Care Standards Tribunal – MM v CQC [2012] 1978.EA

In this case the Appellant Ms M, appealed to the Care Standards Tribunal against the CQC’s decision to refuse her application to be the registered manager of a care home.

The Law

Section 15 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 sets out the criteria for the grant or refusal of registration as a manager.

Regulation 6 stipulates that a person shall not manage the carrying out of a regulated activity unless they are fit to do so. A manager must be of ‘good character’ and ‘be able to provide references, satisfactory evidence of conduct in previous employment and a full employment history with an explanation of any gaps’.

Under section 32 of the Health and Social Care Act 2008 the burden of proof i.e on the balance of probabilities was placed on Ms M to show she was a fit person of good character to be registered as manager. In essence the Tribunal takes an inquisitorial, not an adversarial approach to hearings.

Background

Ms M had 5 convictions and 2 cautions relating to offences she committed between 1995 and 2010, most of which were committed in her teenage years.

Ms M did not apply to be manager at the home when the position arose because she believed her previous offences would hinder her registration. There were no suitable candidates for the position and so Ms M accepted the position in August 2011.

In January 2012 Ms M applied to the CQC to be manager of the home. She declared her convictions to CQC and had a ‘fit person’ interview. Following the interview, Ms M was asked for further comment on her interview questions which she provided.

Ms M’s application was refused in April 2012. CQC claimed they had doubts about her character and recorded that Ms M had not demonstrated remorse.  Ms M sent written representations against the proposed refusal to CQC but her registration was refused. She appealed the decision to the Tribunal in July 2012.

Tribunal’s decision

The Panel considered that the matters to be satisfied in respect of Mrs M’s character were as follows:

  • Openness and honesty – the Panel concluded that Ms M had been honest in her information to her employer, CQC and the Panel about her offending.
  • Judgement – Ms M’s judgement in a professional setting had never been called into question
  • Willingness to cooperate with the police and CQC – Mrs M cooperated with the police and CQC.
  • Remorse – the Panel strongly disagreed with the CQC assessment that Ms M did not demonstrate remorse.
  • The pattern of convictions, including the fact that the most recent incidents were whilst working at the home – the risk to residents from future repetition of conduct was found to be very low.
  • The fact that the 2010 caution involved her son and the implications for vulnerable adults in the home – the Panel found the risk to residents to be low as if Ms M committed another offence she would inevitably be dismissed removing any direct risk of harm to residents.

Outcome

The Panel found that the CQC had failed to give sufficient weight to the positive evidence in the Case. The Panel were satisfied on the balance of the evidence that Ms M was of sufficiently good character to be registered manager at the home.

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