Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing. 4 December December 2017 (Part heard) 1 March 2018 (Concluded)

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 4 December December 2017 (Part heard) 1 March 2018 (Concluded) Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: Mr Jowin John Antony NMC PIN: 13J0078O Part(s) of the register: RN1, Registered Nurse (sub part 1) Adult ( 23 October 2013) Area of Registered Address: England Type of Case: Misconduct Panel Members: Clive Chalk (Chair, Lay member) Georgina Witherow (Registrant member) Diane Meikle (Lay member) Legal Assessor: Jeremy Barnett Panel Secretary: Keyorra Shrimpton (4-8 December 2017) Vicky Green (1 March 2018) 1

2 Mr Antony: Present and represented by Shobine Iyer, counsel Nursing and Midwifery Council: Represented by Lara McDonnell, Case Presenter (4-8 December 2017) Represented by Michael Smalley, Case Presenter (1 March 2018) Facts proved: 1, 4, 6 Facts proved by admission: None Facts not proved: 2, 3, 5 Fitness to practise: Impaired Sanction: Interim Order: Striking-off order Interim suspension order 18 months 2

3 Details of charges (as read): That you, a registered nurse, on 31 January 2016, regarding Resident A you: 1. Grabbed Resident A s wrist on one or more occasion [PROVED] 2. Told Resident A words to the effect of if you hit me again I am going to hit you back or if you do it again, I can do it to you [NOT PROVED] 3. Threw Resident A s yoghurt pot [NOT PROVED] 4. Slapped Resident A [PROVED] 5. Spread yoghurt on Resident A s face [NOT PROVED] 6. Pinched Resident A [PROVED] And, in light of the above, your fitness to practise is impaired by reason of your misconduct. 3

4 Application and determination to allow evidence of Ms 2 to be heard via Webex/video link: Ms McDonnell, on behalf of the NMC, made an application to hear the evidence of Ms 2 via Webex/video link due to a deterioration in Ms 2 s health overnight. Ms McDonnell explained that Ms 2 had travelled to attend this hearing on day 1 of the hearing but was not heard due to a lack of time. Ms Iyer, on your behalf, did not oppose the application and was content with the hearing to proceed in this manner. The panel heard and accepted the advice of the legal assessor. The panel accepted that Webex was the most appropriate method to hear Ms 2 s evidence given all the circumstances. The panel accordingly granted the application to hear the evidence of Ms 2 via Webex. Background: The NMC received a self-referral from you on 5 April You disclosed to the NMC that you had been charged by the police with ill treatment of a resident in your care, Resident A. You were subsequently acquitted of the offence at Kingston Crown Court on 22 March The allegations against you are alleged to have occurred on 31 January 2016 at Bourne House Nursing Home ( the Home ). The Home houses approximately 40 residents who have been diagnosed with dementia. Resident A was an 85 year old lady with a diagnosis of dementia. You are alleged to have mistreated Resident A by grabbing her wrist on one or more occasion, telling Resident A words to the effect of if you hit me again I am going to hit you back or if you do it again, I can do it to you as well as slap and pinch Resident A. It is also alleged that you threw Resident A s yoghurt pot and spread yoghurt on Resident A s 4

5 face. Decision and reasons on finding of facts: In reaching its decisions on the facts, the panel considered all the evidence presented in this case together with the submissions made by Ms McDonnell, on behalf of the NMC, as well as submissions from Ms Iyer, on your behalf. The panel also took into account your oral evidence. The panel heard and accepted the advice of the legal assessor. The panel kept at the forefront of its thinking 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 a fact will be found proved if the panel is satisfied that it is more likely than not that the fact alleged is correct or occurred as alleged. The panel heard oral evidence from two witnesses called on behalf of the NMC, who were employed in the following positions at the time of the events: Mr 1: Health Care Assistant at Bourne House Nursing Home. Ms 2: Registered Manager at Bourne House Nursing Home. The panel also took into account the written evidence of one NMC witness: Ms 3: Employed by LRH Homes as an Operations Support Manager. The panel also took into account the evidence of two witnesses called on your behalf: Ms 4: Your current manager at Acria Care Centre. Mr 5: Nurse and colleague from March 2013 until September The panel considered that Mr 1 was a credible witness. The panel decided that it accepted his overall account that there was mistreatment of Resident A. The panel 5

