Upper Tribunal Reverses Barring Decision Due to Material Mistake

IN THE UPPER TRIBUNAL

[NAME] No. UA-2023-001292-V ADMINISTRATIVE APPEALS CHAMBER

[2024] UKUT 224 (AAC)

Between: NK Appellant

-v-

[NAME] Respondent

Before Upper Tribunal Judge Church, Tribunal Member [NAME] and Tribunal Member [NAME] following a remote oral hearing on 01 July 2024

Representation: The Appellant was unrepresented [NAME] of counsel, instructed by [COMPANY], represented the Respondent

DECISION OF THE UPPER TRIBUNAL

On appeal from the [NAME] (“[NAME]”) [NAME]:

[PHONE] Final Decision Letter: 16 June 2023

This decision is given under section 4 of the [NAME] Act 2006 (“SVGA”)

The appeal is allowed.

The decision of the [NAME] made on 16 June 2023 to place the Appellant’s name on the [NAME] and the [NAME] was based on a material mistake of fact.

Pursuant to section 4(6)(a) of SVGA the Upper Tribunal directs that the Appellant’s name is removed from both the [NAME] and the [NAME].

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[2024] UKUT 224 (AAC) REASONS FOR DECISION

Background 1. At the relevant time the Appellant was working as a nursing auxiliary on a hospital ward.

2. It was alleged that, while working as an auxiliary [NAME], the Appellant inserted two of his fingers into the vagina or [NAME] in his care and applied pressure to [NAME]’s vaginal wall to cause her to pass a stool, a procedure which was not authorised by his employer.

3. The Appellant denied the allegations, but his employer, and subsequently the [NAME], found on the balance of probabilities that he had done what was alleged.

4. The [NAME] decided that the Appellant’s conduct was ‘relevant conduct’ in relation to [NAME] (being conduct which endangered [NAME] or was likely to endanger [NAME]), and also ‘relevant conduct’ in relation to children (being conduct which, if repeated against or in relation to [NAME], would endanger that child or would be likely to endanger him or her). The [NAME] decided that it was both appropriate and proportionate to place the Appellant’s name on both the [NAME] and the [NAME].

What this [NAME] is about 5. The Appellant agrees that it would be wrong for a nursing auxiliary to insert their fingers into a [NAME]’s vagina with a view to relieving constipation, and he doesn’t dispute that doing that would amount to ‘relevant conduct’ in relation to [NAME] or indeed to children.

6. However, the Appellant says he did no such thing, and the [NAME] was mistaken when it found that he had. He says his name should be removed from both the [NAME] and the [NAME] so that he can continue his career as an auxiliary [NAME].

[NAME]’s findings and the Barring Decision 7. By a ‘Final Decision Letter’ dated 16 June 2023 the [NAME] informed the Appellant of its decision to place his name on both the [NAME]’ and Children’s [NAME] (the “Barring Decision”). In that letter it said: “How we reached this decision We are satisfied that you meet the criteria for regulated activity. This is because of your previous role of Health Care Assistant with Employer NHS Trust. We have considered all the information we hold and are satisfied of the following: • That on 12th December 2021, you assisted a [NAME] to pass stools by inserting two fingers into her vagina and applying pressure. Having considered this, [NAME] is satisfied you engaged in relevant conduct in relation to [NAME]. This is because you have engaged in conduct which endangered [NAME] or was likely to endanger [NAME]. It is also considered that you have engaged in relevant conduct in relation to children, specifically conduct which, if repeated against or in relation to [NAME], would endanger that child or would be likely to endanger him or her.

