[2024] UKUT 286 (AAC)

The two findings of relevant conduct made by the DBS are as summarised above. The letter set out the following details specifically:

“…

•

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.

•

On a date leading up to 6 July 2021 you breached PPE policy by removing your facemask to take a photo with a visitor outside of the home.

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.

We are satisfied a barring decision is appropriate. This is because we are of the view that you failed to realise the seriousness of a situation where a service user had cut their catheter, where you failed to take the appropriate action of reporting the incident to the district nurse, when it was your responsibility as the senior on shift to do so. You failed to read the care plan, despite this being part of your role to do so, with the care plan providing clear instructions on what to do if there were issues with the service users catheter. The actions you instead instructed a member of staff to carry out resulted in the service user’s bed becoming wet and requiring changing regularly.

One of the reasons given as to why you failed to call the District Nurse for support was that you couldn't be bothered to wait for them, thereby showing a lack of care for the service user, and failure to place their needs above that of your own. You also failed to take any action when it was reported to you that the service user was in pain, stating this had previously been reported on a previous occasion. However, this shows a lack of concern for how they were currently feeling at that time.

As a result of your lack of action this placed the service user at risk of potential infection and suffering abdominal pain. It is acknowledged that you had extensive previous experience in caring roles with no known previous concerns, and acknowledged on reflection that you should have contacted the District Nurses immediately.

However, you reasoned that you did not know how to deal with the situation as it was a bank holiday, however the District Nurse Team were available 24 hours a day, and you failed to take any action to ensure the appropriate support could be provided to the service user. You admitted that you had failed to read the service users care plan, stating you didn’t have time to as they had only come into the service a few days prior. However, it was part of your role to do this so that you were aware of the service users care requirements.

Had you read this you would have seen clear guidance that any issues concerning the catheter should be reported by the senior on shift, which was yourself, to the District Nurse.

Had you followed this guidance in place this would have ensured the service users’ needs were met in a timely manner, with the District Nurse only contacted when your colleague commenced their shift the following morning. The actions you instructed a staff member to take resulted in the service users bed becoming wet and requiring changing, and placed the service user at risk of physical and emotional harm. We are satisfied that it is likely that if you were to be in a Regulated Activity position with vulnerable adults you would fail to read care plans in a timely manner, leaving you without the full knowledge of their care requirements. We are satisfied that it is likely that you would fail to correctly assess the seriousness of a situation, would fail to act upon concerns raised that a service user was in pain, and would fail to access/provide the required support for a service user. A repetition of this conduct is assessed as an unacceptable risk of physical and/or emotional harm to vulnerable adults that cannot be ignored.

…”

On 6 June 2023, DBS sent its “Final Decision” letter to the Appellant, notifying her of its decision that it was appropriate and proportionate to include her in the ABL. The Appellant was also informed that she could ask for permission to make late representations to DBS.

She did not do so [138] (albeit the Appellant’s letter to the UT dated 11 August 2023 refers to making “late representation” [14]).

On 22 August 2023, the UT received a letter from the Appellant, purporting to “request […] permission to make late representation” about DBS’s decision [14-16].

It is understood that the Appellant was advised to complete and return a UT10 Form (a Notice of Appeal), which was filed on 14 September 2023 (8 days after expiry of the 3-month time limit for appeal under r.21(3) of the UT Rules) [2] [214].

On 16 February 2024, the UT Judge extended time for the late appeal and admitted the Appellant’s Notice of Appeal and application for permission to appeal pursuant to r.5(3)(a) and r.21(6) of the UT Rules [214].

The UT Judge granted the Appellant permission to appeal on two grounds: