Mr Atmaran Annand Bhaugeerutty and Mrs Shanti Rooyaree Bhaugeerutty v Walsall Metropolitan Borough Council

DECISION 365 REGISTERED HOMES TRIBUNAL This decision may be freely reproduced and distributed. It should be drawn to the attention of the registration and inspection staff and legal advisers. MR ATMARAN ANNAND BHAUGEERUTTY and MRS SHANTI ROOYAREE BHAUGEERUTTY Appellants v WALSALL METROPOLITAN BOROUGH COUNCIL Respondent Tribunal sitting at County Offices, Walsall, on 16th, 17th, 18th, 19th, 20th November, 7th, 8th and 9th December 1998 to hear an appeal in respect of a cancellation of registration of a care home at Pelsall Hall, Walsall, West Midlands. Before:Mr David Hershman ChairmanMr Roy BrooksMrs Jenny Lowcock Secretary: Mrs Ann Carlisle Representation: Appellants: Mr David Anderton – Solicitor of Hadens Solicitors Respondents: Miss Tina Cook Counsel instructed by Cox McQueen Howard and Tain agents for the Walsall Metropolitan Borough Council Witnesses: For the Appellant:Annand Bhaugeerutty Shanti BhaugeeruttyEileen RobbinsPeter GloverMary HollandCharles CockayneValerie JohnstonJane IngramDavid PtolomeyPauline WithnallTed LewisIvan PittDr NambisanPauline DaviesYvonne ClarkeKerry Tricklebank For the Respondent:Pamela GarbettJulie DykeAlison AdamsChristine ReevesChristine CockayneKerry DaintyHelen BarrettAmanda WoolleyJonathan BrittleAsha JhalliKaren KenyonClaire GrayCatherine WilsonMelanie ValeShirley ArcherSusan PeggBrenda PelariTeresa WildVictoria ChallisDorothy SmithRita BaughTracy LangleyDeborah WrightKaren Jones DECISION It is the unanimous decision of the Tribunal that the Appellant's appeal be dismissed and that the decision of the Registration authority cancelling the registration of Appellant's be confirmed. The history: The Appellants were jointly registered as proprietors of Pelsall Hall care home on the 15th June 1987. They both were qualified nurses. Mr Bhaugeerutty is also a qualified pharmacist. They were both first registered as nurses in 1976 and their registration was kept up until they became involved in the running of a care home. Their registration lapsed in 1987 and 1988 respectively but both were re-admitted in 1996. The home was first registered for 23 residents and in November 1994 after building works, the registration was increased to 30. In 1995 a complaint was received by the Registration Authority in respect of the home. A relative of a resident was dissatisfied with the arrangements at the home. Inspectors visited the home in July 1995 to carry out an unannounced inspection to consider the complaint. Thereafter Mrs Baugh, inspector within the registration unit, was appointed to consider and report upon the complaint. She provided a detailed report but there appears to have been no discussion about its contents with the Appellants. In February 1996 a further complaint was received. In March a third complaint was made. These complaints, both relating to care assistants were considered and not thought to justify action by the registration authority. After some delays through no fault of the Appellants and without notice to the Appellants, the registration unit in a letter received by the Appellants on the 17th May 1996 proposed to carry out the Annual inspection on the 20th May 1996. Mr Bhaugeerutty sent a facsimile transmission indicating that this was not a convenient day for the home. As a result of this a Notice of Proposal to cancel was issued dated the 21st day of May 1996 (under section 10 of the Registered Homes Act 1984). The Inspection took place on the 23rd May 1996 and extended into the 24th. Mrs Baugh together with Mrs Jones carried out the inspection. Eighteen members of staff were interviewed. An application was made for an emergency closure (under section 11 of the Act) on the 7th June 1996 at the Aldridge Magistrates Court which was granted. The Registration Unit arranged for the home to continue in operation and a substitute manager was put in place. An appeal was lodged in relation to each of the cancellations. The hearing of the appeals in relation to emergency closure (section 11) and the cancellation (section 10) commenced in August 1996 and the evidence was completed in November 1996. Prior to a decision being reached, but after some discussions between the members of the Tribunal, the Chairman of the Tribunal died. Prior to his death, the Chairman had prepared a draft of the decision as if it were the decision of the Tribunal. His decision was to allow both appeals. Disagreeing with the draft prepared by the Chairman, after his death, the wing members prepared their own majority decision. This confirmed the decision of the Chairman to allow the appeal in respect of the emergency cancellation but disagreed with the decision as to cancellation under section 10. The wing members believed that their decision, agreed between them, was the decision of the Tribunal, as the decision of the majority. An application was made to the High Court in respect of these purported decisions. It was held that the emergency cancellation decision, being a decision made by all members should stand. This is decision 351 and contains the written reasons of the Chairman and a separate document containing the written reasons of the wing members. In respect of the cancellation under section 10 it was held that there should be a re-hearing because there had been no conclusion to the discussion between the members of the Tribunal and it was possible that if there had been, the Chairman might have persuaded the wing members to agree with his point of view. Following consideration by the High Court