[2025] UKUT 079 (AAC)

The DBS made the Barring Decision based only on paper evidence. It evaluated the written statements made in the context of the employer’s investigation, as well as the accident report completed by Nurse OB and MW’s daily patient records. It preferred the evidence of Nurse OB, JN and the written records to the evidence of the Appellant, and it explained with adequate clarity why it assessed the evidence as it did. It made clear findings of fact based on the evidence, and the most important of these (and the ones on which it based the Barring Decision) were those set out in paragraph 17 above. The DBS was entitled to make the findings that it given the evidence before it.

However, the Upper Tribunal may consider not only the evidence that was before the DBS when it made the decision under challenge, but may also consider new evidence (see DBS v RI [2024] EWCA Civ 95). As well as the evidence that the DBS considered, we had fresh evidence in the form of the witness statement of the Appellant’s colleague PK, and we had the Appellant’s oral evidence, tested by questioning at the hearing. We considered whether any of the new evidence (considered with the rest of the evidence) indicated that the DBS made any material mistake of fact.

We acknowledge that the Appellant was the only witness whose evidence has been tested. Because the statements of Nurse OB, JN and PK are hearsay evidence, so there has been no opportunity to test their veracity, we treated them with caution.

Alongside the Appellant’s witness statement, the Appellant sought to adduce a witness statement from her colleague PK. The Upper Tribunal was invited to consider compelling the witness to attend the hearing so that his evidence could be tested.

As the judge explained at the hearing, he was not satisfied that it would be proportionate to compel a witness whose statement made clear that he had no direct knowledge of the key matters in issue in this appeal: he says that he worked the night shift of 15/16 June 2023 but worked alone and doesn’t know what happened to someone we infer to be MW (albeit that the name has been redacted), because he didn’t work with her. The only evidence of relevance in his statement is his account of the 11:45 pm meeting with Nurse OB and the other carers (the Appellant and JN). His evidence is broadly consistent with the accounts of each of the Appellant, JN and Nurse OB in that he says that Nurse OB asked JN and the Appellant what had happened to MW. PK says that JN responded that MW “knocked her head against the bedrail” and this was the first time he had learned of this. The statement was admitted into evidence in the absence of any objection from Mr Fullbrook, who himself relied substantially on hearsay evidence.

If anything, PK’s statement tends to undermine the Appellant’s case because PK indicates that the question about what happened to MW was directed not only to JN (as the Appellant says), but rather to both JN and the Appellant. In any event it doesn’t shed any light on the issue whether the Appellant had informed Nurse OB about the incident when it had happened earlier in the shift. As such it is of limited utility.

PK’s evidence wasn’t the only new evidence we had: we also had the Appellant’s oral evidence. The Appellant was consistent in some elements of her evidence, most notably in saying that she had not seen MW fall, and that she had alerted Nurse OB of something having happened to MW (whether that was her falling to the floor, or being on the floor, or having been put back on her bed). She was also adamant that she had done nothing wrong, and that her duties in respect of MW were very limited. However, just because evidence is consistent doesn’t mean that it is truthful or reliable. Its truthfulness and reliability must be assessed by looking at the evidence in the context of all the other evidence. While much of the evidence was hearsay, many of the difficulties for the Appellant’s case on the facts arise from her own account of what happened, as we explain below.

We took into account that English is not the Appellant’s first language (and appears not to have been the first language of the other witnesses who gave statements either), and we kept in mind the possibility that there could have been misunderstandings between the staff working on the Appellant’s floor on 15/16 June 2023 as a result.

We also gathered during the course of the hearing that the Appellant struggles significantly with reading, and she confirmed in response to questioning from the judge that she had difficulty with both reading and writing. We took care not to draw adverse inferences from the absence of any written entries by the Appellant in the patient records or from the fact that the Appellant didn’t check what JN had (or hadn’t) written in MW’s patient records. These omissions might well be explained by her difficulties with reading and writing.

Overall, we did not find the Appellant to be a compelling witness. Even on her own account at the hearing, the Appellant was present in MW’s room when, having moved MW to a chair with JN, she heard a loud noise “like a bouncing ball” which made her turn around to see JN holding MW and putting her into bed.

The only reasonable inference from what the Appellant heard and saw (in its context) was that MW had fallen. This is consistent with the Appellant’s oral evidence that what she had heard and seen caused her to “panic”. We infer from her reaction of “panic” that the Appellant herself concluded from what she had heard and seen that MW had had a fall, and we also infer that she was alive to the possibility that MW may have sustained a serious injury as a result of that fall.

The Appellant was clear in her evidence that she had been trained that in the event of a fall she must push the emergency alarm and remain with the patient until assistance arrived. She did neither.

