In the Health Education and Social Care Chamber

Decision of the First Tier Tribunal Care Standards
	
Matabole Martha (known as Marina) Mphahlele
Applicant

v

Secretary of State for Health
and
Secretary of State for Children, Schools and Families
Respondents

[2009] 1500.PVA
[2009] 1501.PC 

Before:
Mrs Meleri Tudur (Tribunal Judge)
Ms Margaret Diamond
Mr Peter Sarll

Decision

Sitting at the Newcasle Youth Court, Gosforth on the 8 December 2009 and the North Shields Asylum and Immigration Tribunal, Kings Court, on the 9 and 10 December 2009.

The Applicant was not represented.

The Respondents were represented by Mr Gwion Lewis of Counsel, instructed by the Treasury Solicitor.

The Tribunal heard oral evidence from:-
For the Respondents:
Ms T Clayton
Mr D Wilkinson
Ms M J McKuur
Mr S Allwright

The Tribunal also considered a substantial amount of written material presented by the parties.

1.	The Application

1.1	On the 20 April 2009, the Applicant appealed under Section 86(1) of the Care Standards Act 2000 against the decision of the Secretary of State for Health to include her in the list (“the PoVA list”)  maintained under Section 81 of the Care Standards Act of persons who are unsuitable to work with vulnerable adults and also appealed under Section 4(1)(a) of the Protection of Children Act 1999 against the decision of the Secretary of State for Children, Schools and Families to include her in the list maintained under Section 1 of the Protection of Children Act 1999 (“the PoCA list”) of persons unsuitable to work with children.

2.	Preliminary Matters
2.1	On the 21 May 2009, the Deputy Principal Judge of the Tribunal made a Restricted Reporting Order under Rule 14(1)(b) of the First Tier Tribunal (Health Education and Social Care Chamber) Rules 2008 prohibiting the publication (including by electronic means) in a written publication available to the public or in the inclusion in a relevant programme for reception in England and Wales of any matter likely to lead members of the public to identify any vulnerable adult.  At the conclusion of the hearing, the Tribunal confirmed that the Restricted Reporting Order should remain in force until further order, pursuant to Rule 14 (1)(b) of The Tribunal Procedure (First-Tier Tribunal) (Health Education and Social Care Chamber) Rules 2008.
 
3.	Background
3.1	Mrs Mphehlele, the Applicant, is a registered mental healthcare nurse who undertook her training and qualification in South Africa and moved to work in the UK in 2005.  Because the South African nursing qualification is regarded as equivalent to that obtained in the UK, she required only one day’s orientation training prior to taking up her employment as a registered mental healthcare nurse in the UK.  She worked initially at a care home in Aylesbury, where she worked until 2006.  On 20 July 2006, she started to work at Milldene Nursing Home in Gosforth, Newcastle-upon-Tyne.

3.2	On the 13 April 2007, the Applicant was dismissed from her post at the home following a disciplinary hearing for alleged gross misconduct.  The allegation was made in respect of the administration of and failure to record the administration of a non-prescribed medication to one of the residents.  The chair of the disciplinary panel concluded that the allegation was proved and that it was sufficiently serious to warrant summary dismissal on the grounds of gross misconduct.

3.3	The Applicant appealed against her dismissal and on an internal appeal, was reinstated to her post on a final written warning subject to undertaking further medication training and supervision and a piece of reflective practice work prior to taking up her duties on an unsupervised basis.  She recommenced her employment on the 4 June 2007.

3.4	The training was arranged within the home under the supervision of Ms MacKurr commencing on the 4 June 2007.  The supervision was completed on the 18 June 2007 but a further incident involving medication occurred and the Applicant was again subject to disciplinary action. 

3.5	On the 2 October 2007, the Applicant was formally dismissed again, and the letter of dismissal dated 4 October 2007 stated that the reasons for her dismissal were her failure to book in extra prescription medication and administering medication without signing the medication administration record (MAR) sheet.

