Dr Manoj Prasad v Wolverhampton Metropolitan Borough Council

Decision No. 364 This decision may be freely reproduced and distributed. It should be drawn to the attention of registration and inspection staff and legal advisers DR MANOJ PRASAD – APPELLANT V WOLVERHAMPTON METROPOLITAN BOROUGH COUNCIL – RESPONDENTS Tribunal sitting at the Civic Centre, Wolverhampton, on Tuesday 24th and Wednesday 25th November 1998, to hear an appeal in respect of the registration of Rosewood, 87 – 89 Nine Elms Lane, Park Village, Wolverhampton Before:Margaret Rutherford QCJames Fisher EsqMs Dianne Graham Representation:Ms Melanie McDonald of Counsel instructed by Mrs Karen Cork, Solicitor for Wolverhampton Metropolitan Borough Council Legal Services – Respondents  neither the Appellant nor any legal representative appeared for the hearing  DECISION – It is the unanimous decision of the Tribunal that the Appellant's appeal fails and that the decision of the Respondent registration authority shall have effect. WITNESSES For the Respondents :Nicholas Andrews EsqMrs Colon JohnstonMrs Karen CorkBhag Jassal Esq [written statements were received from Ms Wendy Patfield and Richard Eaves Esq, and read by the Tribunal] BRIEF BACKGROUND TO THE DISPUTE  On 2nd September 1996 the Appellant made an application to register himself as proprietor of Rosewood (the Home) to accommodate 10 elderly residents. The Home had previously been registered in August 1992 by the Wolverhampton Health Authorities as a 9-bedded Nursing Home, called Sandalwood Nursing Home. It closed at the end of July 1996.  He was requested to provide details as to the proposed Care Manager and as to other relevant documentation associated with the application (eg Health and Safety Policy). The proposed Care Manager was found by the Respondents to lack the necessary experience. He suggested three other candidates, asking the Respondents if they had any objections to those candidates, and in January 1997 sent details of another. On February 25th 1997 the Respondents informed him that the application by this proposed Care Manager would not be supported by the Performance Review Unit (PRU) unless she met the Respondents' criteria. In all he proposed 4 Care Managers. The Respondents had a number of concerns, including staffing levels, and correspondence was exchanged.  On 24th June 1997 the Appellant stated that he wished to change his application for registration, that he now wished to operate the Home as a Home for people with learning difficulties. A new application form was sent to him. Concerns continued to be expressed by the Respondents.  On 8th September the Appellant applied for registration in respect of 9 adults with learning difficulties, and included in his application were details of Miss Campbell, the proposed Care Manager. She did not meet the Respondents' criteria and although the Appellant was informed of this he insisted on his application proceeding. Both were invited to attend PRU on 13th November for interviews.  The panel interviewing Ms Campbell was unanimous in deciding that her application could not be supported, on the grounds that she lacked the necessary experience and skill for that position. The Appellant was told of the deficiencies. He was also told that his own application for registration could go ahead but that that relating to Ms Campbell would not be supported. The Appellant acknowledged Ms Campbell's lack of experience but was determined to pursue her application as Care Manager. Concerns continued to be expressed by the Respondents, correspondence was exchanged and meetings occurred. The Appellant continued to insist that Ms Campbell should be the Care Manager but then also proposed himself as Manager of the Home. Accordingly a Care Manager's application form was sent to the Appellant in December 1997. He completed this application with the word "Care" deleted. On 9th January 1998 the Appellant stated that he did not wish to be the Care Manager of the proposed Home and that he would form part of the support staff.  On 20th January 1998 the Appellant was interviewed in connection with his application to be registered as the Proprietor of the proposed Home. His application was presented to the Social Services (Adult Services) Sub-Committee on 24th February 1998. It was recommended that the application by the Appellant and Ms Campbell be refused on the grounds that they were not fit persons and on 10th March 1998 the Appellant was informed of the decision. On 14th May 1998 the Social Services (Appeals) Sub-Committee upheld the Sub-Committee decision to refuse to register the Home. On 22nd June the Appellant appealed to the Registered Homes Tribunal.  APPLICATION FOR AN ADJOURNMENT  The hearing was set originally set down for September 1998, however the Respondents could not manage dates until November. The Chair and the parties agreed new dates for the hearing, starting 24th November 1998 and in early August the dates were confirmed by all concerned. On 6th September the Appellant requested an adjournment stating that he would be on a training course on these dates. The Respondents objected to an adjournment. On 22nd October the Appellant left a telephone message with the Secretariat stating that he had a back injury and would be unable to attend the Tribunal. He was informed that this communication was insufficient and was asked to confirm his application in writing, along with a letter from his doctor explaining his back injury.  On 26th October the Appellant again telephoned the Secretariat saying that he had hurt his back and would be unable to attend the Tribunal. He indicated that there was no one to attend in his place. On 18th November a letter to the Secretariat was received from the Appellant, stating that he was "unable to sit for long periods without severe back pain at this time due to a fall", enclosing a document which he referred to as "the letter you requested from my GP confirming that this was the case". The letter referred to was entitled "Memorandum, University Medical Practice", addressed "to whom it may concern", stating the Appellant's name, a diagnosis of "muscular back pain" and the comments, "Unable to attend meeting on 24/11/98 due to back pain secondary to a fall". It was dated 16 November 1998.  