6 accepted Mr 1 s explanation regarding the two day delay in reporting the incident. Mr 1 advised the panel that he had never found himself in such a situation and he faced the responsibility of becoming a whistle blower in what could be a serious case. The panel took into account the fact that, as a whistle blower, Mr 1 had chosen to come forward rather than remain silent and had had to give his account on a number of different occasions, including making a statement for the disciplinary hearing, a statement and evidence in the criminal trial and a statement for this NMC hearing. Although there were some inconsistencies in his accounts, the panel decided that this would not be unexpected given the close scrutiny that had been paid to his account, but concluded that in general, he was an honest and reliable witness. The panel considered that Ms 2 was clear and consistent in her evidence, and gave a straight forward account of what she recalled in relation to the allegations following Mr 1 telling her about the incident during his shift on 3 February The panel took into account that Ms 2 was clear as to what she believed she witnessed when she checked Resident A on 3 February 2016, and she recognised there were shortcomings in the way the Home conducted the investigation into Resident A. She was able to challenge questions put to her during cross examination and maintained her position. She made it clear that she was not a witness to the incident and she did concede that it was possible that there could be other reasons for the injuries. However, the panel took into account that she remained consistent in her evidence that the injuries that she witnessed corroborated with what Mr 1 told her on 3 February The panel noted that this was her first experience with a Safeguarding incident and that might explain why some of the procedures that she had followed could perhaps demonstrate room for improvement. The panel decided that Ms 2 did assist the panel to the best of her ability. The panel took into account that Ms 4 and Mr 5 were witnesses called on your behalf that spoke to your credibility and were not eye witnesses to the allegations. The panel had no reason to challenge this evidence. The panel took into account your oral evidence [PRIVATE]. 6

7 The panel then went on to consider the following charges: That you, a registered nurse, on 31 January 2016, regarding Resident A you: Charge 1: 1. Grabbed Resident A s wrist on one or more occasion The panel took into account the evidence of Mr 1, Ms 2 and your oral evidence, as well as all the documentary evidence before it. Mr 1 s NMC statement stated that on On 31 January 2016 I was working a night shift at the Home. The registrant was the Registered Nurse in charge of the floor. At around 22:00-22:30. The registrant was holding Resident A s right wrist as she was slapping him. In oral evidence, Mr 1 told the panel that he disagrees with your position that you never actually grabbed Resident A s wrist which would hurt Resident A. It was put to Mr 1 that he was mistaken and that it was Resident A who tried to grab your wrist, however, Mr 1 told the panel that he was not mistaken and that Resident A did not have the strength to grab your hand. [PRIVATE]. The panel had sight of Resident A s notes dated 1 February 2016, which you stated were completed by you, and noted that you have written that Resident A was very aggressive overnight. [PRIVATE] the panel concluded that if this was a genuine entry it would have contained more information. The panel was mindful of NMC guidance on the importance of full and accurate note taking in these circumstances. This would enable further investigation and action if necessary. The panel examined the medical records after 31 January 2016 and prior to 3 February 7

8 2016, and there were no other recorded events that account for these injuries. Ms 2 s evidence was that Mr 1 saw her on shift on 3 February 2016 and he told her that Resident A had been restrained whilst she had been given medication by you. Ms 2 s evidence was that she observed injuries consistent with Mr 1 s account. She told the panel that she took her own pictures for safeguarding purposes and they were clearer than they were on the 8 th of February. The panel accepted Mr 1 s account that he saw you grab Resident A s wrist and that you were grabbing Resident A s left wrist very firmly so she couldn t move. The panel also accepted Ms 2 s evidence which was that Mr 1 s version of events corroborated with the injuries she observed on Resident A. The panel did have sight of three coloured photographs taken of Resident A s left wrist which illustrates that there is an area of bruising. Furthermore, the panel had sight of a body map completed for Resident A on 4 February 2016 which was completed by Ms 2 and another registered nurse, and noted that there is bruising to the left wrist recorded on this body map. The panel also took into account the minutes of investigatory meetings with Resident A dated 4 February 2016 at 10am which stated that a physical examination was carried out on Resident A and that there was Left forearm large bruise approx.. 2 inches across, oval shaped, smaller circular bruise on inner aspect of wrist. Right wrist two small bruises. Based on all the information before it, [PRIVATE] The panel determined that based on all the evidence before it, you did grab Resident A s wrist on one or more occasion during your shift on 31 January Accordingly, the panel found charge 1 PROVED. Charge 2: 8

