Carol Gonsalves
Applicant
V

Secretary of State for Health
          Respondent

[2009] 1619.PVA
           1620.PC

DECISION

Panel   Tribunal Judge Nancy Hillier
	   Mr Jeff Cohen (Specialist member)
	   Ms Bridget Graham (Specialist member)

Hearing held in London on 14th and 15th June at Pocock Street, 17th June at Fox Court and 12th July 2010 at Field House.
Ms Gonsalves was represented by Mr Gilberthorpe of Counsel
He called Ms Julie Roche as a witness and we heard the evidence of Ms Gonsalves.
Miss Davies of Counsel represented the Respondent.
She called Christine Mirner, Ann Marie Jayne, Darion Moore and Mathew Joseph as witnesses

APPEAL
1.	Carol Gonsalves (“the Applicant”) appeals under section 86 of the Care Standards Act 2000 (“CSA 2000”) against her inclusion in the list of persons considered unsuitable to work with vulnerable adults kept by the Secretary of State pursuant to s81 of the CSA 2000 and against inclusion on the list of those unsuitable to work with children kept by the Secretary of State for Children, Schools and Families under the provisions of Section 1 of the Protection of Children Act 1999 (“PCA 1999”)

PRELIMINARY MATTERS
2.	By letter the dated 7 June 2010 the Respondent sought permission to adduce the evidence of Matthew Joseph, (MJ) a witness from Northcott House Care Home. Firstly, permission was sought to file and serve a witness statement from MJ, and secondly, a direction that he give evidence via video link. There are no video link facilities at Pocock Street.
3.	Ms Davies explained that MJ could not attend a hearing in London due to childcare problems, namely that he had nobody to take his child to school/collect him and could not travel to the tribunal and back within a school day. 
4.	Mr Gilberthorpe submitted that the evidence had come very late, especially as Mr Joseph had worked at the home since 2004, so his whereabouts were known. He was concerned at the fact that Mr Joseph was showing some reluctance to attend.
5.	The panel decided that it was important to hear this witness’s evidence, and if the only way that this was possible was via video link then we would grant the application. The panel therefore granted the application and arrangements were made for the hearing to move to Fox Court for day 3 of the hearing in order to use their video conferencing facilities.
6.	Both Counsel had agreed that we should hear the allegations de novo as there was additional evidence/ additional witness evidence, and this tribunal applies the civil standard of proof.

BACKGROUND
7.	The Appellant was employed as a nursing sister at Northcott House Care Home, Gosport, (“the home”) from 5th May 2004 to 26th November 2004. The home is a residential care home, with nursing, for 55 elderly residents.
8.	On 10th November 2004 a carer at the home, Anne-Marie Jayne (AMJ) made 2 complaints to the manager of the home, Christine Mirner (CM) about the Appellant’s conduct. She alleged firstly that on a recent night shift one of the residents for whom the Appellant was responsible, referred to as Resident B, had soiled herself and the Appellant had failed to clean or change her for several hours until AMJ raised the situation with her. Secondly, she alleged that on an occasion some time previously, in the presence of AMJ and another carer called Darion Moore (DM), the  Appellant touched the testicles of Resident A when there was no nursing requirement to do so.
9.	CM suspended the Appellant and investigated the allegations. She spoke to DM, who told her that there had been an occasion involving the Appellant, AMJ and Resident A when the Appellant had touched Resident A’s private parts with a toy. CM held a disciplinary meeting attended by the Appellant on17th November 2004 and she was dismissed on 26th November 2004.
10.	The Appellant appealed against her dismissal. Written statements were prepared by CM, AMJ, DM and others. On 20th November AMJ made a third complaint, namely that the Appellant had left the home on one occasion during a night shift when she was the nurse in charge in order to collect a pizza. The appeal against the dismissal was heard on 6 January 2005, and her dismissal was upheld.
11.	The Appellant was referred to the PoVA list by CM in a letter dated 22 November 2004. She was provisionally placed on the PoVA list on 14th July 2005, and was confirmed on that list by letter dated 3rd July 2007. She was also referred to her professional body, the Nursing and Midwifery Council (NMC). They started proceedings before the Conduct and Competence Committee (CCC) to consider the three allegations made by AMJ. The hearing took place on days between July 2007 and February 2008. The NMC found the allegation relating to Resident A proved, but the other two allegations not proved. They imposed an 18 month caution on the Appellant.
12.	Unaware of her inclusion on the lists the  Appellant obtained employment at Red House Care Home from 13 December 2004 until her suspension (due to it coming to light that she was included on the PoVA/PoCA list) on 13 February 2009. 
13.	The Appellant has now appealed against her inclusion on the lists. Since it was some time before she became aware of her inclusion on the list, permission to appeal out of time was granted by HHJ Pearl on 22 October 2009.

The issues.
14.	Miss Davies submitted on behalf of the Respondent that the issues are:
a.	Was the Appellant guilty of misconduct that harmed a vulnerable adult or placed a vulnerable adult at risk of harm during that period of employment in that she:
i.	on an unknown date held the testicles of a vulnerable adult service user “Resident A” when there was no clinical need to do so and waved a toy monkey near his body, when he was naked from the waist down;
ii.	on a night between 6 and 8 November 2004 failed to take appropriate and reasonable steps to ensure that a vulnerable adult service user “Resident B” was clean of faeces;
iii.	on an unknown date while she was the nurse in charge of the night shift and the only RGN present at the Home left the Home to buy a pizza.
b.	If so, is the Appellant unsuitable to work with vulnerable adults?
c.	If so, is she unsuitable to work with children?

