[2024] UKUT 391 (AAC)

It is not in dispute that DM took an overdose of medication on 6 June 2021, shortly after being removed from AVS’s care, from which he recovered. It is not in dispute that the medication DM used was that which he had in his possession while in the care of AVS. The notes record as follows:

The submissions and evidence on which DBS relies are set out above. Mr Serr submits that the genesis of this failure is that AVS as the foster carer should have been fully aware of the medication that DM had in his possession and expiry dates and did not properly store or dispose of expired medication when he should have done. The risk of harm, which he submits materialised in this case, of not doing so is obvious. DM was a looked after child with serious mental health problems and AVS should have been fully aware of his medications [18].

This finding is addressed by the Appellant in his letter of representations in response to the MTB dated April 2022 [para 51 to 58 and see p114], the Notice and Grounds [p200-201, para 52 to 54] and the further submissions on behalf of the Appellant [p273].

The Appellant also sets out his account in his witness statement dated June 2023 [p281, paras 24-26].

The Appellant gave oral evidence consistent with this.

The Tribunal heard and accepts the evidence from the Appellant about the care with which he treated medication at the start of the placement, mindful of DM's past drug misuse. The Appellant stated that he was encouraged to give DM more freedom, which included allowing him control over his migraine medication. We accept his evidence that it was reasonable for him to believe that such medication ought to be kept available to DM at short notice, when a migraine was beginning, in order for it to be effective. No one had suggested otherwise to him.

We accept the Appellant’s evidence that he did not knowingly leave medication in DM’s possession – he bagged up all DM’s possessions as requested once DM left his care and passed them to a social worker to pass to the new foster parent to pass to DM assuming that the possessions should all have checked. The Appellant handed over DM's possessions to the social services office. It would appear that it was then given to the new foster carers. It is unclear how the medication them came into DM's possession. We also accept his evidence that no one suggested that the Appellant ought to go through all of DM’s possessions.

The Propanadol was out of date and AVS accepted that he should have completed the medications form and might reasonably have been more assiduous in checking for expiry dates. He also accepted that with the benefit of hindsight he should have competed the medication form but he did not knowingly or directly leave any medication in DM's possession or pass it to him.

Having accepted AVS’s evidence, we turn to the finding of relevant conduct itself.

It is not in dispute the AVS did not dispose of the medication which DM no longer required but then used to overdose. Therefore, in its narrow terms there is no mistake of fact in the finding itself – AVS did fail to dispose of the medication - albeit that the medication passed through a number of hands between the Appellant and before it was received by DM and there was no active intent on the part of the Appellant to transfer it to him. It was also reasonable for the DBS to conclude that AVS should have destroyed the medication on its expiry or at least removed it from DM’s possession.

We also accept that failing to dispose of non-required or out of date medication which a child then uses to overdose is capable of being relevant conduct because it endangers or is likely to endanger a child (causes them physical or psychological harm or puts them at risk of harm).

Therefore, the Tribunal finds that there was no mistake of fact or law in the narrow terms of the finding made by the DBS.

However, its seriousness is substantially mitigated by the further findings of fact we have made and these further findings would be material to reconsideration of the barring decision.

An important issue when considering the finding is the level of the Appellant’s culpability in failing to dispose of medication. The DBS has not provided any direct evidence of the nature or basis of the Appellant’s obligation to dispose of the medication such that it can be considered to represent a significant ‘failure’ as opposed to a mere absence of action in not disposing of the expired medication.

While we accept that there was an element of carelessness in the Appellant not documenting the drug on a medication list and not destroying it when it was out of date or not required, we are satisfied that this was a low level of culpability.

Further there was a very low level of causation or connection between the Appellant’s actions and DM’s overdose given the number of other adults (social workers and foster carers) and Children’s Services who held positions of responsibility who might themselves have removed or destroyed the medication and who were responsible for supervising DM before or at the relevant time when he took an overdose.