Nursing and Midwifery Council: Fitness to Practise Committee

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing May 2018 Nursing and Midwifery Council, George Street, Edinburgh, EH2 4LH Name of registrant: Steven Hui NMC PIN: 09I2418S Part(s) of the register: Registered Nurse - Sub Part 1 Adult Nursing August 2013 Area of Registered Address: Scotland Type of Case: Misconduct Panel Members: Nigel Hallam (Chair, Lay member) Iwan Dowie (Registrant member) Sarah Tozzi (Lay member) Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Bruce Erroch Elaine Stewart Mr Hui was present and represented by Gary Burton, Anderson Strathern LLP Represented by Yusuf Segovia, Case Presenter Facts proved: Charges , 1.1.2, , , , 1.2.4, 1.2.5, 1.4, 2 and 3 Facts proved by admission: Charges , , , (in its entirety), 1.2.2, 1.2.3, and 1.5 1

2 Facts not proved: Charges 1.3.1, and 1.6 (No Case to Answer) Fitness to practise: Sanction: Interim Order: Impaired Striking Off Order Suspension Order 18 months 2

3 Details of charge: That you a registered nurse, whilst working at Glasgow Royal Infirmary: 1. Between October 2013 and July 2016, behaved inappropriately towards one or more colleagues. More specifically: 1.1 towards Colleague B, on one or more occasions, you: despite having been told not to: put your hands in her pocket to retrieve keys without first gaining permission; attempted to touch and/or cuddle her; removed one or more items from her tunic without her permission; on or around 8 March 2016, said to her words to the effect of: I can smell sex; did you have sex last night? you smell like sex when was the last time you had oral sex? and/or when was the last time you gave a man a blow job? made inappropriate comments about Patient 1, more specifically you stated words to the effect of: she s been flirting with me or I think she fancies me she s been grabbing my cock and telling me she s hungry 1.2 towards Colleague C, on one or more occasions, you: 3

4 1.2.1 said words to the effect of: when was the last time you had any? are you getting any? what kind of sex do you like? you smell like sex whispered the words at charge and/or and/or and/or , or words to that effect, in her ear; massaged her shoulders; put your hands in to her tunic trouser pocket without first gaining permission; pulled or tugged on her tunic at the back, touching her bottom; 1.3 towards Colleague D, on one or more occasions, you: said words to the effect of, when was the last time you had oral sex? having been shown a group photograph on her phone, you zoomed in on her chest area; when passing her, you made physical contact with her when this was unnecessary; 1.4 towards Colleague E, on one or more occasions, you said words to the effect of how s your sex life these days? 1.5 towards Colleague F, on one or more occasions, you asked her how sex was or words to that effect; 1.6 towards Colleague G, on one or more occasions, you asked her how her sex life was or words to that effect; 4

5 2 Your conduct on one or more of the occasions listed in charge1 above was sexually motivated. 3 On or around 3/4 October 2016, failed to follow a direct instruction from your mentor in that you requested Colleague A s telephone number from Colleague I, when you had previously been told not to contact Colleague A. And, in light of the above, your fitness to practise is impaired by reason of your misconduct. 5

6 Background The NMC received a referral on 6 March 2017 from the Acting Chief Nurse at the Glasgow Royal Infirmary NHS Greater Glasgow and Clyde, (the Trust) in relation to allegations about your conduct and behaviour. It is alleged that between October 2013 and July 2016, while working at Glasgow Royal Infirmary, you made inappropriate comments, predominately of a sexual nature towards a number of colleagues. It is further alleged that you engaged in inappropriate physical contact towards a number of colleagues. It is also alleged that you made inappropriate comments of a sexual nature to a colleague regarding a vulnerable female patient in your care. The Trust conducted an investigation into all of these incidents which resulted in you being issued with a first and final warning. A further incident arose on 3 October 2016, when it is alleged that you disobeyed a direct management instruction not to contact a female member of staff. It is alleged that, following this instruction, you then requested the colleague s telephone number from the Senior Staff Nurse. Admissions At the start of this hearing you admitted the following charges; 1 Between October 2013 and July 2016, behaved inappropriately towards one or more colleagues. More specifically: 1.1 towards Colleague B, on one or more occasions, you: despite having been told not to: attempted to touch and/or cuddle her; 6