The Respondents wrote that they felt there were insufficient and proper grounds for an adjournment. The Chair, by letter and FAX dated 20th November directed that, since the application by the Appellant was objected to by the Respondents, the hearing should go ahead as planned on 24th November and that the Appellant should make his application to the full Tribunal. He was also directed to produce his Grounds for Appeal. On 23rd November the Appellant wrote to the Secretariat confirming that he would be unable to attend the hearing commencing 24th November due to a back injury, the relevant paragraph being "I can confirm that due to ill health I will not be able to attend the meeting on 24/11/98 and request that the meeting is adjourned to a date which is suitable for all parties and when all references on Lisa (sic) Campbell have been provided and not just one from W Patfield".  On the first day of the hearing the Appellant failed to attend, nor did any legal or other representative attend on his behalf. The Chair asked the Respondents to respond to the Appellant's application for an adjournment The Respondents' Case against an adjournment  The Respondents asked that the "medical certificate" be rejected. They said it was an unreliable document and that it failed to explain to the Tribunal why the diagnosis of muscular back pain should prevent the Appellant from attending that day. It gave no prognosis, and on the basis of the certificate, or "Memo" as it was called, it was quite impossible to know when it might be realistic to expect he might be ready. There was nothing in it to assist the Tribunal, for example it did not say he required two weeks bed rest, or when he was going to be fit enough to attend. The Respondents said that the medical note he produced should be put in the context of his conduct of this matter overall – for example he had failed to respond to letters from the Respondents' solicitor, he had failed to file Grounds of Appeal, he had failed to disclose any written statements or indeed any evidence. This was not a case of an Appellant actively pursuing his appeal and then coming before the Tribunal with cogent medical evidence to suggest that he was indisposed.  As to the letter dated 23rd November, faxed by the Appellant and seen on the morning of the hearing, it seemed to suggest that there was not one but two reasons for the request for an adjournment – (i) ill health and (ii) that "all references on Campbell be provided". This suggested other motives than ill health. Did it imply, for example, that the Respondents had withheld documents? Did it indicate that the Appellant himself wished to make further enquiries? Either way, it was not a matter he had ever canvassed prior to his letter of 23rd November, and the Respondents say that in all the circumstances it would be inappropriate for an adjournment to be granted. The medical evidence falls short, providing no clear explanation for the Appellant's absence. He has had ample time to prepare for the appeal, and there was no guarantee that this would not happen again if the matter were re-listed. Indeed the Tribunal and the Respondents would be in the unfair position of simply not knowing when the matter would come before a Tribunal again. Tribunal's decision as to the application for an adjournment  The Tribunal adjourned to consider the matter, and requested that, in the meantime, enquiries should be made as to where the Appellant was and that attempts should be made to contact him at his home, his surgery, or wherever. It was agreed by the Respondents that it would be proper for them to make the initial enquiries but that thereafter this should be done by the Clerk to the Tribunal.  After some 37 minutes the Tribunal gave its decision which was that the application was refused. In reaching this decision it entirely accepted the evidence adduced by the Respondents. The question then arose as to whether or not it was appropriate to continue with the hearing ex parte. The Respondents said that this would be their application and made the following points. DECISION TO PROCEED EX PARTE The Respondents' case First and foremost, the Respondents were ready to proceed today. They stated that if the matter were not to proceed significant cost implications for them would arise. Public funds were being used and there was no prospect of recovering costs from the Appellants if the matter were not to proceed today, adding overall to the Respondents' cost burden. The Appellant had had ample time to prepare for the hearing today, and the submissions made by the Respondents in respect of the application to adjourn applied. The Respondents drew the Tribunal's attention to the failure by the Appellant to respond to correspondence from the Respondents. Despite the fact that this was his appeal, he had taken no steps whatsoever to progress the matter, including a failure to produce his Grounds for Appeal. By Regulation 5(4) such Grounds should have been due on 2nd November, and the Respondents pray this in aid. In fairness, they add that if the Appellant had attended today they would not have made this point.  As to enquiries made by the Respondents' Solicitor to try to locate the Appellant's whereabouts today, there were grounds for supposing that he was making himself unavailable. One curious feature of the letter of 23rd November was that the address heading it was different from the address he had always used in the past. The Solicitor telephoned Directory Enquiries, giving the Appellant's name and address as per the letter of 23rd, and a number was provided. However, when the Solicitor telephoned it appeared to be a surgery, but the person who answered denied all knowledge of the Appellant.  