[2024] UKUT 224 (AAC)

By a ‘Final Decision Letter’ dated 16 June 2023 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 previous role of Health Care Assistant with Employer NHS Trust.

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

•

That on 12^th December 2021, you assisted a constipated patient to pass stools by inserting two fingers into her vagina and applying pressure.

Having considered this, DBS is satisfied you engaged in relevant conduct in relation to vulnerable adults. This is because you have engaged in conduct which endangered a vulnerable adult or was likely to endanger a vulnerable adult.

It is also considered that you have engaged in relevant conduct in relation to children, specifically conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him or her.

We are satisfied a barring decision is appropriate. We have concerns about the risk you may pose to vulnerable adults and children in the future. Specifically, as you completed a medical procedure that you were not qualified to do, in a role as an auxiliary nurse, and the procedure was not a permitted procedure within Employer NHS Trust. After admitting your behaviour to colleagues, you have then attempted to deny that you had inserted your fingers inside the patient’s vagina, despite three people being present and either heard or witnessed your description of how you did this procedure including using your two fingers and showing a digging motion. You have failed to take responsibility for your actions, attempting to downplay and deny your disclosure when you realised the reaction of your colleagues to what you had admitted to having done.

It is acknowledged that your actions could have been driven by your desire to assist the patient who was suffering with constipation, however, as a nursing auxiliary this would not have been a procedure you were qualified or permitted to be undertaking within Employer NHS Trust. It seems that you chose to complete the procedure without any consultation with your senior colleagues, who would have informed you of the appropriate way to support a constipated patient. You have lacked empathy for this patient, given the impact such a personal intervention would have had on them both emotionally and physically. Whether or not your actions were to support this patient, you acted outside of your permitted role and placed the patient at significant risk. It is accepted that the decision to include you in the barred lists is based on information that was from witnesses who had not actually witnessed your behaviour. However, all three witnesses heard your disclosure and two witnessed [sic] saw you using your two fingers to show how you completed this procedure. You were asked to repeat your disclosure by the witnesses and you repeated what you had done in the same manner. It was only when you realised the concern shown by your colleagues that you changed your description of your actions. When challenged by a senior colleague you then became aggressive and abusive towards her.

The fact you were happy to discuss your actions initially with your colleagues suggests an acceptance that what you did was acceptable and therefore you have lacked insight into your role and the medical procedures you were permitted to perform. It is also noted that you became very angry when challenged about your behaviour by one nurse present, which caused herm and other witnesses some emotional upset The Staff Nurse described you as showing your teeth with anger when challenged, and this anger rases further concerns about your ability to take feedback and/or instruction from others including senior professionals.

Consideration has been given to your disclosure that you were being bullied by the nursing staff, offering this as an explanation for them to make a false disclosure about you. However this was considered in your disciplinary hearing and it was noted you had not raised any concerns about discrimination or bullying to senior colleagues prior to this incident. One witness described having a good relationship with you and enjoyed working with you therefore there is no obvious reason as to why she would have made a false allegation against you and her disclosure was exactly the same as the two nursing staff.

Consideration has been given to your questioning of the timescale between the statements being taken following the incident. However, there is no evidence to suggest these witnesses had colluded to make false allegations against you. It is acknowledged that English is not your first language and that you could have been misinterpreted, however given the witnesses report not only hearing your words but also witnessed you using your fingers in a gesture consistent with inserting them inside the patient to remove the stools.

Your actions had the potential to cause significant harm to vulnerable adults and your actions could be seen as an assault on the patient. You have not provided ay representations to lower the risk the DBS considers you would present if you chose to do an unauthorised procedure when working as a healthcare assistant in the future or any other role that involved personal care within regulated activity roles in the future.

As the DBS cannot be assured that you would not perform medical procedures you are not qualified to do or that you would not touch patient [sic] inappropriately, this could put future vulnerable adults at significant risk of emotional and/or physical harm and it is appropriate to include your name in the Adults’ Barred List.

Although your actions were not committed against children, the DBS considers that any role that involved personal care of children within regulated activity could result in your performing medical procedures you are not qualified to do and which has the potential to put children at risk of emotional and/or physical harm and it is also appropriate to include you in the Children’s Barred List.”