Ashok Jain and Nisha Jain v Nottingham Health Authority

Decision No. 369 REGISTERED HOMES ACT 1984 This decision may be freely reproduced and distributed. It should be drawn to the attention of registration and inspection staff and legal advisers. B E T W E E N: ASHOK JAIN and NISHA JAIN Appellants and NOTTINGHAM HEALTH AUTHORITY Respondents Before:Mr Mark Rowland (Chairman)Mrs Rita DoidgeDr Surendra Kumar Hearing at Nottingham on 8 and 9 February 1999 of the appeal brought by Ashok Jain and Nisha Jain against the decision dated 1 October 1998 of a stipendiary magistrate sitting at Nottingham magistrates' court, cancelling their registration under Part II of the Registered Homes Act 1984 in respect of Ash Lea Court Nursing Home, Gregory Boulevard, Nottingham NG7 6BE. Representation: For the Respondents: Mr Graham Machin of counsel, instructed by Eversheds, solicitors, of 1 Royal Standard Place, Nottingham NG1 6FZ For the Appellants: Mr Michael Singleton of counsel, instructed by Young & Lee, solicitors, of No. 6 The Wharf, Bridge Street, Birmingham B1 2JS DECISION It is the unanimous decision of the Tribunal that the appeal be allowed. It is directed that the order dated 1 October 1998 shall cease to have effect. REASONS FOR DECISION  This is an appeal against an order made by a stipendiary magistrate in the Nottingham magistrates' court on I October 1998, cancelling the registration of the appellants in respect of Ash Lea Court Nursing Home. It had been a condition of registration that there should not be more than 43 residents ("40 elderly senile mentally infirm'' and "3 younger mentally ill aged 35 and over") in the home. At the time the order was made there were 33 residents. Towards the conclusion of the evidence called on behalf of the respondents, we asked whether Mr Singleton was proposing to make a submission that there was no case for the appellants to answer. He indicated that he was reluctant to do so if he had to elect, before making the submission, not to call any witnesses. When the respondents' witnesses had finished giving their evidence, we heard submissions on the procedural point and then on the question whether we should hear any evidence from the appellants. In criminal proceedings, a defendant may, at the conclusion of the prosecution case, submit that there is no case to answer, safe in the knowledge that, if the submission fails, his or her case is not prejudiced and evidence may be called just as though the submission had never been made. By contrast, in civil proceedings in the courts, a defendant must usually state that he or she proposes to call no further evidence before submitting that the plaintiff's case has not been proved and then cannot call evidence if the submission fails. Mr Singleton's first submission was that, given the high standard of proof in cases like the present, the approach of the criminal courts should be adopted, but we agree with Mr Machin's submission that, if we must adopt court procedures, we should adopt the procedure used in civil proceedings. However, we are not obliged to adopt court procedures. We do not regard the element of gambling forced on defendants by the approach of civil courts to be desirable and, while the reasons usually given for that approach – that a judge should not be called upon to indicate a view on the evidence before all the evidence has been heard and the difficulties that might ensue if a judgement based on a successful submission were overturned on appeal – are no doubt matters to be taken into account, we do not consider that they should be regarded as conclusive in all cases before tribunals. In fact, it is clear that there is no place at all in proceedings before a registered homes tribunal for a conventional submission that there is no case to answer, because an appellant has no absolute right to have an appeal allowed on the ground that the respondents have not proved their case, for the simple reason that the tribunal exercise an inquisitorial role and the chairman may require the attendance of further witnesses in addition to those called by the respondents (see rule 9(2) of the Registered Homes Tribunal Rules 1984). However, we agree with Mr Singleton's second submission that, subject to the rules of natural justice, a tribunal are entitled to decide at any stage of the proceedings that they have heard enough evidence. It is no more than good case management to limit the evidence in a case to what is necessary. The tribunal may take the initiative but we also consider that either of the parties may, without any invitation from the tribunal, make a submission that it is unnecessary to hear any more evidence. Such a submission by an appellant will usually amount to a submission that there is no case to answer but it may have to go slightly further. In cases where the fitness of the appellants is at issue, the most damning evidence against appellants often comes from themselves and their own witnesses and a tribunal may well wish to hear from them even if not wholly convinced by the respondents' witnesses. We should therefore not be taken to be encouraging submissions by appellants at the end of respondents' cases. We turn to the question whether it is necessary for us to hear any evidence from the appellants in this case. It was common ground before us that, the present case being an appeal against an order made under section 30 of the Registered Homes Act 1984, the question we have to consider is whether there would have been "a serious risk to the life, health or well- being of the patients in the home unless the order [was] made" (see section 30(1)(b)). In the light of Lyons v. East Sussex County Council (1988) 86 L.G.R. 369, it is unnecessary for us to consider whether, if there would not have been such a risk, any of the grounds for cancelling registration under section 28 is nevertheless made out. This is because the respondents have neglected to set in train the "ordinary" procedure for cancellation as suggested in Lyons, the inspectors having been unaware that they could or should do so. If they were relying only on a literal reading of the legislation, they could be forgiven for not appreciating the possibility of using both the "urgent" procedure and the "ordinary" procedure at the same time because, as has been observed before, the device suggested in Lyons appears to require the same registration to be cancelled twice. On the other hand, it is surprising that a health authority should be relying only on a literal reading of this badly drafted legislation more than a decade after the Court of Appeal have given practical guidance showing how to make it work. It was also common ground before us that it follows from the approach taken by Phillips J in London Borough of Hillingdon v. McLean (1989) 88 L.G.R. 49 that an order should be made under section 30 of the Act only if it is the only way of avoiding a serious risk to the life, health or well-being of the patients. We consider that the proper approach is to consider whether cancellation of registration is the only reasonable way of avoiding the risk. Furthermore, in judging whether a risk is serious, it is necessary to have regard both to the seriousness of the harm that might befall residents if the risk materialises and also to the likelihood of it materialising. The respondents' principal concerns, leading them to make the application to the magistrate, arose out of the physical state of the home. In 1996, the appellants had indicated that they were planning to carry out substantial works to the building which had originally been just a large house and so was not designed as a nursing home. These were to involve completely remodelling all four floors and the installation of a new lift. The works would result in more bedrooms being provided so that multi-occupancy could be reduced. An increase in the number of residents who could be accommodated was not being sought. It was common ground that the premises were not really up to modern standards and that the works would make a lot of difference to the quality of life of the residents in the long run. On the other hand, it was obvious that there would be a great deal of inconvenience to residents while the works were being carried out. The plan was that work would start in the basement and then would progress up the building, a floor at a time, with the residents being moved as necessary. The respondents' inspectors had been shown plans and a simple programme and had not raised any serious objections. Planning permission was granted in January 1997 in respect of alterations to an extension and the landscaping of the gardens. Work then began but it could not get seriously under way until April when