the matter was set for re-hearing in relation the substantive appeal under section 10 (and not the urgent cancellation). A directions appointment took place in July 1998 and the date set for the final hearing was fixed. A further date was set for preliminary consideration of the extent of the enquiry to be undertaken by the Tribunal in this unusual appeal. The instant hearing and decision is the re-hearing as directed by the High Court. The Directions Hearing: At the directions hearing it was argued on behalf of the Appellants that the hearing should be limited to only those matters contained within the original notice. The notice had been amended dated the 14th June 1998 to include the ground " that the home is run in a manner prejudicial to the life, health and well being of the residents." It was argued on behalf of the Appellants that there is no power to amend a Notice and such additional ground should not be permitted. The Tribunal concluded that this ground did not involve a consideration of any new material and was merely a conclusion upon existing evidence which the Tribual were entitled to reach if the evidence justified it. It was argued by the Appellants that only evidence relating to events prior to the notice should be admitted. On behalf of the Respondents it was argued that the Tribunal should consider all evidence, particularly bearing in mind the history of this matter. The Tribunal concluded, in accordance with decision 291 that the recent evidence could not be ignored. Further, the Tribunal concluded that it is important to have as full a picture of the evidence as possible. Nevertheless, where the evidence relates to events prior to the decision to issue the Notice of Cancellation, the Tribunal was bound to inquire into the reasons why such evidence was not referred to or not the basis for the reasons given at that time. This would be considered when deciding how much weight to attach to the evidence. It was decided not to exclude any evidence. By agreement of the parties, despite this ruling, it proved possible to narrow the areas of dispute, limit the need for evidence in chief by pre- reading, and limit the scope of the inquiry The Respondents case: Following a pre-trial hearing and an agreement to narrow the issues in dispute, the Respondent did not pursue all the grounds set out within the Notice of Proposal to cancel the registration. At the final hearing, the grounds upon which the Respondent asserted that the Respondents were not fit to run the home were: – that they failed to maintain good personal relationships between themselves and their employees; – that they failed to supply suitable qualified and experienced staff – that there has been an unacceptably high turnover of staff within the home; – that the home is run under an authoritarian regime with an unacceptable regimentation of residents; – that the home is run in a manner prejudicial to the life, health and well being of the residents. Evidence: A large body of material was produced by the Respondents which was eventually sorted into thirteen lever arch files. They were: • Notices and Orders • Witness statements; • Resident's care notes; • Miscellaneous records and diary books • Other material • Night Report Books and message books • Books 1, 2 and 3 • Schedule of Announced and Unannounced Inspections • Staff employment records • Complaint reports • Annual reports / notes for guidance • Exhibits • Miscellaneous documentation The Tribunal were requested to pre-read only the file containing the witness statements but were during the course of the hearing referred to the other material. During the course of the hearing and consideration of the evidence thereafter, the members of the Tribunal considered the material contained within all these files. Witnesses: Twenty four witnesses gave sworn evidence on behalf of the Respondent before the Tribunal. All of these witnesses had made statements for the earlier hearing. Some had made more recent statements. Most were being asked to compare their evidence on this occasion with their evidence at the previous hearing. The salient parts of their evidence and the assessment of their credibility is set out below. Pamela Garbett was the first witness for the Respondent. She had worked at Pelsall Hall from September to November 1995. She stated that she had been given no formal training but was shown round the home by her co-worker and was shown the job as she worked. She said she would not have known what to do in the event of a fire. She had been given a warning about smoking at work and perhaps inaccurately recalled the number of residents who were woken to be toileted through the night. She thought that the figure was ten whereas the evidence of other witnesses which was accepted by the Tribunal was about five. she recalled very clearly that there were no incontinence pads. Her evidence on her lack of training and lack of pads was clear. Whilst it was possible that she had some motive to tell lies, the Tribunal concluded that her evidence was truthful. Julie Dyke gave evidence that she had worked for 18 months between 1990 and 1992 as a night care assistant at the home. At this time the home was registered for 23 residents. She recalled not being told what to do other than Mr Bhaugeerutty showing her things occasionally. The Tribunal concluded that the events she described were a number of years ago and her evidence was unreliable and inconsistent. Alison Adams was the Practice District Nurse who had to deal with two residents who had pressure sores after the Registration Unit took over the running of