EVIDENCE
Respondent’s evidence
How the allegations came about
15.	CM told us that she believed that the Resident A incident had occurred in July/August 2004 and was first reported in November 2004. She agreed that you would normally expect a member of staff to report the matter immediately, however in the real world staff “won’t always whistle-blow”. She said that she told AMJ off for failing to report it. Initially Pam Fisk (PF) told her that AMJ wanted to speak to her about something. PF then told AMJ to speak to CM. CM asked AMJ to put her allegations in writing, and a statement was made on 10th November 2004. This statement made no reference to the monkey toy, and AMJ said nothing to her about the monkey toy.
Resident A
16.	Christine Mirner (CM) is the manager at the home. She described the home for us and the layout of the rooms. She was unable to comment on some of the working patterns which were in place when the Appellant started working at the home. The Appellant started working at the home on May 2004 and CM started on 16th August 2004. She could not comment on the previous management but there was very little paperwork and some aspects concerned her. “The staff were trying to do the best they could with little guidance”. A resident had been left in a corridor on a hoist with only a towel to cover them, which was unacceptable and demonstrated the need for training and support.
17.	In November 2004 the night shifts lasted from 7pm to 7am and there were 5 health care assistants and one nurse covering the home and its 55 residents. At midnight the home was divided into 3 zones with 2 staff on each, however the nurse had to cover the whole of the home. Prior to midnight all staff covered all patients. She was unable to say how long the system had been in place. She said AMJ was the first person to tell her about Resident A. She then obtained statements from DM and SV.
18.	AMJ said that Resident A’s room was small. On the night in question she had noticed he needed changing and was in the process of doing so with DM when the Appellant came into the room. AMJ did not know why the Appellant came into the room. She came to the right of AMJ and asked her where the toy monkey was. AMJ said that the Appellant  “used the monkey on his face and went onto his tummy”. She could not remember whether he was smiling as “I was trying to deal with down below”. He didn’t give any sign of distress. AMJ said that she was waiting for the Appellant to finish and had the pad in her hand. “I was stood over her. She got hold of them with a cupped hand. She held them. When she did it I saw everything that happened clearly. I said ‘stop, that’s abuse’. DM said nothing. The Appellant said  “He likes it.” “Resident A gasped”. AMJ commented that “It wasn’t right.” She said that she then left the room and had commented later to DM that what had happened was “Abuse”.
19.	She described the action of cupping the testicles as  “grabbing”, and she said “her hand shot out and she took firm hold.” Mr Gilberthorpe suggested that this was rather more serious than her previous evidence in which she had said that the Appellant had “put her hand onto”  Resident A’s “private parts.” AMJ admitted that her previous description had been of much less serious conduct. She confirmed that DM was present and “would have seen everything”.
20.	AMJ confirmed that she could not remember when this had happened during the year but it was “several months” before she reported it. She said she was worried for the Appellant, and what the outcome of a complaint might be. Mr Gilberthorpe pointed out that she had initially made no mention of a toy monkey, to which she said “I don’t see why you can’t rely on my evidence”. She denied speaking to DM again about the incident.
21.	DM said that they had gone in to change Resident A: “We were washing him when she came up. Resident B was standing. We held him up. I can’t remember what she did when she came in. We were chatting. She got the monkey. She’d have to reach up to touch Resident’s B’s face. She started off round his neck. He was not disturbed or distressed. She moved the monkey down the body. The arms of the monkey were hanging down….It happened very quick and then over his private parts. It was only a second or two Her hand never touched his private parts. I had a clear view. I would have seen it. The body of the monkey went over his private parts.”
22.	DM said that AMJ was the first to suggest that it was abuse. He had assumed she would report it. He thought it was serious at the time but since then, on reflection, he would put the conduct as 3 out of 10 in term of seriousness.
Resident B
23.	CM was asked what a member of staff should do if they came across a patient who was covered in faeces but who was not in their area. She said that if that person could deal with it they would however “sometimes you have to pass it on”. Sometimes a message would be passed down via one or more carers. CM accepted that it was not possible to know whether the message was passed on, however she stressed the fact that the nurse in charge has to patrol the home and it’s her overall responsibility. The 6 staff working overnight were very busy, with periods that can be quieter.
24.	CM told us that Resident B was incontinent and was suffering from Alzheimer’s. The home isn’t registered for such patients and there had been discussions about her remaining. It was not unusual for her to pass 3 motions per day.
25.	AMJ explained that each carer would probably put 6 or 7 residents to bed. When asked why she didn’t go in to change Resident B she said “I was new to the job. I wouldn’t have gone in and done anything. I was too busy”.  When asked whether putting someone to bed was more important than dealing with someone who was covered in faeces.  She agreed that the latter was more important but said that if they were “comfortable-ish” it was better to concentrate on putting the residents to bed. She did not go in to Resident B initially “because someone else was on that section.” She stated that she had changed Resident B’s sheets but hadn’t washed her. She could not be sure of the time. She said “I didn’t want to tread on Carol’s toes” but she was unable to explain why changing a residents’ soiled clothing would be treading on anyone’s toes.
26.	AMJ agreed that when she alerted Zuzanna Vavrova  (ZV) to the state of Resident B, the Appellant immediately ensured that Resident B was cleaned and had a bath. Mr Gilberthorpe pointed out to her that at the ‘handover’ at 7a.m the Appellant had stated that Resident B had passed 2 motions in the course of the night. She denied being present at the handover, however Mr Gilberthorpe reminded her that her previous evidence was that she had been there and she had accused the Appellant of lying. AMJ said that she knew it (the statement re 2 motions) was a lie.
The Pizza allegation
27.	CM told us that nobody may leave the premises during the night shift, not even to go outside for a cigarette. If a member of staff wanted a pizza they could have one delivered.
28.	CM told us that this allegation was not mentioned by AMJ at the initial discussions or in her statement. CM stated that there was always speculation about how the Appellant had got to the pizza shop. It was said to have been raining that night so somebody had to drive her. AMJ had said that on the night it happened it was wet and windy. CM had not made any enquiries of staff as the police had said leave the investigation to them, however there had been speculation that it was the Appellant’s boyfriend who had taken her. In April/May 2010 AMJ had come to see her and said that it was MJ who had driven the car. Rather than ask him, she had contacted Tsol and left the matter to them.
29.	In her oral evidence AMJ said that there were no particular zones before midnight but it was easy enough to run around the home in order to find someone. On the evening in question she said she had looked for the Appellant and was unable to find her. She did not look in every bathroom or resident’s room. When challenged by Mr Gilberthorpe that in such a large building with 55 residents’ rooms and several staff rooms there was a real possibility that she had simply missed the Appellant she said “There’s always a possibility that you could miss her but I know that wasn’t the case.” 
30.	She stated that she saw the Appellant in the foyer, coming out of the office, and said to her: “I’ve been looking for you”. The Appellant had replied that she had been for pizza.
31.	AMJ had stated that the incident happened on the Appellant’s birthday. She explained that that fact was something she had been told. Mr Gilberthorpe pointed out that in her initial statement she had said “She said it was her birthday”. The Appellant did not have a birthday whilst working at the home. AMJ was unable to explain the discrepancy. She said that the Appellant had put some pizza in her lunchbox but she hadn’t eaten it.
32.	AMJ said she could not remember when she became aware that the Appellant had allegedly had a lift to get a pizza, but she thought it was in general conversation one night. She was unable to recall when it was other than “It was recently. I’ve thought about it and recently approached MJ. I really wanted to know the truth of it. I was working with him and I said ‘Do you remember the night she went out for a pizza? Do you know who it was?’ I said ‘Was it you?’ And he said “yes”. I asked him a couple of times. I remembered he was there that night and so I asked. It must have been 4 or 5 weeks ago. It could have been longer.” She confirmed that she had gone to speak to CM and informed her that MJ had given the Appellant a lift to fetch the pizza. 
33.	MJ gave evidence that he had recently undergone a disciplinary hearing at the home. There had been an allegation of sexual abuse and AMJ had given evidence on his behalf and had helped him considerably.
34.	When asked about the lift to the pizza shop he said “No, I went to the pizza shop. I can’t remember the date or the time. I didn’t know the regulations. I was new. I don’t know when it happened.” Mr Gilberthorpe explored the date with him and he agreed that the visit to the pizza shop to which he was referring was January or February 2003. Mr Gilberthorpe pointed out that this predates the Appellant’s employment at the home by over a year.
35.	It was suggested to MJ that he was unfriendly towards the Appellant because she had caught him sleeping on duty. He agreed that he used to sleep on duty, but only during his break. When asked about being told off he said “I can’t remember”. From that point in his evidence MJ said “I don’t know much about it” and “I can’t remember” in respect of several questions.
36.	Mr Gilberthorpe challenged MJ and said “Why don’t you want to give evidence?” He replied:  “Once, I gave her a lift. I can’t remember when it was. Maybe she order. I picked up pizza and then came out. I can’t remember. I didn’t go for pizza. It’s walking distance. I have a car. No one has said anything. This case is going on. Now I understand. No one goes.”

