Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 427 (AAC)

Fecha: 29-Nov-2024

Ground 8: lack of empathy

I consider it arguable [Ground 8] that DBS erred in fact or in law in inferring from her written representations, which were written with a view to defending herself from charges of misconduct in respect of which the evidence is, in my judgment, weak (see above), that she lacks empathy and/or poses a significant risk of harm to vulnerable adults in future. It is also relevant in this respect that the principal conduct relied on is locking residents in rooms, which is conduct that it is inherently improbable someone would repeat once they understand, as it appeared to me the appellant now does, that locking a resident in a room without a DoLS authorisation in place is a dismissable offence.

92.

DBS submits in response to this ground of appeal that it was rational for it to infer from the primary facts that the appellant lacks empathy. I am afraid we disagree. DBS has left out of account many relevant factors and we find its conclusion to be perverse.

93.

First, we observe that great caution is required when endeavouring to carry out a psychological assessment of someone based on limited written materials as DBS did in this case.

94.

Secondly, DBS has left out of account in its assessment that the appellant’s reasons for locking rooms actually demonstrate empathy for residents because her concern was to keep them safe. There was no reliable evidence before CQC that anyone whose room was locked without their consent was even aware of that let alone distressed by it. (We have already dealt above with the evidence about the individual who was calling out.) While a deprivation of liberty is still unlawful even if the individual knows nothing about it (see Cheshire West and Chester Council v P [2014] UKSC 19, [2014] AC 896 at [35] per Baroness Hale), if DBS is going to use the fact that someone has locked a resident in a room as the basis for inferring that they lack empathy, it needs to take account of what actual distress was or may have been caused by that and also of any distress that the individual who did the locking thought they were avoiding.

95.

Thirdly, DBS took into account its finding that the appellant had verbally abused residents, but that finding was erroneous in law and fact (see Ground 7).

96.

Fourthly, DBS on the face of its decision letter left out of account the wealth of other material in the appellant’s written submissions (further expanded on at this hearing) which indicates that she is a caring and empathetic individual who recognised the needs and natures of individual residents and took an interest in their lives.

97.

When all these matters are taken into account, we consider that the only rational conclusion is that the appellant is not someone who lacks empathy.