the home. The Appellants argued that this was evidence of the failure to toilet the residents regularly through the night. The evidence was of a practice adopted by the Appellants in respect of some residents to prevent pressure sores and wetting their beds. The Tribunal accepted that this was possible but concluded that this evidence did not establish whether the sores had originated through the care given prior to their leaving or after. In any event the Tribunal concluded that the practice of waking residents every two hours through the night to go to the toilet is regarded as no longer acceptable practice and that any care manager adopting this practice is out of date with current good practice. Christine Reeves gave evidence of having worked at Pelsall Hall as a night care assistant for 4 months from March 1995. She described having to contact Mrs Bhaugeerutty because of her uncertainty about giving medication at night. She left after an argument and without notice. It was clear that she had a motivation to feel aggrieved and the Tribunal considered that her evidence was potentially partisan and not reliable on matters of such importance. It was put to her that her evidence had differed from the last hearing. She did not accept this. Because of the unreliability of her evidence generally the Tribunal did not consider it necessary to resolve this issue. Christine Cockayne stated that she was employed as the care manager for three days. Her recollection during this time was that there was no interaction between staff and residents and no training. It was disputed by the Appellants that she was employed as manager. The Tribunal preferred her evidence on this matter. She was a trainee nurse and she recalled being told that she could return when qualified. Her evidence was credible although her time at the home was limited and not regarded as probative on the issue of training. Kerry Stanley (nee Dainty) stated that she had been employed as a night care assistant from July 1995 to January 1996. She recalled not being shown around the home but was with a senior member of staff and told to work with her. There were periods of time when she was in charge at night. She recalled a practice which she did not adopt, of night time toiletting and by hooking night dresses over the back of the commode to prevent the resident from falling. She recalled seeing this practice adopted on one occasion by Mr Bhaugeerutty. Her evidence was convincing and credible and in contradiction to that of Mr Bhaugeerutty who denied ever adopting this practice of hooking night clothes over the back of a toilet. Her evidence on this was point was accepted. She recalled there being only 3 incontinence pads available for the home for the night. She recalled being told about the fire alarm after two to three weeks. It was put to her that she had not given evidence detail of observing Mr Bhaugeerutty hooking a resident's night dress over the back of a commode or having observed others to do this on instruction. She accepted that this was so and explained that she had not done so because she had not been asked about this. It was argued on behalf of the Appellants that this failure discredited her evidence. This was not accepted. The Tribunal found her to be a compelling and honest witness recalling actual events. Helen Barrett said that she was a nurse who was to set up a nursing home for Mr and Mrs Bhaugeerutty and also to be involved in Pelsall Hall. She was employed for three days a week for two weeks from April 1996. She recalled that there was no induction programme and that no one had come across this idea. When she started she recalled that there was no programme of induction of staff and so she prepared a programme. Her evidence was that this was taken from her and not returned. The Tribunal found her to be a truthful witness. Amanda Woolley worked as a care assistant from August to November 1995. She recalled that "there was no personal touch – it was just a business" at the home. She recalled having to get residents up at 5.30 am to be ready for breakfast at 8.00 am. This was a practice which she was required to adopt. The Tribunal accepted her evidence. Jonathan Brittle worked as a cook in 1996. He was dissatisfied with the arrangements for food. He recalled being instructed to water down the milk. Whilst his recollection of the quality and quantity of food was not regarded as a serious complaint by the Tribunal, his evidence of watering down milk was accepted. This was supported by the evidence of a number of other members of staff and refuted by Mr and Mrs Bhaugeerutty Asha Jhalli worked as a night care assistant for one month. She worked nine nights in total. She recalled being in charge and giving out medication on her third night at work and not having been given any adequate training. She recalled having to wake residents at 5.30 am . She stated that some objected to this practice but they had no choice. She recalled watering down milk for porridge. She was a credible witness. Karen Kenyon worked from July 1994 to January 1996 as a night care assistant. She recalled getting residents up at 5.30 am. She left the home because she said that she was fed up with training staff. She recalled being told to water down milk. She recalled seeing residents with their night dresses hooked over the back of commodes. She described seeing an assault of a resident by Mr Bhaugeerutty. She recalled him slapping the resident leaving a red mark. Following this she saw Mr Bhaugeerutty kicking him around the ankles to get him to move. Her evidence was accepted as