the building regulations approval was granted and structural work could be carried out. In May 1997, the respondents were told that the installation of the lift should be completed within 8 to 10 weeks and that all the work would be completed by November of that year. Unfortunately, it transpired that the foundations were not sufficient to bear the weight of the lift and a substantial amount of additional work had to be done to remedy the problem. This additional work was itself delayed due to the serious illness and death of the structural engineer who had been working on the project. In the end, the lift was not installed until April 1998. Most of the remodelling of the basement was completed over the next couple of months and the main focus of the works moved to the ground floor. It was at this stage that the respondents' concerns became more serious. On 8 June 1998, an inspector, Mrs Kate Holmes visited the home to see how the work was progressing. She subsequently wrote to the appellants, stating that the work "is creating additional dust and dirt" and recommending that 'additional domestic hours must be provided to ensure the home is kept in a manner as to provide the residents with a clear and pleasant environment" and that " an additional care staff member be employed throughout the day shifts on the ground floor to support the residents at this disruptive time and assist them in re-orientating to the new dining room". She asked for a new time scale for the work. The extra staff were employed and on 18 June 1998, Mr Jain wrote to say that he envisaged that, weather permitting, the building work would be completed within 6 to 8 weeks. Mrs Holmes told us that she did not regard that estimate as realistic but she did not challenge it at the time. On 7 July, she visited the home again, primarily to investigate an untoward incident involving residents. She noted that only the top two floors were in use by residents. When she was taken down the stairs to see the building works on the ground floor, she found the stairs blocked off with a piece of plasterboard which she would have found it difficult to get over or to move herself. Egress from the lift was also blocked. The plasterboard was immediately removed. She was so concerned that fire officers were contacted and Assistant Divisional Officer Jenkins, Station Officer Pickard and Mrs Lesley Robertson, the head of the inspection unit, all visited the home at 3.00 pm that afternoon with Mrs Holmes. They found a bed-sheet nailed across the stairway, rubbish obstructing the route to a fire exit, a substantial drop outside the exit door and a lack of fire barriers on the ground floor. Mr Jenkins, who had had previous dealings with the home and had not been impressed with the home's attitude to fire safety, was appalled. In his written statement to the tribunal (he also gave oral evidence), he said: "I had to make a decision as to whether to issue a prohibition notice or make a recommendation that urgent remedial work be carried out to make the Home adequate for it to be continued to be used as a home. I consulted the builders as I knew them from a previous occasion. They told me they were able to stop what they were doing, provide [an] adequate access route to outside and that this would take three to four hours to achieve. Knowing it would take that time to relocate the residents if I issued a prohibition notice, I decided to defer the decision until 6.00 pm to allow the emergency work to be carried out. I instructed Dave Pickard to return at 6.00 pm to check that adequate standards had been achieved " He had the bed-sheet and rubbish moved. He further directed that a door be hung near the stairway as a smoke barrier, that a block partition wall be built in one place as a further barrier, that the pit outside the door be covered with boarding to make a safe exit and that a lock be removed from a door for the same reason. The work had been completed by the time Mr Pickard returned. We consider that Mrs Holmes' action in calling in the fire officers and Mr Jenkins' judgement as to the appropriate action to be taken were absolutely correct. Mrs Robertson recorded in her file note: "The amount of dust produced by building work on the ground floor is unacceptable and 6 residents are sleeping on this floor. A thick layer of dust was evident on the surfaces." She told us that there was so much dust that there were visible footprints on the carpets. The extent to which the relevant rooms were being used is a matter of dispute upon which we have not heard the appellants' evidence. It is unnecessary for us to make a finding because it is accepted by the respondents that those sleeping on that floor on 7 July stopped doing so shortly thereafter. As a consequence of the visit on 7 July, a notice under regulation 15(4) of the Nursing Homes and Mental Nursing Homes Regulations 1984 was issued by the respondents on 13 July 1998. The action required was: Ensure that resident areas are thoroughly cleaned. Ensure that building work does not affect resident areas. Ensure that fire safety arrangements are adequate at all times. Ensure adequate fire safety standards are maintained at all times – provide written evidence of the procedures in place to ensure fire safety. Ensure that adequate arrangements are in place to prevent accidents to residents." We doubt the value of a notice expressed in such general terms but we need not decide whether the action required was specified in enough detail to be sufficient for the purposes of regulation 15(4)(a)(iv). One thorough clean of the resident areas would have been sufficient to comply with the first paragraph. Compliance with the second paragraph was probably impossible. Mr Jenkins said that, after 7 July, the fire-safety standards in the building were not up to the level that would usually be required but they were at a level that was acceptable while the building work was continuing. A written fire-safety procedure was supplied. Therefore, there is no evidence of a breach of the third and fourth paragraphs. We will come to the evidence of breaches of the fifth paragraph. Also as a consequence of the visit on 7 July, Mr Jain was asked-to attend a meeting on 20 July when he was given some firm advice about fire safety. Nevertheless, despite the written fire safety procedure, Mr Jenkins told us that the staff at the home had consistently failed to show a proper awareness and appreciation of fire-safety issues and continued to do so. The written records were adequate but, in his view, were not indicative of the culture in the home. For instance, when the fire brigade were called to the home, following a false alarm on 2 August 1998, officers reported that the staff did not appear to be conversant with the fire alarm system. The inspectors drew their concerns to the health authority's commissioning manager who visited the home on 9 July and wrote to the appellants on 13 July, raising a number of concerns. In particular, he said: "Whilst the building was clean there was a presence of air-borne dust from the building work which both my colleague and I found left us with the taste of brick dust in our mouths for the rest of the afternoon and caused some tightness and chest irritation. If this is how we felt after a 45 minute visit, I am concerned about the effects of the dust on staff and residents, particularly those residents living on the ground floor." He requested information about "further measures you will take to eradicate dust from the building works and protect residents from dust created." The appellants' reply to that letter did not answer that particular request, although it did say that all residents had been moved from the ground floor. The issue was not pursued with the appellants. On 10 August 1998, Mrs Holmes made a statutory inspection visit. A number of concerns, of varying degrees of significance, were noted in the report. In respect of the accommodation and environment, the following comments were made: "A frayed carpet to bedroom on second floor requires immediate attention. The accommodation upgrading remains ongoing. Due to this the living/sleeping environment remaining (sic) poor. The ground floor is not being used by residents during these alterations – three rooms have been completed but require plumbing and electrical work. The basement area is now nearing completion, requiring only 'finishing off' work" Nothing there suggests a level of concern such that cancellation of registration might be considered if improvements were not quickly made. Nor was any such requirement made. The requirements and recommendations at the end of the report were as follows: "Requirements Ensure all staff receive regular fire