[2024] UKUT 286 (AAC)

The first finding of relevant conduct against the Appellant relied upon by the DBS in its decision to bar is that:

“On 18 September 2022 you failed to contact the District Nurse Team and report that a service user ([X], aged 78) had cut her catheter tube as per care plan guidance, and following the service user reporting that she felt like her bladder was burning and was in pain, you failed to take any action in response to this concern.”

In summary, the Appellant’s response in her oral evidence in chief was as follows.

She was full of remorse about the catheter incident and tearful throughout giving evidence. She stated she felt ashamed and had failed herself. She displayed a good level of insight and acceptance as to the mistakes she had made.

She accepted she had made mistakes by: a) not reading the care plan for X which included instruction to contact the District Nurse for concerns about X’s catheter; b) not contacting the District Nurse for advice, instruction and assistance with what to do on learning that X’s catheter had been cut; c) not calling her manager [S] who was on call at night for advice; d) following LS’s advice as to how to act in response to the Catheter Incident.

There was no dispute that her mistakes constituted relevant conduct – her failures to act fell below the standard of reasonable conduct and exposed X to a risk of physical harm as explained by the DBS in the barring letter:

However, we accept the Appellant’s oral evidence about the following matters which a) provide mitigation for her failures; and b) reveal mistakes of fact in the findings relied upon by the DBS.

First, the Appellant stated that she had asked LS – another senior care assistant who was also on duty that night but who had more experience than her – for advice on what to do about the cutting of X’s catheter. She stated that LS had advised her there was no need to contact the District Nurse until the next morning. The Appellant therefore instructed the staff to put pads under X and regularly change them throughout the night. The following morning the Appellant came back into work to conduct the handover and inform the District Nurse of the situation but her manager [B] told her there was no need as he would deal with it.

The Appellant’s oral evidence was consistent with her grounds of appeal on this issue from September 2023:

We accept that the Appellant took advice from a colleague who was more experienced but of equal rank and relied upon it, however inadvisably. As above, she accepted that this was only mitigation and she had failed to follow the care plan and call the District Nurse.

Second, we accept her evidence that she did not say to her colleague that she ‘couldn’t be bothered’ to contact the District Nurse or senior manager once she had been informed that X had cut her catheter her or that it could wait until the morning. We accept her evidence that she has 17 years’ experience in care work and was concerned for all her clients / service users. This again is consistent with her written grounds of appeal:

Third, we accept her account that she did not delay before going to see X and instructing that pads be put underneath her and regularly changed and that she did not fail to take action when hearing that the service user was in pain. We reject the allegation that she unreasonably delayed before visiting the service user X and accept that she went quickly – at least within a few minutes as she suggests. We accept that she did take action on being told of the service user suffering from the cut catheter – by instructing that pads be used. We also accept her account, that however misguided, the Appellant believed that the service user had been reporting a burning sensation since she arrived at the home a couple of days before so that the Appellant did not consider anything additional needed to be done.

We accept the Appellant’s evidence that the written accounts of the two witnesses relied upon by DBS are not reliable. The DBS relied upon written notes of the accounts given by KF and LS in investigatory meetings: KF claimed that the Appellant did not go up to see X for 15 minutes and LS said she could not be bothered to call the District Nurse. The notes record the following:

We reject those parts of the account by KF suggesting JLA delayed for 15 minutes before going to see service user X and reject the suggestion of LS that she said she could not be bothered to ring the District Nurse. We are not satisfied these allegations are reliable on the balance of probabilities for a number of reasons.

First, the witness accounts are untested hearsay. The evidence consists of notes of interviews with each of the witnesses but not any formal statements or documents authored by them – let alone witness statements containing statements of truth. The absence of any cross examination of the witnesses means that less weight should be given to their accounts in this case.

Second and importantly, as the Appellant emphasises, KF went on to make another allegation against her which both the Employer and the DBS found not to be proved. KF alleged that the Appellant had been asleep on duty for around four hours during night shift (around 1am to 5am) on 14 September 2022. This allegation was found unproved by the Employer during disciplinary proceedings and the DBS in its barring decision process document. This was partly because the Appellant had produced text messages that she had sent at around 2-4am during the time she was alleged to have been asleep.

As the Employer stated in its outcome letter dated 7 October 2022:

The DBS found in its barring decision process document:

We do not consider it appropriate for the DBS to attempt to undermine the Appellant’s credibility or reliability based upon an allegation that it has found unproven as part of its barring decision process document and was not contained in its barring decision letter.

Third, the Appellant gave contemporary account in interviews with the Employer denying these specific allegations and was consistent in those denials throughout notice of appeal and oral evidence to us. During the disciplinary interviews (investigation meetings) with her Employer on 21 and 27 September 2022 she stated:

We also accept the explanation given by the Appellant in oral evidence as to why KF and LS had reason to make unreliable allegations against her. She explained that LS may have felt responsible for giving the Appellant the wrong advice about how to care for service user X and was seeking to deflect blame and place it upon the Appellant. Second, she explained that KF and LS were in a personal relationship.