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[2024] UKUT 224 (AAC) We are satisfied a barring decision is appropriate. We have concerns about the risk you may pose to [NAME] and children in the future. Specifically, as you completed a medical procedure that you were not qualified to do, in a role as an auxiliary [NAME], and the procedure was not a permitted procedure within Employer NHS Trust. After admitting your behaviour to [NAME], you have then attempted to deny that you had inserted your fingers inside [NAME]’s vagina, despite three people being present and either heard or witnessed your description of how you did this procedure including using your two fingers and showing a digging motion. You have failed to take responsibility for your actions, attempting to downplay and deny your disclosure when you realised the reaction of [NAME] to what you had admitted to having done. It is acknowledged that your actions could have been driven by your desire to assist [NAME] who was suffering with constipation, however, as a nursing auxiliary this would not have been a procedure you were qualified or permitted to be undertaking within Employer NHS Trust. It seems that you chose to complete the procedure without any consultation with your senior [NAME], who would have informed you of the appropriate way to support a [NAME]. You have lacked empathy for this [NAME], given the impact such a personal intervention would have had on them both emotionally and physically. Whether or not your actions were to support this [NAME], you acted outside of your permitted role and placed [NAME] at significant risk. It is accepted that the decision to include you in the [NAME] is based on information that was from witnesses who had not actually witnessed your behaviour. However, all three witnesses heard your disclosure and two witnessed [sic] saw you using your two fingers to show how you completed this procedure. You were asked to repeat your disclosure by the witnesses and you repeated what you had done in the same manner. It was only when you realised the concern shown by [NAME] that you changed your description of your actions. When challenged by a senior colleague you then became aggressive and abusive towards her. The fact you were happy to discuss your actions initially with [NAME] suggests an acceptance that what you did was acceptable and therefore you have lacked insight into your role and the medical procedures you were permitted to perform. It is also noted that you became very angry when challenged about your behaviour by one [NAME] present, which caused herm and other witnesses some emotional upset [NAME] described you as showing your teeth with anger when challenged, and this anger rases further concerns about your ability to take feedback and/or instruction from others including [NAME]. Consideration has been given to your disclosure that you were being bullied by the [NAME], offering this as an explanation for them to make a false disclosure about you. However this was considered in your disciplinary hearing and it was noted you had not raised any concerns about discrimination or bullying to senior [NAME] prior to this incident. [NAME] described having a good relationship with you and enjoyed working with you therefore there is no obvious reason as to why she would have made a false allegation against you and her disclosure was exactly the same as the two [NAME]. Consideration has been given to your questioning of the timescale between the statements being taken following the incident. However, there is no evidence to suggest these witnesses had colluded to make false allegations against you. It is acknowledged that English is not your first language and that you could have

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[2024] UKUT 224 (AAC) been misinterpreted, however given the witnesses report not only hearing your words but also witnessed you using your fingers in a gesture consistent with inserting them inside [NAME] to remove the stools. Your actions had the potential to cause significant harm to [NAME] and your actions could be seen as an assault on [NAME]. You have not provided ay representations to lower the risk the [NAME] considers you would present if you chose to do an unauthorised procedure when working as a [NAME] assistant in the future or any other role that involved personal care within regulated activity roles in the future. As the [NAME] cannot be assured that you would not perform medical procedures you are not qualified to do or that you would not touch [NAME] [sic] inappropriately, this could put future [NAME] at significant risk of emotional and/or physical harm and it is appropriate to include your name in the [NAME]. Although your actions were not committed against children, the [NAME] considers that any role that involved personal care of children within regulated activity could result in your performing medical procedures you are not qualified to do and which has the potential to put children at risk of emotional and/or physical harm and it is also appropriate to include you in the [NAME].”

The appeal to the Upper Tribunal 8. The Appellant applied to the Upper Tribunal for permission to appeal the Barring Decision. He maintained that he had been falsely accused, pointing out that no witness claimed to have seen him carry out the alleged unauthorised procedure, even though there was a colleague with him at the time he was alleged to have carried it out.

9. I ordered a remote oral hearing of the permission application, following which I granted permission to appeal on the basis that I was satisfied that the Appellant’s grounds were arguable. I ordered a remote oral hearing of the substantive appeal, which took place on 1 July 2024 on the [NAME] before a three-member panel with expert members. The hearing was assisted by Ms [NAME], a Hindi interpreter.

10. The Appellant was unrepresented at the hearing, although supported by his wife. I don’t think he was hampered by having no legal representation because his [NAME] was a very simple one: he didn’t dispute that, had he done what was alleged, that would have been harmful to [NAME], but he insisted that he did not do what was alleged.

11. Translating his argument into the language of the SVGA, his [NAME] was that the Barring Decision was based on a material mistake of fact. He gave oral evidence both about what happened on 12 December 2021 when he was said to have carried out the unauthorised procedure, and on the 15/16 December 2021 night shift, when he was said to have told his [NAME] about what he had done on 12 December.