9 2. Told Resident A words to the effect of if you hit me again I am going to hit you back or if you do it again, I can do it to you The panel took into account the evidence of Mr 1, Ms 2 and your oral evidence. Mr 1 s NMC witness statement stated, Resident A became aggressive slapping the registrant s hand whenever the registrant tried to give Resident A yoghurt. This angered the registrant and he said something like if you do that again, I can do it back to you. This was consistent with his oral evidence in which he said that the registrant attempted to give Resident A yoghurt and Resident A was refusing by tapping your hand and that after this you said, If you do that I will do back to you. This was confirmed in his oral account, in which he said that was the wording by the registrant. [PRIVATE]. When considering the evidence in respect of this charge, the panel considered that there are inconsistencies with Mr 1 s evidence in respect to this incident. For example, the panel noted that in the Kingston Crown Court transcript dated 14 March 2017, Mr 1 said that you said Try and pinch me. I can do it too. The panel concluded that, although it is likely something was said, it is difficult to be precise about the words that were used in the heat of the moment. As there was some uncertainty around what may or may not have been said, the panel concluded that on the balance of probabilities this allegation was not made out. Accordingly, the panel found charge 2 NOT PROVED. Charge 3: 3. Threw Resident A s yoghurt pot The panel took into account the evidence of Mr 1 and your oral evidence, as well as all the documentary evidence before it. 9

10 Mr 1 told the panel that on 31 January 2016 you had a spoon of yoghurt in your hand for Resident A and when you approached Resident A, that was the time it got smudged around her mouth. Mr 1 said that the yoghurt pot spilled down from the corner of Resident A s bed and made the duvet dirty. In his evidence before the panel however, Mr 1 made it clear that you had not thrown the yoghurt pot, but explained that it had been placed on the end of the bed and had fallen as a result of Resident A s movement. [PRIVATE]. The panel decided that the NMC has not proved, on the balance of probabilities, that you threw Resident A s yoghurt pot and there is no evidence before the panel to say that this occurred. Accordingly, the panel found charge 3 NOT PROVED. Charge 4: 4. Slapped Resident A The panel took into account the evidence of Mr 1, Ms 2 and your oral evidence, as well as all the documentary evidence before it. In oral evidence Mr 1 told the panel that around this time Resident A was deteriorating and she was not herself. He told the panel that after you tried to administer the yoghurt with the medication to Resident A again, she spat on you and you lost your temper and you gave a big slap to Resident A s left collar bone. Mr 1 demonstrated this action to the panel. Mr 1 told the panel in oral evidence that when you slapped Resident A, that was the worst thing that he saw during these incidents. He said that a vein popped up on Resident A s collar bone and it left a red mark which was visible on Resident A. Mr 1 10

11 said this was a slap with your open palm which he could hear. Mr 1 told the panel that he was shocked at your behaviour when you slapped Resident A on the shoulder. Mr 1 said he did not know what to do so he turned his back to you and Resident A. He told the panel that when you see a different reaction in a human you get frightened yourself. Mr 1 said that after this incident, Resident A looked numb and did not say anything and seemed to be recoiling from you. Ms 2 s evidence was that she saw a very faint discolouration of Resident A s shoulder when she went to inspect Resident A on the morning of 3 February Ms 2 said that she completed a body map on 4 February 2016 with Mr 6, and it says on the bottom body map that there was redness and slight bruising. [PRIVATE]. The panel noted that the minutes of the investigatory meeting with Resident A dated 4 February 2016 stated No mark/bruising/redness visible on the left shoulder now. However, the panel accepted Ms 2 s evidence in that she saw a mark on Resident A s shoulder, which corroborates Mr 1 s account in a limited manner. Mr 1 has not wavered in his recollection of you slapping Resident A throughout two internal investigations at the Home, police enquiries, a Crown Court trial and this NMC hearing. The panel accepted that Mr 1 had witnessed you slap Resident A on 31 January Accordingly, the panel found charge 4 PROVED. Charge 5: 5. Spread yoghurt on Resident A s face Mr 1 explained to the panel that on 31 January 2017, you were not spreading yoghurt 11

