[2024] UKUT 427 (AAC)

The appellant is 54 years old. She has been a carer for over 30 years, although her only formal qualification is an induction award. She was at the time of the events that led to DBS making the barring decision engaged as a Care Assistant working in a care home for older people living with dementia, where she was responsible for all activities of daily living including personal care. She worked night shifts. She had been working for that employer since June 2014 and had no history of misconduct or any prior referral to DBS.

She was referred to DBS by her employer on 31 January 2023, having been dismissed by her employer with effect from 5 December 2022.

The appellant’s dismissal was the culmination of an internal disciplinary process followed by her employer. The appellant was dismissed following a disciplinary meeting that she did not attend, although she presented a statement for consideration. In some of her documents, the appellant has referred also to ‘appealing’ her dismissal, but there is no documentation relating to that appeal and the impression we gained from the appellant’s oral evidence was that she felt the dismissal decision was made when she was first suspended such that her references to an ‘appeal’ are probably to be read as references to what was in fact the disciplinary hearing. However, nothing turns on this for our purposes.

According to the employer’s documentation, the appellant had been the subject of five allegations as follows: (1) verbal aggression, swearing at residents; (2) sleeping whilst on duty; (3) locking residents bedroom doors; (4) neglect, not changing continence products during the night; and (5) a bad attitude towards CQC on the morning of 14 October 2022.

However, not all of these allegations were upheld. The employer’s dismissal letter concluded that the appellant should be dismissed summarily for gross misconduct in the light of the following findings:

The employer’s documentation indicates that statements had been obtained by the employer during the disciplinary process from the following people:

Only two of those statements are in our bundle: CS and SP. There is also an anonymous statement dated 18 November 2022.

CS’s statement detailed that CQC arrived at the home around 4.30am/5am on 14 October 2022, following a whistleblowing alert received on 12 October. She said that CQC had reported receiving “a very hostile reception” from the appellant who did not want to let them in, with one inspector saying she had to put her foot in the door to gain access despite having ID. CQC found eight bedroom doors locked, two with bolts on the outside and one person calling for help. The appellant and another member of staff were suspended immediately by the manager (SP). CS’s statement concludes, “There was no explanation we could give to CQC why the bedroom doors were locked”. We observe that CS’s statement does not include any evidence that either she or CQC spoke to the appellant or LS to ask why doors were locked.

SP in her statement for the internal disciplinary proceedings describes how on 14 October at around 4.30am she received a phone call from the appellant informing her that CQC were there “and they are not very nice”. SP called LT and they went to the home, arriving c 5am. The appellant greeted them and told them that the CQC inspectors were not happy and were “very rude”. The inspectors asked SP if she knew why eight bedroom doors were locked and also said that they believed two staff were sleeping, but they did not see them. SP described then how she spoke to the appellant and the other member of staff (LS) concerned to inform them that they were suspended. SP says that the appellant replied, “ok boss I will look for another job and then left”, while the other member of staff started “shouting … you have someone fall through the ceiling and I fucking get sacked for locking a few room. HH was up in and out of room so locked the doors as CJ was getting agitated and HH was going in and out of rooms”. SP goes on to describe how LS continued shouting at her and would not leave when asked. Again, there is no evidence in SP’s statement that either she or CQC asked the appellant or LS at any point why doors were locked, although, as is apparent, LS on being told she was suspended did provide some explanation. There is no evidence that SP relayed this to CQC.

The anonymous statement said that there was no practice of door-locking, but two doors were locked at residents’ request. The anonymous statement concludes (sic): “If I was a wear of the doors being locked I would have gone to the management as they can deal with it. When I was told about this I felt sick in my stomach as I worked the shifts and was not a wear” (sic). The appellant in her documents (see eg p 75) and also in her oral evidence at this hearing says that she knows who wrote this statement and that she “encourage this person to go onto days, as she still very young, but she was told to write this, so her name would not be drag through the mud, like mine”.

