Mr Yury Kazlouski
Appellant
V
Care Quality Commission
Respondent

[2011] 1927. EA

DECISION

Panel   Judge Nancy Hillier
	   Ms Bridget Graham (Specialist member)
	   Mr Graham Harper (Specialist member)

Hearing held at Liverpool Cunard Building on 1 and 2 May 2012.
The Appellant was represented by Ms Abigail Holt of Counsel. He gave evidence on his own behalf.
The Respondent was represented by Mr Morris Hill, a solicitor instructed by CQC, who called Ms Janet Spink (CQC Registration Assessor) and Ms Julia Denham (CQC Registration Assessor) to give evidence on behalf of the Respondent.

APPEAL

1.	By notice dated 8 December 2011 the Appellant appeals the decision of the Care Quality commission (CQC) dated 14 November 2011 to refuse his application dated 11 April 2011 to be registered as the manager of a Registered Home known as Daughters of Mary Mother of Mercy at Waverley Care Home, Sefton Park, Liverpool (Waverley) under ss 14 and 15 of the Health and Social Care Act 2008 (the 2008 Act).
THE LAW

2.	Section 8 of the 2008 Act enables Regulations to be made in respect of regulated activities. The relevant regulations to an application to be registered as a manager of a regulated home are the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 (the Regulations).
3.	Section 15 of the Act sets out the criteria for the grant or refusal of registration as a manager and provides that CQC must register an applicant if it is satisfied that the requirements under the 2008 regulations are and will continue to be complied with. Regulation 6 (2)(a) states that a manager must be of good character and (c) be able to provide amongst other things, references, satisfactory evidence of conduct in previous employment and a full employment history with an explanation of any gaps.
4.	A right of appeal to the Tribunal is provided under s.32 of the Act. The Tribunal can confirm the decision or direct that it shall not have any effect. In this case Mr Kazlouski no longer works at Waverley, however he pursues the appeal in order to demonstrate that the CQC decision to refuse his registration was wrong.
5.	On appeal, the burden of proof is on the Appellant to prove that he should be granted registration. The standard of proof is the civil standard, namely the balance of probabilities. However, the Tribunal takes an inquisitorial, or investigatory, approach, rather than a strictly adversarial one, to the hearing of appeals in this jurisdiction. This approach is reinforced in its procedural rules and reflects the observations on the burden of proof made in Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 W.L.R. 1372.   In essence, this is a fact gathering exercise governed by equitable principles and by the overriding objective set out in Rule 2 of the Health, Education and Social Care Chamber Rules 2008.The general principle is that each party must provide sufficient evidence to support their case, but where relevant information is available to the Respondent, an organisation with greater resources than the Appellant, it is for the Respondent to produce that information.
6.	In this case, it is the Respondent’s position that the Appellant did not fulfil the criteria for registration at the time of the application and continued not to fulfil the statutory criteria at the time of the hearing. 