12 all over Resident A s face but this had happened when you were trying to feed her and she refused to eat the yoghurt. As Resident A was shaking her head during the process, the panel accepted that this was not intentional and therefore concluded that this charge was not proved. Accordingly, the panel found charge 5 NOT PROVED. 6. Pinched Resident A Mr 1 told the panel that Resident A was wearing a short night dress and that she was wearing this on 31 January In various minutes, statements and oral evidence, the panel found there were various descriptions about you digging and pinching Resident A by Mr 1. During his oral evidence Mr 1 demonstrated this pinching action on his own thigh. Mr 1 said he could not specify the exact spot on Resident A, but that it was around this area demonstrating a grabbing motion on his leg. In Mr 1 s statement dated 31 March 2017, he said Resident A was shouting and the registrant was holding Resident A s left wrist digging his nails into her skin. Ms 2 told the panel that she saw marks on Resident A s left wrist. The panel noted that the records at the Home between 31 January 2016 and 4 February 2016 do not give any other explanation as to the potential cause of these pinches. The panel took into account the minutes of investigatory meetings with Resident A dated 4 February 2016 at 10am which stated that a physical examination was carried out on Resident A and that there was Left forearm large bruise approx.. 2 inches across, oval shaped, smaller circular bruise on inner aspect of wrist. Right wrist two small bruises. The panel concluded that the likelihood is that these marks were caused by the incident on 31 January [PRIVATE]. 12

13 The panel heard a great deal of evidence about a scratch on Resident A s leg. The panel decided that it could not conclude that the linear scratch mark described on the body chart dated 4 February 2016, and shown in the photograph taken on 8 February 2016, had been caused during this incident. The panel noted however, that in his statements, Mr 1 indicated that there were a number of instances of you grabbing or pinching Resident A. Although there were one or two minor inconsistencies in Mr 1 s account, the panel accepted that you had pinched or grabbed Resident A in an inappropriate manner as the charge alleged, and accepted his demonstration about this incident. Your behaviour contributed toward Mr 1 later voicing his concerns. Accordingly, the panel found charge 6 PROVED. Application by Ms Iyer, on your behalf, to vacate this hearing: Ms Iyer, on your behalf, made an application to vacate this hearing at this stage of proceedings as you wished to provide references to the panel but have not been able to produce copies in the time available to you. She told the panel that you were willing to continue to work under your current interim conditions of practice order. The two documents you wish to produce relate to your health. Ms Iyer said that you can provide other testimonials and references as well. Ms McDonnell, on behalf of the NMC, objected to your application on public interest grounds. The panel heard and accepted the advice of the legal assessor. 13

14 The panel decided that it was not necessary to vacate the hearing but agreed to resume at 10am on day 5 to give you an opportunity to obtain the references that you wish to produce. The panel therefore decided to adjourn the hearing until 10am on day 5. Ms 7 evidence via telephone: Ms Iyer made an application to hear character evidence of Ms 7 via Webex/video link. Ms McDonnell, on behalf of the NMC did not object to this application. The panel therefore heard evidence from Ms 7 via telephone, due to the Webex/video link not working during the hearing, despite a successful test via Webex/ video link. Application under Rule 19: An application was made by Ms Iyer, on your behalf, to hold the hearing in private under Rule 19 of the Rules in relation to your oral evidence at the misconduct/impairment stage. The application was made in relation to your health and personal circumstances. Ms McDonnell, on your behalf, told the panel that she did not object to this application. The panel heard and accepted the advice of the legal assessor. The panel initially decided to hold part of the hearing in private. However, given your indication that it will be difficult to separate your private oral evidence from your public oral evidence, the panel subsequently determined to hold the entire hearing in private. Both parties did not object to proceeding with your evidence entirely in private session. Submissions on misconduct and impairment: 14