12. The [NAME] was represented by [NAME] of counsel (instructed by [COMPANY]). [NAME] cross-examined the Appellant and made submissions resisting the appeal. He maintained that the [NAME] was entitled to assess the evidence as it did and to make the findings that it did. Appropriateness was a matter for the [NAME] and the Upper Tribunal should not trespass on that, and the Barring Decision was proportionate given the seriousness of the conduct that the [NAME] had found proved. He maintained that the Barring Decision involved no mistake or fact or law and the appeal should be dismissed.

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[2024] UKUT 224 (AAC)

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[2024] UKUT 224 (AAC) The statutory framework 13. The [NAME] was established by the Protection of Freedoms Act 2012, taking on the functions of the Criminal Records Bureau and the Independent Safeguarding Authority. One of its main functions is the maintenance of the [NAME] and the [NAME] (the “[NAME]”, and each a “[NAME]”). Its power and duty to do so arises under the SVGA. Duty to maintain the [NAME]

14. Section 2(1)(a) SVGA places a duty on the [NAME] to maintain the [NAME]. Under Section 3(2)(a) [NAME] is [NAME] from “regulated activity” relating to children if they are included in the [NAME]. Criteria for inclusion in the [NAME]

15. Schedule 3 to the SVGA applies for the purposes of [NAME] determining whether an individual is included in either or both [NAME].

16. Under Section 3(2)(a) [NAME] is [NAME] from “regulated activity” relating to children if they are included in the [NAME], and under Section 3(3)(a) Under Section 3(3)(a) [NAME] is [NAME] from “regulated activity” relating to [NAME] if they are included in the [NAME].

17. The Appellant has been included by the [NAME] on the [NAME] pursuant to Schedule 3, Part 1, paragraph 3 SVGA (which relates to children and is headed “Behaviour”) and in the [NAME] pursuant to Schedule 3, Part 2, paragraph 9 SVGA (the equivalent provision relating to [NAME], which is also headed “Behaviour”).

18. Paragraph 3 of Part 1 of Schedule 3 to the SVGA provides: “3. (1) This paragraph applies to [NAME] if – (a) it appears to [NAME] that the person— (i) has (at any time) engaged in relevant conduct, and (ii) is or has been, or might in future be, engaged in regulated activity relating to children, and (b) [NAME] proposes to include him in the [NAME]. (2) [NAME] must give the person the opportunity to make representations as to why he should not be included in the [NAME]. (3) [NAME] must include the person in the [NAME] if — (a) it is satisfied that the person has engaged in relevant conduct, (aa) it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to children, and (b) it is satisfied that it is appropriate to include the person in the list. ...” 19. By section 5(1) of the 2006 Act, a reference to regulated activity relating to children must be construed in accordance with Part 1 of Schedule 4. By section 59 SVGA “child” means [NAME] who has not attained the age of 18. Regulated activity relating to children includes any form of care or supervision of children (paragraph 2(1)(b) of Schedule 4), and any form of advice or guidance provided wholly or mainly for children

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[2024] UKUT 224 (AAC) (paragraph 2(1)(c) of Schedule 4) carried out frequently by the same person (paragraph 1(1)(b) of Schedule 4). 20. “Relevant conduct” in relation to children is explained in paragraph 4 of Part 1 of Schedule 3 to the SVGA as follows: “4. (1) For the purses of paragraph 3 relevant conduct is – (a) conduct which endangers [NAME] or is likely to endanger [NAME]; (b) conduct which, if repeated against or in relation to [NAME], would endanger that child or would be likely to endanger him; (c) conduct involving sexual material relating to children (including possession of such material); (d) conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to [NAME] that the conduct is inappropriate; (e) conduct of a sexual nature involving [NAME], if it appears to [NAME] that the conduct is inappropriate. (2) [NAME]’s conduct endangers [NAME] if he – (a) harms [NAME], (b) causes [NAME] to be harmed, (c) puts [NAME] at risk of harm, (d) attempts to harm [NAME], or (e) incites another to harm [NAME]. …” 21. Paragraph 9 of Part 2 of Schedule 3 to the SVGA provides: “9. (1) This paragraph applies to [NAME] if- (a) it appears to [NAME] that the person— (i) has (at any time) engaged in relevant conduct, and (j) is or has been, or might in future be, engaged in regulated activity relating to [NAME], and (b) [NAME] proposes to include him in the [NAME].

(2) [NAME] must give the person the opportunity to make representations as to why he should not be included in the [NAME].