3.6	The Applicant appealed against the dismissal again and the internal appeal was heard on the 19 November 2007.  Following the hearing, the decision to summarily dismiss was confirmed. 

3.7	An application was submitted to the Employment Tribunal, where the Applicant made a claim of unfair dismissal and discrimination on grounds of her race.
 
3.8	The appeal was heard by the Employment Tribunal in Newcastle upon Tyne over five days commencing on the 10 November 2007.  The Tribunal considered both the complaints of unlawful race discrimination and the complaint of unfair dismissal.  Both the claims were dismissed.

4.	The Listing Decision
4.1	Following the conclusion of the Employment Tribunal proceedings, on the 6 February 2008, Mr Steve Allwright, Area Manager of Anchor Homes completed and sent to the Secretary of State for Health a referral in respect of the Applicant.

4.2	A provisional listing was made on the 28 March 2008 and a letter sent to the Applicant informing her of the position.

4.3	The Secretary of State for Health considered the referral and wrote to the Applicant requesting that she make her submissions in response to the proposed listing.

4.4	Following consideration of the written representations, the Applicant was placed on the PoVA and PoCA lists, and the listing was confirmed by letter dated 15 April 2009.  The letter informed the Applicant that her name had been confirmed on both lists and that the Secretary of State for Children, Schools and Families had, as required by Regulation 8 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, directed on the grounds of her inclusion the PoCA list from the 15 April 2009, that she may not carry out work to which Section 142 of the Education Act 2002 applies.

4.5	The Applicant appealed against both listings.
 
5.	The Issues.
5.1	The referral from the Applicant’s former employers to the Secretary of State in February 2008 contained several allegations of misconduct, spanning different aspects of the Applicant’s work.

5.2	In the letter confirming inclusion on the PoVa list dated 5 March 2009, the Secretary of State relied on two allegations relating to the Applicant’s conduct as sufficient reason to place her name on the list, namely the allegation that she had failed to book in medication which had been prescribed to a resident in her care and had administered the same medication without immediately signing the medication administration record as she had been trained to do and that she was considered unsuitable to work with vulnerable adults because of the misconduct, lack of mitigation insight and remorse.

5.2	In the course of the appeal, the Secretary of State also relied on the earlier medication error, which led to the initial dismissal in April 2007 in support of the decision to list.

5.3	At the hearing, Mr Gwion Lewis on behalf of the Secretary of State confirmed that there was no intention to seek to rely on the other allegations made against the Applicant to support the decision and that it was on the basis of the medication errors alone that the appeal was opposed.

6.	The Hearing
6.1	The Tribunal heard evidence from Mr Derek Wilkinson Registered Mental Health Nurse also employed at Milldene Home at the same time as the Applicant.  Mr Wilkinson explained that he had been working as the day nurse and the Applicant as the night nurse.  He had contact with her on handovers for about 10 or 15 minutes daily.  He described how he had attended with her the Boots Medication training day in July 2006 and confirmed that the day had covered receiving medication into the home, how to safely administer medication, how to record administration, how to safely dispose of the medication and homely medication.  He specifically described how the training had covered the receipt of medication from service users when they return from hospital and described how it should be entered onto the MAR sheet when it did not form part of the monthly medication list.  He confirmed that such medication was to be entered manually onto the form and signed by the nurse on receipt.  Within Anchor Homes, the policy was that the entry should then be checked and countersigned by a second person, which would ensure that the dosage and administration process had been correctly copied from the medication packaging onto the MAR sheet.  Mr Wilkinson expressed his view that medication coming into the home should be recorded by the nurse as near immediately as possible, and he suggested that medication should be booked in no more than 30 minutes after arrival into the home.