Further enquiry made to his known address (as on the application form) ascertained that the Appellant's mother was there. She said that the Appellant was out. The Clerk to the Tribunal then telephoned the number provided by the mother. He was told by her that the Appellant "might be asleep". He was given yet another telephone number by her. The Solicitor then tried that number. On the first 2 occasions the line was engaged. Thereafter there was no reply. that was the extent to which the Respondents had been able to take their enquiries save that a message had been left on the Appellant's pager.  The Solicitor then telephoned the University Medical Centre (the name on the Memo). It was a GP's surgery. The Solicitor was unable to ascertain from the doctor whether the Appellant was registered with the surgery as a patient, although she did ascertain that he was not registered there as a partner. The Solicitor also telephoned Dr Rathore, the author of one of the references supplied by the Appellant, who had indicated he was the Appellant's GP. Again, not surprisingly, the doctor indicated that he would need the Appellant's written authority before he could release information, for example as to whether he was registered as a patient.  The Solicitor then telephoned various local Health Authorities, each of which keeps a list of locums. None of those authorities had the Appellant on their lists of locums. The net had been spread wide – Wolverhampton, Walsall, Shropshire, Staffordshire, Sandwell and Dudley Health Authorities were all contacted. They all said they had no knowledge of the Appellant.  Not surprisingly some of the enquiries made were not productive, but the Respondents certainly invited the Tribunal to treat with some suspicion the letter of 23rd November. Further, it was curious that within a few minutes of the telephone number provided by the Appellant's mother being rung and found to be engaged, there was no response. The Tribunal was asked to conclude that if he had wanted to make himself available to the Tribunal today, he had the means to do so. Having failed to take advantage of the opportunities provided to him to pursue his appeal, no further time or costs should be wasted.  Clearly at this moment the whole impetus of civil litigation is based on the presumption that the interests of justice are best served by an early disposal of the matter, and in making this comment the Respondents have in mind the kind of situation where a party seeks to adduce evidence at the last minute. There is now clear authority from the Court of Appeal in Mortgage Corporation v Sandoes (1997) 03 LSGaz 28, where one party sought, within days of the hearing, to adduce fresh evidence and was refused. Prior to that decision the court would have been sympathetic and probably might have granted an adjournment. However, the Master of the Rolls held that where the trial date is jeopardised this was not a situation which the court would sanction, not only as a matter of convenience or justice to the parties, but also because of the disruptive effect this has on court business. In the present situation where the Tribunal has already convened, a further listing would cause disruption and inconvenience to the Tribunal and the Secretariat, and that legitimate concern has been recognised by the Court of Appeal.  The Tribunal's decision as to whether or not to proceed ex parte  After retiring to consider the matter the Tribunal decided that it was right and proper in all the circumstances to continue the hearing notwithstanding the absence of the Appellant. In reaching this decision it accepted and adopted the submissions of the Respondents. However, in order to give every possible opportunity to the Appellant to be aware of its decision to proceed, and to attend if that were his wish, a longer luncheon adjournment was directed of some 1ÿ hours, during which time further attempts to contact the Appellant could be attempted. The Tribunal also made it clear to the Respondents that it would require them to prove their case and that therefore it would hear all the evidence.  When the Tribunal reconvened in the afternoon the Respondents reported that during the extended luncheon break the Tribunal Clerk had again contacted the Appellant's mother, that the Solicitor had tried the Birmingham telephone number which the mother had supplied and the number was engaged, and full messages had been left on the Appellant's pager. The telephone number obtained from the letter of 24th November was tried yet again and an answering machine stated that the surgery was closed.  The Tribunal was satisfied that the Appellant had no intention of turning up and proceeded to hear the Respondents' evidence in his absence. On the evening of the first day of the hearing the Chair further directed that attempts continue to be made to inform the Appellant that the hearing was proceeding. The Clerk to the Tribunal reported on the morning of the second day of the hearing that he had made 4 further attempts to contact the Appellant at various telephone numbers, speaking inter alia, with the Appellant's mother and leaving various messages, eg with the mother and with the BT operator on the Appellant's pager.  SUBSTANCE OF THE RESPONDENTS' CASE The Respondents' case emerges from its Reasons for refusal to register and from written and oral evidence of its own witnesses, as summarised in the closing submissions.  The Reasons on which the Respondents relied for refusal to register

1. Dr Manoj Prasad and Ms Leesa Campbell are not fit persons to be concerned in carrying on a residential care home, section 9(1)(a).