7 1.1.3 on or around 8 March 2016, said to her words to the effect of: I can smell sex; did you have sex last night? you smell like sex 1.2 towards Colleague C, on one or more occasions, you: said words to the effect of: when was the last time you had any? are you getting any? what kind of sex do you like? you smell like sex whispered the words at charge and/or and/or and/or , or words to that effect, in her ear; massaged her shoulders; 1.3 towards Colleague D, on one or more occasions, you: having been shown a group photograph on her phone, you zoomed in on her chest area; 1.5 towards Colleague F, on one or more occasions, you asked her how sex was or words to that effect; These were therefore announced as proved. 7

8 Decision and reasons on application pursuant to Rule 31 The panel heard an application made by Mr Segovia under Rule 31 of the Rules to allow the written statement of Colleague D into evidence. Colleague D was not present at this hearing. Whilst the NMC had been in contact with this witness earlier in the investigatory proceedings, Mr Segovia told the panel that he had reason to believe that this witness was not currently in the UK but had no information about her ability to take part in the hearing by alternative means. Mr Segovia said that Colleague D spoke solely to charge 1.3 and as such her statement was relevant evidence. Mr Segovia reminded the panel that you had made admissions to a sub charge of 1.3. In his application he submitted that, as you had previously admitted to charge 1.3.2, then the part of Colleague D s evidence relating to this charge could be admitted without difficulty and the panel could consider separately the remaining parts of Colleague D s statement. He submitted that Colleague D s evidence may appear to be the sole and decisive evidence in charge but that it was referenced in Ms 1 s evidence which was tested under examination. Mr Burton, on your behalf, submitted that Ms 1 was not a direct witness to the events narrated in charge 1.3 and her evidence in this regard was only a recount of what she had been told by Colleague D and is therefore also hearsay. Mr Burton submitted that Colleague D s evidence is the sole and decisive evidence in respect of charge He submitted that, due to the seriousness of this charge, a compelling reason to admit untested evidence in this regard would be required without causing considerable unfairness to you. The panel heard and accepted the legal assessor s advice on the issues it should take into consideration in respect of this application. This included that Rule 31 of the Rules provides that, so far as it is fair and relevant, a panel may accept evidence in a range of forms and circumstances, whether or not it is admissible in civil proceedings. 8

9 The panel determined that, although there is no absolute right to cross examination, it was a basic principle of fairness that you are able to challenge the evidence of any witness. You have had no notice that Colleague D would not be present and accordingly have had no opportunity to factor this into any defence you chose to present to the panel. The panel gave consideration to the principles set out in the case of Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin) and considered that there had been no evidence of a good and cogent reason for the non-attendance of this witness. The panel also considered that this evidence was the sole and decisive evidence in relation to charge 1.3 and that, without the witness attendance, the panel had no ability to test this evidence. The panel determined that, whilst the relevance of the evidence was not in question, it could not consider the entirety of Colleague D s evidence without unfairness to you. In these circumstances the panel refused the application to have the whole of Colleague D s written statement admitted into evidence. Paragraphs 5, 6 and 8 were the sole or determinative evidence in respect of charges and and it would not be fair to you to admit them. The remaining paragraphs spoke only to the admitted charge (1.3.2) or provided uncontroversial background information. Your representative submitted that he had no objection to these being admitted into evidence. The panel therefore admitted the evidence contained in colleague D s statement, under deletion of paragraphs 5, 6 and 8. The panel put these paragraphs of the statement out of its mind. 9

10 Decision and reasons on application of no case to answer The panel considered an application from Mr Burton on your behalf that there is no case to answer in respect of charges 1.3.1, and 1.6. This application was made under Rule 24 (7) of the Rules. This rule states: 24 (7) Except where all the facts have been admitted and found proved under paragraph (5), at the close of the Council s case, and (i) either upon the application of the registrant the Committee may hear submissions from the parties as to whether sufficient evidence has been presented to find the facts proved and shall make a determination as to whether the registrant has a case to answer. In relation to this application Mr Burton submitted that, with regard to charge 1.6, the panel had heard evidence from Ms 2 that she had spoken to Colleague G regarding an alleged inappropriate comment you had made but Colleague G denied you had made such a comment to her. Mr Burton further submitted that as the hearsay application in respect of Colleague D s evidence was denied, the NMC has led no evidence in support of these charges. Mr Burton submitted that although Ms 1 refers to the events of charge in her evidence, this is hearsay only and therefore, even when considered at its highest, there is an inherent weakness in this evidence. In these circumstances, it was submitted that these charges should not be allowed to remain before the panel. Mr Segovia, on behalf of the NMC, submitted that whilst the evidence relating to charges and remains untested, the account given by Ms 1 was heard under affirmation by the panel and is of a similar nature to other evidence heard. She had referred to what Colleague D had told her you said to her. He submitted that the panel 10