BACKGROUND

7.	The Appellant is a 31 year old Registered Nurse currently working at Abbey Lawns Care Home as a staff nurse. He trained as a nurse in Minsk, qualifying in 2001 and continuing his studies at the Belarusian State Medical College in 2002. English is his third language, however he is sufficiently fluent not to require an interpreter.
8.	In April 2003 he went to Scotland where he worked for 2 years as a Health Care Assistant. In November 2005 he moved to work at Edgeworth House Nursing Home (Edgeworth) in order to convert his qualifications to UK equivalents. 
9.	Mr Kazlouski was dismissed in August 2006 from this employment following allegations of improper conduct with residents and a member of staff and of failing to wash residents properly. A referral was made to the Nursing and Midwifery Council (NMC) in January 2007 and to the Secretary of State for Health in respect of Protection of Vulnerable Adults (PoVA). The NMC informed him that it had decided that there was no case to answer in respect of the allegations on 30 October 2007. The Appellant made representations in respect of the PoVA listing and was informed on 15 November 2007 that his name would not be confirmed on the PoVA list. 
10.	Between August 2006 and August 2008 Mr Kazlouski worked in a warehouse. He then obtained employment as a staff nurse and later as deputy manager at Wavertree Nursing Home (Wavertree) where he worked until June 2010 when he was dismissed following self reported misconduct on 5 May 2010. This conduct was referred to the NMC and to the Independent Safeguarding Authority (ISA).  He was informed that he would not be included on the barred list on 20 October 2010 and that the NMC were to take no further action on 19 January 2011.
11.	The Appellant was appointed as a staff nurse at Waverley in December 2010 and was approached that same month about the possibility of working as a manager. He disclosed the Wavertree allegations to Waverley but did not tell them of the Edgeworth allegations. He was appointed as a Registered Nurse Acting Manager in February 2011.  On 11 April 2011 he applied for registration as a new manager in respect of a regulated activity under section 14 of the 2008 Act. The Respondent received the application and allocated two Registration Assessors, Ms Janet Spink and Ms Dorothy Smith, to consider the application because Mr Kaslouski had indicated on the application form that he had been dismissed from previous employment and that there had been referrals to the NMC and to PoCA/PoVA. Ms Spink and Ms Smith interviewed Mr Kazlouski on 22 June 2011 in what is known as a 'fit person interview'. Following that interview a Management Review held on 30 June 2011 concluded that a second fit person interview should be conducted. 
12.	One of the matters explored by CQC was what information Mr Kazlouski had given to Waverley. He notified Waverley of the Edgeworth allegations on 8 July and was suspended on that day. Following a fact finding meeting at the home on 10 July 2011 a disciplinary hearing took place on 26 July, at which Mr Kaslouski was dismissed. The second CQC fit person interview was held two days later on 28 July 2011 and a further Management review took place.
13.	 The Respondent concluded that the Appellant's application should be refused and accordingly issued a Notice of Proposal to refuse the Appellant's application under .section 26(3) of the 2008 Act. This notice was sent to the Appellant by way of a letter dated 21 September 2011.
14.	On 21 October 2011 Mr Kazlouski made written representations against the Notice of Proposal. Having considered those representations the Respondent maintained its decision to refuse registration and notified Mr Kazlouski of this decision on 14 November 2011. The CQC refused the Appellant's application on the basis that he did not satisfy the requirements of section 15(2) of the 2008 Act, in particular the requirements of regulations 6 and 21.
15.	The Appellant appealed the decision on 8 December 2011, which is the appeal before us. 
THE ISSUES
16.	At the start of the hearing Mr Hill confirmed that the reasons for the refusal of registration were based on an assessment of his fitness under Regulation 6 and about his ability to meet the regulations in future, in particular Regulation 21. In respect of the former the decision rested firstly on the appellant’s admitted conduct and secondly upon his honesty in completing the CQC application form and in interviews with the assessors.
The admitted conduct
17.	Mr Kazlouski has admitted that in 2005/6 at Edgeworth he was over friendly towards some clients in an effort to put them at their ease. This included kissing two elderly patients on the cheek and sitting on the bed of another in order to talk to her.
18.	In respect of his conduct at Wavertree in May 2010 Mr Kazlouski accepts that he momentarily lost control when caring for a patient with dementia and threw some squash over him. He reported the matter to his employer and was dismissed.
19.	CQC did not allege that this conduct of itself was sufficient to mean that the Appellant could not meet the fitness requirement, nor that there was any pattern to the behaviour.
The application form
20.	Mr Hill stated that the objection to the way Mr Kazlouski had completed the application form was that Mr Kazlouski should have particularised the reasons for the two dismissals on the application form since it is for the applicant to satisfy the CQC that he is a fit person. The fact that he did not give full information demonstrated that he had given the minimum “he thought he could get away with”. Whilst CQC accepted that this conduct fell short of dishonesty, its case was that the conduct demonstrated that Mr Kazlouski had been “economical with the truth”, giving the “bare minimum” of detail.
The interviews.
21.	Mr Hill submitted that in the interview with CQC Mr Kazlouski :
•	gave only limited information about the Edgeworth dismissal and that this was a further example of “underplaying” the matter or “being economical with the truth.
•	Underplayed the Wavertree incident by saying that he spilt the juice over the patient.