The disciplinary process.
37.	The disciplinary matter involving the Appellant was the first that CM had dealt with. At the initial meeting with the Appellant CM recalled that “it was a very odd interview. She was distracted. Her phone went off and that was it. If it had been me I would have got on my high horse.” She said that she had kept a note of the meeting and was surprised that there was no denial.
38.	CM accepted that the chief executive of the home suggested that the Appellant should be put on day shifts and supervised. CM felt that there was no one suitable to provide supervision, so she felt there was no option other than to dismiss the Appellant. She maintained that despite telling the police on 16th November, prior to the disciplinary meeting with the Appellant, that she intended to sack her, she had maintained an open mind throughout.
39.	CM had dealt with one disciplinary matter since that time. This involved MJ. She said she followed the same procedures. MJ was suspended for a short time. He still worked at the home. She confirmed that DM and AMJ had not been the subject of any disciplinary matters.
Appellant’s evidence
40.	 The Appellant had been a ward sister in Guyana and was an experienced nurse.  When she started work at the home she was not given a job description, however she was told quite a lot of the matters on the job description and she knew that she was bound by her professional code of conduct.  She denied at the outset that any of the allegations were true: “None of those things happen.  They did not take place.”  She has been unable to find any employment since Red House.
Resident A
41.	The Appellant could remember working from time to time with AMJ and DM but she could not remember being in a room with them together on any particular occasion.  Resident A did need two carers but not three so there was no need for her to be with them if they attended him.  She had not changed his pad and had no recollection of his toy monkey.
42.	She told us she was shocked by the allegation, partly because it was a very strange thing to do.  “I wouldn’t play with him, and if someone else was doing it I would be totally annoyed.  I wouldn’t allow my staff to behave in such a manner.”
43.	The Appellant said she couldn’t say why AMJ and DM had made the allegations.  She felt AMJ had been distant after she refused to rent AMJ’s spare room and that DM had stopped talking to her after she told him off (the latter had not been put to DM).
Resident B
44.	On 6th November 2004 the Appellant explained that she did a night shift with SV.  She heard Resident B call out for assistance so at 9.45 p.m. the Appellant changed her and put Resident B to bed.  She was alone when this happened.  Resident B was doubly incontinent and was checked every hour, and her pad was checked every two hours.  The Appellant was clear that she had checked her on the midnight round and thereafter about hourly.  At about 5.45am, AMJ told SV that Resident B had messed again so she was changed.  Rosalind Tomacutty (RT) was on shift and she was experienced with the hoist and the bath so the Appellant arranged for Resident B to be given a bath.
45.	The Appellant was absolutely clear that she had changed Resident B’s nightdress and that she was not left in a soiled condition.  She had written in the daily report that she had changed Resident B, and would not have done so if that were not the case.

The Pizza allegation
46.	The Appellant told us this incident did not happen.  She said she didn’t like pizza and she had never asked MJ to take her for a pizza.  She was fully aware of the rules and could not recall an occasion when AMJ had said she had been looking for her and had been unable to find her.
The Disciplinary Investigation
47.	The Appellant told us that she was called into CM’s office.  She had no idea what it was about.  She understood that there had been an anonymous letter making the allegations.  She described being shocked and very nervous.  She could remember CM telling her the allegations but she felt totally distraught.  When she left the meeting she walked home crying and rang her mother.  She was so distraught she was nearly run over and she could remember the man driving the car shouting racial abuse at her.
48.	She denied ever saying that she had examined Resident A’s penis.  When the document was shown to her by her solicitor she realised there were things that were wrong.  She paid privately for the solicitor and it cost over £200 per hour.  She felt that there was insufficient time for him to prepare the case.  “Time and money was the issue.” “I was unemployed, it was a real issue”.
Mrs Roche
49.	Mrs Roche told us that the Appellant had undergone dementia training and the Registered Managers’ course.   She described the Appellant as very willing to work, calm and quiet.  The Red House GP held the Appellant in very high regard as did the other professionals working in the home.
50.	Mrs Roche was fully aware of the allegations in respect of the Appellant and could not recall any occasion when the Appellant had behaved in any similar way.  She was an exemplary employee who Mrs Roche “would have her back tomorrow if I could”.  Mrs Roche said she had no hesitation whatsoever in saying that the Appellant was suitable to work with vulnerable adults.
SUBMISSIONS
Respondent’s submissions
51.	Miss Davies submitted helpful written submissions as to both law and facts. As to the question of misconduct, the approach to be adopted was considered by the Tribunal in the case of Angela Mairs v Secretary of State [2004] 269 PC  Miss Davies referred us to the decision at [109]:
…
In principle, a single act of negligence could constitute misconduct (per Webster J in R v Pharmaceutical Society of Great Britain ex p Sokoh (1986) The Times 4th December) but in most cases the misconduct will be an incident forming part of a course of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what he or she was doing was contrary either to the general law or to a written or unwritten code having particular application to his or her profession, trade or calling.
In the context of a profession, for there to be a finding of misconduct there must be a falling short, whether by omission or commission, of the standards of conduct expected from members of that profession (Doughty v General Dental Council [1987] 3 All ER 843).
It is not helpful to attempt to further refine “misconduct” by reference to any adjective having moral overtones. The word “misconduct” does not necessarily connote moral censure. An individual can be “guilty of misconduct” without being, for example, dishonest or disgraceful.
An individual is not guilty of misconduct if he or she was unable to avoid the improper act or omission complained of or was in a position where it was impossible to avoid breaching the relevant code of conduct. If the requirement to act properly or in accordance with a code was merely rendered more difficult by the acts or omissions of others or by the prevailing circumstances, there can still be a finding of misconduct. Mitigation of an offence is always possible and, where the circumstances are such that the individual guilty of misconduct was overworked, short of time and/or unsupported it may be possible to excuse his or her misconduct. However, misconduct is only extinguished when the extenuating circumstances rendered proper performance of a duty impossible as opposed to more difficult. 
52.	With regard to the issue of unsuitability Miss Davies referred us to the case of  CN [2004] 398 PC; [2004] 399 PVA and in particular to the following passage:
“[29] We cannot underestimate the importance we attach to public confidence. When the Tribunal considers the question of unsuitability, it must look at the factual situation in its widest possible context. It may well be, as the Tribunal has said before (e.g. BR [2003] 205 PC) that it is unfortunate that the 1999 Act does not enable the Secretary of State or a Tribunal to prohibit a person from being employed by a child care organisation in some positions while allowing him or her to be employed in others, in the way the Education Act 2002 does. It is our view that it is the clear intention of Parliament that the language of the Act requires us to take a broad view having regard to the degree of risk posed by the Appellant, but also to acknowledge that the public at large and those who entrust their children into the hands of professionals have a right to expect, indeed to demand, that such people who are placed in such important positions of trust working with children “in a child care position” are beyond reproach.”
…
[32] Mr Moffatt submitted that there were two reasons why Mr CN was unsuitable to work with adults. He relied first of all on the report prepared by Dr Wilcox. We have already stated that we found Dr Wilcox’s Report and evidence of limited value. The second reason given by Mr Moffatt is the effect that allowing the appeal would have on any service to which Mr CN might seek to apply; it would undermine confidence in any such service. Ms Sleeman submits that there is no evidence of any misconduct in relation to vulnerable adults (which of course is not relevant because of s 92(4) Care Standards Act 2000), that there is no evidence of any risk to vulnerable adults, and that the Appellant in any event has learnt his lesson, and that public confidence need not be achieved only by preventing him from pursuing his profession. It is suggested that a regulation of his work, such as the caution that has been annotated to the register for a period of one year by the Health Professions Council on 3rd February 2005, is an appropriate way in which the community can be protected. 