6.2	Mr Wilkinson gave direct evidence about his recollection of the incident on the night of 21 January 2007.  He had arrived on shift and the Applicant had provided a verbal report on handover of the incidents which occurred during the night.  She did not mention the administration of any medication to MM, a service user.  Later during the shift, Mr Wilkinson checked the records and noted that the Applicant had recorded in the daily communication sheet for that service user,  the administration of a dose of cocodamol.  He had been surprised by the entry, and because he had been unaware that cocodamol had been prescribed for the service user, checked the MAR sheet.  He discovered that cocodamol had not been prescribed for the service user.  He confirmed that cocodamol is not a “homely remedy” within Milldene that can be administered without prescription by the GP.

6.3	The homely remedy policy at Milldene was described by Mr Wilkinson.  Until January 2007, the home did not have any such policy and consequently every medication administered to service users had to be prescribed for them by the doctor, including paracetamol and cough remedies.  During January 2007, the home moved to a system where each service user had a letter from the doctor in their personal file confirming what medication could be administered as a “homely remedy”.  The authority for MM included paracetamol and simple linctus but made no reference to cocodamol.  Mr Wilkinson confirmed that cocodamol in his experience was not a homely remedy and was not available to be administered without prescription to any of the residents.  This raised a further issue that the cocodamol administered must have been prescribed for another service user. Mr Wilkinson explained in evidence that although he accepted that everyone could make errors from time to time, he considered this to be a serious error and reported the facts to the home manager.  He attended a meeting with the Applicant and the home manger Mary Jane McKuur on the 25 February 2007, where he got the impression that the Applicant did not regard the incident as serious and considered that it did not warrant the attention that it received.  He described the Applicant’s attitude to the incident as one where she felt that she was being victimised and treated differently to other nurses.  He clarified that his concern was increased by the Applicant’s attitude, because if she did not regard the incident as serious, then he considered that the likelihood of it happening again was greater.

6. 4	In cross examination, Mr Wilkinson confirmed that he had discussed the second incident of medication error with Andrew Foley prior to Mr Foley reporting the incident to the home manager, stating that he had advised Mr Foley that if he was unhappy about the medication recording on the 19 June then he should refer the matter to the home manager.  Mr Wilkinson confirmed that he had not had cause to report any other nurse’s conduct to the manager during his employment at Milldene Home.

6.5	Mrs Tracey Clayton, the manager of Walldene Home, working for the same employer gave oral evidence about her involvement in the Applicant’s first dismissal.  She had been requested by Mr Steve Allwright, then Area Manager, to chair a disciplinary hearing in respect of the Applicant in April 2007.  She described how she had been provided with the Home Manager’s investigation report which described the incident on the 21 February 2007 and the investigation interview by Mary Jane McKuur of the Applicant on the 25 February 2007.  The Applicant was described as being unsure about the difference between cocodamol and paracetamol and had suggested that cocodamol was a homely medication.  Initially, the Applicant had suggested that she had written down the wrong medication, suggesting that she had administered paracetamol and not cocodamol.  She had described how both medications were kept on the same shelf in the medication cupboard and had said that “both look the same anyway”.  In a written statement dated 8 March 2007, the applicant had stated that she had used her own discretion according to the scope of practice in the use of homely medication to administer cocodamol.  On the 9 March 2007, the Applicant had told the investigating officer, Angela McLaughlan that she thought that paracetamol was the same as cocodamol and that it was a homely medication.

6.6	On the basis of the evidence presented in the report, Ms Clayton concluded that there were two aspects to the allegation which were the administration of the non-prescribed medication and the failure to record the administration on a MAR sheet.

6.7	At the oral disciplinary hearing on the 13 April 2007, Ms Clayton heard oral evidence from the Applicant, and she confirmed that she knew the difference between cocodamol and paracetamol.  The Applicant had admitted the drug administration error and the failure to record and relied on the differences in training in South Africa and the UK to mitigate her failures.  Ms Clayton concluded that the failures amounted to gross misconduct and were sufficiently serious to warrant summary dismissal, for three reasons – the administration of a non-prescribed drug to a service user, the administration of another service user’s medication to MM and the failure to properly record the administration on the MAR sheet. The major issue for Ms Clayton was the administration of non-prescribed medication to a service user.

