Mr and Mrs G R Beattie v Borough of South Tyneside

Mr and Mrs G R Beattie, Appellants and Borough of South Tyneside, Respondent Decision of the Tribunal sitting at the Town Hall, South Shields on 10 and 11 December 1985 Appeal against the decision of the Borough of South Tyneside refusing Mr and Mrs Beattie's registration in respect of the Algarve, 77 Ocean Road, South Shields as a residential care home. For the appellants:Mr Mulholland of Counsel (instructed by Swinburne Jackson & Co). For the respondent:Mr Watts, solicitor (of the Borough Solicitor's Office) Decision It was the unanimous decision of the Tribunal that the appeal should be dismissed. Reasons On 11 June 1985 the respondent Council refused to continue the registration of Mr and Mrs Seattle in respect of the premises known as the Algarve, 77 Ocean Road. South Shields operated by them as a residential care home. The grounds given were that:- a. for reasons connected with the staffing, the premises were not fit to be used for the purposes of the home, and b. the way in which the home was carried on was such as not to provide services reasonably required. In their grounds of appeal the appellants challenged not only the correctness of the respondent's conclusions but also the procedure adopted by the Council in considering the case. The latter aspect was not pursued at the hearings it being accepted that the appeal takes the form of a re-hearing and has to be decided on the evidence as presented to the Tribunal. It is sufficient to say that in proceedings of this nature the licensing authorities must act in a judicial manner following the accepted standards of natural justice. This is especially so where their decision may result in the cancellation of an existing licence. Such a decision may affect not only the licensees of a home and their livelihood, but also the future happiness of the residents themselves. Evidence was given by Mrs Beattie for the appellants, and by Mr Latham and Mr McWilliams for the respondents on the history of the home and its merits and demerits. In addition there were affidavits from the relatives of two of the residents as to their satisfaction with the home and there was evidence from a Mr Lowell relating to one of these residents. Mrs Beattie had run the Algarve as a guest house from 1981 to February 1983 when it was registered as a residential home for 12 residents accommodated in 6 bedrooms. Mrs Beattie also owns and runs a second home – the Concordia – which is licensed for at residents. From the start the respondent encountered difficulties in getting from Mrs Beattie records of the staff employed at the Algarve and their duties. Mrs Beattie did not appoint a person as officer in charge of the home as required insisting that she fulfilled this function. The respondent considered this unsatisfactory as she was also officer in charge of the Concordia opposite which she lives, some 3 miles distant from the Algarve. On 21 June 1984 the Algarve was inspected by Mr Latham, the Assistant Director of Social Services and Mr McWilliams, then employed by the respondent as a principal assistant concerned with the inspection and registration of residential homes. The results of this inspection were communicated to the appellants by letter of Ma June. So far as this appeal is concerned the main complaints were that the records relating to the residents were not kept in a satisfactory way. There was no complete list of those in residence available and 13 deceased residents were still recorded as being in residence. The drug recording system was quite inadequate and was not being maintained as had been previously recommended. There were drugs prescribed for deceased residents still in the drug cupboard which was in the kitchen and unlocked. So far as the drug records are concerned there had been previous warnings in May 1964 that they were not being properly maintained. On 12 July 1984 the same two officers inspected the premises, and again communicated the results of their inspection to the appellants by letter of 30 July. The records of residents were again inadequate, and 14 persons were found in residence despite the home being registered for only 1a. The Drug Record Cards and Prescription Sheets were not available for inspection as previously required. No record of the staff employed was available or had been supplies to show names, ages and experience. In fact only one member of staff was on duty at the time of the inspection and this was regarded as unacceptable. There was a warning in the letter that continued non-compliance with the respondent's requirements could lead to cancellation of registration. This letter was followed by a meeting of the officials with the Beattie's and their legal representative when these difficulties and the shortcomings were discussed. Mrs Beattie complained that she had not had adequate advice from the Council, but only criticism. She gave assurances that matters would be attended to and she was given the forms to be returned showing the staff employed. These were not completed and returned that year. Indeed when they were finally returned in November 1985 they were still inadequate in some details. On 26 February 1985 Mr McWilliams with an assistant visited the home at about 9.30 am. He found present a Mrs McConchie, who said she was not a member of the staff, but was only helping out on a voluntary basis, and her daughters a young girl who was a domestic assistant who helped with the cooking. There were 7 residents in the lounge and he heard a woman calling for help. she was in bed on the second floor and lying in a wet bed. There was beside her on the commode a cold cup of tea and a sandwich. He asked that she be attended to. Mr McWilliams checked the drug records and found in respect of one resident that there was a shortage of 12 tablets. At about 1.30 pm the same day Mr Latham and Mr McWilliams re-visited the home. Mrs McConchie was then the only member of staff in attendance, expecting to be relieved. At about a two care assistants arrived to take over. The woman in bed upstairs was still there now lying in a bed that was both wet and soiled. She was breathless and obviously ill and required medical attention. This