safety updates in addition to the statutory fire safety lectures whilst the building work is in progress.Records of this training must be recorded in the fire log book. Ensure physiotherapy services are provided as per condition of registration – a minimum of half an hour per resident per week. Recommendations Ensure building work progresses at a satisfactory rate of time. Post a Food Handlers Policy in the kitchen.Ensure the kitchen cleaning schedule is available for inspection.The office, adjacent to the kitchen requires plastering and generally 'finishing off.Attend to frayed carpet to bedroom on second floor, as discussed.Ensure the home complies with Health and Safety's legal requirements in respect of risk assessments. See information enclosed.Develop a recruitment/selection/retention of staff policy – see information enclosed.Ensure all care plans contain a nutritional risk assessment – see information enclosed." It is noteworthy that not only was ensuring "that the building work progresses at a satisfactory rate of time" a mere recommendation but also no date for completion was actually specified. On 22 September a visit was made by Mrs Holmes to monitor the action taken on those requirements and recommendations. So far as fire safety was concerned, she appears to have been satisfied. In relation to the building work, she said in a file note: "The building work continues to 'plod on'. The lounge is now created, plus three bedrooms. The bedrooms require plumbing and electrics. Overall the ground floor area still looks very much like a building site. At the time of the visit many of the residents were in the basement dining area sitting on the 'patio area'.' In consequence of this visit, she wrote the following day to Mr Jain asking him to provide a revised time scale for the building works within seven days. A reply had not been received when, on the eighth day, the magistrate made his order. How much later the information would have been sent had the order not been made must be matter of speculation but Mr Jain seems usually to have complied with requests for such information before, even if the estimates proved not to be very reliable. On 29 September Mrs Robertson visited the home with three police officers who were investigating an allegation that a resident had suffered physical abuse. In her file note, Mrs Robertson recorded: "It was immediately apparent that staff were not vigilant in ensuring a safe environment. Electric cables were lying across doorways, the carpet at the entrance to [the resident's] room was so badly torn that it was an obvious tripping hazard. We were taken down to the new dining area where [the resident] was sitting and new carpet tiles along the corridor were not secured in any way. Some were already lifting and it was a busy thoroughfare for staff and residents." She decided that the "accommodation is hazardous for mobile confused residents" and that "overall management of the safety of the building was very poor". There was, it seems to us, a risk of accidents of the type contemplated in the fifth paragraph of the regulation 15(4) notice issued on 13 July, although to what extent this was due to failures by the appellants to make "arrangements" is perhaps less clear. The torn carpet was the same one that had been remarked upon during the inspection on 10 August and the lack of action seems inexplicable. The other matters certainly raised questions about the management of safety but we are not convinced that they necessarily show bad management. Some further investigation would have been required to establish that. In any event, that was the position when, on the following day, Mrs Robertson decided that she should seek the order from the magistrate. The second ground upon which the order was sought was the inadequacy of record keeping in the home. In her file note of 29 September 1998, to which we have already referred, Mrs Robertson wrote: "We then returned to the office with Mr Bolam [the assistant manager of the home] and D.C. Martin asked to see staff records. Mr Bolam had difficulty in providing evidence of the checks that had been carried out on employees. The nursing notes were scrutinised and the following noted: Entries made were inadequate.No risk assessments were completed.A c/a had reported that [the resident] had been hit in the face by another resident on 23.9.98 and that this had been reported to the nurse in charge. No entry was made of this in the nursing notes and Mr Bolam was not aware of the incident.No record[s] of frequency of monitoring of residents were available." She decided that "no assessment is made of risk to residents and evidence of monitoring is poor" and "records do not reflect an adequate standard of care." The third ground upon which the order was sought was that "a registered nurse regularly employed on night duty is unable to cope with untoward incidents that arise and fails to direct staff appropriately". In another file note dated 29 September 1998, Mrs Robertson wrote "On Thursday, 24 September 1998 I was contacted by D. I. Neil Lichfield from Radford Road Police Station. He informed me that officers had interviewed the complainant who had contacted them regarding [a resident's] death. He advised me that no foul play had been suspected, statements had been obtained from 2 care staff but the complainant did not wish to give a statement. Allegations had been made concerning substandard levels of care and that nursing staff may have panicked and not managed the death appropriately. Bruising sustained by the resident had been consistent with falls. Matron was aware that the 2 care assistants who had been on duty on the night of [the resident's] death had been interviewed by the police and that Lydia Cooper the RMN was still to be interviewed." Nothing further in support of the third ground was included in the bundles of statements and other documents prepared for the hearing before the tribunal. The lack of evidence had been noticed by Mr Machin who produced the statements given to the police by the care assistants and the nurse (who was actually only an enrolled nurse although she had 30 years experience and was in charge of this large home, as the only nurse on duty at night, with the blessing of the respondents) who had been on duty on 16/17 September, the night of the death. There was evidence that the nurse had gone to pieces following the death and had failed to act appropriately, although she denied panicking in her statement to the police and quite what she would have said had we got as far as her evidence we do not know. Importantly, for the purpose of this appeal, Mrs Robertson conceded that she was unable to say that any failure on the part of the nurse could be attributed to any management failing on the part of the home On 30 September 1998, the respondents decided to make the application to the magistrate. In paragraph 50 of her written statement to the tribunal, Mrs Robertson said: "I obtained permission from Keith Sykes, the Authority's director of commissioning [and acting chief executive], to go ahead with this procedure. If I had issued a notice for routine cancellation, I have no doubt that I would have been presented with the same attitude from the appellants as that which followed the notices. I anticipate that the appellant would have fixed up the home in order to comply with the notice but that safety would not have been maintained." At the hearing before us, she stood by those judgements. She also said that she had weighed against the risks she considered would follow from not making the application against the risks that would follow from obtaining an order from the magistrate. She acknowledged that the sudden removal of elderly people from their settled surroundings poses a very real risk to their lives but she said that she regarded that as the lesser risk in this case. The application was made, ex parte, the next morning. Mrs Robertson was not present. She was delayed on her way to court and the magistrate appears to have sat early to hear the application. Mr Machin told us, on instructions, that the hearing had lasted 25 minutes and that the magistrate asked a number of questions of the authority's solicitor in order to probe their case. In addition to such information as the solicitor was able to provide orally in the absence of Mrs Robertson, the magistrate had before him copies of the regulation 15(4) notice issued in July 1998 and an earlier one that had been issued in November 1997, copies of Mrs Robertson's two file notes dealing with the visit on 29 September 1998 and, of course, the statutory statement of reasons for making the application. That statement was in the following terms:

1. "Ash Lea Court Nursing Home is a registered nursing home for 43 elderly mentally ill residents. The current occupancy is

33. The registered proprietors are Mr A K Jain and Mrs N Jain of 114 Valley Road, Rickmansworth, Herts, WD3 4BH. The proprietors have failed to comply with the Nursing Homes and Mental Nursing Home Regulations.

2. In February 1997 Nottingham Health Authority granted Mr Jain planning permission to make structural alterations to Ash Lea Court Nursing Home. This was to enable refurbishment and upgrading to take place in order to bring the home to the required standard. In November 1997 and July 1998 Section 15(iv) Notices (copies attached) were served on the proprietors following their failure to: 2.1 comply with fire regulations; 2.2 provide adequate accommodation for the residents whilst major alterations were made to the accommodation.

3. Although action was taken by the proprietors to comply with the regulations, they failed to maintain compliance which is a requirement of the notice.

4. An unannounced inspection visit took place on 10th August 1998 by Kate Holmes, nursing homes inspector. She reported that: 4.1 the upgrading work was progressing very slowly; 4.2 the living/sleeping environment was poor; 4.3 the third and fourth floors were being used by residents for living/sleeping accommodation and these areas were awaiting upgrading; 4.4 structural repairs, floor coverings, decorations, furniture and furnishings did not meet with minimum standards and remained poor.