(3) [NAME] must include the person in the [NAME] if- (a) it is satisfied that the person has engaged in relevant conduct, (aa) it has reason to believe that the person is or has been, or might in future be, engaged in regulated activity relating to [NAME], and (b) it is satisfied that it is appropriate to include the person in the list.” 22. By section 5(2) SVGA, a reference to regulated activity relating to [NAME] must be construed in accordance with Part 2 of Schedule 4. By section 60 SVGA, [NAME] means any [NAME] to whom an activity which is a regulated activity

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[2024] UKUT 224 (AAC) relating to [NAME] by virtue of any paragraph of paragraph 7(1) of Schedule 4 is provided. 23. “Relevant conduct” in relation to [NAME] is explained in paragraph 10 of Part 2 of Schedule 3 to the SVGA as follows: “10.(1) For the purses of paragraph 9 relevant conduct is – (a) conduct which endangers [NAME] or is likely to endanger [NAME]; (b) conduct which, if repeated against or in relation to [NAME], would endanger that [NAME] or would be likely to endanger him; (c) conduct involving sexual material relating to children (including possession of such material); (d) conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to [NAME] that the conduct is inappropriate; (e) conduct of a sexual nature involving [NAME], if it appears to [NAME] that the conduct is inappropriate.

(2) [NAME]’s conduct endangers [NAME] if he – (a) harms [NAME], (b) causes [NAME] to be harmed, (c) puts [NAME] at risk of harm, (d) attempts to harm [NAME], or (e) incites another to harm [NAME].

…” 24. The Appellant does not dispute that he has in the past been engaged in regulated activity relating to [NAME] or that he might seek to be engaged in regulated activity with [NAME] or with children in the future. Indeed, the reason he has pursued his appeal is that he wants very much to return to a role helping patients.

25. The Appellant also accepts that the conduct which the [NAME] has found him to have engaged in would amount to ‘relevant conduct’. His [NAME] is simply that he has not engaged in that conduct. Appeals of decisions to include, or not to remove, persons in the [NAME]

26. Section 4 SVGA sets out the Upper Tribunal’s jurisdiction and powers in respect of appeals against decisions of the [NAME]. It provides (so far as relevant): “4. Appeals (1) An individual who is included in a [NAME] list may appeal to the Upper Tribunal against- … (b) a decision under paragraph 2,3,5,8,9 or 11 of Schedule 3 to include him in the list;

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[2024] UKUT 224 (AAC) (c) a decision under paragraph 17, 18 or 18A of that Schedule not to remove him from the list. (2) An appeal under subsection (1) may be made only on the grounds that [NAME] has made a mistake- (a) on any point of law; (b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based. (3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a [NAME] list is not a question of law or fact. (4) An appeal under subsection (1) may be made only with the permission of the Upper Tribunal. (5) Unless the Upper Tribunal finds that [NAME] has made a mistake of law or fact, it must confirm the decision of [NAME]. (6) If the Upper Tribunal finds that [NAME] has made such a mistake it must- (a) direct [NAME] to remove the person from the list, or (b) remit the matter to [NAME] for a new decision. (7) If the Upper Tribunal remits a matter to [NAME] under subsection (6)(b)- (a) the Upper Tribunal may set out any findings of fact which it has made (on which [NAME] must base its new decision); and (b) the person must be removed from the list until [NAME] makes its new decision, unless the Upper Tribunal directs otherwise.”

The recent authorities on the Upper Tribunal’s ‘mistake of fact’ jurisdiction 27. The nature and extent of the Upper Tribunal’s “mistake of fact” jurisdiction has been the subject of several recent decisions of the Upper Tribunal and the Court of Appeal.

28. What constitutes a mistake in the findings of fact made by the [NAME] on which the decision was based (for the purposes of section 4(2)(b)) was considered recently by the Upper Tribunal in PF v DBS [2020] UKUT 256 (AAC). At paragraph [39] the panel stated: “There is no limit to the form that a mistake of fact may take. It may consist of an incorrect finding, an incomplete finding, or an omission. It may relate to anything that may properly be the subject of a finding of fact. This includes matters such as who did what, when, where and how. It includes inactions as well as actions. It also includes states of mind like intentions, motives and beliefs.” 29. In AB v [NAME], in the context of discussing the Upper Tribunal’s power to make findings of fact under section 4(7) of the 2006 Act, Lewis LJ noted (at [55]) in relation to the Upper Tribunal’s jurisdiction to make findings of fact that it would: “need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that [NAME] is married and the marriage subsists may be a finding of fact. A reference to marriage being a “strong” marriage or a “mutually supportive one” may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of [NAME] engaging in inappropriate conduct is an evaluation of the risk. The third “finding” would certainly not involve a finding of fact.” 30. It was noted in PF v [NAME] that:

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[2024] UKUT 224 (AAC) “41. The mistake may be in a primary fact or in an inference... A primary fact is one found from direct evidence. An inference is a fact found by a process of rational reasoning from the primary facts likely to accompany those facts.