15 The panel then considered whether the facts found proved amount to misconduct and, if so, whether your fitness to practise is currently impaired. The panel acknowledged that misconduct and impairment were matters for its own independent judgement. The panel bore in mind that misconduct is a word of general effect relating to actions or omissions falling seriously short of the standards expected of a registered nurse; there was no burden of proof on either party at this stage. The panel also recognised its obligation to have regard to the public interest. The public interest includes not only the protection of patients, but also the declaration and upholding of proper standards of conduct and behaviour, and the maintenance of public confidence in the profession and its regulator. In considering the issue of misconduct and current impairment the panel had regard to all of the relevant evidence available to it, including an impairment bundle provided by you at this stage in the proceedings, which included a number of references from colleagues, and other testimonials, as well as referring to CQC reports. The panel took account of the oral evidence given by you; the submissions made by Ms McDonnell on behalf of the NMC, and the submissions made by Ms Iyer on your behalf. The panel also had regard to written testimonials provided on your behalf as well as the oral evidence of Ms 4, Mr 5 and Ms 7. In her submissions, Ms McDonnell, on behalf of the NMC, invited the panel to take the view that the three serious charges found proved amounted to a departure from key elements of The Code: Professional Standards of Practice and Behaviour for Nurses and Midwives 2015 ( the Code ); 1.1, 2.5, 2.6, 3.4, 4 (in particular 4.3), 10, 14, 16.5, 20, 21. Ms McDonnell 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. Ms McDonnell 15

16 submitted that you are a person who has lost your temper, physically abused a lady in your care who is without capacity and have shown no insight or remorse. She invited the panel to consider training certificates that you have been provided in relation to Safeguarding and challenging behaviour, as well as your testimonials and oral evidence of character witnesses. However, she told the panel that you have been working for a relatively short period of time. She submitted that it has been some 2 years since the incident, and to date you have denied what took place on 31 January 2016, denying that you slapped, pinched and grabbed Resident A. She submitted that it is in the public interest and for the protection of the public, that a finding of impairment be made. You then gave evidence to the panel. [PRIVATE]. Ms Iyer referred to a number of positive reports/assessments/ testimonials/ references that have been provided on your behalf, and submitted that your quality of care has been consistent throughout your employment since the incident. You have been compliant with your current interim conditions of practice order to date. She also invited the panel to consider approximately 17 certificates of training, which demonstrates that you are capable of learning from this incident. The panel has accepted the advice of the legal assessor. The panel adopted a two-stage process. 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. Decision on misconduct: When determining whether the facts found proved amount to misconduct the panel had regard to the terms of The Code: Professional Standards of Practice and Behaviour for Nurses and Midwives 2015 ( the Code ). 16

17 It found the following extracts of the Code were engaged in this case: Prioritise People You put the interests of people using or needing nursing or midwifery services first. You make their care and safety your main concern and make sure that their dignity is preserved and their needs are recognised, assessed and responded to. You make sure that those receiving care are treated with respect, that their rights are upheld and that any discriminatory attitudes and behaviours towards those receiving care are challenged. 1 Treat people as individuals and uphold their dignity To achieve this, you must: 1.1 treat people with kindness, respect and compassion 2 Listen to people and respond to their preferences and concerns 2.6 recognise when people are anxious or in distress and respond compassionately and politely. 4 Act in the best interests of people at all times 4.3 keep to all relevant laws about mental capacity that apply in the country in which you are practising, and make sure that the rights and best interests of those who lack capacity are still at the centre of the decision-making process, and 8 Work cooperatively 8.5 work with colleagues to preserve the safety of those receiving care 10 Keep clear and accurate records relevant to your practice 10.2 identify any risks or problems that have arisen and the steps taken to deal with them, so that colleagues who use the records have all the information they need 17

18 Preserve Safety You make sure that patient and public safety is protected. You work within the limits of your competence, exercising your professional duty of candour and raising concerns immediately whenever you come across situations that put patients or public safety at risk. You take necessary action to deal with any concerns where appropriate. 14 Be open and candid with all service users about all aspects of care and treatment, including when any mistakes or harm have taken place To achieve this, you must: 14.1 act immediately to put right the situation if someone has suffered actual harm for any reason or an incident has happened which had the potential for harm 14.3 document all these events formally and take further action (escalate) if appropriate so they can be dealt with quickly. 17 Raise concerns immediately if you believe a person is vulnerable or at risk and needs extra support and protection 17.3 have knowledge of and keep to the relevant laws and policies about protecting and caring for vulnerable people. Promote professionalism and trust You uphold the reputation of your profession at all times. You should display a personal commitment to the standards of practice and behaviour set out in the Code. You should be a model of integrity and leadership for others to aspire to. This should lead to trust and confidence in the profession from patients, people receiving care, other healthcare professionals and the public. 18