Mr Reichhold relied upon the fact that the Appellant had not raised matters she now relied upon at an early stage. She only mentioned that she had asked LS for advice in her notice of appeal a year later in September 2023 and not during the disciplinary interviews in September 2022. Further she had not attended the disciplinary hearing with the Employer nor made representations to the DBS in advance of the barring decision as invited to do.

We have considered carefully whether these matters undermine the Appellant’s reliability and credibility. However, we have decided that they do not.

First, we were impressed by the fact that the Appellant was ready and willing to make concessions against her own interest in her evidence and in her notice of appeal. As we have explained above, she accepted she had made mistakes in relation to her care for service user X. She accepted that she had not read the care plan and did not do so generally – that she needed training and did not want to be a senior health care assistant as she did not want the responsibility. She was remorseful and insightful. She accepted much of the DBS’s case on the first finding of relevant conduct.

Second, in coming to this conclusion, we have taken into account the Appellant’s character and previously unblemished 17 year career in the care sector. This is relevant to her propensity to commit relevant conduct and her reliability or credibility when giving evidence. We also take into account that JLA gave oral evidence and was tested under cross examination unlike the witnesses relied on by DBS. We have also taken into account the fact that there was no reliance by the employer or findings by the DBS in relation to other allegations made against her which she denied.

Third, on balance, we accept her explanations that she gave to Mr Reichhold when cross examined on these points. We accept that the Appellant was suffering from a high degree of anxiety as a result of the allegations and this was reason for her not attending disciplinary hearing with the Employer or engaging with the DBS on the substantive issues at an earlier stage prior to lodging her notice of appeal. It was apparent from her appearance, manner of giving evidence and explanations regarding her mental health that the Appellant had been continuing to suffer from poor mental health since the incident.

On balance, we also accept that the Appellant did not mention asking LS for advice at earlier stage before her notice of appeal as she did not want to get LS in trouble. We also accept her explanation that she thinks LS was seeking to put further blame upon her as LS felt guilty for giving the Appellant bad advice at the time and was seeking to deflect responsibility.

The Appellant’s contemporaneous account and her account during the hearing in relation to Finding 1 included an admission to relevant conduct in respect of Service User X. Nonetheless we accept her denials in relation to a number of material facts relied upon by the DBS in making its Barring Decision. We identify below the facts upon which the barring decision was based but which have not been established on the balance of probabilities.

We are satisfied on the balance of probabilities that DBS made the following mistakes of fact in relation to the first finding of relevant conduct upon which its barring decision was based. The following findings and reasoning contained in the final decision letter were made in error of fact:

We are satisfied that these findings and reasons were materially mistaken in fact. The Appellant did not fail to take action, did not say she could not be bothered to wait for the District Nurse, did not show a lack of care for the service user and did not show a lack of concern for how the service user was feeling at the time.

We turn to consider the headings under which Mr Reichhold categorised the Appellant’s mistake of fact challenge to the first finding of relevant conduct:

We address the four categories in turn.

A. We have found that on the balance of probabilities that there was an error of fact in the DBS finding that the Appellant had insufficient interest in helping Service User X. This is for the reasons set out above.

B. We accept the Appellant’s evidence on the balance of probabilities that she ‘Acted on Advice’ of LS. Even though this was not sufficient or reasonable, it is some mitigation.

C. On balance, we accept that the Appellant’s evidence that she had asked for extra training in relation to care plans. Again, this is only mitigation because she had been provided with training and should reasonably have read the care plans of service users for whom she was responsible.

D. On balance, we accept the Appellant’s evidence that the work demands placed upon her by the Employer during much of her time at the home were very difficult. On night shift she was often the only senior care assistant responsible for 84 residents – across two houses - half of whom had behavioural difficulties and the other half were elderly. She was supported by one or two agency care workers, some of whom did not speak English. There was a lot of challenging behaviour that she was called to respond to and little time to read anything. She had told her manager S that she did not understand the care plans and need help understanding them. LS happened to be on shift as a second senior care assistant on the night in question to deal with the care plans. The Appellant was trying her very best to look after everyone under her care and genuinely thought that placing pads under X with hourly checks was the best thing to do after being advised by LS to leave calling the District Nurse to the morning. The Appellant believed that pads would prevent X being soaked and causing her any harm. Working during the time of COVID placed extreme demands upon her.

While all of the above is some mitigation, it does not excuse the Appellant’s conduct in failing to read X’s care plan. X had been a resident in the home for two days before the catheter incident, so even if the Appellant had not read the care plan before the Catheter Incident, as she ought to have, she should reasonably have read the plan when the incident was brought to her attention so she knew what was the appropriate action to take. In her oral evidence, the Appellant did not suggest that unmanageable demands were the principle reason for not reading X’s care plan – she simply accepted that she did not read care plans as she had not had training and did not understand them.

We are therefore satisfied that the DBS has made materials mistake of fact upon which the barring decision was based and while the Appellant did still commit relevant conduct there was some mitigation for it.