5. At a monitoring visit on 22nd September, the standard of accommodation was reported as poor.

6. The proprietors consistently fail to provide the applicant with written details of building work, timescales and completion dates. Although work commenced in February 1997 the applicant has been informed that the first stage will not be completed before December 1998. It is likely that the building works will take 3-4 years to complete. Residents are housed in inadequate accommodation. There is consistent failure to ensure that the accommodation is kept safe and residents are at risk due to the poor overall management of the building.

7. In the week commencing 21st September 1998, the applicant received telephone calls from staff and relatives concerning failure to ensure adequate care of residents. On 29th September 1998, Lesley Robertson head of the Nursing Homes Inspectorate and two police officers (one from the Radford Road Police Station and a Scene of Crime Officer) carried out a joint inspection of the Home. Mrs Robertson's report is attached. Also attached is a file note dated 29th September 1998. The inspection showed that: 7.1 registered nurse regularly employed on night duty is unable to cope with untoward incidents that arise and fails to direct care staff appropriately; 7.2 the record keeping in the home is inadequate; 7.3 the accommodation is a risk to the safety of staff and residents;

8. There have been twelve deaths at Ash Lea Court Nursing Home since February 1998. Seven of these deaths have been reported to the police. Police investigations are continuing.

9. If the order to cancel the registration of the home is not made, the applicant contends that there would be a serious risk to the life, health or well-being of the patients in the Home. The building is in an unfit state to continue to house residents. The risk to patients is serious enough to justify the use of the urgent cancellation procedure.

10. If the order is granted, the applicant has made arrangements for some of the Home' s residents to be transferred to hospital. The applicant has also established the number of vacancies in residential nursing homes in the area. The applicant has been authorised to use whatever resources it needs to re-locate the residents of the Home. The Ambulance Trust is on stand-by in order to transfer the residents from the Home to their new accommodation." We appreciate that the statement was drafted hurriedly but it is of the utmost importance that an authority making an ex parte application should provide a magistrate with information that is not only accurate but also does not mislead through the omission of relevant information or the inclusion of irrelevant information. Broad allegations should also be illustrated with particulars and difficulty in doing so should cause those drafting the statement to pause and consider whether the application is really justified. There are several unsatisfactory features of the statement in the present case. Some are obvious but some were revealed only in cross-examination of the inspectors. Paragraph 8 seems a clear example of the inclusion of irrelevant information. Mrs Robertson made it absolutely clear to us that the circumstances surrounding the deaths were not a reason for making the application. She denied that the paragraph had been included for its possible prejudicial effect and she pointed to the fact that the magistrate had before him the file note stating that the police did not suspect foul play in respect of the death on 17 September. She said that the paragraph had been included only as background information. If so, it gave a somewhat incomplete picture. It failed to relate the number of deaths to the number of residents and their frailty. It failed to indicate that deaths had been reported to the police because that is standard practice where a resident has not seen his or her doctor within the 14 days before death and the death is therefore regarded as "unexpected". It failed to indicate that the police investigations had been concluded in all cases save the death on 17 September and the allegation of abuse to which we have already referred. It failed to indicate that the information was for background only and was not regarded as being of other significance. Whether the magistrate took any notice of the paragraph, given the complete lack of any indication as to why the deaths might be significant, we do not know, but the paragraph should not have been in the statement in the form it was. A similar point might be made in respect of the opening words of paragraph 7, particularly as reference is made to complaints about the care of "residents" in the plural, although we have been told only of a complaint relating to one resident. Of course a concern about the care of one resident raises questions about the care of other residents, but all the telephone calls of which we are aware related to just one incident and that is not the impression given by the statement. Other incidents may have been reported but either they justified action of this sort, in which case details should have been given, or they did not, in which case either they should have been omitted or else it should have been made clear that reliance was not placed on them. In one of her file notes relating to the visit of 29 September, Mrs Robertson had said: "In my view the Home and staff are not fit to care for the residents and although we may not be able to identify any allegations of abuse the complaints we are receiving do raise serious concerns." No allegation of abuse was pursued before us. The truth may be that she had genuine concerns and, although she knew she had insufficient evidence to pursue such allegations before the magistrate, she wished to ensure that he knew of her concerns. We accept that she acted in good faith but we think she should have been more careful about the way matters were put before the magistrate. Furthermore, if she had concerns she ought to have analysed them and investigated them thoroughly. The fact that police decide to take no action does not imply that no action by a health authority is appropriate. There were other ways in which the respondents' case was overstated. Paragraph 3 of the statement tended to suggest that there had been a failure to comply with the regulation 15(4) notice of November 1997, which was not true, and that there was a current failure to comply with fire regulations, which was also not true. Paragraph 4.4 might be taken to be suggesting that the current building work was substandard which was not being alleged. On the contrary, the work was being carried out to meet the concern that the premises had been substandard. In paragraph 6, it was said that the appellants "failed" to provide details of building work, timescales and completion dates but it is by no means clear that they ever failed to comply with any request for such information or that the respondents ever said that their response was inadequate. In the same paragraph, the respondents' estimate of 3-4 years for completion of the building works was pure hyperbole, no doubt reflecting the inspectors' exasperation at the delays there had already been. There was no indication in the statement of the amount of time the outstanding work could properly be expected to take, which could not have been more than a few months at the most. In paragraph 7.1, reference is made to "incidents" in the plural, although we were referred only to one incident. Nowhere in the statement was there any attempt to particularise the respects in which the accommodation was inadequate. Nor was the magistrate's attention drawn to the risk that might follow from his making an order which he would have to weigh against the risk of not making it. Mr Singleton went so far as to suggest that, in the light of the way the case was put before the magistrate, he could not be criticised for making the order. As we do not know what questions the magistrate asked and what further information was provided, we prefer not to express a view on that issue. It is unnecessary for us to do so. The question for us is whether the order would have been appropriate had the magistrate had the advantage of hearing all the evidence we have heard. In his final submissions that there was a case for the appellants to answer, Mr Machin did not refer to the allegation that a nurse was unable to cope with the death of a resident. We consider that he was right not to rely on that allegation, which was quite incapable of justifying cancellation of the appellants' registration in the absence of any evidence that they were to blame for any failing on the part of the nurse. It is obvious that closure of the home was not necessary to avoid any risk flowing from any such failing. Action may have been required specifically in relation to the nurse but the incident should have been regarded as wholly irrelevant to any application to a magistrate for an order under section

