[2024] UKUT 258 (AAC)

We find that the “daily records” for the night of 16-17 March 2021 are a reliable record of what AW did for JB that night: she checked on him six times, at roughly two hour intervals; she changed him when she found him wet at around midnight and again at around 4:30 am.

Based on a combination of the 6:45 am (or thereabouts) entry in the “daily records” and AW’s oral evidence (which, in large part, we found reliable and credible), we find that at around 6:45 am, AW again checked JB, and, finding his pad to be damp but not entirely wet, made a “judgement call” to the effect that it was in JB’s best interests not to change his pad because so-doing risked waking him up, and it was not strictly necessary to change his pad at that stage. AW’s judgement in that matter was very much coloured by her understanding that the care home sanctioned not changing JB’s pad in such circumstances, given that JB had a history of difficulty sleeping. We find that it was wrong for AW to say that this point was formally written in to AW’s care plan; however, we on balance believe her when she says that she believed this was an approach sanctioned by the care home. To be clear: the approach which AW believed was sanctioned by the care home was one that applied only where it was not strictly necessary to change JB’s pad; in other words, if JB had soiled his pad (with faeces), or if his pad was entirely wet (as opposed to just damp), AW’s understanding, we find, was that the pad had to be changed – even if JB was woken up in the process. It was only because the pad was damp, rather than wet, that AW thought it was proper, and sanctioned by the care home, to delay changing it and avoid any risk of waking JB up as a result of changing the pad.

It follows that we have found, on the balance of probabilities, that the urine-sodden state that JB was unfortunately found in, sometime after 7:30 am that morning, is something that had occurred after AW’s check at around 6:45 am.

We find that there was a “handover” to day staff at around 7:15 am on 17 March 2021 but this was done via day staff and night staff speaking to one another, but without a physical examination of the service users. In this respect, we have not found AW’s evidence wholly credible, on the balance of probabilities: whilst we believe her that there was a “handover” (and this is also very much corroborated by the notes of the various investigation minutes), we find that this was not done in as thorough a way as is suggested by the care home’s standard operational procedures document i.e. there was no “walk round” to each of the service users. We note that this failure to do a “walk round” at “handover” was not AW’s fault: we find that, in all likelihood, it reflects a pattern into which the support workers at the care home had fallen, and we think it equally probable that the care home was fully aware that “short cuts” were being taken by staff at “handovers” in this way.

We find it probable that, in the “handover” meeting with the day staff on that morning, AW conveyed, in essence, everything that she had written in the “daily records” over the night – including the fact that she last changed JB’s pad at around 4:30 am, and that she had not changed his pad at around 6:45 am, as it had not been sufficiently wet. In making this finding, we rely on AW’s oral evidence, which in general we found to be credible, as well as intuitive common sense: if AW had written something in the records, it is likely that she would convey the essence of that information to those taking over, at the oral “handover”. We put less weight on the recorded views of IG, ER and AB to the contrary (that AW did not tell them that JB’s pad was damp but not wet at around 6:45 am) in documentary evidence, given that it would have been in their interests to deny being given full information by AW, and that we had no opportunity to test their evidence, as they were not called as witnesses.

We find it probable that the 5:30 am entry in JB’s “bowel monitoring” was a simple error on AW’s part: the other entry for the same night, at 11.58 pm, exactly mirrors the time at which she checked on JB and changed his pad per the “daily records” (which, as we say above, we find to be an accurate record of the care given to JB over that night); we find AW to be, generally, credible, and we see no benefit (or other rationale) to her inserting “5:30 am” on a false basis.