[2024] UKUT 379 (AAC)

By a ‘Final Decision Letter’ dated 11 August 2022, the DBS informed the Appellant of its decision to place his name on both the Adults’ and Children’s Barred Lists (the “Barring Decision”). In that letter it said:

“How we reached this decision

We are satisfied that you meet the criteria for regulated activity. This is because of your stated work history within care facilities, your current nursing registration with the NMC and your qualification as a nurse which can be used to gain employment with children.

As mentioned in our previous letter we have taken the following into account:

•

On 27 September 2020, you received a caution from Hampshire Constabulary for the offence of common assaults (the DBS is satisfied the circumstances are that you accepted a caution following police investigation into allegations that in June 2020 you kicked your 8-year-old son TM due to his younger brother making a mess by playing with powdered milk)

•

On 22 January 2019, you received a caution by Hampshire Constabulary for the offence of Common Assault (the DBS is now satisfied that the context of this caution is related to workplace behaviour whereby you unzipped a female colleague’s top whilst simultaneously suggesting she should take her top off after she declared she was “so hot”.

We have considered all the information we hold and are satisfied of the following:

Allegation 1

You physically chastised your 8-year-old son TM by slapping him across the face on an unknown date in 2019 prior to 19 September.

Allegation 2

You physically chastised your son TM on unknown date in 2018 by means of slapping across the face.

Allegation 3

Prior to August 2010, Tm was left unsupervised to look after his one-year-old brother.

Allegation 4

Between February and August 2013, you threatened to kill yourself and your partner admits indications of ongoing domestic violence and hit your partner during an argument.

Allegation 5

Between May and December 2007 whilst employed as a Registered Nurse at X home , you demonstrated multiple unsolicited sexualised behaviours, including sexual assault by means of kissing and touching against will, towards female care assistants VM, EH and KW.

Allegation 6

On 9 July 2013, whilst working at Y home, you sexually assaulted a 19-year-old female care worker by means of unsolicited touching.

Allegation 7

In 2018, whilst employed as a nurse at Z placement, you conducted a range of unsolicited sexualised behaviours towards female adult co-workers, VM, LM and SN.

Having considered this, DBS is satisfied you engaged in relevant conduct in relation to children. This is because you have engaged in conduct which engendered a child or was likely to endanger a child vulnerable adult. It is also considered that you have engaged in relevant conduct in relation to vulnerable adults, specifically conduct which, if repeated against or in relation to a vulnerable adult, would endanger that vulnerable adult or would be likely to endanger him or her. This is because you have engaged in conduct which endangered a vulnerable adult or was likely to endanger a vulnerable adult.

Following receipt, evaluation, and consideration of your representations, we are satisfied a barring decision is appropriate on account that the representations did not significantly reduce the considered likelihood of future risk. It is acknowledged that you refuted allegations 5 and 6 as malicious fabrications by the manager of the respective facilities. This explanation is not accepted as plausible by the DBS for reasons including, but not limited to, the involvement and willingness of multiple different staff to potentially place themselves at risk of police / court action on behalf of the managers in response to a raised (unspecified) grievance and concerns about failure to order sufficient medication - this seems disproportionate. When added to the context of allegation 7 (which you did not address), the similarities in description of the behaviour as presented by seven different female colleagues, with no known connection in two different counties, spanning 11 years, is not considered to represent misfortune or coincidence.

With regard to Caution 2, you provided no additional information. In response to the behaviour presented in Caution 1 and allegations 1, 2 and 3, you offered minimal new or additional information. It is acknowledged that you described attending a parenting course and that you voluntarily enrolled on an additional 'Teenager course'. Your description that it had changed your mindset, and the list of example behaviours / strategies are recognised as being positive steps toward avoidance of the use of physical chastisement. Your description could have been supported by documentation of course attendance / completion. The DBS is however mindful of the time elapsed since the parenting course and the time over which you demonstrated the harmful domestic behaviour.

Your response to allegation 4 appeared to describe a different period, which was not related to the timeframe presented in the allegation. You did not address DBS concern that there was a chronological connection between the work-based behaviour and that demonstrated in the domestic setting. The category and level of concern in the risk assessment fields remain unchanged following evaluation of the representations. DBS is satisfied that the evidence indicates you have an attitude that you have an entitlement to sex and that you have intermittent compromised coping skills. These are considered the causal factors in the commission of the multiple episodes of harmful behaviour in both the domestic (toward your partners and son) and workplace (female colleagues). Due to the timing of each, it is determined there is a correlation between the harmful behaviours demonstrated in the domestic and workplace settings.