•	Told CQC that he had informed his current employer about both dismissals when in fact he had only disclosed the second. 
Regulation 21
22.	Mr Hill explained that CQC had concerns about the appellant’s ability to recruit staff effectively and safely. Mr Hill submitted that since Mr Kazlouski had brushed aside the regulations in respect of his own application he may do so when recruiting others.
EVIDENCE
The admitted conduct
23.	Mr Kazlouski said he had regarded the position at Edgeworth as a big step and was determined from the start to act in a very professional manner. Speaking with a Glasgow/Russian accent had made him very different and his colleagues were surprised that he was not very sociable and was reserved. The matron had suggested that he try to be a bit more friendly, by giving a smile, a hug and a kiss for the residents. He sat on  G’s bed and talked to her to help her relax and go to sleep and kissed a couple of the residents on the cheek as a friendly gesture. He had clashed with a colleague, MF, because he had refused to let her leave work early. A few days later he was called into the manager’s office because MF had made allegations of improper conduct with residents. He had not been accused of anything sexual but had accepted he may have been over friendly. He would not act like that now with patients due to his experiences at Edgeworth.
24.	In respect of his conduct at Wavertree in May 2010 Mr Kazlouski gave a full account of his personal circumstances at the time and explained that he had become very anxious. He accepted that he had lost control, and said that he had reported the matter to his superiors straight away. J had been a new patient and there had been little information about him. J had been very abusive and uncooperative. Mr Kazlouski said “I wasn’t aggressive – I was stressed”. He denied that he only told the managers because someone else may have done so, explaining that as far as he knew there was no one else present at the time of the incident. Mr Hill suggested to him that he had tried to minimise the incident, which he denied. The manager had sent a letter of support to the NMC about him, even though they didn’t really get on.
25.	Ms Denham explained that CQC did not allege that this conduct of itself was sufficient to mean that the Appellant could not meet the fitness requirement, nor that there was any pattern to the behaviour. She said that if they had felt that Mr Kazlouski had been honest and upfront about them, that the incidents themselves may not give undue cause for concern, especially since they were isolated, unrelated incidents. There was a cause for concern regarding lack of patient understanding and empathy, but when asked “If the panel find that there is no honesty issue there’s not much to say he’s not fit to be a manager?” she replied “No”.
The application form
26.	Ms Spink gave evidence that the application form does indicate that if an applicant does not give sufficient information, the form will be returned. Despite the fact that the applicant had not provided a reference the form was accepted at the triage stage and he was not asked for any further information.
27.	When cross examined about the form Ms Spinks stated that she felt that although box 1.4 of the form does not ask for “full details” which box 1.8 does, it was sufficiently explicit because it states that the applicant has to give the reason for leaving. She accepted that in respect of the employment history and the referrals to the NMC and the Secretary of State that Mr Kazouski had provided basic information which was sufficient for triage. She said that the information was sufficient for the form ...”but we needed to discuss it in interview.”Mr Hill stated that the objection to the way Mr Kazlouski had completed the application form was that Mr Kazlouski should have particularised the reasons for the two dismissals on the application form since it is for the applicant to satisfy the CQC that he is a fit person. The fact that he did not give full information demonstrated that he had given the minimum “he thought he could get away with”. Whilst CQC accepted that this conduct fell short of dishonesty its case was that the conduct demonstrated that Mr Kazlouski had been “economical with the truth”, giving the “bare minimum” of detail.
28.	Mr Kazlouski said that in the past he had filled in complex forms, for example the Home Office Visa forms, but they had been more straightforward than the CQC form. He had not sought advice about how to fill the form in but had done his best, secure in the knowledge that the form made it clear if one gave insufficient information the CQC would ask for it.
The interviews.
29.	Ms Spinks colleague, Ms Smith, had invited the applicant for interview by email. Ms Spinks accepted that the email inviting Mr Kazlouski to interview did not specifically say that he would be asked about his employment history and that he should bring details about the referrals with him.
30.	At the time of the first interview Ms Spink said that she and her colleague had felt that the NMC had been looking at the applicant’s fitness as a nurse rather than a manager. Ms Spinks was concerned that Mr Kazlouski had not raised the matters which he had not admitted, including issues with a staff member. She was clear that CQC were not concerned that there had been any sexual element to the conduct. Neither Ms Spinks nor Ms Denham believed Mr Kazlouski’s explanation that he had not remembered all the details. 
31.	Ms Denham said “I struggle with his memory explanation because the incident had such an impact on his life and his career. She felt that while people might not remember things through drink or drugs she struggled to see that someone might block a painful memory out: “I think if you were coming to an interview you would refresh your memory”. Ms Holt asked why, if the interviewers had documentation which contained the additional matters, they had not asked him about them or shown him the letter. Ms Denham replied that she did not know. Ms Holt pressed the point about additional questions being asked over and above the questions set before the interview. Ms Denham replied “ You could ask lots of supplementary questions and almost guide them so they’d finally twig where we are going with this. We could have interviews that go on for a long time”. She was challenged by the panel about whether that was an appropriate view for a regulatory body to hold and she agreed that her answer had been “badly put”. She agreed that further opportunity to elaborate on the points could have been given to the applicant and that the actual CQC concerns could have been spelt out to Mr Kazlouski.