[33] Mr CN is a speech and language therapist. It is not only children who require treatment, and those adults requiring treatment are necessarily vulnerable. We do not think that a person who remains on the PoCA list for the reasons we have set out above should be removed from the PoVA list. Society has a legitimate interest in ensuring that those who are considered unsuitable to work with children are not given positions of trust in relation to vulnerable adults. This is not to say that we consider that a vulnerable adult would be at risk of harm by Mr CN. But the Act does not require such evidence, and it is sufficient to satisfy the test in section 86(3)(b) read with section 92(4) of the Care Standards Act 2000 that he is unsuitable to work with vulnerable adults by virtue of the misconduct which placed a child at risk of harm. We agree with Mr Moffatt that the public confidence in the speech and language therapy service would be undermined if it became known that Mr CN was employed to work with vulnerable adults, given the fact that he was barred from working with children as his name was on the PoCA list. We do not wish to say that it will always inevitably follow that an appeal under section 86 will be bound to fail in the event of the appeal under s 4 of the Protection of Children Act being dismissed. Each case will be decided on its own facts, and context will be all important. In this case, however, in the sensitive area of speech and language therapy, we have formed the view that the continuation of his name on the PoCA list makes him unsuitable to work with vulnerable adults.” 
53.	Miss Davies reminded us that this approach was expressly endorsed by a Tribunal chaired by the President in MB v Secretary of State for Health [2005] 512 PC; [2005] 513 PVA and expressly approved by the High Court in Secretary of State for Children, Schools and Families v BP [2009] EWHC 866 Admin.
54.	Miss Davies submitted that on the balance of probabilities applied to the oral and written evidence the Appellant committed each of the three acts of misconduct alleged and that each of those acts amounts to misconduct within the meaning of the CSA 2000 , in that it falls short of the standards of conduct expected from members of the nursing profession.  Further, she asked us to find that each act was an incident of erroneous or incorrect behaviour undertaken by a person who knew or ought to have known that what she was doing was contrary either to the general law or to a written or unwritten code having particular application to her profession, trade or calling.
55.	Miss Davies drew our attention to the following matters in particular:
The misconduct came to light in November 2004 when a new manager to the Home began to undertake supervisions with staff.  One staff member informed her that another had concerns about the Appellant that she wished to raise, and that staff member, AMJ, was invited to do so.  Initially (on 10 November 2004) she referred to the (then very recent) failure to clean Resident B of faeces and the (less recent) incident involving holding Resident A’s testicles.  A few days later (on 20 November 2004) she referred to the Appellant’s leaving the home to collect pizza.  AMJ made those complaints voluntarily.  She has given evidence twice, causing her substantial distress, and has agreed to give evidence a third time in these proceedings.  Miss Davies submitted that AMJ has done so in order to ensure that the public are properly protected, and “it therefore lacks all credibility that she should have made these allegations up”.  
(B)	The allegations made by AMJ are substantiated by other witnesses and by the documentary evidence, as outlined below.  
(C)	It is true that there are some differences between the accounts given by witnesses, and indeed differences in the accounts given by individuals over time.  Those differences do not affect the credibility of the central core of the allegations, which has remained unchanged.  The events in question took place now some 6 years ago (and 4 years ago at the time of the NMC proceedings).  It is not to be expected that individuals would remember all the details, the dates and so on after such a lapse of time.  What they do remember is the essence of the Appellant’s conduct, and they remember that because it caused them concern at the time.  Again, no motive has been identified as to why these individuals should have lied about the Appellant’s conduct.
(D)	The Secretary of State recognises that the NMC did not find allegations 2 and 3 proven.  However, that does not mean that this Tribunal should not do so, in particular given that (i) the NMC operates to the criminal standard of proof whereas this Tribunal applies the civil standard of proof, (ii) additional evidence has come to light from Matthew Joseph in support of allegation 3, which was not available to the NMC and (iii) oral evidence from DM in respect of allegation 2 was not available to the NMC.  
Resident A
56.	The first allegation is that on an unknown date the Appellant cupped or grabbed the testicles of a vulnerable adult service user “Resident A” when there was no clinical need to do so and waved a toy monkey near his body, when he was naked from the waist down. Ms Davies submitted that the evidence suggests that this incident in fact happened in about July 2004. She relied on the evidence of DM who indicated that he usually worked the day shift but that he worked a permanent four-week period of night shift in July 2004 and that this was when the incident occurred. She conceded that AMJ was very unclear when it occurred but stressed that she has always said that it was some time before the November 2004 incident.  The work rotas show that during July 2004 there were 4 occasions when the Appellant worked a night shift with both AMJ and DM.
57.	She submitted on behalf of the Respondent that there is evidence to rebut collusion in that when CM asked DM an open question about whether he remembered an incident involving Resident A he knew straightaway which incident was being referred to and volunteered his account.  
58.	Miss Davies submitted that in certain essential details AMJ’s and DM’s accounts have been consistent since November 2004. She conceded that AMJ did not mention the monkey in her original allegations and that AMJ and DM “have somewhat different recollections: AMJ describes the Appellant taking hold of Resident A’s testicles, DM describes her touching them with the monkey.  AMJ says she left the room and spoke to DM outside.  DM says the Appellant left the room and he spoke to AMJ in the room.  AMJ says she passed the Appellant the monkey, DM says the Appellant picked it up”. Miss Davies maintained that there is nothing troubling in these variations because witnesses’ physical viewpoints and perspectives are inevitably different.  Each may have seen slightly different parts of the whole developing scenario, or have remembered or placed different emphasis on different aspects.  What is clear, she stated, is that there was an incident.  Resident A was being changed and was naked from the waist down.  The Appellant had the toy monkey and rubbed it over Resident A’s face and tummy.  She inappropriately touched his testicles, either with or without the monkey, or both.  AMJ stopped her.  DM and AMJ spoke briefly about it afterwards.  At that time they were both clear that what they had seen was abuse.    
59.	Miss Davies drew our attention to the fact that the Appellant denies that she has ever suggested that she was examining Resident A’s penis, whereas CM is clear that she did.  She further submits that the evidence of AMJ and DM is to be preferred to that of the Appellant because this is an unusual allegation, and “it would be a very odd thing to make up”.  
60.	Both Counsel agreed (as did the Appellant in her evidence) that touching an elderly, frail resident’s testicles in the absence of clinical need is plainly conduct falling short of that expected from members of the nursing profession, and would amount, if proven, to behaviour that the Appellant knew or ought to have known was contrary to the general law and to her professional code of conduct.  Miss Davies submitted that if proven, such conduct must be said to have placed Resident A at risk of harm, in that it could well have caused him distress and anxiety. 
Resident B
61.	The second allegation is that on a night between 6 and 8 November 2004 the Appellant failed to take appropriate and reasonable steps to ensure “Resident B” was clean of faeces. Miss Davies pointed out that the evidence suggests that this incident in fact took place on the night of 6 November 2004.  It is not disputed that on the night in question the Appellant and AMJ were on night duty, as were care assistants ZV and Rosily Thomakutty (RT). 
62.	Miss Davies summarised the written and oral evidence as follows: AMJ described a lingering smell of faeces outside Resident B’s room at the start of the shift, which she commented on. She was allocated to one of the two ground floor zones that night – South and West – and she knew that the Appellant was allocated to the other ground floor zone – Ground Floor and Maud Bailey. AMJ cannot remember whether she said anything to the Appellant about the odour from Resident B’s room at the start of the shift.  She alleged that at one stage she went into the room herself and saw that there were faeces on the blanket.  She thought that the Appellant must have smelt it because the medication room was opposite Resident B’s room.  She went into B’s room a second time at some stage and found dried faeces on her night gown and on the sheet.  She changed the blanket.  She thought that B was wearing a nightdress with a flowery print on it.  She went into the room at least twice after that and nothing had changed.  B was wearing the same nightdress and the sheet was in the same place.  At about 4 am she spoke to ZV and told her to get the Appellant and tell her that B was not clean.  The Appellant was in the lounge watching TV.  She came out and asked RT to check B’s room.  B was cleaned up at about 4am.  AMJ is confident that B did not empty her bowels twice that night because every time she checked on her she was still wearing the same nightdress and was in the same position.
63.	AMJ cannot remember in detail what time she went into B’s room and precisely how many times, nor can she now remember whether she spoke to the Appellant about it.  Miss Davies said that such lack of detail is not surprising and it does not undermine AMJ’s  account because it is clear that on the night in question she checked more than once on Resident B, because of her concern.  At 4am she was certain that Resident B had not been changed since she had first checked on her, because she was wearing the same nightdress and was in the same position.  AMJ raised her concerns about this “just 4 days later”, when matters were still fresh in her mind.  
64.	Miss Davies conceded that at the morning handover the Appellant informed staff that Resident B had opened her bowels twice. The Appellant also made a note to that effect in the daily report, which states in respect of Resident B, “2 semi-solid motions in bed- was given a bath.”  The panel raised with Miss Davies the fact that at the time of the above entry the Appellant had no motive to falsify an entry. Miss Davies responded that if AMJ’s account is correct, it would have been apparent to the Appellant that AMJ had realised that the care of Resident B was inadequate and it is therefore perfectly possible that she therefore completed the report to suggest that there had been two occasions on which B opened her bowels.  She also submitted that even if there had been two bowel movements, the first of which was cleared up at 9.45pm, then on AMJ’s account Resident B was soiled from about 12.30am to about 4.45am – more than 4 hours – without being attended to.
65.	 Miss Davies pointed out that the Tribunal has evidence about Resident B’s condition and of the Appellant’s job description which spells out her duty to comply with the code of conduct and to ensure that the dignity and privacy needs of patients are met at all times. She submitted that the Appellant must have either failed to check Resident B, or failed to change her during the night of 6 November 2004, with the result that she was left in her faeces for a period of hours. Both Counsel agreed that if proved this would amount to conduct falling short of that expected from members of the nursing profession, and would constitute an incident of erroneous behaviour that the Appellant knew or ought to have known was contrary to the general law and to her professional code of conduct.  
66.	 Miss Davies also submitted that, if proved, such conduct either harmed Resident B by causing her actual distress, or at the very least placed her at risk of harm in the form of anxiety and distress as well as discomfort and soreness.  
The Pizza
67.	The third allegation is that on an unknown date while she was the nurse in charge of the night shift and the only RGN present at the Home the Appellant left the Home to buy a pizza.
68.	Miss Davies modified her initial position in respect of the date and conceded that there is no clear evidence about the date. AMJ identified it as being 20 November 2004, a date after the Appellant was suspended. Miss Davies submitted that that this is simply the date on which AMJ disclosed this allegations and she urged that we should contrast AMJ’s initial handwritten note with the date at the top and the typewritten version gives the impression that the date given is the date of the incident in question.  
69.	It has also been suggested that AMJ said that it took place on the Appellant’s birthday, and that this cannot be right because the Appellant did not celebrate a birthday during her period of employment.  Miss Davies submitted that the evidence suggests that the Appellant told AMJ that it was her birthday and that AMJ subsequently found out that that was untrue.  
70.	The evidence Miss Davies asked the panel to consider in support of this allegation was:
AMJ answered a buzzer to find a resident who wanted a painkiller to relieve a skin irritation.  AMJ went all round the home looking for the Appellant but could not find her.  After a while she saw her in the foyer area and the Appellant told her she had been to get a pizza.  
AMJ stated in a witness statement that she was told that another member of staff gave the Appellant a lift to the pizza shop.  In fact, that led to a second witness being identified, MJ.  MJ stated in his witness statement that on one occasion the nurse called Carol who was the nurse in charge on night shift asked him to pick up a pizza.  He agreed and drove her to the pizza shop to pick up the pizza.  
71.	Miss Davies as a result submitted that AMJ’s account, corroborated by MJ, is to be preferred. She comments:  “There is no reason why these witnesses should have made this incident up”.  
72.	Both parties agreed that it is clearly misconduct for the nurse in charge of the shift to leave the premises unattended, particularly without informing anyone where they were going.  If proved, both Counsel (and the Appellant) accepted that it would be conduct falling short of that expected from members of the nursing profession, and an incident of erroneous behaviour that the Appellant knew or ought to have known was contrary to the general law and to her professional code of conduct.
73.	Finally, Miss Davies submitted that, if proved, this would be conduct that at the very least placed the vulnerable adult residents at risk of harm. 