30. Mr Machin did rely on the inadequacy of records and in our view that did give rise to a legitimate concern about the running of the home. However, it is difficult to characterise such risk to the residents as might have arisen from these particular inadequacies as "serious". It was not alleged that in fact no checks had been carried out on employees. So far as the nursing notes are concerned, there had been a background of concerns but Mrs Robertson acknowledged that Mr Bolam had been appointed with a specific brief to improve the records, that the improvements would take time and that progress had been made. In the report of 10 August, to which we have referred, it was only the lack of risk assessments that had been commented upon and that had led to a mere recommendation that action be taken. We have seen copies of the records that particularly concerned Mrs Robertson on 29 September. She was entitled to be concerned about the inadequacies that she recorded but they varied in seriousness and, in our judgement, none warranted the immediate closure of the home. The risks to which they gave rise were insufficiently serious and there is little evidence that matters could not have been put right with appropriate advice to the management team in the home. The respondents may have had some concerns about the care practices to which the records referred, or should have referred, and they were certainly concerned about the propriety of admitting certain residents to the home. However, none of that was specifically advanced as a ground for seeking the order and nor would it have been appropriate to do so. If those were grounds for seeking cancellation at all, there was no reason for supposing that the residents could not properly have been protected pending an "ordinary" cancellation by proper monitoring by the inspectors and the provision of advice where necessary. If some residents ought not to have been in the home, the remedy was to seek the removal of those particular residents rather than to seek the removal of everyone. That, then, leaves only the unsatisfactory physical environment as a ground for resisting this appeal. We do not consider that the condition of the home on 1 October 1998 in itself justified an order under section

