Nursing assistant loses appeal against ban on working with vulnerable adults

A nursing assistant who was barred from working with vulnerable adults after being accused of “manhandling” a patient in a nursing home has had an appeal against the decision to blacklist him rejected.

 

Gary Wheeler, who was dismissed following a disciplinary procedure, claimed that the allegations against him were “unfounded” and that there was insufficient evidence to conclude that he was unsuitable to work with protected adults, but a sheriff upheld the decision by the Scottish Ministers.

 

 

Sheriff Tom Welsh QC heard that the pursuer was employed by NHS Lothian as a nursing assistant in a nursing home in Edinburgh until he was dismissed in May 2016 following an NHS Disciplinary Tribunal Hearing.

 

Edinburgh Sheriff Court was told that an allegation was made against him by another nursing assistant, Adele Mason, that, on 14 July 2015, in W ward of the nursing home he “inappropriately restrained” an 83-year-old female patient, “FS”, who was suffering from vascular dementia and incontinence. 

 

It was alleged the pursuer grabbed FS around the neck and dragged her into a toilet to be changed, where it was further alleged that he deliberately stood on her toes and made “inappropriate comments” about her. 

 

The pursuer was suspended immediately following the complaint. 

 

FS, who was never interviewed about the incident and has since died, was medically examined and found to have no injuries or marks on her skin as a result of the alleged manhandling/assault.

 

 

Before the Disciplinary Tribunal the pursuer denied the allegations, but after hearing evidence from Ms Mason, catering assistant Cheryl McDermid, and staff nurse Iraide Beascoehea Artaraz, the tribunal dismissed him for “gross misconduct”.

 

The pursuer, who was not legally represented at that hearing, did not appeal his dismissal from NHS Lothian.

 

During his suspension the matter was referred to Police Scotland for investigation and the pursuer was interviewed by police in relation to an alleged assault on FS on 14 July 2015 in W ward. 

 

He denied the alleged assault, but was charged and the matter referred to the Procurator Fiscal.

 

The pursuer was prosecuted summarily, but the case was abandoned in May 2017 after an essential Crown witness, namely Miss McDermid again failed to attend court.

 

Then, in October 2017 Disclosure Scotland informed the pursuer of the decision of the defenders, following consideration of the disciplinary process and the prosecution, to include the pursuer on the adults’ list of persons considered to be “unsuitable” to work with vulnerable adults (or children) in Scotland for a period of 10 years, in terms of the Protection of Vulnerable Groups (Scotland) Act 2007.

 

 

The pursuer appealed, arguing that the allegations against him were unfounded and that the burden of proof rested with the defenders.

 

In any event, it was submitted that the defenders neither has sufficient record nor had led evidence as to sufficient facts for a sheriff to be satisfied that the pursuer is unsuitable to work with protected adults.

 

But the defenders relied on the evidence of Ms Mason and Ms McDermid, who witnessed the pursuer inappropriately manhandling FS into the toilet, while Ms Mason also spoke to the inappropriate remarks made by the pursuer and the fact he deliberately stood on the patient’s toes to restrain her. 

 

The defenders also pointed to the fact that the purser had failed to keep his training, in control and restraint, up to date.

 

 

Upholding the decision, the sheriff found both Ms McDermid and Ms Mason to be “credible and reliable” witnesses, while he considered the pursuer to be a “poor witness”.

 

In a written judgment, Sheriff Welsh said: “His evidence seemed hollow and rehearsed and he lacked conviction. I thought he was lying about what he did.

 

“With regard to the pursuer’s suitability to work with protected adults I think that anyone who handles a vulnerable adult patient in this way is not suitable to work with protected adults. In fact, those adults need to be protected from conduct of this kind. 

 

“I consider the police were correct to charge the pursuer with assault as that appears to have been what happened. The absence of injury on FS does not mean she was not inappropriately handled or assaulted.

 

“The fact that the pursuer’s control and restraint training was out of date may explain why he resorted to use brute force when dealing with a patient with complex needs.

 

“The pursuer was dismissed by NHS Lothian for gross misconduct for a catalogue of reasons listed on the penultimate page of the dismissal letter of 16 May 2016 which included the way he treated FS on 14 July 2015 and because the Disciplinary Tribunal found that he lied to his line manager about his training record.” 

 

He added: “Quite separately, I have concluded, on the evidence I heard, that he is unsuitable to work with protected adults because he deliberately behaved in an inappropriate manner and deliberately used inappropriate force against a vulnerable patient. 

 

“My decision has nothing to do with an assessment of the pursuer’s conduct in the context of his competence given his level of training.

 

“Further, quite independently of the disciplinary process and the evidence it heard and conclusion it reached, I agree with an observation in the dismissal letter addressed to the pursuer, referring to his conduct that day in a training context, namely, ‘…..your actions would not require any form of training to know it was entirely unacceptable and inappropriate’. 

 

“Therefore, I reject any suggestion that I require to make any findings in fact relevant to the pursuer’s training and the standard and conduct that would be expected of a reasonable nursing assistant with the pursuer’s training as irrelevant to the exercise I have to perform given the factual conclusion I reached in relation to the conduct of the pursuer towards FS on 14 July 2015 in W ward at the material time.

 

“Accordingly, for the reasons stated I am satisfied by information relating to the pursuer’s conduct that he is unsuitable to work with protected adults and I confirm the Ministers’ decision to list him in the adults’ list.”