2. For reasons connected with the staffing, the premises are not fit to be used for the purposes of the home, section 9(1)(b).

3. The way in which it is intended to carry on the home is such as not to provide services and facilities reasonably required, section 9(1)(c). In particular, (i) clear evidence was produced by the Registration Authority that Ms Campbell lacked the necessary experience and skill to be registered as Care Manager of the Home; (ii) supplemental documentation provided by Dr Prasad in relation to staff rotas, training issues, job descriptions and organisational structures failed to make clear the lines of management responsibility in the Home and undermined the role of Care Manager which is seen as the key post within a residential home; (iii) the lack of an appropriately qualified and experienced Care Manager who should have a clear responsibility for the day to day management of the Home would lead to confusion amongst the staff, resulting in poor care provision for a group of very vulnerable members of the community.  Closing Submissions  (Counsel made it clear that she relied only on section 9(1)(a) and (c) grounds, and that she did not pursue any allegations as regards section 9(a)(b).)  The local Policy Guidelines (supplied to the Appellant prior to September 1996) both complement and implement the statutory framework for registration of residential care homes. They provide clear criteria for the approval of both proprietors and managers of such homes, and they contain clear definitions as to the roles of the person in control and the care manager. The Appellant had ample opportunity to familiarise himself with those requirements before making his application in September 1997. The PRU correctly and appropriately applied those guidelines, and the lengthy history of the matter reflects that they were applied with flexibility.  The history also indicates that the Appellant deliberately pursued his own agenda, refusing to take on board the legitimate requirements of the Respondents, in particular in putting forward someone he was told, and acknowledged, was not a suitably qualified and experienced candidate to fill the role of care manager. It was not the case that he laboured under a misapprehension as to the Respondents' requirements in respect of registration. Even before the change of category of clients (prior to September 8th 1997) he must have been aware that the role of care manager should be filled by someone capable of dealing with day to day management of the Home. The Appellant was left in no doubt as to the Respondents' requirements and this is borne out by notes of meetings, both in November and December 1997. The Respondents were patient; they provided support. It was made absolutely clear that Ms Campbell was unsuitable, but, in face of informal and supportive advice given by Mr Jassal, the Appellant failed to address those matters which were of concern, and this must go to the question of his fitness – either as the proprietor or the manager of the Home. Even the proposal put forward by the Appellant after December 3rd, culminating in his application to be approved as manager of the Home, failed to address the valid concerns of the PRU relating to proposed staffing and management. There was incontrovertible evidence of the Appellant's lack of willingness to take on board the Respondents' concerns. These included the limited time the Appellant indicated he would be able to spend at the Home (15 – 20 hours a week, indicating that at no stage had he grasped the importance of the role of the person in charge on a day to day basis); the particular vulnerability of the proposed client group and a failure to appreciate their needs; the youth and inexperience of Ms Campbell who would have to carry the burden of the day to day management of the Home.  During the fit person interview on January 20th 1998, and in the unsatisfactory and incomplete documentation produced by the Appellant in relation to organisational structure and line management, the lack of a coherent staffing and management policy was again highlighted. He has consistently failed to take advantage of the opportunities offered to him by the Respondents to put forward acceptable proposals relating to staffing and management and has given no indication of being able to appreciate how the welfare of residents with learning difficulties might be put at risk where day to day management and decision-making devolves on someone lacking in any supervisory / management experience. Not only does this go to immediate concerns as to the welfare of future residents but it goes to the question of the Appellant's fitness.  The Appellant is not a fit person in that he has shown that he is unable or unwilling to understand or respond to the need to ensure that the Home is properly managed and / or staff. Ms Campbell is not a fit person in that she falls below the minimum requirement set out in the Guidelines and lacks sufficient management experience to be responsible for the day to day management of a Home for people with learning difficulties. The failure to make adequate provision for the day to day management of the Home or to introduce a coherent staffing structure fundamentally compromises the capacity of the Appellant to provide the services and / or facilities reasonably required and necessary for the welfare of an extremely vulnerable client group.  