30. None of the current problems was sufficiently serious and it has not been shown that they could not have been resolved by other means. The frayed carpet, which kept coming to the fore during the hearing, provides a useful illustration. It may have posed a real risk of injury to a resident but it did not in itself pose a serious risk to the life, health or well-being of residents so as to justify the cancellation of registration because there were other ways of removing the risk. In McLean, at page 60, Phillips J said that "the more readily any shortcomings can be put right, the less serious, it seems to me, that the risk will be that those shortcomings will continue." In her report of 10 August 1998, Mrs Holmes made dealing with the problem only a recommendation. It could have been made the subject of a requirement or even a regulation 15(4) notice. Mrs Holmes does not appear to have discussed with the home what should be done about the carpet. She told us that, in view of the fact that the room was to be recarpeted when it was refurbished in the course of the building works, all she expected was that the carpet would be trimmed with scissors or be taped down. Had that been said when it was discovered on 29 September that nothing had been done about the carpet and had it been said that consideration would be given to issuing a regulation 15(4) notice, or to prosecuting the proprietors for breach of the notice of 13 July 1998, if action was not taken before the inspector left, no doubt scissors or tape would have been found immediately and the problem would have been resolved. A similar approach could also have been taken in relation to the lifting carpet tiles. Such an approach was taken in relation to the cables running from one room to another on 29 September 1998 (only the cable for a photocopier was actually identified). They were unplugged and removed immediately, although that was not made plain in the file note before the magistrate. The dust from the building works was perhaps the most serious of the current concerns relied upon by the respondents but, as Mr Singleton pointed out, there was no evidence that it posed any risk to the life or health of the residents. The respondents did not allege that there was a failure to take all appropriate steps to minimize the escape of dust into the areas being used by the residents. The only action in respect of the dust that had ever been specified by the inspectors was extra cleaning and there was no evidence that that was not sufficient to prevent any serious risk to the residents' well-being once residents had ceased using the ground floor. However, Mr Machin relied not only on the condition of the home on 1 October 1998 but also on the history of the appellants' dealings with the respondents which showed – we paraphrase his submissions – that they could not be trusted to prevent serious dangers from arising so that, as long as they continued to carry on the home, there was a risk to the life, health and well-being of the residents which could only be removed by the cancellation of their registration. We consider that is a permissible way of putting a case. It echoes Mrs Robertson's view that using the "ordinary" route to cancellation would produce only a temporary response. However, if a case is to succeed on that ground, there must be clear evidence that other approaches have been tried and have failed. "Urgent" cancellation is to be used only as a last resort. We accept, for the purpose of considering whether it is necessary to hear any evidence from the appellants, that the respondents' evidence is sufficient to show that the building works were not being managed so as properly to ensure the minimum discomfort to the residents. The appellants should have carried out a proper risk analysis, identifying the potential problems and the solutions to those problems and they should then have been able to provide in writing an estimate of the amount of time that each phase of the work would take and the steps that would be taken during each phase in order to protect the residents. Thus they might, for instance, have identified lack of space for the residents, dangers in the site areas, dust and other dirt, noise and the need to protect the integrity of fire safety measures while the layout of each floor was being remodelled as being among the potential problems. They could then have considered how many residents could be accommodated in the home at each stage and what to do if there were too many when that stage started, how to supervise residents or erect physical barriers so that they did not go into dangerous areas, how to prevent excessive dust and dirt escaping into areas being used by residents and what further resources might nonetheless have to be devoted to cleaning, how to keep the amount of noise down and whether to limit the times when certain types of work were being done and how fire safety should be ensured. No doubt the plan would have had to be adapted in the light of experience and unexpected problems, such as the need to bolster the foundations, but it would have been a basis for action. However, not only did the appellants apparently not appreciate the need for such a plan, neither did the inspectors. Consequently, instead of asking for such a plan, they allowed themselves to be fobbed off with bland assurances that everything would be all right. They expressed concern about the number of residents being accommodated while the work was going on but they never identified a specific number as being appropriate and so never tried to secure the appellants' agreement to a specific number. They expressed concern about the disruption to residents but they very rarely identified specific action that had to be taken. For the most part, they did little more than seek assurances in vague terms. Mrs Robertson made the point that she was a nurse and had no qualifications as a builder, but that is no more an excuse for an inspector than it is for a proprietor. If she did not have access to appropriate advice within the authority, the authority should have bought it in for her. The problem she was being presented with was an unfamiliar one and she needed someone to help her to decide what she ought to be asking of the appellants in order to protect the residents while this major building work was going on around them (or even to decide whether she ought to allow the appellants to remain registered at all while the building work was in progress). Had she had that advice, she could have given the appellants appropriate guidance and they might have worked together to provide a reasonable environment for the residents. She would also have had in her armoury regulation 15(4) notices giving very precise details as to what should be done – like Mr Jenkins' instructions, rather than the requirements specified in the notice of 13 July 1998 which begged as many questions as they answered – and the threat of prosecution to enforce compliance. She also had the threat of cancellation as a weapon. It is one of the features of this case that, despite the period over which the inspectors say they had concerns, not once was the possibility of cancellation ever mentioned to the appellants or anyone at the home. Nothing more specific than "further action" was ever mentioned. It seems obvious that a serious threat of cancellation will spur any but the most incompetent or unscrupulous proprietor into action and yet the inspectors seem to have been content to allow matters to drift for lack of any idea about what more they could expect. The other serious matter about which the respondents appear to have been justifiably concerned was the neglect of fire safety. However, there had been no specific risk to the residents since Mr Jenkins' directions had been complied with on 7 July and, had the respondents insisted on the works being properly planned from the beginning, the problems arising on that day would probably have been avoided. The alleged failure to engender an appropriate culture of fire safety among the staff might have been a ground for pursuing an "ordinary' cancellation, as was the alleged failure to engender a proper attitude to safety in general, but it hardly justified immediate cancellation on 1 October 1998. Nor do we think that immediate cancellation would have been justified on 7 July. We agree with Mr Jenkins that the appropriate action was to tell the staff what work was required and to get it done forthwith. Thereafter compliance could be secured by the giving of proper advice and monitoring backed by the threat of cancellation if the advice was not followed. Mr Machin has said everything that could possibly be said on the respondents' behalf but we reject his submission that there is a case for the appellants to answer. It is clear that the respondents did not take appropriate steps to encourage proper management before seeking the order. They had neither given specific advice nor applied focused pressure. Therefore, we cannot be satisfied that the appellants would not have responded to such advice and pressure and it is impossible to say that cancellation of registration was the only reasonable way of safeguarding the residents on 1 October 1998. What was required then was what had been required all along: a clear