11 may wish to consider this as part of the wider picture of the charges. He did however accept that no evidence was adduced in support the charge 1.6. The panel took account of the submissions made and heard and accepted the advice of the legal assessor who referred the panel to the principles of the case of R v Galbraith [1981] 1 WLR In reaching its decision, the panel has made an initial assessment of all the evidence that had been presented to it at this stage. The panel was solely considering whether sufficient evidence had been presented, such that it could find the facts proved and whether you had a case to answer. The panel was of the view that, taking account of all the evidence before it, there was not a realistic prospect that it would find the facts of charge 1.6 proved. The panel noted the evidence of Ms 2 who indicated that the events narrated in the charge had not occurred and no direct evidence from Colleague G was available for the panel s consideration. With regard to charge and 1.3.3, the panel, by virtue of its earlier decision on the hearsay application, considered that there was insufficient evidence available in support of these charges. Accordingly, the panel determined that you have no case to answer in respect of charges 1.3.1, and

12 Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel considered all the evidence adduced in this case together with the submissions made by Mr Segovia on behalf of the NMC and those made by Mr Burton on your behalf. The panel heard and accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the panel was satisfied that it was more likely than not that the incidents occurred as alleged. The panel heard oral evidence from eight witnesses tendered on behalf of the NMC. In addition, the panel heard oral evidence from you. Witnesses called on behalf of the NMC were: Ms 1 Band 6 Sister, Glasgow Royal Infirmary (GRI), Acute Medical Receiving Unit (AMRU); Colleague B Band 5 Staff Nurse, AMRU Colleague C Band 5 Staff Nurse, AMRU Colleague E Band 5 Staff Nurse, AMRU Colleague F Band 5 Staff Nurse, AMRU Colleague H Senior Charge Nurse, Ward 43, GRI Colleague I Deputy Charge Nurse, Ward 43, GRI Ms 2 Lead Nurse, Cardiology and ARMU The panel first considered the overall credibility and reliability of all of the witnesses it had heard from, including you. 12

13 The panel considered Ms 1 and found her to be a straightforward and honest witness who was consistent throughout her evidence. The panel found Ms 1 to be a credible and reliable witness who was clear as to her involvement in events and the limits of her recollection. The panel found Colleague B to be a credible and reliable witness who was open and honest in her account and was clear about the limits of her recollection. The panel found her to be consistent throughout her evidence which was reinforced by her contemporaneous regarding events. The panel considered Colleague C to be clear and honest in her account. It found her to be a genuine witness who did her best to assist the panel and was both credible and reliable. The panel found Colleague E to be honest and balanced in her evidence despite her apparent nervousness. The panel noted her attempts to assist in her evidence and found her to be both credible and reliable. The panel considered Colleague F to be a credible and reliable witness who provided straightforward honest answers. The panel found her to be measured and fair in her evidence. The panel found Colleague H to be a straightforward and credible witness who was fair and measured in his account. The panel noted that colleague H was positive about his professional relationship with you and found his evidence to be balanced and reliable. The panel considered the evidence of Colleague I and found her to be both credible and reliable in her account. The panel was satisfied that she had a clear recollection of events and noted that she made no efforts to embellish her evidence. 13