had not been called for as the staff had been discouraged from calling her doctor unless certain that it was necessary and were afraid to take the responsibility. There followed a meeting with the Beattie's on 6 March at which their legal representative was again present. The criticisms were put and it was stressed that the level of staffing appeared to be inadequate. Mrs Beattie said that Mrs McConchie had been fully employed as from the beginning of March. The need for adequate staffing was stressed particularly in the light of the rooms having no call system and being situated on 3 floors. In evidence before the Tribunal Mrs Seattle said that with the five doors closed a person calling from the top floor could not be heard on the ground floor. Though this was said to show that Mr McWilliams could not have heard her calling as he said he did, it does bear out the need for adequate staffing. Also at the meeting attention was drawn to the fact that staff records had not by then been supplied. Such records for the Concordia only were sent in on 4 April, but it was only towards the end of November 19bb that any records for the Algarve were supplied. On 1 April 1985 Mr McWilliams and his assistant visited the premises shortly before lunch-time. Mrs McConchie was on duty together with a care assistant and a domestic, both of whom were in part-time employment. There was a staff rota which showed the numbers to be on duty but not their names. Mrs McConchie said she was now in full-time employment, but she seemed not to know who was supposed to be on duty or who would be doing night duty. She did not seem to consider that she had continuing responsibility for the administration. Preparation of meals was part of her responsibility. Again this level of staffing especially at a meal time was not regarded as adequate for even the 8 residents there then. Mr McWilliams check of the drugs on this occasion showed that in respect of two of the residents there were some tablets deficient and some surplus according to the records kept. In addition it appeared that on two occasions a drug prescribed for one patient had been given to another without medical authorisation. It was on these facts that the Committee decided to recommend cancellation of the registration. Mrs Beattie disputed some of the facts spoken to by Mr Latham and Mr McWilliams, but we accept the evidence of these two officers. Mr Latham was an impressive and fair witness and Mr McWilliams was no longer employed by the respondent. Mrs Beattie was an imprecise witness, inclined to meet queries put to her during her evidence by improvisation. The Tribunal is satisfied that the Committee, on the facts before it coupled with the fact that at its hearing Mrs Beattie could not satisfy it that she had remedied the defects, came to a proper conclusion. This, however, does not end the Tribunal's task. We have to consider the position as it is at present and on the evidence before us. Mrs Beattie produced a schedule showing how the Algarve was staffed from day to day. This contained 9 names of those on regular day duty with 3 additional persons who could be called on to help out. A number of these had experience of working with old people. Waking night duties were met by 4 persons who did one or two nights each a week. Three of these were state enrolled nurses, the other had 4 years experience. In addition 3 men shared sleeping-in duties. Mrs Beattie herself was shown as being on duty for one full day and 5 afternoons. This is certainly an improvement on the past, but the schedule is not only imprecise as to individual responsibilities, it is also complex and one easily upset by any unforeseen event. The division of responsibility between Mrs Baker, who is now nominated as officer in charge, Mrs Brenon and Mrs Beattie may tend towards confusion. The fact that Mrs Coleman, the cook, and Mrs Simpson, a domestic, are called on to help out as care attendants on occasions can also cause confusion and be unsatisfactory. In addition Mrs Beattie showed herself as being less careful than she should have been in selecting her staffs ensuring their suitability and providing the respondent with information about them. The respondent's target for day care of a senior member of staff with a care attendants as well as auxiliary staff to clean and cook the Tribunal considered reasonable. If there were no difficulties this could be achieved on the Schedule save on Tuesdays and Fridays between b and 9am. This is a busy time in a residential home and we were not satisfied that even with the assistance given by night staff staying on for an extra hour, as Mrs Beattie said occurred, would be adequate. In any event we did not consider that the night staff were adequate to see to the residents waking and rising for breakfast as some of them do before 8am. Some of these would need help and even washing after the night. So far as night duties are concerned the Tribunal felt that the respondent's suggested requirement of a waking staff and a senior member sleeping in was excessive for 12 residents. We did think, however, that there should be a more experienced member sleeping in than was provided. Considering the evidence in the light of the past history the Tribunal does not feel satisfied that Mrs Beattie is achieving or will continue to achieve what is required. Throughout – and even as late as the last inspection on 26 November 1985 when the staffing records still left something to be desired – she does not seem to have appreciated the seriousness of the complaints that have been made, and in our view properly made. As a serious example one has to take only the incident of 26 February 1985 and her reaction to it. Even before us she made an effort to minimise the affair. It was on the basis of the evidence as a wholes including the recent history of the deficiencies, that the Tribunal considered that primarily for reasons connected with staffing the home was not carried on in such a way as to provide services reasonably required by the residents as a whole. We have not overlooked the affidavits from the relatives of two of the residents supporting Mrs Beattie. 20 December 1985 Signed:J C R Fieldsend – Chairman G S Dunn K Wells