42. One way, but not the only way, to show a mistake is to call further evidence to show that a different finding should have been made. The mistake does not have to have been one on the evidence before the [NAME]. It is sufficient if the mistake only appears in the light of further evidence or consideration.” 31. In DBS v JHB [2023] EWCA Civ 982 the Court of Appeal returned to the issue of the extent of the Upper Tribunal’s jurisdiction under the SVGA on issues of mistake of fact. Laing LJ said that a finding may be “wrong” even if there was some evidence to support it, or it was not irrational, and it may also be “wrong” if it is a finding about which the Upper Tribunal has heard evidence which was not before the [NAME], and that new evidence shows that a finding by the [NAME] was wrong (see paragraph [95]).

32. However, the Court of Appeal decided that, while the Upper Tribunal had identified what it said were mistakes of fact, it did not explain why the relevant [NAME] findings were “wrong” or outside “the generous ambit within which reasonable disagreement is possible”. Rather, it had looked at very substantially the same materials as the [NAME] and made its own findings on those materials, which differed from those of the [NAME]. This, the Court of Appeal said, was impermissible, because it was only entitled to carry out its own evaluation of the evidence that was before the [NAME] if it had first identified that the [NAME] had made a finding which was not available to it on the evidence on the balance of probabilities.

33. The scope of the mistake of fact jurisdiction was further considered by the Court of Appeal in the recent cases of Kihembo v DBS [2023] EWCA Civ 1547 and in DBS v RI [2024] EWCA Civ 95. The decision in Kihembo confirmed that PF v [NAME] remains good law. In RI v [NAME] LJ explained that the restrictive approach adopted by the Court of Appeal in JHB should be confined to those cases where the [NAME] does not give oral evidence at all, or gives no evidence relevant to the question of whether the [NAME] committed the relevant act relied upon. Where the [NAME] does give oral evidence before the Upper Tribunal: “the evidence before the Upper Tribunal is necessarily different from that which was before the [NAME] for a paper-based decision. Even if the appellant can do no more than repeat the account which they have already given in written representations, the fact that they submit to cross-examination, which may go well or badly, necessarily means that the Upper Tribunal has to assess the quality of that evidence in a way which did not arise before the [NAME]” (per Males LJ at [55])

34. Males LJ interpreted the scope of the Upper Tribunal’s jurisdiction under section 4(2)(b) of the 2006 Act as follows: “In conferring a right of appeal in the terms of section 4(2)(b), [NAME] must therefore have intended that it would be open to [NAME] included on a [NAME] list to contend before the Upper Tribunal that the [NAME] was mistaken to find that they committed the relevant act – or in other words, to contend that they did not commit the relevant act and that the decision of the [NAME] that they did was therefore mistaken. On its plain words, the section does not require any more granular mistake to be identified than that” (RI v [NAME], per Males LJ at [49]).

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[2024] UKUT 224 (AAC)

35. Bean LJ rejected the [NAME]’s argument that the Upper Tribunal was in effect bound to ignore an appellant’s oral evidence unless it contains something entirely new. He said in RI v [NAME] at [37] that: “where [NAME] has created a tribunal with the power to hear oral evidence it entrusts the tribunal with the task of deciding, by reference to all the oral and written evidence in the [NAME], whether a witness is telling the truth.” Discussion 36. We were faced with a stark conflict of evidence between what the Appellant told us and his employer’s [NAME] on the one hand (that he cleaned [NAME] thoroughly from front to back using a wipe in his open hand, successfully collecting some hard and soft faeces in the wipe), and what three of his [NAME] say he told them during a conversation in the [NAME] on a night shift on 15/16 December 2021 on the other.

37. Three of the Appellant’s [NAME] report that they were discussing problems with [NAME] patients on the ward when the Appellant volunteered that he had assisted his [NAME] to pass a stool by digitally penetrating her vagina to relieve her constipation, demonstrating a “digging motion” with his fingers. Their accounts of this conversation are consistent with each other and inconsistent with the account of the Appellant.