14 The panel found Ms 2 to be very clear in her account to the limit of her involvement in events from a managerial perspective. The panel found Ms 2 to be a credible and reliable witness who gave straightforward factual evidence. You gave evidence under affirmation and told the panel that you qualified as a nurse in 2013 and had worked in a number of different hospitals with the Scottish Nursing Guild but worked primarily in your substantive post at GRI. You told the panel that in the AMRU there were only two bundles of keys for five drug trolleys and these were shared between nine nurses. You said that if you needed the keys you would ask the nurses if they had them and would not check the pockets of each nurse without asking. You denied being told not to go into Colleague B s pockets and said you would always ask have you got the keys. You also denied touching Colleague C s bottom though you admitted to pulling on her tunic to catch her attention. You told the panel that you are a loving touchy-feely person and never meant any harm. You said that you gave colleagues hugs and massages as part of asking them how they were and if they needed any help. You later confirmed in your evidence that they were given without seeking consent. You said the comments you made were an attempt to bring humour to the ward as it was a stressful and busy environment. You said you now realise your comments were inappropriate and you would not be happy if similar comments were made to your fiancée and female family members. You said you were sorry if you offended anyone. You said that you had reflected on your behaviour and were certain that you had not made comments regarding oral sex to Colleague B and did not make any comments regarding Patient 1. You said you remember everything that you said and were certain that you did not make the alleged comment to Colleague E. You said that you felt you had a good relationship with your colleagues and that if they did not like your comments then they should have told you to stop. 14

15 You said that you accept you were given a direct instruction from Colleague H not to contact Colleague A. However you said you were concerned for her as she had been upset and asked Colleague I to contact her on your behalf and check she was ok. You denied asking Colleague I for her phone number. You denied that your behaviour was sexually motivated and insisted it was only to offer support to colleagues or to bring humour into their day. You accepted that there was a pattern of behaviour but said there was a culture of sexual conversation on the ward. You said if you had been told to stop your behaviour, you would have done so. The panel considered your oral evidence and found you were often evasive or vague in your responses. The panel found that you did not answer fully the questions you were asked, and appeared to give formulaic repetitive answers on some points that did not particularly answer the questions. The panel found your answers lacking in detail and noted that you, on occasion, attempted to divert the panel onto other less relevant issues. The panel noted that you found giving evidence upsetting at times and became very defensive at points. The panel noted that you appeared to find it difficult to understand or answer a number of questions put to you. The panel found some of your explanations to be implausible and was of the view that, while there were elements of credibility in your evidence, you were not an overly reliable witness. Where your account of events differed from other witnesses, the panel preferred their evidence to yours. The panel did not accept your evidence that there was a culture of sexual conversation on the ward having heard evidence to the contrary from a number of colleagues. The panel then went on to consider the remaining charges. The panel considered each charge and made the following findings: 15

16 Charge 1: Between October 2013 and July 2016, behaved inappropriately towards one or more colleagues. More specifically: 1.1 towards Colleague B, on one or more occasions, you: despite having been told not to: put your hands in her pocket to retrieve keys without first gaining permission; This charge is found proved. In reaching this decision, the panel took into account the evidence of Colleague B who was very clear in her oral evidence that you put your hands into her pockets without her permission. She was also adamant that she had asked you not to place your hands in her pockets. The panel considered your evidence that there were only two sets of keys shared between nine nurses for five drug trolleys so you would not put your hands in all the nurses pockets to find the keys. The panel noted that in your evidence you said you would ask colleagues if they had the keys. However, you did not give any evidence regarding whether or not you would seek consent before entering a colleagues pockets. The evidence from Colleague B in this respect was preferred by the panel, particularly considering that another colleague made a similar accusation and gave similar evidence regarding your behaviour. Charge 1.1.2: removed one or more items from her tunic without her permission; This charge is found proved. 16

17 In reaching this decision, the panel took into account that no challenge had been made to the evidence of Colleague B regarding this charge and the panel found Colleague B to be very clear in her evidence that you took her pen from the crossover of her tunic without her permission. Having previously found that Colleague B was a reliable and trustworthy witness, the panel was satisfied that her evidence in this regard was accurate. Charge on or around 8 March 2016, said to her words to the effect of: when was the last time you had oral sex? and/or when was the last time you gave a man a blow job? This charge is found proved. In reaching this decision, the panel considered the evidence of Colleague B who was very clear in her oral evidence that you said this to her. The panel noted that this evidence is consistent with Colleague B s contemporaneous where she reported your behaviour to a senior colleague. The panel considered your evidence that you did not say this to Colleague B but prefers the evidence of Colleague B. The panel considered that, as you already admitted making sexual remarks to her, it was, on the balance of probabilities, more likely than not that you would have also made this remark. Charge made inappropriate comments about Patient 1, more specifically you stated words to the effect of: she s been flirting with me or I think she fancies me 17

