[2025] UKUT 030 (AAC)

DKS was called as a witness at the hearing before the Upper Tribunal and was cross-examined by Mr Wilkinson, for the DBS, and questioned by the panel.

No witnesses were called by the DBS.

In his evidence DKS explained that he had worked in the care industry since he was 16 years old, initially as a volunteer and then as a care assistant. Since 2011 he had performed the role of senior care assistant. He had undertaken training in care for patients with dementia and was a ‘dementia champion’. DKS said he had worked at the Care Home since 2016, when he had been recruited by the then manager of the home to get the home back up to standard after it had been found on inspection by the Care Quality Commission to have been failing in various respects.

DKS said he passed his probation period without incident, he developed a “very strong” relationship with management, and had no problems with the people he worked with. He said that until the allegations which resulted in the referral to the DBS no complaints had been made about him.

DKS described the layout of the Care Home: it was a converted house with three floors, with a ward on each floor. He said that DJ’s room, 12A, was on the middle floor.

DKS said that each resident at the Care Home has an individual care plan, to which each member of staff has access. He would expect any incident with a resident to be recorded in that resident’s care plan. DJ’s care plan was kept in a filing cabinet at the ‘senior’s station’ outside DJ’s room. The Care Home operated on the basis of 3 shifts per day (8am-2pm, 2pm-8pm and an 8pm to 8am night shift). Those staff members coming off shift would brief the incoming staff on any significant incidents that had occurred during the shift. DKS said if a resident hadn’t eaten, or hadn’t taken their prescribed medication, that would be recorded both in their care plan and in a handover sheet, and if patients had soiled themselves, that too would be recorded in both documents.

DKS drew the panel’s attention to the night check record at pages 384-395 of the appeal bundle. He said staff would complete this template, detailing the identity of the relevant resident (by their initials), where they were located (by their room number), the time of the check, and the status of the relevant resident (for example, ‘A’ signified that the resident was awake, and ‘AIT’ signified that the resident was awake and incontinent and taken to the toilet), as well as the identity of the person completing the check (by their initials). DKS explained that where a resident was required to be looked after by two members of staff both staff members’ initials would be recorded on the chart.

DKS said that on the night of 27-8 April 2020 he was on duty as Senior Carer with two colleagues, SH and KG.

He pointed out that the night check record for 27-28 April 2020 (at page 387 of the appeal bundle) shows that he carried out checks on residents in rooms 1-15 between 22:00 and 22:20 (including recording resident DJ to have been awake in room 12A at 22:16), while his colleague SH had carried out checks on the residents in rooms 16-21 between 22:00 and 22:10, and colleague KG had carried out checks on residents in rooms 22-29 between 22:00 and 22:14. He highlighted that there was no record to show that he was in DJ’s room with any other staff member at or about 22:00.

DKS drew the tribunal’s attention to the document at 396-397 of the appeal bundle, which was the ‘Daily Statement of Wellbeing’ relating to resident DJ. He said “if something had happened at the home it would be recorded here”. He pointed to the only entry for the night shift on 27-28 April 2020, which indicates that it was made by colleague KG at 2am, recording:

“[DJ] had supper in his room. Went to bed at 8:45, had assistance to bed, [DJ] has been asleep on 2 hourly room checks no concerns for [DJ]”.

DKS said that if a resident had soiled himself and had to be taken out of bed and changed, that would be in the Care Plan and in the night check log. Similarly, if a resident had been the victim of an assault that too would be in the care record, and if it were not in the care record there would be a big investigation as to why it wasn’t recorded.

DKS also gave evidence about the layout of DJ’s room (room 12A). He said there was an ensuite with a wash basin, a commode, 3 sets of drawers and a bed. He said that the layout of the room was such that it was impossible for one member of staff to change the bed while another cleaned DJ.

DKS denied assaulting DJ, abusing DJ, placing any bedding or material over DJ’s face, using foul language or verbal insults, and said that had he done so he would expect any staff witnessing such behaviour to report it and to place it on record.

