HA v Disclosure and Barring Service
[2024] UKUT 277 (AAC)
NK v Disclosure and Barring Service
29 July 2024
[2024] UKUT 224 (AAC)
Upper Tribunal
A nurse was accused of inappropriately touching a patient. The DBS believed him guilty and banned him from working with vulnerable people. A higher court heard his side of the story and found that the evidence against him wasn't strong enough, overturning the ban and clearing his name.
Key Facts
- •Appellant, a nursing auxiliary, was accused of inserting fingers into a vulnerable adult patient's vagina to relieve constipation.
- •Appellant denied the allegations; employer and DBS found against him on the balance of probabilities.
- •DBS placed Appellant on Adults' and Children's Barred Lists.
- •Appellant appealed, arguing a material mistake of fact.
- •No witness directly observed the alleged procedure; evidence relied on Appellant's account to colleagues.
- •Upper Tribunal heard oral evidence from Appellant and considered witness statements.
- •Upper Tribunal found the DBS's finding of fact to be incorrect.
Legal Principles
Upper Tribunal's jurisdiction to overturn DBS decisions on the basis of a mistake of fact.
Section 4 SVGA
Definition of 'relevant conduct' under SVGA for both children and vulnerable adults.
Schedule 3, Part 1, paragraph 3 & Part 2, paragraph 9 SVGA
What constitutes a 'mistake of fact' in the context of DBS decisions.
PF v DBS [2020] UKUT 256 (AAC); AB v DBS; DBS v JHB [2023] EWCA Civ 982; Kihembo v DBS [2023] EWCA Civ 1547; DBS v RI [2024] EWCA Civ 95
Outcomes
Appeal allowed.
The Upper Tribunal found that the DBS's decision was based on a material mistake of fact—that the appellant had inserted his fingers into the patient's vagina. The Tribunal found the appellant's account to be more credible, supported by the lack of direct evidence and inconsistencies in witness accounts.
Appellant's name removed from Adults' and Children's Barred Lists.
The DBS's finding of fact was deemed incorrect, undermining the other findings of lack of empathy, insight, and future risk. The Tribunal determined that removal was the appropriate remedy.