing records and be aware of the legal implications of these documents.”  The Appellant has accepted that the Kardex and nursing notes were not accurate and omitted crucial information. In addition we should add that the Appellant should have been making notes contemporaneously. 

(viii)	The manner in which the Appellant handled the 999 call fell below the standard to be expected of a person with training and experience

We have already stated that, for us, it was not the tone or the sense of urgency that the Appellant conveyed but what she said and what she did not say. We have made allowances for any possible cultural interpretations. Having listened to the recording, our strong sense is that the operator thought he was talking to a care assistant or lay person not a registered nurse. The Appellant could give no explanation why she did not make it clear that she was a nurse. The Appellant could offer no explanation why she did not make it clear that Mrs Stokes, in her opinion, had stopped breathing, if that was her view.  She could give no real explanation as to why she didn’t make it clear that she had attempted CPR. When pressed to explain why she went back to attempt CPR on the operator’s instructions, she said somewhat weakly, that she wasn’t sure if the operator would have believed her if she said that she had already attempted it. We remind ourselves that the Appellant is an experienced nurse, used to taking senior positions on busy wards. In addition she had recently made a 999 call from Arden Court. During that call she did identify herself, as one would expect, as the nurse in charge. 

(ix)	Mrs Masabo has not been honest in her various accounts which are conflicting

To us this is the gravest misconduct in the context of all the other issues. For public confidence to be maintained, the Appellant must be expected to give an honest and straightforward account of herself, even if she had to accept that her conduct had fallen short and/or factors that may have affected her performance that evening. 

54.	On balance we find that the allegations of misconduct are made out. The Appellant’s conduct fell short of that which would be expected of a registered nurse. 

55.	We then turn to the question of ‘suitability’, applying the criteria in Angela Mairs, which are not exhaustive but has informed our consideration. 

56.	Overall we accept that there are a significant number of individual and separate allegations of misconduct, albeit arising out of one incident. 

57.	The Respondent fairly and properly accepts that there are surrounding circumstances which we must take into account. We have done so. The Appellant was a Bank nurse. This was only the second time that she had been on shift at Oaklands. The Appellant’s record keeping could be criticised, but criticism could also be made of the lack of BP or BM charts in the room. The Respondent acknowledges that had a senior care assistant been on duty, the Appellant would not have had to do the medication round upstairs and this would have freed up her time. 

58.	A key part of the Appellant’s case was that she had had no proper induction. She stated that she had had concerns following the induction on the first occasion she had worked at Oaklands. It must therefore follow that it was open to the Appellant to refuse to take over the shift without a proper induction. Mrs Rengert agreed that is what she would have done, albeit commenting that sometimes nurses are not assertive enough in this sort of a situation. However, that point somewhat fell away because when cross-examined, the Appellant accepted that at the end of the handover she felt that she had sufficient information and there was nothing else she needed to know. She also accepted that she had been inducted in the key issues, such as where the fire exits were, at the start of her first shift at Oaklands. 

59.	Leaving aside the issue of half hourly record keeping, it is clear from the evidence that the Appellant did not react to the developments in the night in the manner to be expected from a qualified and experienced nurse, nor did she organise her staff in order to minimise the impact of Mrs Stokes’ deterioration in the early hours of 10 July 2006. 

60.	Time has elapsed since the incident, over four years.  We have taken into account a number of testimonials from a nurse who trained with her and nurses who worked with her in the United Kingdom. All are positive. The Appellant has no other disciplinary or other records. 

61.	The Respondent acknowledged that the Appellant has undertaken a number of courses, albeit she has been prevented from working as a nurse or a care assistant. Her church funded her to undertake courses at the Radcliffe Hospital in written communication skills and presentation skills. She undertook a course at Oxford Brookes University between 2007 and 2008 in mentoring as a distance learning course. Prior to that, she undertook a City & Guilds course. They do not really assist as they do not shine any light on why the Appellant responded in the way that she did or make it less likely that she will do so in the future. 

62. 	Further and more particularly, we are satisfied that the contradictions in her various statements as set out are matters which make her conduct more recent. We accept the Respondent’s submission that it is difficult to see how training would assist the Appellant in dealing with misconduct insofar as it relates to the Appellant’s failure to tell the truth. Given the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a vulnerable adult or placed a vulnerable adult at risk of harm we must doubt the Appellant’s character, disposition, capacity and ability, including her ability to act properly in potentially difficult or frustrating circumstances.  

63.	The risk of harm to vulnerable adults is such in this case that if the Appellant’s application was allowed and her name removed from the PoVA list, she could be in that position again.  The appeal against PoVA listing must fail.

64.	We then consider the PoCA listing. We conclude that the same conclusions must apply in relation to children, and that children placed in the Appellant’s care would also be subject to the same risk of harm. In consequence her name will also remain on the List 99. 

65.	That is a unanimous decision of us all.

Order

The appeals are dismissed.

Ms. Melanie Lewis (Tribunal Judge)