6.8	Ms Mary Jane McKuur, manager of Milldene Nursing Home also gave oral evidence.  She provided a description of the Boots Medication training attended by the Applicant in 2006, explaining that it was a higher level course for qualified nurses lasting a whole day.  She explained that she had been concerned that the Applicant had not grasped some aspects of the training and arranged for her to attend on a second day to gain the certificate of confirmation that she had attended.

6.9	Ms McKuur gave evidence about an incident that occurred in about September 2006, shortly after the medication course.  She had been alerted by the local Boots chemist that prescriptions from the home had been amended.  When she investigated the issue, she found that the Applicant had written on some of the service users’ prescriptions additional items for dispensing by the chemist.  The prescribing doctor had also been alerted and he was furious and threatened to involve the police on the basis that it would constitute a criminal offence.  Ms McKuur had arranged a meeting between herself, the Applicant and the doctor and had succeeded in persuading him that there was no need for the matter to be taken further.  There had not been any suggestion that the Applicant had sought any personal gain from the amendments – she had assumed that the doctor had omitted certain medications that she considered necessary for the service user and had added them to the prescription.  In her view, the message to the Applicant from the doctor had been clear – if there was any repeat of the incident then he would not hesitate in involving the police and it could result in the Applicant being struck off.  Ms McKuur arranged refresher training for the Applicant and the issue was dealt with in that way.

6.10	Ms McKuur described the incident on the night of the 21 February 2007 and her involvement in the investigation.  She gave evidence about the dangers of failing to record medications administered appropriately and expressed her view that a registered nurse should be aware of the danger of such a failure.  

6.11	She also described her involvement in the second incident on the 19 June 2007, when the Applicant had failed to enter on a service user’s MAR sheet medications dispensed by the hospital following a visit there.  The incident followed a period of refresher training and supervised medication administration sessions directed as a result of the Applicant’s reinstatement to her post after her first dismissal.  She had returned to work on the 4 June and Ms McKuur had been responsible for arranging her refresher training and supervised medication administration sessions over a period of two weeks, ending on the 18 June 2007.  She confirmed her view that medications arriving at the home should be booked in on the service user’s MAR sheet as soon as possible, and certainly before being administered to that service user.  She believed that the medication had arrived into the home when the service user returned from hospital somewhere between one and two pm, had been administered to that service user by the Applicant at about 4.30pm but not booked onto the MAR sheet until the night shift had arrived at about 9pm that same evening.  On the day in question, there had been two nurses on duty, but the Applicant had been the keyholder and the senior nurse.

6.12	On the day after the incident, the resident had been very distressed about the amount of medication that she had been administered the previous day, because her records had been unclear about the administration of the medication.

6.13	Mr Steve Allwright, who was at the time of the incidents the area manager for Anchor Homes, gave evidence about his involvement in the process of disciplinary action and rehabilitation for the Applicant.  He had been responsible for the appeal hearing following the first dismissal and had made further enquiries to ascertain that the cocodamol had been kept in the homely remedies cupboard and had a damaged label so that the original prescription could not be deciphered.  Having obtained the further information he concluded that the penalty had been too harsh, and reinstated the Applicant to her post but with a final written warning that would last for 12 months.  He directed that as part of her rehabilitation into the post, the Applicant should undertake a piece of reflective practice work that he would supervise as well as refresher training and supervision by the home manager.
 
6.14	When first presented with the Applicant’s reflective practice exercise, he did not consider that it was appropriate and gave her an opportunity to amend it following a discussion about its content and purpose.  The second piece of work had been presented and accepted by Mr Allwright.  