SUITABILITY 
74.	The Respondent’s case was that whilst suitability is a matter for the Tribunal having heard the evidence before them, having regard to the nature of the misconduct and the Appellant’s response at the time and subsequently it is clear that the Appellant is unsuitable to work with vulnerable adults.  
75.	Miss Davies asked us to bear in mind that each of these incidents by itself is an incident of misconduct sufficiently serious to mean that the Appellant is not suitable to work with vulnerable adults, and that when the acts are considered cumulatively she submitted that the position is more serious.  
76.	It was further submitted on behalf of the Respondent that the fact that the Appellant has consistently denied these allegations is very important.  If the Tribunal found that they did take place, or that any of them took place, that must entail a finding that the Appellant has not been truthful with the Tribunal.  Miss Davies submitted that such a finding would give rise to an insuperable difficulty for Miss Gonsalves, because it shows that she has sought to conceal her own misconduct and failed to take responsibility for it.  In such circumstances, the Respondent would submit that the Tribunal could have no confidence that the Appellant could be trusted with vulnerable adult service users or would act any differently in future.
77.	Miss Davies made the further point that if the Tribunal found the Appellant is unsuitable to work with vulnerable adults she is also unsuitable to work with children. She submitted that the Tribunal should attach significant weight to public confidence and that the public could have no such confidence if a person deemed unsuitable to work with vulnerable adults on the basis of misconduct of this nature who were allowed to work with children.
Appellant’s submissions
78.	In respect of the burden and standard of proof Mr Gilberthorpe referred us to the case of Lisa Arthurworrey v Secretary of State for Education and Skills [2004] 268.PC  where HHJ Pearl, the then President of the Tribunal stated at [13]:
 “The burden of proof rests on the Secretary of State to satisfy us to the civil standard that the Appellant was guilty of misconduct that harmed a child or placed a child at risk of harm, and that she is unsuitable to work with children.”
79.	Further, he referred us to the test set out by Munby J in  Secretary of State for Children, Schools & Families v BP [2009] EWHC 866 (Admin) which he submitted was equally applicable to a PoVa case : 
“Thus there are three elements that the Tribunal has to consider in relation to these appeals. Firstly, there is whether or not the Appellant has been guilty of misconduct. Secondly, whether the misconduct has harmed or placed at risk of harm a child or vulnerable adult. Thirdly, whether the Appellant is unsuitable to work with children or vulnerable adults. If the Tribunal is not satisfied, on the balance of probabilities, on any of these elements it must allow the appeal. Otherwise it must dismiss the appeal. There is no discretion.
80.	He also referred to the case of  Angella Mairs v The Secretary of State for Education and Skills [2004] 269.PC where the panel considered a number of non-exhaustive factors that were relevant when considering whether an Appellant is unsuitable to work with children. He agreed with Miss Davies that the same factors are relevant in the context of the PoVA list. The factors are [111]:
“Unsuitability must be judged by the Tribunal at the date of the hearing. The judgment will involve consideration of the character, disposition, capacity and ability of the individual concerned, including his or her ability to act properly in potentially difficult or frustrating circumstances. The judgment will inevitably be, at least in part, by way of deduction from past performance, including (but not limited to) the nature and extent of the misconduct, admitted or proved in the course of the proceedings, which harmed a child or placed a child at risk of harm. The Tribunal may have regard to:
(a) the number of the incidents constituting the misconduct established for the purposes of section 4(3)(a) of the Act;
(b) the gravity of that misconduct;
(c) the time that has elapsed since that misconduct;
(d) the timing and degree of recognition by the applicant that the conduct constituted misconduct and that it had the potential to harm a child;
(e) the steps taken by the applicant to minimise the possibility of there being a recurrence of that or like misconduct; and
(f) extenuating circumstances surrounding the misconduct.
This should not be regarded as an exclusive list. The Tribunal may also have regard to other admitted, undisputed or proved past conduct of the applicant, whether good or bad.”
81.	Mr Gilberthorpe submitted that in determining the Appellant’s suitability to work with vulnerable adults and children the Tribunal should not merely look to any misconduct that may be found, but also to her professionalism whilst working as a nurse at Red House Nursing Home. She worked at Red House for more than 4 years and he reminded us of the evidence of the Appellant’s superior, Julie Roche, who gave evidence with regards to Miss Gonsalves’ excellent conduct first as a Senior Nurse then Deputy Managertaking responsibility for the day-to-day running of a home whose residents include those with advanced dementia. Mr Gilberthorpe highlighted that the Appellant has successfully completed the Registered Manager’s Award and dementia awareness training.
82.	Mr Gilberthorpe reminded us that the purpose of a PoVA listing is not to punish an individual but to safeguard vulnerable adults. If misconduct were to be found by the panel then he urged us to bear the following in mind:

•	The Appellant was new to the United Kingdom.
•	She was new to working in a nursing home. 
•	She had had a very limited induction.
•	From CM’s evidence there was clearly room for improvement in the procedures at the home, for example the evidence of health care assistants leaving a resident “swinging in a hoist” whilst only wrapped in a towel. 