The appellant in her statement for the disciplinary proceedings described how CQC rang the doorbell at 5am, the appellant asked for ID and said she needed to phone to confirm who they were, but “NO” the CQC person said and proceeded to come in. The appellant wrote: “this woman was very rude how she spoke to me and stand there. I needed to go to the toilet as I have (diverticulitis) she then pointed the nearest toilet but as I have problem I always use the same toilet and make sure it is clean before and after I use it. the man who came with her was very polite.” In her statement, the appellant then says that she was called into the office and informed by SP that she was suspended. She wrote she “did not want to start arguing my case as I was tired and stressed, I just said ok boss shrugged my shoulders and went home”. She then explained that on the night in question, “Doors were locked, this was for the safety of the residents in these rooms for there on safety as we had some men who were violent and had already wandered into other residents rooms. As most doors can be opened from both sides we cannot stop clients from leaving their rooms and wandering into other rooms and causing distress to other residents. So some doors are locked for their own safety, so I am dammed if I do and dammed if I do not. As there was only two fully qualified … carers on that night. We were run of our feet making sure all things were running well” (sic).

Regarding the allegation of verbal abuse towards residents, in this statement the appellant wrote, “As for shouting and swearing how does a 4ft10 weighing less than 9st deal with a 5ft6 man weighing over 10 and a half stone who is being very nasty and unwilling to cooperate. I do not shout at residents but I am very firm with them when needs be” (sic).

The notes of the disciplinary hearing (which the appellant did not attend) indicate that CQC found seven doors locked, of which three were at residents’ request. It is recorded that CS had reviewed the Handover logs for 14 October 2022 and there were no comments regarding the behaviour of residents wandering around or being violent or requesting doors to be locked. CF’s statement is not in the bundle, but it is quoted in part in the disciplinary hearing notes and states that she did not know why doors were locked and was surprised to find they were.

DBS also received and considered CQC’s report on the home following inspections on 14 October, 20 October and 21 October 2022. (The latter two inspections were after the appellant had been suspended, so she was not at work during those inspections.) CQC gave the home an overall rating of Inadequate. Regarding locking people in rooms the CQC report states as follows:

People were not protected from risk of harm or abuse. We received significant concerns from a whistle-blower that people were being locked in their rooms at night. When we arrived at 5am, we found seven people had been locked in their room without their consent. Two rooms had been bolted from the outside. One of these rooms was on the second floor and the person's care plan confirmed they were unable to use a call bell for help placing them at significant risk of harm.

The staff member who accompanied us around the building, did not have keys to open these doors and could not explain why they were locked.

The registered manager said they were unaware this was happening and later during discussions with inspectors gave different reasons why rooms may have been locked. These included reasons such as protecting the person's belongings, or people had asked for the room to be locked so no other people could enter their rooms. We did not find any records to support these decisions.

The registered manager told us they were unsure why staff had not come to them to raise the concerns above. However, we were concerned a culture of poor practice had developed within the service which meant staff may have recognised these but had not reported concerning unsafe practice by other staff.

The provider and registered manager had not ensured any checks of the quality and safety of the service during the night were completed. This meant we were unable to determine how often people had been locked in their bedrooms, seriously compromising their ongoing safety and mental wellbeing.

During the inspection we told the provider they must provide immediate written assurances about actions they would take to keep people safe and ensure they were not locked in their rooms without their consent.

They provided us with an action plan to keep people safe which included reviewing management presence during the nights over the weekend.

During the inspection, doors were unlocked, and bolts removed from people's doors once the registered manager arrived on site. All people locked in their rooms had not come to physical harm but were at risk of serious harm to their mental health.

The registered manager re-issued the providers safeguarding policy to all staff and asked them to sign to confirm they had read and understood the information contained.

CQC were also concerned about the lack of full risk assessments and care plans at the home, failure to follow safe manual handling practice, poor record-keeping, failure to complete proper mental capacity assessments, failures by staff to raise concerns about poor practice to management and failure by management to recognise the wider culture of poor practice in the service. CQC noted that staff were “not deployed effectively to ensure people were kept safe and their needs were met”, and that on the night in question there should have been five members of care staff on duty, but in fact there were only four, one of whom did not provide personal care (p 55). CQC noted that staffing numbers were determined using a dependency tool, but that they could not be assured that staffing numbers were being determined on the basis of accurate data because “people’s needs had not been reviewed regularly and they did not consider when people may have periods of heightened anxiety or distress which required intervention from more staff”. The report further noted: “Staff did not have the skills or experience to meet the needs of people who were living with advanced dementia” and “Staff appeared to lack skills to manage situations where people were becoming distressed or anxious”.