32.	Ms Spinks described the discussion about the Wavertree allegation and that Mr Kazlouski had become frustrated at their investigation about whether the juice was thrown or spilt over the patient. CQC had a statement given about the incident at the time which was on the desk in front of the assessors but which wasn’t shown to Mr Kazlouski for him to refresh his memory, despite the fact that he had said he was having difficulties remembering the detail. Ms Spinks said that he could have asked to see the statement but didn’t. When cross examined she accepted that despite the discrepancy between 'spilt' and 'threw' it was clear that Mr Kazlouski was talking about a loss of control. She felt that when he was asked about dealing with dementia patients he could have given more examples and demonstrated more awareness, but she agreed that his answers were acceptable.
33.	The overall impression that Ms Spinks and her colleague had formed was that the applicant was evasive and was not “upfront”. She said: “It’s difficult. He gave some information and there were several things to support his application so we gave him the opportunity to clarify things. The CQC role is to assess whether the applicant meets the criteria for registration and make a judgment. We are thorough. There was conflicting information but he had been evasive and had not given a full account of events”. She gave an example of a positive reference from Mr Kazlouski’s then employer.
34.	Ms Denham echoed this view, stating that although some of the incidents in the letter about the Edgeworth allegations were similar to those described by Mr Kazlouski, there were other residents about whom allegations had been made and that “...it was a feeling he was downplaying.” 
35.	Ms Spinks described how the applicant had been asked about whether he had told his current employer about the previous allegations. She and her colleague meant both sets of allegations but did not specifically say that to Mr Kazlouski. When the former set of allegations had been revealed his employer felt there had been a breach of trust and Mr Kazlouski had been dismissed. On examining the evidence she accepted that he did not mislead them about what he had told his employer and that there had been a breakdown in communication. Mr Kazlouski explained that he believed that he was being asked about the Wavertree allegations. Once an email from Ms Smith indicated that she meant both sets of allegations, he had alerted her to the position and had disclosed the Edgeworth allegations to his employer. As a result he had been sacked. He accepted that he had not disclosed details of the reason why he had left Edgeworth despite the form requiring reasons for leaving a job. He had disclosed all three dismissals to his current employer.
36.	Ms Spinks pointed out that the application forms for the RGN and the manager positions at Wavertree had required an explanation for leaving each job. Mr Kazlouski had not given details but had sent in a cv with gaps in it. He was therefore in her view ” ...being dishonest by omission.” Ms Spinks accepted that when asked for further information by the CQC Mr Kazlouski responded with full details on the same day which were complete and accurate.
37.	Mr Kazlouski explained that he had expected questions about the regulations at the interview, as he had been told by colleagues that that was what happened and there was no indication otherwise. He had prepared carefully for the interview which he had expected to be “friendly and easy going” as his friends had described but that the experience was far different. He remained a registered nurse and on the two sets of allegations there had been found no case to answer therefore he believed the questions would be about his skills as a manager. He believed that as he had disclosed the dismissals on the form that CQC would have all the information they needed about those incidents. He felt that the gap in his curriculum vitae where he had worked in a warehouse demonstrated his honesty. 
38.	 When asked about the Edgeworth house incident he was surprised that the issue had been brought up. Under cross examination by Mr Hill he denied giving a different version of events in an attempt to make the events seem less concerning.
Regulation 21
39.	Ms Spink said that the fact that Mr Kazlouski had clearly not thought he would be asked about the conduct issues did not give CQC confidence that he would explore the background of a new member of staff with sufficient vigour. She accepted that following the whole appeal process he may react differently. Mr Hill explained that CQC had concerns about the appellant’s ability to recruit staff effectively and safely. Mr Hill submitted that since Mr Kazlouski had brushed aside the regulations in respect of his own application he may do so when recruiting others.
40.	Ms Denham agreed that the vast majority of the notices sent to the applicant about the refusal of registration concentrated on lack of frankness and that potential failure to meet the regulations were not analysed in detail in the documentation. She said that the reason for that was that the matter was “very obvious”.
41.	Mr Kazlouski explained that whilst acting manager at Wavertree he had employed people and had investigated their history appropriately. He said that if a nurse was registered and the information on the application form gave sufficient detail he would check their registration and invite them for interview and would at that stage investigate any gaps. If there was a dismissal in their history – “a long time ago” – he wouldn’t necessarily ask about it if all other matters were in order.