DKS also denied being verbally abusive or aggressive towards any other resident.

He said he had never let a resident lie in their own urine in bed or prevented a resident from accessing their emergency buzzer.

DKS described the “huge” impact that being placed on the Adults’ Barred List had had on him, and said he was now working as a waiter.

Under cross examination by Mr Wilkinson, DKS initially denied ever having been in room 12A with colleague SH on the night shift of 27-28 April 2020. He said SH had fabricated not only that he had mistreated DJ, but also that they had been in DJ’s room together that night at all. He confirmed that his case was that colleagues SH, KG and AH had all lied in their statements to the police. When statements in the interview with resident DA relating to her use of her buzzer (see page 97 of the appeal bundle) were put to him, DKS said that she was also lying. He said that he didn’t know why SH, KG, AH and DA would all lie about him. He then suggested that DA may not have lied but may instead have been confused as she suffered from Alzheimer’s with dementia.

DKS clarified that the absence of any record in the night check chart of DJ being incontinent and covered in faeces did not necessarily mean that there was no episode of incontinence, but rather that DJ was not in that state when the 2-hourly checks were made. He said if there was an incident between checks that would be recorded in the care file notes, in the ‘Statement of Wellbeing’.

After it was put to him that he had accepted at his disciplinary hearing that he had recorded that around 1am DJ had opened his bowels in a large amount and was “playing with it” (see pages 106-148, and in particular pages 110-111, of the appeal bundle), DKS later accepted that DJ had experienced an episode of incontinence at some point on that night shift, when DJ was covered in faeces, and accepted that he had assisted him with that. He said he couldn’t say whether he had assisted DJ alone or with a colleague.

When questioned about how DJ would require to be cleaned if he had produced a large amount of faeces, DJ accepted that it would take two members of staff, and when it was put to him that he had said in his evidence in chief that it would be impossible for one staff member to clean DJ while another changed his sheets or assisted him with his balance, he said it depended where DJ stood. He said it would be impossible if he were to stand right by his bed, but it was possible if he were to stand by the commode near the door.

Mr Wilkinson asked DKS, in light of Mr Hugheston-Robert’s submission that DKS had been prevented from making full representations because of the risk that he might prejudice the criminal proceedings, whether he wished to say anything further now that the criminal proceedings were over. DKS said that he didn’t “want to give that information”.

While DKS at first denied entering DJ’s room with SH shortly before 10pm, he accepted this when Mr Wilkinson put to him that the written representations prepared by his solicitors on his behalf (see pages 192-197 of the appeal bundle) said:

“Just before 10pm, DJ could be heard shouting from his room which is 12A. DKS and SH entered the room and found that DJ had soiled himself requiring a change of clothes for DJ and a change of bedclothes. It is here that DKS is alleged to have shouted and swore at DJ and covered his mouth with a duvet cover.

However, DKS denies this and states that he and SH, attended the room and cleaned and changed DJ and put him bac (sic) to bed without incident and entry in the night check book would have been made as to what happened.”

DKS said that “from what [he] was reading” it “must be right” that he and SH had entered DJ’s room shortly before 10pm, and that DJ had soiled himself and needed changing. He said that he would have cleaned and changed him, as “it would be abuse if I didn’t”. Under re-examination by Mr Hugheston-Roberts, DKS said that this would have taken about half an hour. He said that it was common for staff to have to clean patients after episodes of incontinence.

In response to questioning from the panel DKS explained that the entries in the night check record would not necessarily have been made by the staff members who are recorded as having made the checks. He said that while he made the sequence of entries on page 387 of the appeal bundle in relation to rooms 1-15 around 10pm, either KG or SH would have made the next sequence of entries, and would have done so based on a note he would have written on a piece of paper showing when he went into which room and what the resident was doing at the time. Who actually completed the night check record depended, DKS said, simply on who picked up the record book.