Regarding the Deprivation of Liberty Safeguards (DoLS) regime at the home, CQC’s report stated as follows:

The Mental Capacity Act 2005 (MCA) provides a legal framework for making particular decisions on behalf of people who may lack the mental capacity to do so for themselves. The MCA requires that, as far as possible, people make their own decisions and are helped to do so when needed. When they lack mental capacity to

take particular decisions, any made on their behalf must be in their best interests and as least restrictive as possible.

People can only be deprived of their liberty to receive care and treatment when this is in their best interests and legally authorised under the MCA. In care homes, and some hospitals, this is usually through MCA application procedures called the Deprivation of Liberty Safeguards (DoLS).

We checked whether the service was working within the principles of the MCA, whether appropriate legal authorisations were in place when needed to deprive a person of their liberty, and whether any conditions relating to those authorisations were being met.

The service was not always working within the principles of the MCA. Staff had a basic understanding of the MCA and could describe basic principles. However, people's rights were not always maintained in line with the MCA. Mental capacity assessments were poorly completed, and information was lacking in detail as to how the determination of capacity had been made.

There were no mental capacity assessments, best interest decisions or applications for DoLS in relation to people being locked in their bedrooms at night. People had not consented to being locked in their bedrooms.

People's ability to make decisions were not assessed and recorded consistently. Care records stated for One person that they did not have capacity to use the call bell system to call for assistance, but there were no assessment or records to demonstrate how this determination was made and what was required to ensure they could ask for help when needed.

On the second day of inspection, we were informed two of the seven people locked in their rooms had been assessed and had capacity to make the decision they would like their room locked at night when they were in there. We reviewed the capacity assessments for both people. Both had been completed at the same exact time on the same day which did not evidence these assessments were individualised or had

been completed properly.

…

Records showed staff had completed a range of training relevant to needs of people, such as moving and handling people, dementia and Mental Capacity Act 2005. However, these skills were not put into practice when interacting and caring for people. Staff did not demonstrate safe practice when supporting people to move and did not effectively support people with advanced dementia in a way that acknowledged and met their emotional needs. For example, one person was becoming distressed at another person following them.

Both people came into the room that inspectors were using. Staff came and helped both people, however staff assisted them both out of the room together and left them in another part of the building. Shortly after both people came back into the room and one was particularly distressed at not being able to move freely without the other. Staff did not manage the situation effectively.

There was no evidence provided to us during inspection to confirm staff had been trained in supporting people living with advanced stage dementia who may have periods of distress or anxiety. We raised this during our feedback process at the end of the inspection and the registered manager later supplied another training record with this recorded as completed, however we were not assured this training had been

effectively utilised based on our observations.

The appellant in her handwritten submissions to DBS in response to the Minded to Bar letter provided a more detailed account of the arrival of CQC. She explained why she had not felt able to participate more actively in the employer’s disciplinary process, which was essentially because she felt the outcome was predetermined, as she made clear again orally at this hearing. Regarding the locking of doors, she wrote, “little is said about the position they put us in”. She wrote that the staffing that night in addition to herself was: “a senior” (LS), the manager’s son (not a carer) and his girlfriend (who was pregnant). She said there were 46 residents on site. We now draw together here all the material parts of her submission that deal with why she and the senior member of staff on duty (LS) locked some residents in their rooms that night. These do not follow consecutively in her submission as she moves between topics:

“little said about how violent 3 of the men were, one had head butted a carer knocking her out for few seconds (she had to have 2 weeks off work”, 2 other carers had got black eyes, this was just walking pass them, they would lash out, these men would go into others residents room. One trying to take resident out of they bed, the locking of doors was not to be malicious, lazy or upset anyone. The senior had to think of the safety of the other residents, we were put in this situation, lots of nights we were short staff. I did not ask to be put in this situation, yet I am the one being blame… C door, I’m sorry I cannot remember number was lock from outside, C was ok with his door lock, as due to it being at the end of corridor, lots of walkers would go to his room (go through his cupboards) where C could understand and say “lock the bloody door” to stop others going into room. This was not every night, when C ask, some nights C would stay up all night in lounge …. With M door being lock, she would request it lock, and a lot of the time M would already be in bed before our shift started (day staff would of put M in bed, and she would ask them to lock it, but I think all day staff deny this (more lies). M would also call out for help, she also had a buzzer mat in front of her bed, and alarm call on bed, M new how to use these, but would call out for help, and if carer walk in she say she can’t sit up, please can I stress M can sit up on her own, and she also can get herself on to Commode. (I’m not sure about now, as I have no contact with anyone that works they at this time). So she would call out help, and if no one heard her, M would get up, which would set buzzer of, whomever went up, she would say I’ve been shouting out for help but M at the time could sit up, sit on edge of bed, and get herself onto Commode”