TRIBUNAL’S FINDINGS IN RESPECT OF THE ISSUES WITH REASONS
The admitted conduct
42.	The panel took into account Mr Kazlouski’s description of the incidents and the fact that CQC did not allege that this conduct of itself was sufficient to mean that he could not meet the fitness requirement, nor that there was any pattern to the behaviour. CQC did not bring any evidence to controvert the facts as presented by Mr Kazlouski nor the findings of no case to answer by the NMC and the decisions not to register him on the PoVA list.
43.	The extent to which Mr Kazlouski showed insight was important, as was the question of minimisation. We found his evidence about the incidents to be truthful and compelling. We were impressed by the obvious remorse he felt about what had happened and the insight he had demonstrated into what had needed to change.
44.	We found that the behaviour at Edgeworth was very out of character. Indeed, the incidents arose from Mr Kazlouski trying to act as someone he is not. He is not particularly sociable or forthcoming and being told to be more friendly to residents was something he acted on to an unacceptable degree. It was very clear however that his motives were not in any way sexual nor were they in any way meant to cause distress. In the case of G we were satisfied in the absence of any contrary evidence that his conduct was genuine and was intended to be comforting to her.
The application form
45.	Mr Hill stated that the objection to the way Mr Kazlouski had completed the application form was that Mr Kazlouski should have particularised the reasons for the two dismissals on the application form since it is for the applicant to satisfy the CQC that he is a fit person. We were satisfied that although Mr Kazlouski gave the minimum information about the dismissals and referrals he did so on the basis that he really believed that CQC would ask for further detail if they needed it. We were not satisfied that he had been economical with the truth, which in our view amounts to dishonesty, because he had referred to both dismissals and both sets of referrals. Nor did we find that he had deliberately underplayed what had happened. We were supported in this view by the fact that as soon as he was asked for further information in the first interview he immediately supplied it, in full and in detail. We find that a dishonest man would not have acted so promptly or so frankly in those circumstances.
The interviews.
46.	We were satisfied that Mr Kazlouski was genuinely surprised to be confronted by two CQC officials who immediately started asking him about the Edgeworth dismissals. This was a very painful memory for him and we find that the conduct of the CQC assessors lacked any kind of empathy and was extremely inflexible and unhelpful. We were not satisfied that there were two interviewers present in order to ensure that an accurate note was taken. In these days of digital recording we would encourage assessors to record interviews so that any dispute about what was said or how it was said can be quickly resolved.
47.	The preparation of questions in advance is good practice and we would not criticise it, nor do we criticise the view that it is for the applicant to demonstrate suitability. We do however have reservations about a practice of not specifying in the invitation to interview the matters which will be covered and not asking an applicant to bring material with them. We also think that the fact that the interviewers had information in front of them which they did not share with Mr Kazlouski was very unfortunate. In an interview situation, the fact that he was expected to remember detail of incidents which took place some 5 years before was simply unreasonable. In the circumstances we find that Mr Kazlouski was not dishonest and he did his best to answer the rigid questions that were posed. When asked difficult questions by the panel we found him to be open and honest, and to try to give detail when it was clear what was required of him.
48.	We were not satisfied that Mr Kazlouski had underplayed the Wavertree incident with the juice. English is his third language and he used the words 'spilt' and 'threw' interchangeably. What he did not at any time do was deny a loss of control or underplay the seriousness of the event. Ms Spinks and Ms Smith were in our view wrong to place such emphasis on the use of the word 'spilt' when it was clear that he was not saying that this was an accidental spill but admitted losing control at a stressful time of his life in an unacceptable manner. We did not find that he attempted to underplay or explain away what happened and we are satisfied that he reported it even though he believed it had not been observed. We find that this demonstrates that he is a fundamentally honest man.
49.	The allegation that Mr Kazlouski had been dishonest in telling the CQC that he had informed his current employer about both dismissals when in fact he had only disclosed the second was effectively conceded by Ms Spinks and Ms Denham. We are satisfied that there was a genuine misunderstanding and therefore make no finding as to dishonesty. 
Regulation 21
50.	Mr Hill explained that CQC had concerns about the appellant’s ability to recruit staff effectively and safely and that since Mr Kazlouski had brushed aside the regulations in respect of his own application he may do so when recruiting others. We have found that he did not “brush the regulations aside” when he completed the form and we also find that that there is no evidence to demonstrate that he would act inappropriately or apply the wrong standards when recruiting staff. We are supported in this view in that he was able to describe appropriate recruitment techniques and that he had disclosed all three dismissals to his current employer.