38. We had to decide what to make of the evidence of the Appellant’s three [NAME], and how to resolve the conflict between what they said and what the Appellant said.

39. At first glance the fact that three [NAME] have given consistent accounts of the conversation on the night shift of 15/16 December 2021 seems very compelling. However, we assessed the evidence critically to decide how much weight we could place on these accounts.

40. First of all, it must be noted that these accounts were accounts not of witnessing the Appellant carrying out the alleged procedure, but rather of what the Appellant told them about what he had done, and how he had demonstrated this to them using hand gestures. There was no direct evidence of the incident itself other than the account of the colleague who was present in the room with the Appellant while he attended to [NAME] on 12 December. That colleague said she didn’t notice anything untoward (see paragraphs [52]-[53] below).

41. We considered whether the three witnesses to the conversation in the [NAME] might have misheard what the Appellant said, whether they might have misremembered what they heard him say and what they saw him demonstrate, and whether they might have misinterpreted what he said and how he gestured with his hands.

42. We took into account that the Appellant speaks with an accent. We found it plausible that the witnesses misheard the words spoken. Indeed, the [NAME] itself acknowledged such a possibility in the Final Decision Letter: “It is acknowledged that English is not your first language and that you could have been misinterpreted”).

43. The [NAME] considered that while it was possible that his words could have been misinterpreted, the accompanying hand gestures make it unlikely that they misunderstood him.

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[2024] UKUT 224 (AAC)

44. Unlike the [NAME] we had the benefit of hearing live evidence from the Appellant, including seeing him try to explain things using his hands during the hearing. With the benefit of this evidence we found it plausible that the witnesses misinterpreted the Appellant’s demonstration of the motion he said he used. During the hearing it was difficult to tell the difference between the gesture he used when explaining what he said he did (wiping [NAME] front to back with a wipe in his open hand) and when demonstrating what he would have to have done had he performed the procedure he is alleged to have performed (inserting his fingers into [NAME]’s vagina and using his fingers to scoop faeces out by applying pressure through the vaginal wall).

45. We also took into account that only one of the “statements” given by the Appellant’s [NAME] detailing their recollection of the conversation of 15/16 December 2021 was dated, and it isn’t at all clear how long after the conversation the other statements were produced. Neither was any of them signed or accompanied by a statement of truth. We were therefore cautious about placing significant reliance on them and we decided that it was certainly possible that all three of them had misremembered the exact words they heard (or thought they heard) and the gestures they saw (or thought they saw).

46. While the [NAME] said in its Final Decision Letter that there was “no evidence to suggest that these witnesses had colluded to make false allegations against [the Appellant]”, the consistency of their accounts can be explained by the fact that they worked together and would have had every opportunity to discuss the allegations, which they wouldn’t necessarily have considered to amount to “collusion”. Because none of them was called as a witness at the hearing, we were denied the opportunity to explore this.

47. We weigh against this evidence the Appellant’s firm statement about what happened, and about what he said and demonstrated. We take into account that the Appellant has been entirely consistent in denying carrying out the alleged procedure. The suggestion that it was accepted practice in India came not from the Appellant but rather from his employer and from [NAME]. While the Appellant said that in India such a procedure could be performed by a doctor, he said it could not be performed by a [NAME], he hadn’t been trained to do it, and he had never even seen a doctor perform it. He was adamant that it would have been wrong for him to carry out such a procedure, whether in the UK or in India.

48. We also take into account that the Appellant gave oral evidence at the hearing of this appeal and made himself available for questioning by [NAME] and by the panel. He stood up well to cross-examination and we found him to be forthcoming in his evidence, and a credible witness.

49. He was asked why, if he were simply wiping [NAME]’s bottom with a wipe in his open hand, as he now says, he felt the need to share this with his [NAME], or indeed to illustrate it with a manual demonstration. However, it must be remembered that the context of his contribution was a conversation among [NAME] about issues that patients on the ward were having with their bowel movements. There is nothing strange about the Appellant seeking to contribute to that discussion by sharing his own experience with [NAME]. We are not persuaded that he would only contribute to the discussion if he had something particularly new or striking to share.