truthful. It was not accepted by the Tribunal, as advanced by Mr Bhaugeerutty that the lack of bruising observed on the resident thereafter discounts this. This was a most serious allegation to make but her evidence was clear and compelling. Claire Gray worked as a care assistant from May to October 1996 working days. She recalled having had no training and no induction. She recalled that when the social services came to inspect on one occasion a resident was given a pom pom to make. Following the inspection it was taken from her. She recalled residents sitting all day watching television. Her evidence was credible and accepted. Catherine Wilson worked as a day care assistant from April 1990 to October 1993, five days on and two days off. Se recalled Mr and Mrs Bhaugeerutty did not "show any consideration or affection towards any resident and they made it clear that they didn't like the staff to either". She stated that medication (melaril) was given to one resident despite it not having been prescribed. She didn't recall activities at the home and only one "sing along" during her time at the home. Her evidence was clear and accepted. She was asked whether she was aware of Mrs Bhaugeerutty's concerns about feeding a particular resident because this resident had had a sister who died through lack of food. she did not know this but the Tribunal accepted that this might have presented as a concern for Mrs Bhaugeerutty. Melanie Vale worked as a day and night care assistant from November 1994 to January 1995. She left on bad terms. Her evidence was that she had seen Mrs Bhaugeerutty hitting a resident shouted at her when she fell and punched her. She recalled one occasion that a resident was force fed by Mrs Bhaugeerutty. Her recollection was different to that of Shirley Archer and Brenda Pelari so far as the assault was concerned. Rather than as suggested to the Tribunal by the Appellants that this made it unreliable in the view of the Tribunal made it more credible. The Tribunal concluded that this was an honest and clear account of her witnessing an assault. Her statement of force feeding was also accepted. Shirley Archer worked as a day care assistant from 1991 to February 1995. She recalled a number of incidents which were alarming. Mrs Bhaugeerutty would humiliate and shout at staff and shouted at her if she spoke to residents. She recalled watering down of the milk. she recalled one occasion when a resident had been sick and the plate was taken away and the sick removed and then the plate returned for her to finish her food. Her recollection was given with emotion and was entirely credible. She described the incident where a resident was on the floor and Mrs Bhaugeerutty was shaking her and pulling her off the floor. This was likely to have been the same incident as described by Melanie Vale and Brenda Palari. Nevertheless her recall of detail did not accord with that of the other witnesses. As with the other witnesses, the Tribunal concluded that she was giving a honest and clear account of her best recollection. She had witnessed violent and aggressive behaviour of Mrs Bhaugeerutty. Contrary to the submissions made to the Tribunal, it was found that the inconsistency tended to support the likelihood of an honest recollection rather than some fabrication of witnesses together to discredit Mrs Bhaugeerutty. Susan Pegg was a day care assistant from November to December 1995 and recalled Mrs Bhaugeerutty on occasion force feeding residents and being shown how to do this by Mrs Bhaugeerutty. Her evidence was accepted. Brenda Pelari was a day and evening care assistant from November 1993 to April 1995 and became a shift leader. She recalled the incident described by Melanie Vale and later observed by Brenda Pelari. She stated that she saw Mrs Bhaugeerutty shoving a resident on the shoulder and was shouting "walk walk". She did not recall her falling to the floor but her legs gave way. This may have been the same incident as described by them but her recollection is different. The Tribunal concluded that she was a truthful witness attempting to give a clear account and it was likely that she joined the incident at a different time to the others. Further, Mrs Bhaugeerutty was described by her as "cruel" and "rude" and had seen force feeding of two residents, one to the point that she was later sick. She left because she was unhappy there because she said she could stand it no longer. As with the evidence of Mrs Archer, the Tribunal were impressed with the account of this witness and regarded her as honest. Contrary to the submissions made, her inconsistency with the account of the others did not suggest fabrication but an honest attempt to recall events that had occurred some time ago. Teresa Wild was the inspection officer and second officer on inspection on the 23rd May 1996. She recalled that there were no records of assessment of residents. She gave detailed evidence of medication sheets. The Tribunal did not consider that the medication procedure was flawed and that there was substantial and excessive time spent by the Registration Authority on this matter. Secondary decanting which was originally used by the Appellants was inappropriate but later corrected. The Tribunal concluded that the problem with giving of medication arose not through the procedure but through the inadequate training and high turnover of staff. Victoria Challis night care assistant worked from July 1995 to November 1996. She recalled having to get residents up early and toiletting some residents two hourly. Dorothy Smith inspector with the registration authority