REASONS FOR THE TRIBUNAL'S DECISION  Introduction After having read all the written evidence and after hearing oral evidence from three officers, in particular Mr Andrews, Mr Jasal and Mrs Johnston, and after rereading notes taken during the hearing, the Tribunal was satisfied that the Respondents had proved their case to a high standard and unanimously dismissed the Appellant's appeal Burden and Standard of Proof  In civil cases the general rule relating to both the legal and evidential burden of proof is that the party who asserts a fact must prove it. In this matter, the Respondents, on whom the burden squarely fell, were required to prove that the Appellant was "not a fit person" within the meaning of the Registered Homes Act on the balance of probabilities, bearing in mind the decision in Lyons. It was not for the Appellant to prove that he was a fit person.  Evidence generally  He submitted no evidence to the Tribunal and provided no Grounds of Appeal. However, the Solicitor for the Respondents most helpfully had included, within the Respondents' Bundle, a section – Bundle E, pages 1 – 47 which comprised documents which had been sent by the Appellant to the Respondents on 7th May 1998 as his evidence to the Appeals Committee. This evidence was for the hearing which took place on 14th May (and it will be remembered that the Decision to Refuse Registration was made on 24th February 1998). In particular documents 48 and 49 were the Appellant's closing submissions which he had submitted in writing. Although he had given oral evidence to the Sub-Committee and was cross-examined on documents 1 – 47, he had made no oral closing submissions. In response to a question the Solicitor, who gave sworn testimony, stated that the documents had been included in the Respondents' bundle as she had received no correspondence or communications from the Appellant concerning the Tribunal hearing and that she wanted to ensure that, should he have turned up, any or all those documents on which he might seek to rely were available to the Tribunal, thus ensuring that there would be no delay (for example in having to photocopy numerous documents during the hearing). She also stated, in response to a question from the Chair that the inclusion of the Appellant's documents was to ensure that he would not be disadvantaged in any way. The Tribunal not only read this bundle but recalled Mr Andrews specifically to question him on it. He confirmed that the decision reached by the Sub-Committee on 24th February to refuse the Appellant's application was made without the information contained in Bundle E. However, he made it clear that the information contained therein did not change any of his views, that is to say "they gave no grounds for changing my opinion about the unsatisfactory way in which the Appellant intended to operate the proposed Home". As to those documents received on 7th May, he stated "My impression gained even as late as the date of the appeal hearing, was that the Appellant was either unwilling or unable to make a clear distinction in his own mind about basic issues relating to the operation of a residential care home and the care of residents". Findings of Tribunal  The Tribunal found the officers' evidence, and in particular that given by Mr Andrews, credible, weighty and convincing. It also found that the Respondents had acted fairly and with considerable patience throughout, and had provided every opportunity to the Appellant to progress his application. It finds they were helpful and constructive but that the Appellant was either unable or unwilling to take advantage of their assistance. It was the Respondents' duty to protect the vulnerable people who might go to live in the Home. It finds the Appellant was unable or unwilling to make clear distinctions in his own mind about basic and fundamental issues relating to the operation of a registered care home. In particular it agrees with, and accepts the evidence adduced by, the Respondents that "he put forward a very confused structure which did not identify clear line management structure, accountability and responsibility". It also agrees and accepts that he deliberately failed to acknowledge the position of the Respondents and wished to impose his own proposed way of managing the Home rather than accepting the advice of the Respondents (based on their Guidelines) of what was required. Had he done so he would have been more likely to find a manager who was capable of protecting his interests – but he seemed unable to grasp this.  The Tribunal also found that there was no evidence to support the Appellant's claims made in documents submitted on his behalf by the Respondents to show that he had any / sufficient experience to be in charge of the day-to-day running of a care home for people with severe learning disabilities. It accepts the evidence of both Mrs Johnston and Mr Andrews that what was proposed "was quite dangerous" and irresponsible. It also finds that his intransigence is reflected in the way in which he made attempts to delay the hearing, and by his failure to turn up without attempting to contact the Tribunal, although, for the avoidance of doubt, this was not a factor it took into consideration in deciding his fitness. It unanimously finds that the Respondents have proved their case and that the Appellant's appeal fails and is dismissed.  Post Script  With regard to Ms Campbell, the Tribunal would like to make it clear that they heard no evidence from, and little about, this witness. For the avoidance of doubt, the reference to her unfitness relates only to her lack of experience and qualifications as a Care Manager at the time the application to register was made. In short, it may be the case that with more experience and appropriate training she would be eminently suitable for such a position in the future. Margaret RutherfordJames FisherDianne Graham This is the unanimous decision of the Tribunal