…

(p 76): I am now still asking the same question if a violent man had gone into bedroom and hurt another resident, would I still be in the same position, with everyone asking if you new they were violent, why did you not lock doors, I still say “I’m dam if I do, I dam if I don’t”

I also no, as did other staff, the Senior would inform manger, we had to lock so and so doors last night her reply would be ‘what I don’t know, don’t hurt me’

[She then referred to all the breaches of regulations CQC found to have been committed by managers and concluded …]

I just want you all to see what situations we were left in, all we were trying to do was protect the residents, not harm or hurt or cause any distress …

They is no way I would ever hurt a resident, and if staff were ask, they would say I had a very good repour with residents, as I would find they trigger points, what upset them, what cheer them up, what they like, dislike, learn they face impression. I did love my job. But this company has shown its true colours, they will destroy anyone to save themselves…” (sic)

Regarding the allegation of shouting at residents, the appellant wrote in her submissions to DBS:

“…this I believe is me shouting up the stairs, maybe I’ve use wrong word, but asking (that’s me shouting) to K to come down stairs if she wanted tea, sandwiches (Iris would say every 20 mins, that she has had no food for days) K would demand her snacks and tea. We found if K had her snacks and tea in bedroom (around 11pm) she would go into other residents room to offer them some, and even wake people up or try and sit them up, so Iris was encourage to come to lounge to have snacks and tea, but CS and AH says this is wrong, so I did say in my 6-7 page statement, if this is wrong, then all staff need to be spoken to, as we are all doing it the wrong way.

Me swearing is all I can think off is when I was in kitchen and said “he getting fucking hard work”. Yet again, this was not meant in a bad or horrible way, I just said it without thinking it was not said in front of residents and I remember the staff that were on as I remember saying something like “he goone be [?] but this was not said in a nasty way, but can I please state one of the other girls name that was whistleblow, was accuse of bullying her own Grandad in the home. As I now no whom the whistleblower is. Can I say that I remember having my tea and fag break with her, and telling me in the last 3 homes she had work she had call CQC once, and safeguarding twice on other homes, not until this happen did I realise, but I should of seen the red flat. She has had 4 different care jobs since this has happen (I’m not 100% that she made the call, but got friend to do this).

…. , I’ve just remember, me saying I’m firm with residents, this would be me saying to a male residents Stephen you cannot go into this room they is a lady asleep and assisting then to his own bedroom, this I was told was wrong, yet again maybe it’s the I have worded things, but again I have heard day staff say this to, but they have not been pull up”

The appellant in her grounds of appeal and statement for this hearing seeks to explain why she disagrees with DBS’s assessment that she lacks empathy, explaining how she recognised and sought to meet the needs of individual residents. She says that she would never put a resident at risk in her care.

She emphasises again, regarding door-locking, that there was a senior on shift who would inform a manager regarding door-locking.

She states that the home was short-staffed with 46 residents to 4 carers, one of whom was just a ‘helper’ (the manager’s son, who was not allowed to do personal care).

She explains that she was very busy as some residents would stay up until 2 or 3am, while others would go to bed then wake up after an hour or so and be dressed thinking it was morning. The carers had to answer buzzers, do pad changes, provide guidance to the manager’s son regarding cleaning and laundry, clean both lounges, wash and fold the laundry for 46 people. She says they were lucky even to sit down let alone eat their lunch.

The appellant has explained that the impact on her of the barring decision has affected her earnings, personal life, volunteering, that she had to leave the job she got following her dismissal from the employer who referred her to DBS, that it is now impossible for her to get a job and her savings have all gone. She says that she found caring very rewarding and that the barring decision has taken everything she loves away from her.