gave details of the medication system and staff turnover. The evidence was of 60 staff leaving in a year period from 1995 to 1996. Rita Baugh was an inspector who was involved in the emergency cancellation and was suspended from her duties working as a care assistant in another home in a temporary placement. She had made complaints about Karen Jones, principal officer about intimidation. She stated that these matters were not relevant to her evidence and dealings with Pelsall Hall. In the view of the Tribunal these were relevant as to the way in which the registration authority had acted towards Mr and Mrs Bhaugeerutty. Her evidence was of a very high turnover of staff and inadequate care staff. Although aware of the complaints about the toiletting regime this was never reported to Mr and Mrs Bhaugeerutty in writing save that when considering a complaint by one resident made reference to this. Further when dealing with this complaint gave no proper information about procedure and in particular a right of appeal. The issue of decanting of medication was not raised for some time but when raised was corrected. On the 17th May 1996 three days before the announced inspection (20th May 1996) but on the day that he was notified of it, a letter was sent by Mr Bhaugeerutty by facsimile transmission asking for a delay of the inspection as this was not convenient, but this was refused. There appears to have no good reason to have refused the reasonable request of Mr Bhaugeerutty. This demonstrated to the Tribunal an unfortunate and inflexible approach of the inspection unit. Sadly, there was a failure to work with the Appellants and a failure to give advice and warning. Tracy Langley continence adviser, recalled advising against the two hour toiletting practice and that she suggested that there be a two hourly assessment to determine needs. Her recollection was challenged by the recollection of Miss Ingram, partner in the firm of Hadens, solicitors who recorded a note to the effect that she, Tracey Langley had described the two hourly toiletting as acceptable. There was a difference of recollection which the Tribunal could resolve only by concluding that both were attempting to give truthful evidence but that there had been a misunderstanding during this conversation between them. Whilst unable to reach a firm conclusion, the Tribunal considered that it was possible that Tracy Langley had described it as appropriate to embark on a two hourly regime for the purposes of assessing continence and did not make this clear during the conversation. Deborah Wright took over the management of the home in June 1996 when social services took over the running following the emergency closure. She recalled that there were continence pads available. She stated " during the first few days it was apparent to me that the staff lacked experience, maturity and did not appear to have received guidance instruction or training on manual handling and lifting techniques the emphasis was on cleaning regimes rather than caring regimes. There seemed very little social input with the residents." Karen Jones was the principal officer within the inspection unit who was currently suspended following complaints and subject to a current investigation. She stated that the unit operated the policy of inspection and enforcement. She described Mr and Mrs Bhaugeerutty as uncooperative and obstructive. The Tribunal concluded that her approach was unco-operative and not displaying a policy of influence that she had described. One example was that she wanted to visit the home at times that were inconvenient to the owners. The Appellants case The Appellants produced two files containing statements and supporting documentation. Further, a video of a 100th birthday party of a resident was produced and watched by the Tribunal. The Appellants produced statements from 23 potential witnesses of whom 16 were called and an affidavit by Dr Shamin Sameja was produced. On behalf of the Respondents it was argued that the evidence of any witness that was not produced for cross examination should be excluded from consideration. The Tribunal concluded that such evidence would be treated with caution but would not be excluded from consideration. The affidavit of Dr Sameja was dated the 20th November 1996. It stated that the doctor, who had 20 patients at Pelsall Hall at the time asked Mrs Bhaugeerutty to administer an injection to one of the residents. This was a point which was not at issue but it appropriateness was challenged by the registration authority. In the light of this evidence the Tribunal concluded that such action did not amount to a criticism of Mrs Bhaugeerutty. Witnesses: Sixteen witnesses attended the Tribunal to give evidence. Parts of their evidence with the assessment of their credibility are set out below: Annand Bhaugeerutty was a qualified nurse and pharmacist. He and Mrs Bhaugeerutty were first registered to run a care home in 1987 and he then ceased working as a nurse. Since closure of the home he had not worked but was studying for a Masters Degree in Clinical and Community Pharmacy. He said that he had stopped this because he had been unable to concentrate with these proceedings ongoing. He described there being staff meetings. This was contrary to a number of witnesses. He said that the staff always had time to sit down and play games with the residents. He described staff training as being "in hand" in January 1996. He denied ever being violent towards residents. He said that he took responsibility to ensure that all the night staff were competent before they could