83.	In Angella Mairs v Secretary of State [2004] 269 PC it was stated that:
	“In deciding whether an individual is unsuitable the Secretary of State or, on anAppeal, the Tribunal, must undertake an assessment of risk.”
      Mr Gilberthorpe submitted that, in terms of the risk of future behaviour 	potentially harmful to vulnerable adults, even if we made the findings 	sought, the risk of repetition or of potentially harmful action by must be 	very low given the Appellant’s subsequent impeccable conduct. 	Certainly, he said, the risk was not at a level to justify her being 	deemed “unsuitable”.
84.	He further submitted that the “public interest” factor cannot justify the Appellant remaining on the list in a case such as this,especially in circumstances whereby the Appellant’s professional regulator, who have a duty to maintain public confidence, have indicated publicly their disapproval of the misconduct they found by issuing an 18 month caution.
85.	Mr Gilberthorpe took issue with Miss Davies’ submission that
 denial of the allegations by itself makes the Appellant unsuitable should any misconduct be found proved. He also described PoVA/PoCA listing as a blunt instrument, without the sliding scale of sanctions available to professional regulators such as the NMC.
86.	We were also referred to the assessment of HHJ Pearl in Lisa Arthurworrey when he said [149]
“This Tribunal believes that to list a social worker under the Protection of Children Act list or indeed under the Protection of Vulnerable Adults list kept under section 81 of the Care Standards Act 2000, for professional mistakes should be an unusual occurrence, to be used only in the most clear cut of cases…”
87.	Mr Gilberthorpe urged us to bear in mind that the evidence of Mrs Roche as to the Appellant’s professionalism makes it inherently unlikely that she would act in the manner alleged by the Respondent.
88.	Mr Gilberthorpe’s submissions on the factual matters commenced with an analysis of the minutes of the disciplinary meeting at the home. The Appellant asserts that they are inaccurate in three respects:
a.	She did not state within the meeting that she followed the “smell” rather she stated that she followed the “sound,” which led her to clean the resident at 21.45.
b.	The notes fail to record that she said that ZV had assisted her in cleaning the resident at 04:45. (Omission accepted by CM in oral evidence before this Tribunal).
c.	She denies stating that she examined Resident A’s penis and saying that it was red and blistered.
89.	CM contended that this is an accurate note of what was said within the meeting. However, it is clear that by the time of the disciplinary meeting CM was not looking at the case objectively since just hours before the meeting she had informed the police that she intended to dismiss the Appellant. Mr Gilberthorpe submitted that the minutes are not a verbatim account. Moreover, they were not signed and dated as being accurate either by CM or AC nor were the minutes sent out to the Appellant to give her the opportunity to comment upon the accuracy of the minutes.
90.	CM accepted that the notes failed to record the fact that the Appellant had stated that ZV had assisted her with the resident at 4pm and this important, accepted, omission undermines the accuracy of the notes as a whole.
91.	Having examined Resident A’s records and noted the previous problems with his penis may have thought that the recorded examination and findings was the account that the Appellant would give therefore the summary attributes this as being accepted by the Appellant rather than simply being put to her, and denied. 
Resident A
92.	Mr Gilberthorpe submitted that the Appellant has been clear in her witness statement and before the NMC in denying that there was ever any incident in which she tickled Resident A with the monkey. Moreover, she has consistently denied touching his testicles with her hand. 
93.	The discrepancies between two eye witnesses are such that the Respondent has failed to prove on the balance of probabilities that any incident with a monkey occurred.
94.	DM, who was supposedly stood next to the resident and observed the entire incident, has never once suggested that CG held the residents testicles with her hand or grabbed them and indeed confirmed in oral evidence that if the same had happened he would have seen it. This completely contradicts MJ’s evidence.
95.	AMJ’s description of the manner in which the Appellant supposedly touched Resident A’s genitals has become progressively worse over time and demonstrates that consciously or unconsciously AMJ is biased in her evidence: 
a.	AMJ’s first written account, itself written some months after the supposed incident dated 10 November 2004 reads “the nurse put her hand onto client’s private parts.” 
b.	AMJ’s signed statement for the NMC dated 28 June 2005  states “I saw her reach out with one hand and she took hold of Resident A’s testicles. As she did so she simply held his testicles in her hand.” 
c.	AMJ in her statement for the Tribunal dated 16 February 2010 (which she made having access to the other previous statements) stated “…Carol put her hand between Resident A’s legs and quickly grabbed hold of his testicles.”
d.	Under cross-examination she accepted that “putting a hand upon”, “taking hold” and “grabbing” were all different movements on a sliding scale of severity.
96.	Mr Gilberthorpe also pointed out that in oral evidence AMJ asserted that she had a clear view at the moment of supposed touching, however in her witness statement for the NMC she stated that at the time of the assault she was in the process of getting an incontinence pad ready and was therefore distracted. 
97.	Further, in oral evidence AMJ confirmed that the use of the monkey was a significant part of the incident, however no mention of the monkey was made in her written statement dated 10 November 2004. In oral evidence she stated that she “forgot” about the monkey until both she and DM were questioned together in the course of the police investigation. 
98.	On behalf of the Appellant Mr Gilberthorpe further submitted that there are a number of other contradictions between the evidence of DM and AMJ:
a.	AMJ stated in her witness statement that the monkey was put down prior to the alleged assault; however DM’s evidence is that the monkey remained in the Appellants hand. 
b.	DM was clear that initially the Appellant was chatting to DM and AMJ, however AMJ has never mentioned there being any conversation and instead says that CG entered the room and asked for the monkey.
c.	DM stated that AMJ picked up the toy monkey, whereas AMJ has always stated that she gave the monkey to the Appellant after she asked her for it.
d.	DM stated Resident A was smiling and was neither agitated nor distressed.
99.	When DM was asked under cross examination if he had joked about the incident with others DM initially said “I can’t remember” and then “I don’t think so”. Mr Gilberthorpe submitted that response was an unconvincing denial – one would have expects an unqualified no. 
100.	Neither witness to the alleged incident reported the matter for several months, and Mr Gilberthorpe submitted that it is inconceivable that anyone, however new to the home, would fail in their duty to report the same immediately if they thought that a serious act of abuse had taken place.  He said that their failure to report the incident for several months suggests that no such incident occurred.
Harm or risk of harm
101.	Mr Gilberthorpe drew our attention to the conclusions of the professional NMC panel that “no real direct or indirect harm came to Resident A even though the evidence demonstrated some shock on his part at the exact time of the incident”
Resident B
102.	Mr Gilberthorpe submitted on behalf of the Appellant that AMJ’s evidence is inherently unreliable, particularly in circumstances where there was friction between the two. Further, if AMJ’s account is not accepted in respect of Resident A, that must seriously undermine her evidence in respect of the other allegations. 
103.	He submitted that the Secretary of State needs to prove that:
a.	the resident was left soiled for an inappropriate length of time (factual); and
b.	the Appellant knew or should have known that the resident was soiled and failed to take appropriate action (fault).
104.	CM stated that if a Health Care Assistant thought that a resident had soiled themselves (regardless of zoning) then it was their duty to pass on the information, eventually to the nurse, if they were unable to deal with the situation themselves.
105.	The Appellant’s evidence was that prior to midnight the staff members were not allocated to specific zones and that it was “anyone’s responsibility to deal with any resident who needed attention.” Moreover, she had the added responsibility of completing the nightly medication round. 
106.	In oral evidence AMJ couldn’t remember whether she had been into the room prior to midnight, nor did she know if anyone else had been in. Therefore he submitted that her evidence is seriously tainted either because:
a.	Her lack of action is strong evidence that the resident was not soiled for any significant period of time before midnight because if that were the case AMJ should and would have done something. At worst AMJ merely thought that there was a lingering smell; or
b.	She failed in her duty in that she took no action before midnight when she suspected that a resident was soiled and therefore has every reason to attempt to pass the blame (consciously or unconsciously) onto the Appellant; 
107.	 The only evidence before midnight that the resident was soiled for any period of time prior to midnight is from AMJ who asserted in oral evidence that there was a lingering smell, which is not proof of the resident being soiled. 
108.	The Appellant contends that she changed Resident B’s sheets at 21:45. Therefore, Mr Gilberthorpe submits on her behalf that the Respondent has failed to prove on the balance of probabilities that Resident B was soiled for any significant period of time prior to midnight. 