18 she s been grabbing my cock and telling me she s hungry These charges are found proved. The panel considered the evidence of Colleague B who was adamant in her oral evidence that you had made the comments to her regarding Patient 1 prior to the end of her shift. She explained that she was the team leader on the day in question and you were her associate. She explained that you had provided most of the care to Patient A and when she asked you for an update at the end of the shift you had made the comments alleged rather than provide any medical update. She said she did not speak to the patient as she had already been transferred to another ward. Colleague B told the panel she was shocked by your comments and told a Band 6 colleague at handover. She said she was then told to put her concerns in writing and sent an the following day setting out what you said to her and also including information about the sexual remarks you had previously made to her. When asked why she had not raised these concerns earlier, Colleague B said she was quite a nervous person and did not like to make a fuss. However she said that when the comments were made about a patient she felt she had to act as this was not how a nurse should behave. You said that you had not made any remarks of this nature about the patient and gave evidence about the medical care you provided. However, the panel preferred the evidence of Colleague B as she was very clear in her verbal account, which was consistent with her contemporaneous statement, about what she heard you say and the panel was of the view that these comments were unlikely to have been misheard or misremembered. Charge towards Colleague C, on one or more occasions, you: put your hands in to her tunic trouser pocket without first gaining permission; 18

19 This charge is found proved. In its consideration of this charge, the panel took into account the evidence of Colleague C who was very clear in her view that you would put your hands in her pockets as you were asking if she had keys. She said that you did not ask her permission to enter her pockets. The panel noted that Colleague C had given evidence in this regard to the local investigation and that her evidence was unchanged throughout. You gave the same explanation as you had regarding Colleague B, namely that you did not enter the pockets of colleagues without first asking if they had they keys, but the panel preferred the evidence of Colleague C. The panel considered the pattern of your behaviour regarding entering colleagues pockets and taking items from their clothing without permission and, on the balance of probabilities, found it more likely than not that you had placed your hands in Colleague C s pockets without permission. Charge pulled or tugged on her tunic at the back, touching her bottom; This charge is found proved The panel considered the evidence of Colleague C that you would tug on the bottom of her tunic and in doing so would touch her bottom with the back of your hand. You told that panel that you pulled Colleague C s tunic to attract her attention but at no point did you touch her bottom. Colleague C gave evidence that you had touched her with the back of your hand as you reached for her tunic and not directly with the palm of your hand. The panel was of the view that it was unusual behaviour for a nurse to tug on the bottom of colleague s tunic. The panel considered that any touching to have occurred 19

20 would have been incidental when reaching for Colleague C s tunic and not intentional on your part. Accordingly, this charge is found proved. Charge towards Colleague E, on one or more occasions, you said words to the effect of how s your sex life these days? This charge is found proved. In its consideration of this charge, the panel considered the oral evidence of Colleague E who told the panel that you had entered a treatment room where she was preparing medications with another colleague. She said that you came into the room and out of the blue asked about her sex life. She said her face reddened but she laughed it off and said she thought you were weird. Colleague E could not recall who else was in the room and said she wasn t that bothered about the incident, she just thought it was stupid. You denied saying this to Colleague E but the panel preferred Colleague E s evidence having found her to be an honest, fair and measured witness. Charge 2 2 Your conduct on one or more of the occasions listed in charge 1 above was sexually motivated. This charge is found proved The panel noted that in order to find this charge proved, it need only find one occasion to be sexually motivated. However the panel gave consideration to all the charges in its deliberations. 20

21 The panel was of the view that, viewed objectively, a reasonable person would consider the use of such sexual language and personal comments relating to colleagues and patients sexual behaviours to be sexually motivated. The panel considered that the comments made to colleagues were numerous and of similar nature which suggested a pattern of behaviour. The panel considered your physical actions as narrated in charges , , 1.1.2, 1.2.3, 1.2.4, and 1.3.2, if viewed in isolation, could each be capable of an explanation which was not that of sexual motivation. However, taking all of these physical actions together as part of a pattern of behaviour, the panel is satisfied that a reasonable person looking at your actions objectively would consider them to be sexually motivated. Separately, taking your physical actions both individually and collectively, and looking at them in conjunction with your verbal communications, the panel was satisfied that a reasonable person looking at them objectively would consider them to be sexually motivated. The panel noted your evidence that your comments were merely ill-advised attempts at humour and you touched colleagues simply to check how they were. However the panel found this to be bizarre behaviour for a professional to display in a public environment. The panel also noted that the colleagues who gave evidence about your inappropriate behaviour towards them were all young and inexperienced nurses. The panel considered your evidence that other colleagues made sexual comments at work but preferred the evidence of Colleagues B, C, E, and F who all said that such sexual conversation did not occur in the workplace, making your comments appear even more unusual and unexpected. The panel concluded that the number of similar events indicated a pattern of behaviour that no reasonable person could consider humour or workplace banter. The panel determined that, given the sexually explicit nature of the comments and unwanted physical contact, it was satisfied that your actions were sexually motivated. 21