identification of the problems arising due to the building works, followed by a clear set of requirements for dealing with them and proper monitoring to ensure compliance with the requirements. If the appellants had failed to respond to that sort of approach, then would have been the time to make the application to the magistrate. The application in this case was premature. It is unnecessary for us to hear evidence from the appellants. The respondents have raised concerns about the running of the home but we need not hear what the appellants would say about those matters because, assuming their concerns were justified, the respondents have wholly failed to persuade us that an application for an order cancelling registration under section 30 was an appropriate way of meeting them. We very much doubt that any evidence from the appellants and their witnesses would materially strengthen the case for maintaining the order in force. Even if we seriously thought it might, there are now no residents in the home needing the protection of the order and we would not be inclined to insist on hearing such evidence to assist a health authority who could not prove their own case four months after applying ex parte to a magistrate. That the application for the order was made ex parte, that is, without notice having been given to the appellants, is an aggravating feature of this case. Section 30(2) of the 1984 Act specifically provides that an application for an order may be made ex parte but it does not follow that such an application must always to be made without notice. We consider that in every case where an application is made without notice having been given, the first question the magistrate should ask is why he or she should not defer consideration of the application until the homeowner can attend and make representations. Any ex parte application breaches one of the fundamental rules of natural justice, audi alteram partem – hear each party. An ex parte application for an order against another party may be justified where the whole point of the order would be liable to be frustrated if notice of the application were given, as on an application for a warrant for arrest or when an order is sought to freeze assets that might be moved out of the jurisdiction if the respondent received a warning. Otherwise, the only justification for proceeding ex parte is urgency. The courts are reluctant to make ex parte orders that do anything other than to restrain the respondent from doing something he plainly has no right to do, such as assaulting his wife, or otherwise to preserve the status quo. An application normally has to be supported by sworn evidence and, in most civil proceedings, an undertaking to compensate the respondent for any loss caused by the order if it transpires that it should not have been made. Most importantly, the order is usually made in respect only of a few days until the respondent may be heard and it is not impossible for an application for the setting aside of the order to be made even earlier. By contrast, an order under section 30 has effect indefinitely and the only statutory right a homeowner has to challenge it is by way of appeal to a tribunal. The Registered Homes Tribunal Rules 1984 have the effect that the minimum time that must elapse before an appeal can be heard is 6 weeks, a period that was criticised by Sir John Donaldson MR in Lyons as being "inappropriately long for an appeal against so Draconian an order" and which the Department of Health is only now contemplating reducing. Meanwhile, the home is closed and the damage done and neither the homeowners nor the residents nor the staff are likely to be able to secure any compensation if the order turns out to have been unjustified. In these circumstances, a registration authority must have an extremely strong case for proceeding ex parte if they are to avoid criticism. It seems to us that there will be very few cases in this jurisdiction where the whole point of the order will be liable to be defeated if notice is given, and so in most cases the only justification for not giving notice is to avoid delay. However, while the need to avoid delay may justify not waiting until a homeowner has been contacted, it cannot justify not trying to contact him or her. In the present case, the decision to make the application was made on the day before the magistrate heard it. While all sorts of arrangements were being made in respect of the residents (without their knowledge), no-one made the slightest effort to tell the appellants of the pending application Mrs Robertson told us that she had been advised by the authority's solicitors that it was unnecessary to do so. Mr Machin told us, on instructions, that his solicitors had had no ulterior motive in giving that advice and we entirely accept that there was no bad faith on the part of either Mrs Robertson or the solicitors. But we can see no justification whatsoever for the failure to warn the appellants that the application was to be made. Mrs Robertson said that she was not sure that an order would be made, but it is precisely in a case where an application might successfully be opposed that the opportunity to make submissions (and negotiate beforehand with the authority) is most important. Indeed, in the present case, we cannot see what harm the respondents could properly have thought there could have been in giving the appellants two or three days' notice. They could have ensured that there was no serious risk to the residents during that period by monitoring the home very closely and, if there really would otherwise have been a serious risk, that would not have prejudiced their case because they could have argued that such close monitoring could not reasonably be expected for as long as the "ordinary" procedure for cancellation would take. As we have said, an urgent closure may be justified if it is the only reasonable way of avoiding the risk. We add three further comments. Firstly, we consider section 30 to be an astonishing provision when viewed from the perspective of the residents themselves. It enables a magistrate to make an order that has the effect that it becomes a criminal offence to continue to provide accommodation and care for the residents in the premises that have become their home, without there being any right for them or anyone on their behalf to object to the order before it has the natural consequence that they are promptly required to move. This is so, notwithstanding that it is recognised that such sudden moves may lead to premature death. In the present case, 33 infirm people, almost all elderly, were turned out of a nursing home with no more than a few hours' notice to them or their relatives. Not only were they removed from the home but they were separated from each other and from those who had been providing them with day-to-day care for, in some instances, some considerable time. We have no doubt that the inspectors believed that they were acting in the best interests of the residents. The residents and their relatives may possibly have agreed, but a procedure that does not allow them to express a view until it is too late for it to matter shows a complete lack of regard for the residents' civil rights. That sits uneasily with modern rhetoric emphasising the need to respect the dignity of residents. Secondly, if section 30 of the 1984 Act is still in force when the Human Rights Act 1998 takes effect, a magistrate hearing an ex parte application under section 30 may have to consider the implications of Articles 6 and 8 of the European Convention on Human Rights. It may be arguable that section 30 is not inconsistent with those Articles. Given the inadequacy of an appeal to a tribunal, we would not be surprised if the High Court were prepared to entertain an urgent application for leave to apply for judicial review of an order obtained ex parte, particularly as the High Court, unlike the tribunal, has the power to grant interim relief. That might be relevant when considering Article

6. As to Article 8, we consider that it is already part of our domestic law that an order may be made under section 30 only if that is a necessary and proportionate response to a risk to the residents' life, health and well-being. However, whether those considerations will be enough to enable section 30 to be used as it is now once the 1998 Act comes into force remains to be seen. Thirdly, while it will be clear from our decision that we are unhappy about several aspects of the way in which the inspectors carried out their duties in this case, we consider it unlikely that they should bear all the blame. Just as errors made by a care assistant may reflect adversely on the proprietor of the home, so also may an error on the part of an inspector reflect adversely on his or her employers. Inspectors have a difficult job and bear heavy responsibilities. In our view, Nottingham Health Authority should consider carefully whether their inspectors are given the training and support that they need properly to discharge their functions. We allow this appeal and we direct that the order of the magistrate dated 1 October 1998 shall cease to have effect. We regret that we have no power to order the respondents to pay the appellants' costs. Mark RowlandRita DoidgeSurendra Kumar