The positive character references are acknowledged as is your description of being caring, a trait inherent with your profession. Unfortunately, your position of denial about the work-based behaviour is synonymous with an absence of future risk mitigating factors. Again, DBS acknowledge there have been no reported concern regarding you[sic] professional ability / capability in respect of service users / patients and there is no evidence of NMC involvement. However, it is determined that DBS is the only organisation to have had collective sight of all the allegations / behaviours. It is notable that Hampshire Children's Service documentation did not evidence its knowledge of the work-based allegations even though their 2019 / 2020 and 2021 assessments occurred simultaneously and after the 2019 police investigation. When all the information currently held by DBS is considered, it is determined that the evidence suggests you have an entitlement to sex attitude, and you are likely to act upon it in the future. The evidence suggests reoccurrence of unsolicited sexualised behaviour is linked with demonstration of other harmful behaviours, in the past it has been threats to self and others and use of physical chastisement in the domestic setting. It is not known if the workplace behaviour (or report / investigation of workplace behaviour) triggers domestic behaviour or vice versa but the dates / timings of each are very similar (as are the periods in which there are no reported domestic or work-place concerns) strongly suggesting a correlation between the two. Whilst recent training / attendance on courses may have had the effect of reducing the likelihood of the use of physical chastisement in the domestic setting, the extent of that reduction is not readily quantifiable. This is in part because the training was undertaken in the past 8 months. When compared with the chronology of harmful behaviour in the case, is not considered a significant mitigation as there were lengthy periods between the reported concerns. DBS is mindful that the evidence indicates you have a propensity to conduct harmful behaviour, in different settings and of different presentation.

DBS acknowledged that none of the sexualised behaviour was conducted or involved any vulnerable adults and that the demonstration of threats / physical chastisement was conducted in the domestic setting. However, it is considered that each of the behaviours are relevant and transferable to the workplace and to those in receipt of regulated activity. The DBS is obligated to consider not only the position held currently but all positions / settings and ages of person in regulated activity. If you were, for instance, to work in regulated activity with 16 and 17 years old, you could replicate the sexualised behaviour which would endanger those individuals to a significant level. This is a reasonable projection given the ages of the females to whom you made unsolicited and unwanted advances over the period in which you demonstrated the relevant behaviour (2008 - 2019). Furthermore, it is reasonable to conclude your approach to safeguarding children in respect of witnessed or disclosed events is likely to be impacted by your own attitude and harmful behaviour.

In consideration of the future risk toward both children and vulnerable adults, DBS consider the evidence indicates you are likely to repeat harmful behaviour either through enacting on your entitlement to sex attitude or through compromised coping skills (which has previously resulted in the use of physical chastisement toward your son and threats of harm towards partners in the domestic setting). Despite your described caring nature, DBS is mindful of public perception and confidence in a safeguarding organisation having identified the concerning behaviour / attitude. The risk assessment supports a decision that a safeguarding measure is required to protect both children and vulnerable adults from future harm. It is therefore considered appropriate to include your name on the Children's Barred List and the Adults' Barred List.

A consideration of the proportionality of a barred decision is presented as follows: The decision to include you on the Children’s Barred List and Adults’ Barred List has been taken in consideration of your rights to a private and family life in accordance with Article 8 of the European Convention on Human Rights. An inclusion decision will interfere with these rights and is therefore required to be legal and necessary. The DBS acknowledge the significantly negative impact of an inclusion decision for you. This will prevent you from holding or attaining employment in the health and social care sector with both children and vulnerable adults. It would effectively negate your nursing registration and prevent you from holding both qualified and non-qualified positions in regulated activity. This is pertinent given there is currently no known involvement of your professional body, the Nursing & Midwifery Council (NMC).

The inclusion decision will exclude you from not only paid regulated activity positions but also voluntary positions with both children and vulnerable adults. The financial implication of reduced employment opportunity is acknowledged and could be significant for you and your family, including four children. This could impact your standard of living. The time, emotional and financial investment in your career is not underestimated. Inclusion would in effect nullify your career and may impact further educational and qualification opportunities, for example by preventing participation in course-required placements. The DBS recognise a stigma may be associated with inclusion on a barred list. This could impact mental health, mental wellbeing, and personal relationships. The magnitude of receipt of this letter is not under-estimated. The DBS do not publicise the barred lists but will inform the police and a prospective employer / organisation should you hold or apply for a position from which you have been excluded. The negative impact of an inclusion decision on you is acknowledged however, in this case, inclusion on the Children’s Barred List and Adults’ Barred List is considered a safeguarding measure proportionate to the risk posed.

It is therefore both appropriate and proportionate to include you on the Children’s Barred List and the Adults’ Barred List, to protect children and vulnerable adults. As a result, we included your name in the Children's Barred List using our barring powers as defined in Schedule 3, paragraph 3 of the Safeguarding Vulnerable Groups Act 2006 (SVGA) on 11 August 2022. As a result, we also included your name in the Adults' Barred List using our barring powers as defined in Schedule 3, paragraph 9 of the Safeguarding Vulnerable Groups Act 2006 (SVGA) on 11 August 2022. More information about the barring powers can be found at the end of this letter.”