[2024] UKUT 442 (AAC)

Looking at the 9 grounds of appeal as set out at paragraph 30 above, we make the following findings:

In relation to Ground A, that the DBS concluded that the conduct was likely to be repeated and this was a mistake of fact, we find that in falsifying the records SS appears to have been acting out of character because previous concerns were not dishonest but more behavioural. We note that dishonesty is attitudinal in nature.

We did not hear from SS but would like to have done so. Because we did not hear what she had to say, our decision has to be based on the reading of the papers. It would have helped us to have heard her express remorse and to ascertain whether SS had any in-depth insight into her actions as well as understand whether she had any insight into what might have been the consequences of her behaviour.

The DBS have said that the conduct was likely to have been repeated. We are unclear as to how high or low the bar of “likely” should be set. Is it based on the premise that past behaviour is the best indicator of future behaviour or could it be said that it is less likely that she would repeat the actions because she has been found out?

We find it difficult to understand why or identify on what evidence the DBS are basing their conclusion upon. If it is the one single incident reported incident, we concluded that it is hardly likely to create propensity. There has been no repeat incident and there was no prior incident, either of which would be needed to reach a conclusion of “likely”.

The falsifying of records does concern us, and that she said she had populated the record in advance to make it easier, we do not regard as a good defence. It is possible that she will never do it again as we note that she has not denied it and admitted it straight away.

If the DBS are relying on what SS said in her evidence that the practice of populating records in advance was done regularly, the evidence was actually contradictory. There was no evidence before the DBS from any source other than SS’s one comment, which was later contradicted by her. In trying to ascertain how the DBS came to the conclusion that it was ”likely to be repeated” we could find no evidence to support that assertion and are satisfied that this means there has been a material mistake of fact.

Ground B is that the DBS failed to consider that SS’s apology meant that it was less likely that she would act in this manner again. Following from the conclusions we have reached in relation to the first ground of appeal we note that there was an immediate admission and also note that it is unusual for someone in such a situation to admit it. We can find no evidence that the DBS have taken into consideration the apology when weighing their determination about the likelihood of repetition. This is a mistake of fact.

Ground C states that the DBS failed to give weight to her long and unblemished record. This point is a two-edged sword. On the positive side there is the point that she has been nursing for a long time without a problem. However, it can also be said that, given that she has been a nurse for 11 years, she would know what was wrong in what she did. We also note that there have been concerns in the past that her record is not entirely unblemished but again these concerns are not quantified or specified.

Ground D is that the public interest was not considered. We believe that there are two elements to public interest. There is the need for the public to have confidence in the nurses being professional and appropriate but there is also the public interest in not losing an effective and hitherto safe nurse practitioner given the shortage. We question whether there is actually a need for the DBS to consider public interest at all. We dismiss this ground of appeal.

Ground E is that no weight was given to the suggestion that SS had worked without issue since the incident. Unfortunately given that we did not hear from SS, we had no objective evidence in the bundle to rely upon apart from this assertion. As we have said before we would have benefited from hearing from her. We dismiss this ground of appeal.

Ground F states that the DBS did not give SS credit for her reflections on the matter. It is correct that the DBS did not give her credit for her reflections but we are unclear whether they have a duty to do so in any event. It is correct that we did not hear of her remorse and we had limited evidence of her insight. It would have helped, for example, for SS to have given us examples of what she had learned. For example, by doing X, the positive outcome was Y and by not doing A, the positive outcome was B. This point lacks substance and needs to be evidence based, which it was not and so we dismiss this ground of appeal.

Ground G is that the DBS recognised that she had not intended harm to residents but did not give this due weight. If SS had intended to do what she did, that would have been a far different matter with different considerations and paths to be taken. We question what weight the DBS should give to this. It cannot be that a lack of intention means it outweighs all the other considerations and issues and consequently there should be no listing. Paragraphs 9 and 10 of Schedule 2 of the 2006 Act does not require ‘intention’, just that the person’s conduct endangers a vulnerable adult. This ground of appeal is dismissed.

Ground H is that the DBS failed to consider the relevance of SS’s apology to the future risk she could pose. An apology does not ameliorate risk. The only way to ameliorate risk is to have insight and understanding, which needs to be evidenced. By not hearing from SS we did not have that available to us. We dismiss this ground of appeal.

Ground I is that there was ‘lazy assumption’ that the conduct would be repeated towards children. The problem with this ground is that although SS has not worked with children and only worked with adults, it is always possible that her next job could be working with children, especially if she was barred from working with adults. Her failings are not age specific but more context specific and are attitudinal. If SS was to work in an environment with children who needed overnight nursing care it could be relevant to consider the risk that her failings might have posed. We dismiss this ground of appeal.