be in charge. His evidence on these points was not credible. Whilst the Tribunal concluded that incidents of aggressive behaviour towards the residents was rare, as it was reported by only a few members of staff, it was how he had behaved on a few occasions. It may be that he was struggling under the pressures of running the business. Whatever the reason, it can never be acceptable behaviour. His denial led the Tribunal to conclude that these incidents might happen again if he was in charge of running, or being concerned in the management of a care home. He described adopting a two hourly toiletting regime and that he had not been told otherwise. The Tribunal concluded that whilst this was a practice condoned as recently as 1992, it has faded and is now regarded as poor practice. This showed a failure to keep up to date with modern thinking and he was certainly a number of years behind. Sadly, despite these failures, Mr Bhaugeerutty is likely to be left with a sense of grievance in that he was not supported by the Registration Unit. The Tribunal concluded that this grievance is justified in that his running of the home might have benefitted from input from a supportive and helpful inspector. Shanti Bhaugeerutty is a qualified nurse and described herself as responsible for the day to day running of the home. She said that she never shouted at residents, never gave mellarill to someone who did not have a prescription or from the prescription of one resident for another. She said that milk was not ever watered down. Whilst the Tribunal felt a good deal of sympathy for her, as she had found the home closure and the appeal procedure distressing, she clearly had acted in a violent and aggressive way on occasions. It was clear from the evidence of some of the staff that the emphasis in the home was to maintain routines and cleanliness. Whilst these are important, the Tribunal concluded that they should not override the welfare of the residents as they had been allowed to here. Eileen Robbins gave evidence that she visited her mother who was a resident at the home. She said the home was very good. She was an impressive witness and gave a clear account. The Tribunal did not consider that this was inconsistent with the evidence of the failures in the management of the home as there was very clear evidence of an emphasis on cleanliness and cleaning within the home. Peter Glover gave evidence that his father in law was a resident for 12 months ten years ago and then his parents were residents more recently. He did notice a high turnover of staff. He lived near the home and was a regular visitor. He was describing events prior to the home expanding, at a time when perhaps Appellants had fewer staff and fewer residents Mary Holland visited her sister in law at the home until she died in January 1996. She visited weekly and had a very favourable picture of the home. Charles Cockayne gave evidence of his visits to his wife's aunt who had been resident for over nine years and would stay for two to three hours on each visit. He was most impressed with the home. Valerie Johnston gave evidence of her visits up to 1990 to her aunt who had been resident and thereafter with the League of Friends visiting on occasions of parties. Her impression, with her own experience in the care field was of a home that was well run. Jane Ingram who is a partner at Hadens solicitors gave evidence on the matter of a telephone call with Tracey Langley. This matter is considered above. David Ptolomey was an inspector within the registration unit and carried out his last inspection in 1991. He recalled the job description being pinned to the notice board. He described himself and the Tribunal found that he had a very light touch. He did not require the turnover as any higher than other homes but was unable to report details of the other homes. Pauline Withnall was the secretary at the home from December 1995. She recalled one staff meeting only and recalled that the job description was attached to the notice board. She interviewed staff, and started doing so within two weeks of starting her job. The Tribunal considered that this practice was inappropriate. Ted Lewis consultant in care management originally asked to consider "consumer satisfaction" and concluded that those who were seen were satisfied with the care given. He considered in his evidence that the turnover figures of 60 in one year was high but not exceptional. He described the toiletting regime was a practice which is no longer in vogue and has not been for a number of years (since the early nineties). Ivan Pitt pharmacist gave evidence of the practice of supplying drugs to the home. He explained that the procedures adopted at Pelsall Hall were not different to any other home but that he was particularly asked to provide weekly rather than monthly charts, which he did. He said that he does provide training to care homes but had not been asked to do so at Pelsall Hall. Dr Nambisan general practitioner recalled visiting the home on occasion and having no incident to recall in respect of those visits. Pauline Davies gave evidence of her working at the home in May 1996 for three weeks covering the period when the registration unit took over the management of the home. She recalls seeing the job description in the staff room and was given some training. She recalls acting as a 2nd nurse for a week observing the administration of drugs. Yvonne Clarke worked as a shift leader from August 1995. She recalled working early shifts during her first week, later shifts during her second week and then nights thereafter. She