22 Charge 3 3 On or around 3/4 October 2016, failed to follow a direct instruction from your mentor in that you requested Colleague A s telephone number from Colleague I, when you had previously been told not to contact Colleague A. This charge is found proved. The panel considered the evidence from Colleague H in support of this charge. Colleague H was appointed as your workplace mentor when you were re-allocated to a cardiology ward following the incidents in AMRU. He said he had no concerns about your clinical practice or general behaviour. Colleague H explained that when one of your colleagues was suspended, you asked him for her telephone number so you could check on her. Colleague H was clear in his evidence, and you accepted, that he had given you a direct management instruction not to contact her and that it was inappropriate for you to do so. Colleague I told the panel that you asked her for Colleague A s phone number. You said you did not ask for the number but asked Colleague I if she had it, and if she could contact Colleague A on your behalf. The panel preferred the evidence of Colleague I in this regard and considered that, in requesting the telephone number, you did fail to follow the direct management instruction. 22

23 Submission on misconduct and impairment: Having announced its finding on all the facts, the panel then moved on to consider, whether the facts found proved amount to misconduct and, if so, whether your fitness to practise is currently impaired. There is no statutory definition of fitness to practise. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. In his submissions, Mr Segovia invited the panel to take the view that your actions amount to a breach of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 and The Code: Professional standards of practice and behaviour for nurses and midwives (2015) ( the Code ). He submitted that while the Code does not specifically spell out guidance relating to the matters found proved, it does set out the standards of behaviour expected by a nurse in order to uphold the reputation of the profession and that your actions fell below this standard and therefor amounted to misconduct. Mr Segovia referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. He then moved on to the issue of impairment, and addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards and maintain public confidence in the profession and in the NMC as a regulatory body. Mr Segovia referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Mr Burton, on your behalf, submitted that you accept that your actions fell below the standards expected of a registered nurse and amounted to misconduct. 23

24 He submitted that you also accept that your fitness to practice is currently impaired. However, Mr Burton invited the panel to consider that you have shown some insight into your misconduct and have expressed remorse for your actions. He submitted that you made some early admissions which demonstrated a degree of insight and understanding that your actions were inappropriate. Mr Burton submitted that you had not intended to cause offence and were very sorry if you had. Mr Burton invited the panel to consider that there have been no concerns raised about your clinical practice and no harm was caused to any patient. He submitted that no actual harm was caused to colleagues though you accept that your actions may have caused them upset and embarrassment. Mr Burton submitted that you completed an equality and diversity training course in an attempt to remedy your behaviour and no further instances of the inappropriate behaviour identified occurred while you were working in the cardiology ward. Mr Burton submitted that you had been described as an asset to the cardiology ward and invited the panel to consider the testimonial provided by your former senior charge nurse. The panel has accepted the advice of the legal assessor which included reference to a number of judgments which are relevant, these included: Roylance v General Medical Council (No 2) [2000] 1 A.C. 311 and Cohen v GMC (2008) EWHC 581 (Admin). The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of that misconduct. 24

25 Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of The code: Standards of conduct, performance and ethics for nurses and midwives 2008 and The Code: Professional standards of practice and behaviour for nurses and midwives (2015) (the Code). The panel, in reaching its decision, had regard to the public interest and accepted that there was no burden or standard of proof at this stage and exercised its own professional judgement. The panel was of the view that your actions did fall significantly short of the standards expected of a registered nurse, and that your actions amounted to a breach of the Code. Specifically: 2008 Code 1 You must treat people as individuals and respect their dignity. 61 You must uphold the reputation of your profession at all times Code 1.1 treat people with kindness, respect and compassion 1.3 avoid making assumptions and recognise diversity and individual choice 20 Uphold the reputation of your profession at all times To achieve this, you must: 20.1 keep to and uphold the standards and values set out in the Code 20.3 be aware at all times of how your behaviour can affect and influence the behaviour of other people 20.5 treat people in a way that does not take advantage of their vulnerability or cause them upset or distress 25