19 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 20.5 treat people in a way that does not take advantage of their vulnerability or cause them upset or distress The panel recognised that not every instance of falling short of what would reasonably be expected in the circumstances, nor every breach of professional standards, would, in itself, necessarily constitute misconduct sufficiently serious that it can properly be described as misconduct going to a nurse s fitness to practice. However, taking consideration of the facts found proved in this case, and having taken into account all the material and submissions before it, the panel concluded that your behaviour in relation to the elements of charges 1, 3 and 6, taken individually and collectively, represented a serious departure from the standards expected of a registered nurse. The panel further considered that any member of the public or nursing profession would consider your actions towards a vulnerable elderly resident, which amounted to abuse, was deplorable. The panel determined that charges 1, 3 and 6 collectively amount to misconduct. Decision on impairment: The panel next went on to decide if, as a result of your misconduct, your fitness to practise is currently impaired. In considering the issue of impairment, the panel had regard to all the relevant information available to it. In reaching its conclusion, the panel took account of the guidance advanced by Dame Janet Smith in her Fifth Shipman Report cited with approval by Mrs Justice Cox in the case of Grant and concluded that you: 19

20 (a) Have in the past brought and/ or are liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or (b) Have in the past brought and/ or are liable in the future to bring the profession into disrepute; and/or (c) Have in the past brought and/ or are liable in the future to breach one of the fundamental tenets of the profession. The panel considered that by grabbing Resident A s wrists, slapping her and pinching her, your actions amounted to abuse of a patient in your care and did result in significant harm to Resident A. The panel noted that the public does not expect nurses to engage in conduct which either has the effect of, or significantly risks causing, physical harm of a vulnerable patient. Your actions were such as to undermine public trust and confidence in the profession, and the panel determined that you have breached fundamental tenets of the profession, and departed from the identified paragraphs of the Code. [PRIVATE]. The panel took into account that your failings are remediable, and you have made attempts to remediate your failings, including Safeguarding and Protection of Adults (15 November 2017), Dementia Awareness (30 November 2017), Bed Rails in relation to deprivation of liberty (21 November 2017) and an End of Life Course (27 November 2017), Mental Capacity Act 2005 (MCA) and Deprivation of Liberty (DoLS) training (29 November 2017). The panel also took into account a number of positive testimonials about your working environment since this incident which comment on your practice, as well as favourable evidence that you have been working with dementia patients since 31 January 2016 whilst under supervision. [PRIVATE]. 20

21 Therefore, the panel could not therefore be satisfied that your behaviour would not be repeated in the future. The panel considered that on the basis of the information available to it, your actions did result in significant patient harm, and therefore in the panel s view, a finding of current impairment on public protection grounds is required. The panel then considered whether a finding of impairment was necessary to maintain public confidence in the profession and the NMC. The panel was in no doubt that your past actions did bring the profession into disrepute and that public confidence in the profession would be seriously damaged if a finding of current impairment was not made. Given the circumstances of this case, the panel has also concluded that public confidence in the NMC as a regulator would be undermined if a finding of current impairment was not made. The panel has therefore determined that a finding that your fitness to practise is currently impaired is required on both public protection grounds and public interest grounds, in order to maintain public confidence in the profession and the NMC as its regulator. 21

22 This hearing resumed on 1 March 2018 Application to call evidence by telephone Ms Iyer applied to recall Ms 4, Home Manager from your current place of work Acacia Care Centre. Ms 4 had previously attended and given evidence at the impairment stage. She had also submitted four further letters dated 18 December 2017 to 27 February 2018 which confirmed that you were continuing to work well at the Home and were well thought of. Ms Iyer did not know if Ms 4 could add anything to the account that she had already given but submitted to the panel that as she was available to give telephone evidence, she should be recalled to give her opinion about the outcome of the case. Mr Smalley indicated that he would not have any questions for Ms 4 as the NMC accepted her evidence and confirmed they accepted the content of the four letters dated 18 December 2017, 30 January 2018, 26 February 2018 and 27 February The panel decided that as neither they nor Mr Smalley would have any questions for Ms 4 and her evidence regarding your most recent performance (December 2017 to February 2018) was accepted, there was no need for Ms 4 to be recalled to give further evidence. Determination on sanction Mr Smalley, on behalf of the NMC, outlined the possible aggravating and mitigating factors. He invited the panel to find that, in the light of the seriousness of this case, a striking-off order is the appropriate sanction as the case involved deliberate harm to a vulnerable 85 year old patient, coupled with your lack of insight. Mr Smalley further submitted that any less of an order does not mark the seriousness of this case and does not reflect the NMC Sanction Guidance ( SG ). 22