109.	Mr Gilberthorpe then turned to the “fault” part of the allegation. He said that other than the time that the Appellant changed Resident B at the end of her medication round at 21:45, there is no evidence to suggest that she should have been aware of any of Resident B being soiled for an inappropriate length of time (if she was), prior to midnight because the rounds checking on the residents did not start before midnight, and AMJ couldn’t remember whether she had spoken to the Appellant about the lingering smell. The Appellant’s evidence is that prior to being informed of a problem at around 04.45 no one raised any concerns with her in respect of this resident and the Appellant invites the Tribunal to accept this account.
110.	Further, even if this Tribunal accepts that AMJ smelt a lingering smell for several hours Mr Gilberthorpe said that is not evidence that the Appellant smelt something and ignored it. Regardless of the legal requirements, he asserted that the home, with 55 residents, placed a substantial burden on the 6 members of staff, and particularly on the Appellant who was the only registered nurse on shift. AMJ said she was “really busy” on this particular night. 
111.	It was accepted by AMJ in oral evidence that if the Appellant thought that a resident was soiled there would be no requirement upon her to carry out the cleaning herself, she could delegate to someone else thus there was no reason for her to ignore a soiled resident e.g. to avoid an obviously unpleasant task. Mr Gilberthorpe submits therefore that this makes the allegation inherently unlikely to have occurred. 
112.	Mr Gilberthorpe submitted that it is important that the Appellant’s account is supported by a contemporaneous note (the daily report) written by her on 6 November 2004 in which she has recorded the fact that Resident B had had “2 semi-solid motion in bed.” Further, AMJ accepted in her oral evidence and in her written statement that at handover the Appellant had stated that “She had cleaned the client after she had given medication to the rooms and that the client had opened her bowels a second time…” The note and the discussion would have occurred before the Appellant was even aware that she was to be investigated for the incident.
113.	He further submitted that, at best, all that the Respondent can assert is “some time” prior to 4a.m. Resident B was soiled and (inadequately) cleaned by AMJ and that this was insufficient to establish that she was left soiled for an inappropriate length of time after midnight. 
114.	He said that when AMJ failed to clean Resident B (despite, she says, changing the sheets and nightdress), she left her in a state whereby it would be difficult for anyone checking to discover that she had soiled herself. Everything would look clean and faeces free, therefore it is unsurprising that even if a smell were detectable after this point, a member of staff may fairly believe it to stem from the fact that she had opened her bowels earlier in the evening 
115.	Therefore, even if a Tribunal were to accept that AMJ had changed the sheets some time prior to 4am, it was not unreasonable for the remaining faeces to go unnoticed in the intervening period. The Tribunal will have in mind that as soon as the Appellant was informed of the problem at 4am – it was appropriately dealt with. 
The Pizza 
116.	The Respondent needs to establish (on the balance of probabilities) that the Applicant left Northcott House to get a pizza at a time when she was on duty.
117.	The Appellant has always been clear in evidence that she would not have left the home to collect a pizza. The Respondent’s inability to even provide a rough date as to when the allegation is said to occur, hampers the Appellant’s ability to defend herself (e.g. recollect events on the evening or check records to see if she was working). 
118.	Mr Gilberthorpe stressed that AMJ has never suggested that she saw the Appellant outside of the building therefore she is making an assumption that the Appellant had left the building. He said that this assumption should be rejected for the following reasons:
a.	AMJ has a tendency to give biased or false evidence.
b.	The home is a large one, the fact that she could not find the Appellant for 15 minutes does not support the suggestion that the Appellant was not there. 
c.	There was no reason for the Appellant to have left the building for the purposes of collecting a pizza, AMJ accepted that she could have had one delivered.
d.	AMJ didn’t mention this allegation when reporting the other two allegations.
e.	In her witness statement to the NMC AMJ stated “she [the Appellant] said in conversation that it was her birthday.” AMJ was cross examined on this at the NMC because the Appellant was not working at the home at the time of her birthday (18th January). Despite the fact that she had access to her NMC statement this point is omitted from her statement to the NMC. It has been omitted because AMJ knew her earlier assertion seriously undermines the allegation she has made. 
f.	Similar alterations in AMJ’s evidence have been made concerning whether she saw the Appellant wearing a coat and her position in relation to the office when allegedly first seen by AMJ.
g.	The Appellant does not even like pizza.
119.	The Applicant invites the Tribunal to give no weight to MJ’s evidence for the following reasons: 
a.	MJ accepted under cross examination that he had lied about the availability of childcare to take his son to school because he was reluctant to give evidence. 
b.	MJ’s assertion that he was completely unaware of the circumstances of the Appellant’s sacking is highly implausible (at first he claimed to be unaware of the sacking itself).
c.	MJ could not remember the time or date that he allegedly drove the Appellant to the pizza shop, therefore it cannot be assumed that this was the same day that AMJ purported to see her with a pizza box. In fact there is no evidence to connect the two accounts.
d.	Moreover, if MJ cannot remember the time or the date of the incident then his evidence cannot support an assertion that he drove the Appellant at a time when it was her duty to be at Northcott House at all times. Under cross examination he said he couldn’t even remember if he had driven Carol on a break. 
e.	MJ had been subject to a disciplinary hearing for an alleged sexual assault on a resident at which AMJ was the crucial supportive witness. Therefore he had reason to provide a false witness statement (very late in the day, some 5 years after the Appellant's dismissal) supportive of the home’s case.
120.	The Appellant submits that the Respondent has therefore failed, on the balance of probabilities to prove this allegation alleged against the Respondent. 