TRIBUNAL’S OVERALL CONCLUSION WITH REASONS

51.	We carefully considered the written and oral evidence and the findings on the evidence we have made in respect of the issues. We were satisfied that Mr Kazlouski is not fundamentally dishonest. We were satisfied that he supplied a CV rather than full details of his reason for leaving his employment when applying for the jobs at Wavertree but in our view if he had been asked about any of the matters he would have answered truthfully. We are also satisfied that he has recognised his obligation to disclose matters fully, demonstrated by the fact that he disclosed all three allegations to his current employer. 
52.	We did not find that that there was any evidence of rehearsal or learnt responses in what he said, and found his responses to our questions to be genuine and truthful. We took on board the CQC suggestion that we should exercise caution and tested his evidence fully. 
53.	We were particularly impressed by Mr Kazlouski’s description of his care for a patient who had recently died. In a quiet and reflective way he demonstrated in a very short space of time the fact that he is a man who is full of empathy, who recognises his own failings and who strives to give care of the highest standards. These are aspects of his personality and knowledge which we feel he was not given the opportunity to demonstrate by CQC. We make it plain that Ms Spink and Ms Smith were not deliberately obstructive since they were acting in accordance with CQC procedures. We believe that those procedures should be examined and more training given in being fair and open with applicants. CQC admitted that without a finding of dishonesty there was little material to show that Mr Kazlouski should not be registered. In our assessment he has not acted dishonestly and in fact demonstrated during his evidence qualities which could mean that he could one day be an excellent manager.  On all the evidence he has therefore satisfied us that he is a fit person to be a registered manager.
DECISION
It is our unanimous decision that the appeal be allowed. The decision of the CQC dated 14.11.2011 shall have no effect.

So ordered.

Tribunal Judge Nancy Hillier
Lead Judge Care Standards and Primary Health Lists
21 May 2012.