recalled working with another during her first week at the home and was supervised . She recalled that there were some activities for the residents at the home. She described keep fit class once a week and board and card games. Kerry Tricklebank was a senior care assistant who recalled a first week of training and induction at the home. She found giving evidence very difficult and the Tribunal were unable to regard her evidence as credible as there were long pauses between answers, she walked out in the middle of her evidence and come back after a break, she said that she could not recall a number of things which in the view of the Tribunal were the more difficult questions for her. She was particularly shown diary entries which showed that she had worked two shifts "back to back" which she accepted and suggested that she had worked three shifts "back to back" which she did not accept. Despite her poor evidence the Tribunal accepted her evidence on this matter as the documentary evidence was not sufficiently clear. Other evidence: When considering the documentation relating to "care plans" for the residents, Mrs Bhaugeerutty recalled that there was more material than had actually been produced by the Respondents. The Tribunal requested that the current manager, Mrs Ingleby attend the hearing to give evidence and to produce the documents. Mrs Ingleby attended the hearing and gave evidence at the request of the Tribunal. She described having been running the home for over two years since these proceedings had been undertaken. She recalled a staff turnover of 5 in the last year which was supplemented occasionally by agency staff. There was a description of many more activities available for the residents and a system of kylie sheets used rather than the practice of waking residents to toilet. Further, residents are now not woken, as they appeared to have been (from 5.30 am) and have breakfast from 8.30 am including breakfast in their own room if they wish. It appeared to the Tribunal, and accepted by the parties that the documents produced by Mrs Ingleby established that Mrs Bhaugeerutty's recollection was correct. There were more details within the files than had been produced. This prevented the Tribunal from reaching any conclusion adverse to the Appellants in relation to documentation in respect of care plans for residents. The Tribunals Reasons for its decision Dealing with each of the heads: failed to maintain good personal relationships between themselves and their employees: The Tribunal concluded that whilst there was "hands on" training as described by some of the staff, there was no formal procedure for training and the level of staff turnover made it very difficult to establish a pattern of training. The Tribunal accepted the evidence of staff, in preference to that of the Appellants that there had not been any staff meetings but that this in itself does not establish a failure. Good practice would include staff meeting if possible, but with commitments the staff themselves, difficulties in practical arrangements and the need to pay for such meetings, it is not surprising that meetings do not take place. The Tribunal concluded that the evidence of staff not being allowed to speak to residents, being required to engage in "force feeding" on occasions and of observing occasional outbursts from the Appellants, there was clear evidence of failure to maintain good relationships with staff. failed to supply suitable qualified and experienced staff: Despite the evidence of the care consultant, the Tribunal concluded that the turnover of staff in the year 1995 to 1996 was very high. It was in the region of 60 staff who left during this time. The practice adopted of the secretary interviewing and the inference that anyone who applied for a job, assuming they were medically well and had no criminal convictions, would be taken on and within a very short time would be given substantial responsibility. The Tribunal accepts that there are difficulties in retaining staff, particularly those who do not have a full understanding of what is involved. Nevertheless, the practice and procedures adopted here establish a failure of the Appellants to establish even a procedure to employ and maintain the employment of staff. Despite the inadequacy of proper comparative evidence in relation to local factors, the evidence of staff turnover of 5 in the last 12 months supports the view of the Tribunal that the was a high turnover of staff related to the administration of the home by the Appellants. It is not possible to conclude on the evidence whether this related to poor interviewing, poor training, inappropriate behaviour of the Appellants or other factors or a combination is not clear. What is clear is that these problems no longer exist with competent management. Whether these problems might have been overcome with advice from the Registration Unit is also not clear. there has been an unacceptably high turnover of staff within the home: As described above, the Tribunal concluded that there had been an unacceptable turnover of staff brought about by the regime operated within the home. the home is run under an authoritarian regime with an unacceptable regimentation of residents The tribunal concluded that this is the most significant and serious of all grounds relied upon and hence required clear evidence to establish it. The basis for this ground asserted by the Respondent was: Toiletting: It is clear from the evidence that there was, for a few, probably five residents, a regime of nightly toiletting. These residents were woken regularly