[2024] UKUT 389 (AAC)

Ms B had not submitted a formal witness statement in the appeal, but had sent an email to the Tribunal which stated that she had been requested to attend as a witness and continued: “In relation to this, I would like to state that I would ask the Respondent to reconsider their action of the 12 January 2022, placing [the Appellant] on the barred list as this has had a detrimental impact on their character and future life choices and that I agree to answer any questions asked.”

The judge read out at the hearing the statement of Ms B to the employer (p49 – 51) and she confirmed in oral evidence that she was working at the residential care home with the Appellant, as a work colleague, for about two years.

Ms B gave evidence that her recollection was that the Appellant had not said specifically that the service user had a CD in his flat. Ms B was under the impression that the service user should not have a CD or a CD player in the flat because of his history of smashing, breaking or using objects to self-harm. That was a risk that existed at all times, as far as she was concerned. The risk was managed by conducting a rolling risk assessment on a minute-by-minute basis: he would use anything to self harm and had even cut bits of his flat wall to use them to harm himself. The difficulty was that if he asked the support worker to leave and was calm, then it could be regarded as restrictive practice to refuse to do so or to take objects from his possession. It was a fine line to tread.

Ms B confirmed that she had been surprised that the service user had been permitted to buy a CD player at all. He had a tough furniture cabinet in his flat and she would have expected the CD player to be in the cabinet so that he could listen to music safely. The arrangements for care of the service user presented a number of anomalies. For instance, he was not permitted china or cutlery in his flat, but if he asked for his food on a plate, then it would be regarded as restrictive practice to refuse his request. If he was calm and settled, his request would have to be granted. She regarded the situation as very difficult for the service user’s support workers, whatever they did.

She stated that “You couldn’t do right for doing wrong.” and explained that when providing support, if the service user asked the support worker to go away, then the support worker was not allowed to stay and would have to stay outside the flat until he was calm and settled again.

The Risk Assessment (p102) stated that that an early indicator of his becoming heightened is that the service user asks support workers to leave, yet Ms B’s evidence was that he could ask the support worker to leave if he was calm and settled. She confirmed that he could ask staff to leave and could decline staff support. If he asked staff to leave then it could be an indicator of his challenging behaviour but it was dependent on his mood. She explained that every incident had to be considered in isolation because he had a diagnosis of Pathological Demand Avoidance, staff would have to leave and wait next door leaving him unsupported but checking in on him at intervals. His interactions with staff had to be service user led and he would not allow staff to sit with him for very long. Managing the behaviour was treading a very fine line. The practice was that if he asked staff to leave, they would leave and check in on him every ten or fifteen minutes. When he was very distressed, staff could not enter his flat. His baseline presentation is when he is happy and singing but he could escalate and switch very quickly and he would then withdraw and demand to be left alone. This was a major concern for Ms B and ultimately a reason why she left her employment there. The service user’s impulsive nature meant that he could self harm with anything at any time. The fact that items could not be removed from him proved very frustrating and ultimately led to her moving on. The only time he could be asked to give back an item was if he had expressed an intention to cut or pick. Items could not be removed from him if he was calm and settled. He would tell staff if he was going to pick/cut or punch them. If he shouted at staff to leave his flat, he would say he wanted to punch them but then he could have days of calm when his presentation was very different.

When the service user was calm and not off his baseline, staff would go in to check on him every quarter of an hour, depending on the staff working. On the day of the incident, Ms B was supporting another service user who was trying to swallow a chain. The nature of the service users made it a very complex setting. At the time, there were five service users at the home. Ms B clarified that because the service user had a positive behaviour support model, he could be left with things, if he was calm and settled. However, he was a prolific self-harmer and in her view, the CD player should not have been bought for him unless it was to be stored in the tough furniture cabinet. The decision to allow him the CD player was that of a manager or clinical team member.

To withhold the CD from him would have been restrictive practice once he had been given the CD player. She gave evidence that it was a very difficult way of working because positive behaviour support can work well in the context of a secure unit but not in the community. The risk assessment did not mention the level of observation required for the service user and there were no observation charts because they were not used at the setting. The service user was deemed to have capacity and was not therefore subject to the Mental Health Act, although he had been previously sectioned in hospital. The role of the provider was to bring him back into the community. Nothing prevented the service user from coming and going as he pleased. The service user was very attached to the Appellant who took him out into the community.