6.15	Mr Allwright confirmed that he had been informed of the incident involving the change to prescriptions at the time that it occurred and he was party to the decision in the light of that incident to extend the Applicant’s probationary period from three to six months to ensure that she was an appropriate employee for the company.  She had successfully completed the extended period, but he had been dismayed to hear about the second incident in February.

6.16	When he was alerted to the third incident in June 2007, Mr Allwright described how surprised he had been and for the first time wondered whether he had made the right decisions in allowing the Applicant the opportunities given to her to improve her practice.  He had conducted a risk assessment and concluded that he could no longer allow the Applicant to administer medication and as she was on a final warning, she had been summarily dismissed.  He confirmed that he had not been aware of any other medication errors leading to dismissal within the company.  He offered his guarantee that similar errors by other people would be dealt with in the same way, and gave evidence that he had checked the medication records for June 2007, in the light of the Applicant’s allegations that others had been treated differently, but had been unable to find any other errors in the paperwork as alleged by her.

6.17	Within the tribunal bundle, there were MAR sheets, which, on close inspection suggested that similar errors had been made in the home, but not acted upon.  Mr Allwright gave evidence that in his view those errors highlighted should have been the subject of similar disciplinary action.

7.	The Appellant’s case
7.1	The Applicant gave evidence confirming her failure to record the administration of cocodamol to service user MM and stating that she had used her discretion as a nurse to provide the appropriate painkiller for the service user’s pain, despite the fact that it was not one of the homely remedies for the particular service user.  She was critical of the fact that the home did not have a written homely remedy policy to which her attention had been drawn at the time. She explained how the error in relation to the changed prescriptions had happened, and that she thought that she was writing on the duplicate prescriptions, not realising that she was writing on the originals.

7.2	In relation to the second incident in June 2007, she explained that the medications had arrived into the home sometime between one and two pm, when the service user returned from hospital and had been handed to the other nurse on duty, who had retained the medications until very late in the day.  The Applicant’s evidence was that she had been handed the medication at about 8.30pm when she was in the service user’s room.  She had enquired whether the medication had been administered and understood that it had not.  She had then administered the medication, later requesting another nurse on night duty to complete the MAR chart to show that it had been received, before signing it herself.  She had signed the medication as administered at “teatime” because there was no slot on the form for another administration before “bedtime”.  She had completed the booking in on the MAR sheet before the end of her shift and asked Andrew Foley, the night nurse to countersign it for her.  She did not consider that this was a sufficiently serious situation to warrant her dismissal and insisted that it was not she, but the other nurse who was guilty of misconduct.