50. Considering the evidence about the conversation of 15/16 December 2021 in the round, we decided that despite the evidence of the three [NAME] being consistent, it

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[2024] UKUT 224 (AAC) should be given only limited weight because of the possibility discussed above of mishearing, misinterpretation and misremembering, and because there had been no opportunity to investigate this because none of the witnesses gave evidence at the hearing.

51. We considered the practicalities of carrying out the alleged procedure, relying on the expertise and experience of the Tribunal Members: had the Appellant digitally penetrated [NAME]’s vagina and carried out the “digging motion” that the witnesses allege he demonstrated to them, this would have prompted an immediate physical response in [NAME], resulting in her defecating on the Appellant’s arm before he would have had the chance to get it out of the way.

52. However, the only eye witness to the incident on 12 December 2021 noticed nothing of this nature when she assisted the Appellant with [NAME], and her account of what she observed was consistent with the Appellant’s account (see page [66] of the appeal bundle): “[The Appellant] proceeded to wipe/clean [NAME]. He appeared to wipe firmly from front to back and a large amount of firm balls of stool appeared on the wipes. He repeated this action with the same result; a large amount of firm balls of stool on wipes. [NAME] leaned further into my chest. [The Appellant] carried out the action a third time and a large smooth looking stool appeared on the wipes. During this procedure [NAME] let out noises of ? objection, this was normal for [NAME] when being cleaned or rolled for pressure relief.” 53. Her account in her interview with the employer’s [NAME] was consistent with this (see page [64] of the appeal bundle): “It was in the right back area, there was [NAME] in Bed 12 on the floor. Could see a large bowel movement. She was female. I could see that there were hard stools under the bed. We got the lady onto the commode and waited behind the curtain Checked she had finished and we went in, [the Appellant] to the left of the commode and I to the right. I explained what we were going to do, [The Appellant] began cleaning. There were 3 lots of stools 2 hard 1 other. For the last time of cleaning [NAME] made a noise. I didn’t think anything of it at the time. [The Appellant] was at the side of me, I can’t say which hand he used. He wiped 3 times and there was a large softer movement.” 54. Had the Appellant performed the procedure alleged it is difficult to see how he could have done so without his colleague becoming aware that he had done something unusual. Were such an invasive action taken [NAME] can be expected to have responded either by making noises of significant distress or by pulling away, while the only response reported by the colleague was “noises of ? objection” which she described as “normal” for [NAME] when being cleaned or rolled.

55. Digitally penetrating [NAME]’s vagina and “digging” by applying pressure to the vaginal wall to remove stools would also be very difficult in the position the Appellant and his colleague described. If the Appellant had intended to carry out such a procedure it is much more likely that he would have done so when [NAME] was lying on the bed, rather than standing/crouching.

56. It is also difficult to see how the Appellant could carry out the procedure alleged if he had a wipe in his hand (as both the Appellant and his colleague consistently described). Had he digitally penetrated [NAME]’s vagina while holding a wipe in his hand, he would have inserted the wipe into [NAME]’s vagina. It is then difficult to see

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[2024] UKUT 224 (AAC) how he would be able to collect the faeces in the wipe as his colleague who was the only eyewitness described him doing.

57. Having considered the evidence in the round, we concluded that the [NAME] was wrong to find that the Appellant had inserted his fingers into [NAME]’s vagina and pressed against her vaginal wall. We find instead that he wiped [NAME]’s vagina and perineum firmly three times with a wipe in his open hand, and in doing so stimulated a bowel movements, which he collected with the wipe in his cupped hand.

Disposal 58. We are satisfied that the Barring Decision involved a material mistake of fact.

59. The Barring Decision was based firmly on the primary finding of fact that the Appellant engaged in the conduct which we have now found he did not engage in. Its secondary findings as to the Appellant’s lack of empathy, the Appellant’s lack of insight and the risk that the Appellant might repeat the conduct were predicated on that mistaken finding and are not sustainable.

60. The [NAME] has not argued that it would have placed the Appellant’s name on any [NAME] solely on the basis of his alleged confrontational behaviour with [NAME] when they alleged that he had assaulted [NAME] in the way suggested. In any event, we consider that a decision to do so would have been disproportionate.

61. The appropriate disposal, therefore, is to direct the [NAME] to remove the Appellant’s name from the [NAME].

Authorised for issue on 29 July 2024

Thomas Church

Judge of the Upper Tribunal

[NAME]

Member of the Upper Tribunal

[NAME]

Member of the Upper Tribunal