The Team Leader’s office on the premises was so small that it was not possible to carry out a handover there. On the day of the incident, there had been five members of staff on duty when there should have been ten. Ms B recalled calling the company and asking what happens if a particular service user absconds. She had been told that in those circumstances, she should call the police. She also recalled the comment from the Appellant about the service user having a Joseph party, but did not link this to an understanding that he had a CD. She believed he was listening to the radio and could hear him singing in his flat.

Ms B confirmed that she was the team leader on duty in the afternoon and there was a new manager on duty. She was dealing with medication and supporting another prolific self harmer. The other support workers who were on duty were Nurse Line staff who were not trained to deal with challenging behaviour. She gave evidence that she would not have given the service user the CD player because it simply created a greater risk for the team leader. Her interview notes confirmed that her primary concern was the remote control which operated the stereo because she knew that on a previous occasion the service user had swallowed batteries and she was concerned that if he had a remote control he might do so again. She had to support two or three service users because they were the only ones on duty.

The evidence of the other person on duty, Mr T, was provided in an interview by the employer on the 17 November 2023. He confirmed that he had set up the CD player for the service user that morning and the service user said that he didn’t have a CD because he wouldn’t be safe with it. Mr T had inserted batteries into the remote control for the system and left the service user with it. In his investigation interview, he confirmed that he had been aware that the service user had a CD and was listening to it. He believed that the appellant had stated that the service user would be “alright with a CD”. He believed that had been said to Ms B in the office rather than directly to him.

The Appellant’s evidence was set out in the interview notes taken by her employer during the investigation on the 16 November 2021 (p32-35). In the course of the interview, the Appellant mentioned that it had been a long time since the previous incident of self harming, that the service user had asked her to leave the flat, appeared calm and settled and wanted to listen to his music alone. She decided to demonstrate trust in him by allowing him to listen alone and told him to call someone when he had finished. The Appellant stated that she had done a handover to Ms B as she was leaving her extended shift at 2.45 and told her that if she heard a Joseph disco it was the service user in his flat. She told the employer that Ms B was aware that he had a CD in his flat as was Mr T, the other carer on duty at the time. In the course of the interview, the Appellant stated that she had been struggling with family issues relating to a bereavement and ill health and that the home was very short staffed.

The report to the Adult Safeguarding Board recorded the care and support needs of the service user as 15 hours of 1:1 support, shared waking night staff and shared sleep in staff. The service user had a mild/moderate learning disability, ASD poor mental health, highly anxious, pathological demand avoidance disorder and a borderline personality disorder. He also had a diagnosis of Attention Deficit Hyperactivity Disorder. It was recorded that the service user was supported to purchase a new stereo which had arrived at the end of the previous week and had remained unopened until the 15 November. A member of staff had then unpacked and set up the stereo system for him. Following the incident, a protocol for use of the stereo had been prepared.

The notes of her disciplinary hearing held on the 29 November 2021 (pages 57 – 67). She confirmed that in his support plans, the service user was to be assessed on his mood and had “..appeared in a calm state with no anxiety. Happy CD player set up.” In his risk assessment, the service user is to be allowed to spend his time as he chooses and to make decisions about day to day life – (p59). At the meeting, the Appellant drew attention to the fact that from the documentation, there did not appear to be any agreed ways of working with the service user. Nowhere did it state that he was not to be left with a CD. She acknowledged that previous incidents had taken place with CD cases, and that she had replaced the CD case in a locked cupboard. She maintained that the service user had been left in a good place and she had gauged his mood and in accordance with the risk assessment was using a flexible and adaptable approach to his support and left him listening happily to the Joseph CD. She confirmed her view that the service user had asked to listen to the CD himself and that given his good mood, to require him to give up the CD would have been a trigger for him to escalate. She denied that she had told Mr T that the service user would be alright with the CD, but confirmed that she had mentioned the CD to the other members of staff. She confirmed her belief that she had said to the other two members of staff that the service user was listening to his Joseph CD.

On the day in question, the Appellant had been rostered to work the shift until 12.30 pm. Because the home was short staffed, she had stayed on to work until 3.15. She was not by then the team leader and considered that she was being person centred – the service user had not shown any signs of anxiety, he had just wanted to listen to his CD on his own. At that point, she had worked at CTS for six years. Following the disciplinary hearing, the Appellant was dismissed for gross misconduct because she had left a CD with a vulnerable adult in his flat which led to his self-injurious behaviour and as a result of her failure to follow the Positive Behaviour Support plan, the risk assessment and the health passport.

In oral evidence, the Appellant confirmed that the service user did not verbalise to her that he would self harm with the CD after she left. She recalled that she had locked the CD case away as required by the Property Damage list in the risk assessment documentation and realised that this was to prevent him from self-harming. The appeal meeting document was not available to the DBS when they made their decision.