26 20.8 act as a role model of professional behaviour for students and newly qualified nurses and midwives to aspire to The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. However, the panel was of the view that the sexually motivated behaviour found proved is so serious and such an obvious failing in the behaviour expected of a registered nurse that it placed the reputation of the profession at risk. The panel had regard to the definition of misconduct as defined in Roylance. It considered your actions as narrated in all charges to be acts which fell short of what would be proper in the circumstances. They were sufficiently serious as to be properly described as misconduct going to your fitness to practice. Decision on impairment The panel next went on to decide if as a result of this misconduct your fitness to practise is currently impaired. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision. In paragraph 74 she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession 26

27 would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes. Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. has in the past acted dishonestly and/or is liable to act dishonestly in the future. 27

28 The panel finds that your misconduct engages the first three limbs of Grant. The panel determined that your actions caused upset and distress to your colleagues, some of whom were junior in position. There was also a risk that patients and their families could have witnessed such inappropriate behaviour and that this may have caused them distress. Further, the panel found that such inappropriate sexually motivated behaviour breached a fundamental tenet of the profession, being a failure to treat people with the dignity and respect expected of a registered nurse. Such behaviour placed the reputation of the profession at risk of disrepute. Regarding insight, the panel considered that you made admissions at the outset of the hearing and you have expressed some remorse for your behaviour. However, your remorse appeared conditional on whether you may have caused offence and did not suggest that you have a full understanding of the impact of your actions on your colleagues. Your remorse also appeared to be focused on the situation you find yourself in rather than for your behaviour. The panel was of the view that you had a very limited understanding of the inappropriateness of your behaviour and of the concept of consent in your interactions with colleagues. The panel noted that you said during your evidence that you had reflected on your behaviour but you were unable to demonstrate any particular insight gained from this reflection. In its consideration of whether you have remedied your practice the panel took into account that you have undertaken equality and diversity training but that the attitudinal nature of your misconduct is difficult to remediate. The panel considered that, having been moved to a cardiology ward following the sexual misconduct allegations, you then directly disobeyed a direct management instruction where you were told not to contact a female colleague because it was inappropriate. The panel was of the view that this suggested you had not remedied your practice. This further example of inappropriate behaviour suggested an inability to accept being told not to do something. The panel is of the view that there is a risk of repetition based on the lack of evidence of developing insight and lack of remediation. The panel also noted the evidence of 28

29 Colleague H who said that he had a gut feeling that you would disobey his instruction, suggesting an ongoing attitudinal issue. The panel was of the view the number of events over an extended period of time and the lack of insight into your misconduct demonstrates a real risk of repetition. The panel therefore decided that a finding of current impairment is necessary on the grounds of public protection. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold/protect the wider public interest, which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. The panel determined that, in this case, a finding of impairment on public interest grounds is required due to the serious nature of the misconduct and the need to uphold the reputation of the profession. The panel heard evidence from a number of nurses who found your conduct unacceptable and any reasonable and informed person would also find your misconduct to be wholly inappropriate. In order to protect the reputation of the profession and uphold nursing standards, a finding of impairment on public interest grounds is necessary. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. 29

30 Determination on sanction: The panel has considered this case very carefully and has decided to make a strikingoff order. It directs the registrar to strike you off the register. The effect of this order is that the NMC register will show that you have been struck-off the register. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case. The panel heard submissions from Mr Segovia in regard to the NMC sanction bid. Mr Segovia submitted that the most appropriate sanction in your case was a striking off order as your behaviour is wholly and fundamentally incompatible with ongoing registration. He further submitted that your behaviour represents a pattern of serious misconduct and there remained a real risk of repetition. The panel also heard submissions from Mr Burton on your behalf. Mr Burton submitted that you had shown insight and remorse for your behaviour and that there were no clinical concerns or harm caused to patients. He submitted that the most appropriate order would be a conditions of practice order and suggested conditions should include further equality and diversity training, a reflective statement and meeting regularly with a mentor or line manager. Mr Burton further submitted that, should the panel find that conditions on your practice were not appropriate, a short period of suspension would be the most severe sanction it should impose and that this would allow you time to reflect further on your behaviour in addition to marking the seriousness of the case. Mr Burton submitted that striking off was too serious for this case as the misconduct was not at the most serious end of the spectrum. The panel accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such 30