We do not accept her explanation that she didn’t press the emergency alarm because she “panicked”. It is not credible that she would fail to press the emergency alarm because she was panicked by the possibility that MW might have sustained a serious injury. To the extent that that knowledge caused her to panic, the much more likely response would be the most obvious one of pressing the emergency alarm and staying with the patient until assistance arrived, just as she had been trained to do. The more likely inference from the Appellant’s failure to push the emergency alarm button is that her “panic” was about being blamed for the incident. We find that rather than informing Nurse OB about the accident, the Appellant sought to conceal it.

The Appellant claims that, instead of pressing the alarm, she went to speak to Nurse OB because she was only a few metres away outside MW’s room. The Appellant has given differing accounts of the precise words she said to Nurse OB, but the upshot of them is that she told the nurse either that MW had fallen, or that MW was “on the floor”. We assessed this evidence in the light of all the other evidence, but we were not persuaded that the Appellant had informed Nurse OB either that MW had fallen or that she had been on the floor. That is because this account is inconsistent with the Appellant’s own account of the interactions that she had with Nurse OB later that evening at 11:45 pm, when Nurse OB called the care assistants for the usual meeting to discuss the personal care that they had given their allocated patients. The Appellant said that Nurse OB asked JN what had happened to MW. She had no credible explanation as to why Nurse OB would ask that question if she had already made Nurse OB aware that MW had had a fall.

The Appellant was clear in her evidence that she hadn’t corrected JN’s account (which made no reference to MW experiencing a fall). When asked why she hadn’t said anything about the fall, the Appellant’s explanation was that she had already done so at the time that the incident had occurred. We didn’t find this explanation to be believable. Even had the Appellant informed Nurse OB of MW having experienced a fall, the nurse asking what had happened and receiving an inaccurate response that omitted mention of the fall would surely have raised the possibility that Nurse OB had misheard or misunderstood her earlier report of he fall. Given that the noise the Appellant had heard and the sight of JN mishandling MW had been so concerning to her that it had caused her to “panic”, the Appellant would surely have sought to correct JN’s account to make sure that MW’s potential injuries were properly assessed and so she could get any treatment she might need.

Similarly, the Appellant said that Nurse OB called her into MW’s room on the morning of 16 June to show her MW’s swollen legs and asked whether MW had had a fall. That sits uncomfortably with the Appellant’s claim that she had already informed Nurse OB that MW had had a fall (and that Nurse OB had acknowledged that information and had reported that she had checked MW). Nurse OB’s response (making an entry in MW’s patient record, completing an incident report form, and calling an ambulance) is exactly what one would expect of a nurse in charge who has just become aware of a serious accident.

There was a striking inconsistency between what the Appellant claimed to have said to Nurse OB, and what Nurse OB said and did. The Appellant’s explanation for this was that:

We did not find this explanation to be credible. Like the DBS, we thought it unlikely that JN would have been motivated to give an inaccurate account of the events of the shift, given that he had admitted responsibility and said that he covered up the accident because he was scared. Placing blame on the Appellant wouldn’t have lessened JN’s own culpability, and we don’t find it credible that JN would be motivated to cause serious trouble for the Appellant just because he was from the same country as Nurse OB.

We were similarly unpersuaded by the Appellant’s account of having been called on her mobile by Nurse OB on the morning of 16 June 2023 after having left work. She alleges that Nurse OB asked her to say that MW’s fall had occurred on the morning of 16 June 2023 rather than when it in fact occurred on the night of 15 June 2023. The first time that this account appears in the papers is in the Appellant’s written representations to the DBS. There is no mention of it in her interview in the context of her employer’s disciplinary investigation. The Appellant told us that she had mentioned it in the context of the disciplinary process but that no-one had wanted to hear about it. We found that this account was inconsistent with the incident report recorded as having been made at 7:55 am by Nurse OB, which we accepted to be a genuine and accurate report. We decided that the Appellant’s account of being telephoned by Nurse OB and asked to lie was fabricated by the Appellant.

We did not find the evidence to support the DBS’s finding that the Appellant had herself put MW back into bed after her fall to be strong, but neither did we find that that finding was material to the DBS’s decision making. That is because the real mischief in this case in terms of “relevant conduct” was not the fall itself, or the inappropriate handling of MW to return her to her bed, but rather the failure to report the incident accurately by either JN or the Appellant. In the circumstances each of them was clearly under a duty to do so, whoever was named as principally responsible for the patient. This had the result that MW, a vulnerable adult, was not properly assessed on a timely basis and no appropriate treatment plan was arrived at. The Appellant’s dishonest attempts to conceal what had happened exacerbated the situation as they prolonged the period for which MW was left without appropriate assessment or treatment. This conduct caused MW harm, or at the very least put her at risk of harm. Even if the DBS’s finding about putting MW into bed was mistaken it would still have placed the Appellant’s name on the Adults’ Barred List, and it would clearly have been entitled to do so.

Given our assessment of the evidence, we were not persuaded that the DBS had based the Barring Decision on any material mistake of fact.