The Appellant confirmed that she did not think 1:1 support for the particular service user was enough but having two supporting him would mean that if he sent one away, then he would still have another left to support him.

The appellant had a lift home at 3pm, so left at about 2.45. She had already handed over to another team leader and was no longer on shift or the team leader following the end of her own shift at 12.30. because they were so short staffed on that day, there was no formal handover. Only Ms B and Mr T were at the informal handover and the Appellant told them as she was leaving that the service user was having a Joseph party. She confirmed that she had not been involved in preparing the risk assessment document (p82) but agreed with the risk matrix set out. The Appellant was aware that the service user could use anything to self harm and that if every item he might use was listed, it would be a very long list. At the time that she left him, however, he was calm and in a happy place, so she applied the person centered approach. There were no indicators that he was anything other than calm and happy. Although his mood could change quickly, he was also very good at letting people know if he was going to self harm and asking people to remove an item from him. The Appellant had a very good relationship with the service user and could take him out into the community. She was aware that he could choose not to have staff support. She used distraction techniques if he indicated an intention to self harm and used that to remove items from him. He would self harm when he was on his own or in the presence of members of staff.

The employer’s investigation included minutes of a meeting with Mr T, the other carer on duty on the 15 November 2021 held on the 22 November 2021. (p52 – 54).

The daily notes on the date of the incident (p119) recorded that the service user “Appeared settled at the start of the shift” and recorded that “Staff set up his new stereo system and he listened to “Joseph and his Amazing Technicolour Dreamcoat CD – [SU] said that he would tell staff when he had finished listening.”

The service user’s risk assessment and risk management support plan were part of the evidence submitted by the employer to the DBS.(p77- 119) The areas of risk were identified as suicide/self harm – with the service user gouging his arms, inserting items into or picking at old wounds/scars; ingesting hazardous fluids and/or objects i.e. batteries. His risk of harm to others was by verbally threatening staff or physical harm by punching and kicking and property damage by throwing objects or smashing glass or CD cases or other objects to use for self harming behaviours.

The present self harming behaviours were identified as low level picking of wounds, high level of inserting or gouging at his arms, using foreign objects to insert or cause damage as well as making unwise decisions related to diet and medication and ingesting hazardous fluids. The assessment recorded that the behaviours may occur at any time and the service user will gouge/insert when alone, or when support staff are present. Under the heading “Damage to property” it was recorded that he will smash, break or use objects to self harm and this could include CD cases, light bulbs, plates, plastic forks etc.

Under the heading “What existing support is in place” it was identified that the service user’s own flat is his own space and that he has an option to decline staff support dependent on well-being; opportunity and support to spend his time as he chooses and to make decisions about his day to day life and a Positive Behaviour Support Plan identifying primary prevention support plans and secondary prevention, known triggers, indicators and management support strategies. The non-physical restrictive practices include: “Items/objects are removed at [service user’s] request and/or staff will advise [service user] they are removing items if he is verbalising he will self harm and has not asked for the items to be removed.” The plan included a need for staff briefing meetings 3 times daily and monthly key worker meetings.

Under the heading “Secondary prevention, a list of strategies were provided which are “…those things that can be done when the person seems to have become more anxious or unsettled (ie. behavioural escalation) to help reduce the likelihood of challenging behaviour occurring. There will normally be clear signs (early indicators) when this is happening.” The early indicators included the service user withdrawing from staff support and/or asking staff to leave. The intervention strategies included “Flexible and adaptable approach which responds to [service user’s] mood on a day-to-day basis.” “Listen to and respond to [service user’s] requests”. The list of “Non-physical restrictive strategies “ included “there is no china in [service user’s] flat – [service user] has the use of plastic crockery and cutlery at his request.” And “Items/objects are removed at [service user’s] request and/or staff will advise [service user] they are removing items if he is verbalising, he will self harm and has not asked for the items to be removed.” and “Staff withdrawal support when requested.”

Mr Wilkinson on behalf of the DBS submitted that the Tribunal should find that the Appellant had made a judgement call regarding the CD which ran contrary to the risk assessment and made a conscious decision to allow the service user to retain the CD. He submitted that the fact that the service user asks staff to leave does not mean that he should be left with an item in his possession with which he could self harm. Whilst his right to decide what he does with his day was protected, that does not extend to leaving him with items with which he could self harm. He disagreed with the two witnesses’ evidence that to remove items would amount to restrictive practice but did not provide any evidence to support that challenge. His submission was that staff are required to use whatever tactic they can to remove items from his possession.