through the night and either taken to a toilet or put on a commode in their own room. The Appellants accepted that this occurred and considered that this was good practice and in the interests of the residents. There was evidence that this used to be a common practice up to about 1992 and hence during the time that the Appellants commenced the running of a care home. It is clear that this is no longer regarded as good practice. Hence, it is clear that this unacceptable practice continued because of the failure of the Appellants' to keep up to date with care practice. It is of note that they were never told of this by the registration authority. Nighties hooked over commodes Despite Mr Bhaugeerutty's denial of such action, the Tribunal concluded that this practice was condoned and indeed carried out by him. This finding by the Tribunal reflects generally upon his evidence. Firstly, the practice itself is inappropriate and wrong and secondly, following his denial and in evidence acceptance of inappropriateness, accepted by Mr Bhaugeerutty as wrong means that he knew he was doing something which was bad practice, but despite this continued in this practice. Whilst it is possible that with greater input from the inspection unit in respect of some matters, changes might have been made (for example medication) continuing a practice which he knew was wrong means that there can be no confidence that further input would have made a difference. Early waking There was extensive clear evidence of a practice of waking residents so that they would all have breakfast together at 8.00 am. This means that some of the residents were woken at 5.30 am to enable the staff to work their way round all the residents in time. The only reason for this appears to be the convenience of the day staff to clear away the breakfast and of the cook making breakfast. There was clear evidence that some of the residents objected to this practice. The Tribunal concluded that this was bad practice and prevented freedom of choice for the residents. It is of note that this practice has now been stopped. Rough handling and assaults of residents From the acceptance of the evidence of Melanie Vale, Brenda Pelari and Linda Rowley the Tribunal concluded that on one occasion Mrs Bhaugeerutty had been violent and aggressive and from the evidence of Karen Kenyon that Mr Bhaugeerutty had on one occasion been violent and aggressive. There cannot be any justification for assaults upon residents and there can be no confidence that such an event would not recur as these were denied by the Appellants. It may be that these incidents were out of character and occurred as a result of the stresses and strains of running a home with problems with which they were ill equipped to address. The Tribunal were prepared to accept that this is the more likely explanation. Sadly, because these incidents were denied and there was a complete denial of any problems, compounded with a complete breakdown of trust with the Registration Unit, there can be no confidence in a suggestion that these problems were time specific and would not recur. The Tribunal concluded that these problems probably would recur. Force feeding of residents: Whilst it is clear that this was not a common practice and perhaps it was necessary to assist certain residents with their meals, the Tribunal concluded that on occasion both Appellants rushed and forced residents to eat food. Further, the practice described by Shirley Archer was totally unacceptable. Watering down milk: It is difficult to understand the logic for this practice. It was suggested by Mr Anderton for the Appellants that this might be sensible for those with a particular diet. The Tribunal did not accept this. Whilst making no finding on the reason, the Tribunal can only speculate that there was some attempt at saving money or there was a failure to make proper provision. Whatever the true reason this is poor practice and not acceptable. Poor recreation facilities: The Tribunal concluded that the facilities were poor but appear to have improved. Nevertheless the practice of not allowing staff to speak to residents is contrary to good practice and cruel. the home is run in a manner prejudicial to the life, health and well being of the residents: The Tribunal concludes that the findings made above on the evidence justify a conclusion that the home was being run in a manner which clearly did not put the welfare of the residents first. Because of the dispute of fact in relation to many of the findings it is not possible to conclude that there would be any change in the future. The actions of the registration authority: It is not possible to reach a firm conclusion as to the impact of the actions of the registration authority on the conduct of the Appellants in their running of the home. There is no doubt in the view of the Tribunal that the quality of service of the registration authority fell well below an acceptable level. Because of this it has not been possible to reach any conclusion with respect to a number of issues in particular, provision of medication, drug keeping and storage, use of yellow bag system, record keeping and the relationship with the registration unit. Conclusion For the reasons set out above the Tribunal unanimously concludes that both the Appellants are unfit to be concerned in carrying on a residential care home. This conclusion should not be regarded as in any way concluding that they are not fit to carry on their careers as nurses or in the case of Mr Bhagureetty as a pharmacist, concerning which no evidence was given at this hearing.