31 consequences. The panel had careful regard to the Sanctions Guidance ( SG ) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel considered the relevant aggravating and mitigating factors in reaching its decision on the appropriate sanction. The aggravating factors that the panel took into account, in particular, are: These were numerous instances of inappropriate behaviour over a number of months Your actions caused distress and emotional harm to a number of colleagues Your lack of insight into the inappropriateness of your behaviour and of the impact of your behaviour on your colleagues Your inappropriate behaviour was sexually motivated and both physical and verbal The colleagues who were subjected to your behaviour were all young and inexperienced nurses, some of who were junior in position to you The deep seated and harmful attitudinal nature of your misconduct Your inability to accept an instruction from a senior colleague The panel considered the following mitigating factors: You made partial admissions to the charges You have shown some remorse for your actions No actual patient harm occurred There have been no other regulatory concerns since you qualified as a nurse in 2013 There was no repetition of the sexually motivated behaviour when you were transferred to the cardiology ward. There have been no concerns raised about your clinical practice 31

32 The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. Nor would taking no action protect the public. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the SG, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that your misconduct was not at the lower end of the spectrum and that a caution order would be inappropriate in view of the seriousness of the case. The panel decided that it would not be proportionate or in the public interest to impose a caution order, nor would such an order protect the public. The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel considered the conditions proposed by Mr Burton but determined that they would not address the misconduct found proved in this case. The panel noted that you have already attended an equality and diversity course and could not, when questioned, demonstrate any relevant learning from it or its role in addressing your failings. The panel also noted that you have previously worked closely with a mentor and behaved inappropriately, albeit in a non-sexually motivated manner. The panel previously considered the evidence of your mentor who said he had no concerns about your clinical skills but had a gut feeling that you would go behind his instruction. This suggested a further attitudinal issue regarding following instructions. It was also suggested by Mr Burton that you could provide a reflective statement but, despite having said you had spent two years reflecting on your practice, you had not provided any reflective piece to this panel or demonstrated any evidence of any insight gained during your two year period of reflection. 32

33 The panel is of the view that there are no practical or workable conditions that could be formulated, given the nature of the charges in this case. The misconduct identified in this case is of a serious deep seated attitudinal nature and is not something that can be addressed through retraining. Furthermore the panel concluded that the placing of conditions on your registration would not adequately address the seriousness of this case and would not protect the public or be otherwise in the public interest. The panel then went on to consider whether a suspension order would be an appropriate sanction. The SG indicates that a suspension order would be appropriate in the following circumstances: This sanction may be appropriate where the misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register. This is more likely to be the case when some or all of the following factors are apparent (this list is not exhaustive): a single instance of misconduct but where a lesser sanction is not sufficient no evidence of harmful deep-seated personality or attitudinal problems no evidence of repetition of behaviour since the incident the Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour The aggravating factors that the panel took into account, in particular, are the numerous events of inappropriate behaviour which occurred over an extended period of time and the actual emotional harm and distress caused to your colleagues. The panel gave particular consideration to the harmful deep seated attitudinal nature of your misconduct and the lack of insight into your behaviour, raising the issue of potential repetition. 33

34 The conduct, as highlighted by the facts found proved, was a significant departure from the standards expected of a registered nurse. The panel noted that the serious breach of the fundamental tenets of the profession evidenced by your actions is fundamentally incompatible with your remaining on the register. The panel has taken into account the mitigation put forth on your behalf by Mr Burton that you have shown insight and remorse for your behaviour and that there were no concerns about your clinical skills or any harm caused to patients. The panel also considered his submission that you have been unable to work as a nurse for some time which has caused you emotional stress and financial hardship. However, in this particular case, the panel determined that a suspension order would not be a sufficient, appropriate or proportionate sanction as it would not adequately address the seriousness of your misconduct and the nature of your failings. Finally, in looking at a striking-off order, the panel took note of the following from the SG: This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional, which may involve any of the following factors. A serious departure from the relevant professional standards as set out in key standards, guidance and advice. Doing harm to others or behaving in such a way that could foreseeably result in harm to others.harm may include physical, emotional and financial harm. The seriousness of the harm should always be considered. Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients. Any serious misconduct of a sexual nature. Persistent lack of insight into seriousness of actions or consequences. 34