THE LAW
121.	The Appellant appeals pursuant to s 86 of the CSA 2000  therefore the following provisions apply:
(3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely -  
(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and
(b) that the individual is unsuitable to work with vulnerable adults,
the Tribunal shall allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual’s inclusion in the list.
122.	In addition, since the Appellant was included on the list kept by the Secretary of State pursuant to s 1 of the 1999 Act in accordance with s 1 and 2C of that Act, she appeals against her inclusion on that list under s 4.  Under s 4(3) the Tribunal is to apply the same test as under s 86(3) of the 2000 Act, save that the “unsuitability” limb relates to unsuitability to work with children rather than vulnerable adults. 
123.	We reminded ourselves of the burden and standard of proof as set out in Lisa Arthurworry and Secretary of State v BP and applied it to the allegations made against the Appellant.
124.	In deciding whether the Appellant has been guilty of misconduct in this case we have followed the guidance given in Secretary of State for Children, Schools and Families v J [2009] EWHC 524 (Admin) on the probative force of evidence. We have also considered and applied the dicta in Angella Mairs to which we were referred 
125.	When considering the question of unsuitability we followed the guidance  to which we were referred in Angella Mairs, CN, MB v Sec of State for Health and Secretary of State for CSF v BP and the maintenance of public confidence

TRIBUNAL’S CONCLUSIONS WITH REASONS
MISCONDUCT
126.	CM’s responses to cross examination were somewhat concerning at times. Mr Gilberthorpe asked her a perfectly proper question about the possibility of a patient being left for a few hours and she responded “I put it to you that….” in a quasi legal manner which was quite strikingly out of place. Her assessment of the Appellant’s demeanour at disciplinary interview was that she was apparently unconcerned by the allegations. We are satisfied that this was an entirely erroneous assessment, as we conclude that the Appellant was in deep shock. We accept that this was her first disciplinary investigation which perhaps explains why the Appellant was not given the opportunity to comment on minutes of meetings etc, which would have been good practice.
127.	AMJ’s evidence was also very concerning at times. When being asked about her approaches to MJ about the pizza incident she said “It was important to us, to me and my manager. I felt there was a disagreement. I know very well that she went for a pizza.” Just as on other issues AMJ could not accept that her evidence had not been accepted in full by the conduct committee. We concluded that she was determined to prove that she was right, and was prepared to embellish, exaggerate and reach conclusions based on assumptions in her quest to support “their” case.
128.	Our assessment of AMJ was that her memory recall was poor.  She clearly felt that there was a need to put a case against the Appellant on behalf of CM and herself.  AMJ had a clear belief in what she ‘knows’.  Unfortunately much of what she states as fact was supposition and suspicion.  There were several examples of her exaggerating evidence and of trying to build a case against the Appellant.  Taking her evidence as a whole the Tribunal concluded that it was unreliable, principally because it was based on supposition and suspicion translated into ‘fact’. The fact that these allegations were not pursued at the time was also of great concern, even allowing for the fact that she was relatively inexperienced. Her evidence was also seriously undermined by the evidence of MJ and DM
129.	Our assessment of MJ’s evidence was that it was entirely unreliable.  MJ did not want to give evidence and gave such confused and conflicting evidence that it was difficult to identify truth in anything he said.  He clearly lied to the Respondent’s solicitor and he was evasive in answering questions from the outset.  We made allowances for his poor spoken English and the fact that he gave evidence by video link.  He was given every opportunity to consider the questions, which were broken down into simple and straightforward points.  Despite this we concluded that he was unwilling to give evidence not to support the Appellant but because he had lied.
130.	We had an excellent opportunity to assess the Appellant’s veracity as she gave her evidence. We were impressed by the fact that she showed no malice towards AMJ, CM, MJ and DM, and we felt that her evidence was given in a calm, helpful and thoughtful manner. We did not conclude that she had lied about any matter which was put to her.
Resident A
131.	This is a serious allegation.  It became more serious when AMJ gave her oral evidence because she alleged that the Appellant had ‘grabbed’ Resident A’s testicles.  When assessing a serious allegation the standard of proof remains the same, namely, the balance of probabilities.  The Respondent does have to satisfy that standard with cogent evidence.  We bear in mind that the conduct committee found this allegation proved on the basis of AMJ’s oral evidence.  DM did not give evidence at the hearing, however his written evidence was available.  We have to make a decision on the written evidence before us and our assessment of the witnesses.
132.	In terms of this allegation we were faced with three very different accounts.  The Appellant said that this incident did not take place.  AMJ alleged that the Appellant had ‘grabbed’ Resident A’s testicles and that DM was in a position to have seen this very clearly.  DM was clear that the Appellant had not touched or grabbed Resident A’s testicles at any time.  His evidence was of an incident which was very different.  He stated that the Appellant had played with Resident A’s toy monkey and Resident A had a little grin on his face.  He said that she had moved it briefly over Resident A’s body and ‘over his private parts for a second or two’.  He said it happened very quickly and that what had been ‘a simple game’ had been taken too far by the monkey passing over the ‘private parts’.
133.	We were asked by the Respondent to look for a core of truth in these very different allegations because some of the evidence matched up, for example both witnesses described the toy monkey and said that AMJ had moved the Appellant’s arm away from Resident A’s body.
134.	There are cases where only peripheral descriptions vary but where the body of the allegations are described in similar fashion by the witnesses.  This is not that type of case.  We were presented with extraordinarily different accounts of the actual alleged assault.  We then weighed this evidence against the evidence of the Appellant.  We found her to be an essentially truthful witness.  She gave evidence with quiet dignity.  She did not seize the opportunity given to her by DM’s evidence to say that this was a game which accidentally went wrong.  She maintained her denial of doing anything of this nature to a patient at any time.  In these circumstances we are not satisfied that the Respondent has proved the allegation on a balance of probabilities as we find the evidence  lacked cogency on the fundamental facts.
 Resident B
135.	We do not conclude that there is sufficient evidence to find this allegation proved on a balance of probabilities
136.	We find that Resident B was doubly incontinent and was likely to soil herself on several occasions during a shift or a 24 hour period.  We accept the evidence of the Appellant that she caused Resident B to be changed twice during the shift, firstly at about 9.45 p.m. and secondly at about 5.45 a.m.  This was recorded in the daily log and we do not accept the assertion that the Appellant was ‘on notice’ of the potential complaint by AMJ because AMJ had not said anything to her at either 5.45 a.m. or at morning handover.  Indeed, AMJ did not make an immediate complain to CM about this incident either.  We find that this was a busy night shift and Resident B was checked by the Appellant as part of her duties after midnight.  We do not find that during any period was Resident B left for any significant time in a soiled condition.  We cannot rely on the log filled in by care assistants which does not record any soiling because the log is formulaic and lacking in detail.
The Pizza Incident
137.	There was insufficient reliable evidence for the Tribunal to find on the balance of probabilities that this incident had ever occurred.  AMJ’s evidence was based on supposition and suspicion.  She may well have been unable to find the Appellant for 15 minutes one evening because there are a lot of rooms and she had not searched them all, and it may well have been very frustrating for her.  We do not find that the Appellant said she had been for a pizza, because we accept that she does not eat pizza.  Even if she had said this there is no evidence to lead from that fact to a conclusion that she had left her post and gone out with MJ or anyone else to fetch one.  She did not have a birthday whilst working at the home, so it is inherently unlikely that she said this to AMJ.  
138.	MJ’s evidence was that he was still working at the home. He was asked why he had said he could not attend the hearing, when it was apparent that he had left his son with a friend. When asked if he had lied to Tsol he initially said “I don’t know.” He later admitted that he did not want to give evidence and when Mr Gilberthorpe again suggested that he had lied to Tsol by saying that his wife was working and there was no one to look after their son he said ”Whatever. I don’t know.” His attitude was astonishing, and, even allowing for the difficulty of giving evidence by video link and his poor comprehension of English, he was a most unimpressive witness. MJ’s untruthful and unreliable evidence pointed to this being an allegation without foundation.  We therefore find that the Respondent has failed to make its case on this allegation on a balance of probabilities.
UNSUITABILITY
139.	It follows from our decision in respect of misconduct that we do not have to go on to consider the question of unsuitability. The evidence of Mrs Roche was very impressive in this respect, namely that the Appellant was and is entirely suitable to practice with vulnerable adults and we agree with her assessment.
DECISION
It is our decision that the appeal be allowed and we direct that the Secretary of State should remove the Appellant from the PoCA and PoCA lists.

Nancy Hillier
Tribunal Judge
1st August 2010.