7.3	The Applicant was of the view that she had been too harshly treated by being dismissed, and found fault with the supervision and training offered by Ms McKuur, suggesting that although she had been given the first training session recorded within the supervision record, this had been the only session that Ms McKuur had conducted.  The Applicant did not consider that this training was sufficient and did not believe that the direction given by Mr Allwright for her rehabilitation and reinstatement had been carried out.
8.	Reasons for decision
8.1	We considered all the evidence presented, both orally and in the documentation presented to the Tribunal.  It is not necessary to make findings of fact in respect of the breach on the night of the 21 February 2007, which the Applicant admitted, and similarly with the amendment of prescriptions in September 2006.
8.2	We find on the basis of the evidence that the allegation that the Applicant failed to book in the medication received by service user RC from the hospital on the 19 June 2007 to be proved: we did not hear evidence from the other nurse about her version of events, but in our view it was sufficient that the Applicant was the keyholder on that day and the senior nurse on duty to place the responsibility on her shoulders for booking in the medication.
8.3	We considered the Applicant’s evidence that she had not received the medication until about 8.30pm on the 19 June and was not therefore responsible for the delay in booking in the medication. Again, there are contradictions in her evidence:  she confirmed to Mary Jane McKuur on the following day that she had given the medication but had not written it up or signed for it until 9 pm.  She had written in the daily communication sheet on the day at 3.20pm that she had administered the medication to the service user. At the hearing, her evidence was that she had received the medicine from the other nurse at 8.30opm and had administered it to the service user then and recorded it as “teatime” administration.  We did not find the Applicant a reliable witness and preferred the evidence of Ms McKuur as corroborated by the daily communication sheet that she had received the medication earlier in the day and had administered it to the service user without booking it in on the MAR sheet or recording the administration until about 9pm.   
8.4	We found the Applicant’s evidence contradictory, in that there were several explanations for each incident, so that it became difficult to identify what precisely she was alleging.  In relation to the incident on the 21 February, she continued at the hearing to make reference to the use of her “discretion” as mitigation for her administration of the drug.  She did not appear to understand that in relation to non-prescribed drugs, she did not have any “discretion” to administer them to service users.  She also sought to rely on the absence of a “homely remedy” policy as mitigation.  We did not accept that this was in any way convincing given that the home had a very clear policy where each resident had a specific individual authorisation from their own GP as to which homely remedies they could have.  The argument that the cocodamol was kept in the same cupboard as the other homely remedies was also in our view, a weak one – a registered nurse should have been clear in her own mind about the difference between homely remedies and other medications and should not have administered anything outside the homely remedies approval to any service user.
8.5	We have concluded on the basis of the evidence that there were in fact five incidents of misconduct in relation to medication, which we consider relevant to the decision to be made by the tribunal, and they are: (i)	the changing of the prescriptions in September 2006; (ii)	 the administration of a non-prescribed medication to a service user on the night of 21 February 2007; (iii) the failure to record the administration of medication on the service user’s MAR sheet on 21 February 2007; (iv)	the failure to book in the medication received from hospital with service user RC on the 18 June 2007 in a timely fashion; (v) the administration of medication to service user RC on the 18 June 2007 without having recorded it on the MAR sheet and without first having booked it in to the home.
8.6	We consider that each of these incidents of misconduct placed at risk  those service users who were administered the medication in question because other members of staff would have been unaware of the medication dosages which they had been administered, which could have led to accidental overdoses. 
8.7	In the light of the above conclusions, we considered whether the Applicant could be considered unsuitable to work with vulnerable adults because of the nature of her misconduct.  In our view, it is possible for anyone to make a mistake by failing to record important information.  In this case, however, our concern was the number of errors and their frequency, and the fact that despite several opportunities to improve her training and practice the Applicant appeared unable to ensure that she did not repeat similar errors.  We were not convinced even at the hearing that she had succeeded in grasping the severity of the situation.  Her reliance in mitigation on her own “discretion” in relation to the administration of the non-prescribed cocodamol, suggested that she still believed that she had wider powers than those afforded to a registered nurse in her position, despite the fact that she had been through two disciplinary hearings in relation to the incident as well as an Employment Tribunal hearing and the present tribunal hearing in relation to the same matter.  There was also the clear suggestion that she could not accept her own responsibility for the incidents that happened, seeking to blame others in the absence of a homely remedy policy and the other nurse for failing to provide her with the medication on the 18 June 2007.
8.8	These issues were sufficiently serious in our view to indicate that the Applicant is unsuitable to work with vulnerable adults because she does not appear to understand or shoulder her own responsibilities in the position that she filled and was unable to benefit from the additional training and supervision that she was given.
8.9	In the light of the evidence of other medication errors having been missed within the home, we had some sympathy with the Applicant’s belief that she had been treated more harshly than others in a similar position.  Unfortunately, this does not in our view reduce her responsibility for her actions, but suggests that the home should be more vigilant in its practices and ensure that similar errors are also disciplined in a similar manner.
8.10	We considered separately the PoCA listing and concluded that the Applicant would pose the same risk to children to whom she would be required to administer medications as to vulnerable adults and consequently, her appeal in relation to both listings fails. 
.8.11	It is the unanimous decision of the Tribunal that both the appeals are dismissed.
Dated the 4th January 2010.

Meleri Tudur, Tribunal Judge
Margaret Diamond
Peter Sarll