[2024] UKUT 286 (AAC)

There is the record of the account provided, close to the time (when memories would likely be fresher), of the carer who first raised the Catheter Incident (“KF”) [114]. According to KF’s account, he responded to X having pressed an emergency buzzer; ran to see X; X’s bed was wet; it became clear that X had cut the Catheter tube with scissors; KF then ran to inform the Appellant; the Appellant delayed for about 15 minutes before attending to X; the Appellant decided the District Nurse Team would not be contacted (saying that it was not an emergency) and gave some instructions to KF (to put a pad on X and tuck the Catheter tube into it); KF thought the situation was dangerous and that it was important to alert others so that they could come and change the Catheter; KF spent time reassuring X, who was “very apologetic” and appeared “worried”. KF added that, later (at around 1.10am), in addition to X reporting that they were in pain (see paragraph 80(a) below), X activated the emergency buzzer again and, on attending to X, KF saw that X’s bed was wet again, following which KF needed to provide further reassurance to X [114-116].

There is the record of the account provided, close to the time, by LS (who appears to have worked with the Appellant during only two shifts) [118-119]. According to LS’s account: KF came into the office and said that X had cut the Catheter tube; on hearing this, the Appellant, who was sat close to LS, said “for gods sake” [118]; the Appellant said that she was not going to “ring it through”; LS told the Appellant “you will have to ring it through”; the Appellant responded that she “can’t be arsed” as she would have to “wait up for them”, and that she “can’t be bothered”. LS added that she had “presumed” that the Appellant, despite her complaining, would “ring it in” nonetheless [118].

There is the record of the account provided, close to the time, by another colleague who appears to have come on shift the following morning and, finally, made the call to the District Nurse Team [104] (“B”). According to B’s account: the Appellant said that she had not called the nursing team because it was a bank holiday and had instead waited until the morning (with the intention that they would be called after 8am when the day staff came in) [104]-[105].

There is also the account provided, close to the time, by the Appellant herself [121]. The Appellant accepted she was made aware that the Catheter tube had been cut. She appears to have accepted that she decided the District Nurse Team would not be contacted, expressing a view that it was “too late in the day” for the equipment to be replaced and that instead contact would be made by phone “in the morning” [122]. She later added, when asked why no one was called until around 7am the next morning, that she was “not too sure how to deal with that especially being the bank holiday, didn’t think, didn’t know what to do” [123]. The Appellant appears to have understood that there was a risk of “infections and stuff” from the situation having been left as it was [123]. The Appellant also appears to have accepted that she could have called “S[]” (her manager) but had not done so [121-124].

There is, again, the account provided by KF [115]: KF reported to the Appellant that X’s bladder was “burning” and that X was “in pain”; the Appellant responded by saying that X “says that all the time and […] has to get over it” [115]; the Appellant did not attend to X again (and, in that sense, ignored X); X had not complained of anything similar before to KF (although this was only KF’s second night during which X had been present). KF also indicated that when he told the Appellant about the “burning” bladder, she came out of the lounge, “didn’t seem very interested in what [he] had to say [and] went straight [b]ack into the lounge” [114]-[117].

The Appellant appears to have accepted that she was told by KF that X was complaining of experiencing a “burning” bladder, discomfort and/or pain [123]; and that she took no further action. The Appellant’s explanation for taking no further action was that X had “been complaining” about such things before; that it was “not anything new” and had been reported before [123]. She is also recorded as having mentioned that she was, at some point, told that it was “something to do with being constipated” [123].

The Appellant did not attend the Employer’s disciplinary hearing (i.e. to contest the core allegations or to provide her own account in support of an alternative factual position). That was despite a second hearing being scheduled [184] after the Appellant did not attend the first. Nor, it seems, did the Appellant seek to challenge the decision to dismiss her (whether by appeal to her Employer or subsequently in the Employment Tribunal).

The Appellant did not provide any written representations to DBS (i.e. to contest the core allegations or provide her own account in support of an alternative factual position). It should be noted that the Appellant was corresponding with the DBS at around that time [33].

It is recalled that the Appellant has also not filed any evidence, or made written submissions, in support of this appeal, or to challenge DBS’s submissions.

Although the Appellant has made some reference to not feeling able or strong enough to challenge allegations/decisions [14], there is, to date little, if any, evidence to support such a claim. Moreover, there is evidence that, in January 2023, just a few months after her dismissal in October 2022, she was fit enough to have applied for, and/or intending to seek, work [33].

According to the record of the Appellant’s second investigation meeting with the Employer [125], the Appellant: denied LS’s account of the conversation during which the Appellant was reported to have said that she “couldn’t be arsed” to “ring it through” (claiming the conversation “did not happen”) [125]; claimed to have gone to check on X “straight away” (but qualified that she couldn’t say how long it actually was, and that it was “minutes”) [126]; accepted that she was aware residents may be in pain or harmed if there was a delay in checking on them; denied the alleged conversation during which someone told her that X was experiencing a “burning” bladder, discomfort and pain, and during which the Appellant said X says that all the time and needed to get over it (but accepted that she had said that X had mentioned such symptoms to her, adding that “seniors” agreed that X had been having “ongoing pains anyway” [126]); asserted that “clearly somebody has got it in for me” and that it is “their word against mine” [126]. The Appellant did, however, accept that she “should have rung it in”, that it was a “bad choice on my part” and added: “hold my hands up to it” [127].

In the Grounds of Appeal, the Appellant raised a number of matters relating to the wider context in which she says the Catheter Incident took place. Notably, the Appellant claimed – seemingly for the first time – that she asked LS for advice about what to do in relation to the Catheter Incident and that LS advised her to “leave it until morning” [5] (as the district nurses wouldn’t come out at that time and it was busy). The Appellant now claims that, given LS’s greater seniority and/or training, the Appellant had simply been following LS’s advice. The Appellant contends that, on reflection, she realises that she was wrong to do so and should have contacted the District Nurse Team immediately, but that, in not doing so, she was guilty of no more than naïvety [5].

In the Grounds of Appeal, the Appellant claims that the “can’t be bothered” conversation is untrue. She argues that the staff member making that allegation (LS) also made the allegation that the Appellant had been asleep on duty (an allegation that the Appellant claims has been proved untrue) and has, as a result, been shown to be “untrustworthy” and “proven to be a liar” (see below in relation to the sleeping allegation). More generally, the Appellant denied putting her own needs above those of service users [5-6].