Oluku v CQC [2012] UKFTT 275

Following “video footage” analysis by the Care Quality Commission (the “CQC”) of widespread abuse at the Dormer Wells Lodge residential home (the “DWL”), and subsequent inspections by the CQC and reports by independent assessors, the CQC issued a notice of proposal to cancel the registration of the appellant (manager at DWL). In spite of the appellant rejecting all of the allegations, a decision was made to cancel the appellant’s registration. The appellant filed an appeal against that decision.

This Tribunal ultimately dismissed the appeal. Although they were unable to find sufficient grounds for the dismissal through “specific allegations” made by the respondent, relating to the appellant’s direct behaviour towards service users, they were able to find that the appellant did not have the necessary skills to establish the requisite “fitness” under regulation 6(2), through the “indirect allegations” made.

Firstly, in relation to the “specific allegations” made by the respondent, it was alleged that the appellant had failed to protect the welfare of the service users at DWL, and maintain the necessary care provisions for them. In particular, it was alleged that she had permitted shouting at service users and had allowed some of them to be locked in their rooms when she ought not to have done so.  This allegation was ultimately refuted on the basis of inconclusive evidence. Furthermore, the allegations under this heading concerning the authorisation for “Deprivation of Liberty” were left unestablished on the balance of probabilities. Even though it was assumed that the appellant had never applied for a “Deprivation of Liberty” assessment, there was still no evidence that the appellant had acted inappropriately when dealing with the service users, or had caused them any harm.

The next allegation was that the appellant had contravened regulation 11 by being unable to safeguard users from abuse, failing to refer service users to doctors and not reporting an instance of sexual abuse. The respondent contended that the necessary paperwork was not present in the form of a “Deprivation of Liberty” authorisation for a number of service users. This meant that the appellant did not have suitable arrangements in place to protect them against the risk of unlawful control or restraint, since proper assessment and recording was not being carried out. However, as the appellant had not been a registered manager, a breach of regulations could not be found. And whilst Mr Janisch had suggested that the inevitability of her being registered indicates she should be treated as a registered person, this contention was dispelled on the grounds that she could have withdrawn her application before registration, but after the incidents complained of. Therefore it was found that no breach had occurred. Regarding the incident concerning sexual abuse, as there was no evidence that the appellant was notified of the incident, it could not be established beyond reasonable doubt that the appellant was culpable.

The penultimate “specific allegation” concerned the improper management of medication by the appellant. At the residential home, it was discovered that service users were given their medication too early, and that the clock in the lounge had been advanced to enable service users to be told it was later than it actually was. No evidence, nonetheless, could be found to show that the appellant gave the medication or advanced the clock in the lounge.

The last “specific allegation” was that the appellant had arranged an insufficient amount of staff to safeguard the users, as evidenced by the early provision of medication and putting the service users to bed early. Yet, ultimately, this was not attributed to a shortage of staff such as to make the home unsafe, but rather to the staff being unwilling to multi-task, whilst displaying a tendency to prioritise the more “comfortable” duties during evening shifts. Also there was no suggested level of staffing given by the inspectors, following an unannounced inspection one evening, and it was not possible to find that service users were placed at risk by the level of staffing at the time.

Regarding “indirect allegations”, the overall contention was that the appellant was running the home for the benefit of efficiency on the part of staffing and bureaucracy, rather than to provide the necessary caring environment.  The Court therefore decided to dismiss the appeal, given that the appellant did not have the necessary skills to establish the requisite “fitness” under regulation 6(2).

In wishing to ensure that no resident was left in poor circumstances, the appellant had disproportionately prioritised the physical well-being of service users by removing simple choices from their own power. It was, however, agreed that these techniques had a limited lifespan, and her genuine desire to ensure good physical health for the residents became corrupted into a lowering of standards of care and dignity.

The delivery of an unacceptable standard of care became pervasive at DWL, which was partly due to the appellant’s management style, and her failure to attend to the inadequate care that the home was delivering. The appellant had lacked the necessary skills required under regulation 6(2) because of “a weakness in being able to engender in her staff a culture of being able to deal with all of the needs of the residents in a proportionate manner, and an inability to ensure that they did so” [para. 30]. In these circumstances, she was therefore unable to deliver all of the areas of individual care that were necessary within this role.

Although the appellant had questioned the provenance of much of the evidence, having made suggestions that a number of witnesses were motivated by a personal dislike of her, no evidence of this was found. And whilst the appellant attempted to refute the applicability of the regulations, since they did not come into force until October 2010 and the incidents relied upon took place before then, this was rejected. In relation to regulation 6, any conduct alleged to demonstrate either the skill or lack of skill may be drawn from any time in the past, with its relevance being affected by how long ago it was. Further, whilst the appellant has claimed that she was not well supported by the management committee, it was stressed that it remained her responsibility to ensure that she was able to do the tasks required of her, or report the situation herself to the CQC and warn them that the care being offered was not adequate.

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