23 Ms Iyer, on your behalf, submitted that a striking off order would be totally draconian in the circumstances. She submitted that given your previous good character and positive testimonials that a serious caution order or a conditions of practice order may be the most appropriate sanction. She explained that you had been through a great deal of stress due to these and other proceedings and that as you were the main income producer for your family a striking off order would have a major impact upon you which would be totally inappropriate and disproportionate. She relied upon the fact that you have been compliant with all of the conditions imposed upon you since April 2016 and there had been no complaint about any of your practise since that date. Positive testimonials were provided by your line Manager for the period from 18 December 2017 to 27 February 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 had regard to all of the evidence in this case including a bundle of new testimonies and training certificates that was submitted on your behalf and your oral evidence. The panel heard submissions from Mr Smalley, on behalf of the NMC and Ms Iyer on your behalf. The panel accepted the advice of the legal assessor. The panel bore in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the 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 first considered what it deemed to be the aggravating and mitigating factors in this case and determined the following: 23

24 Aggravating factors: You caused deliberate harm to a vulnerable patient; You have not demonstrated any evidence of insight and remediation. Mitigating factors: You have produced a number of most recent positive testimonials and training certificates; You were of previous good character; This is a one off incident. 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 taking no further action would not protect the public and it would not satisfy the wider public interest in this case. The panel next considered whether to impose a caution order, and 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 Fitness to Practise Committee wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that your misconduct was serious and not at the lower end of the spectrum of impaired fitness to practise and therefore a caution order would be inappropriate in view of the seriousness of the case. The panel decided that imposing a caution order would not protect the public and it would not satisfy the wider public interest in this case. 24

25 The panel next considered whether to impose a conditions of practice order. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the SG. The panel considered that due to the seriousness of the case, conditions of practice would not protect the public. The panel concluded that there are no practical or workable conditions that could be formulated that could properly address the specific nature of your misconduct in this case. The panel then went on to consider whether a suspension order would be an appropriate sanction. The panel considered in detail the criteria for a suspension order that are set out in the SG. The panel concluded that this was a single instance of misconduct although there were multiple allegations within it. The panel also accepted there was no evidence of harmful deep seated or attitudinal problems or evidence of repetition of behaviour since the incident. The panel accepted submissions that had been made on your behalf that it is difficult to demonstrate insight where allegations are denied however the panel concluded that at no time during the case, even though you gave evidence on three occasions, did you mention any effect that this misconduct may have had upon Resident A. Furthermore the panel decided that, although you have undertaken a range of training courses, you had failed to address the risk of repetition of such an incident. As the panel has already made findings that your actions constituted abuse towards a vulnerable elderly resident which was deplorable, a suspension order would not be appropriate. This misconduct is fundamentally incompatible with continuing to be a registered nurse or midwife and the public interest would not be satisfied by a suspension order. The panel then went on to consider a striking-off order and again considered the questions set out in the SG in particular whether the conduct represents: 25

26 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, particularly patients or other people the nurse or midwife comes into contact with in a professional capacity. Harm is relevant to this question whether it was caused deliberately, recklessly, negligently or through incompetence, particularly where there is a continuing risk to patients. 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 violent conduct, whether towards members of the public or patients, where the conduct is such that the public interest can only be satisfied by removal.... The panel considered that the misconduct in this case did involve doing harm to others, with Resident A, an elderly, vulnerable patient suffering from dementia. The panel considered that by acting in the manner in which you did, you abused your position of trust. By grabbing a resident by the wrist, slapping and pinching a resident, the panel considered that your conduct was violent and furthermore the panel considered that you had demonstrated a lack of insight into the seriousness of your actions and their consequences. The panel was of the view that assaulting a patient should be a never event. The panel noted that the particular circumstances leading up to the incident were not of an exceptional nature, you are an experienced nurse in dealing with the behaviour of residents with dementia and your actions towards Resident A was deplorable. 26

27 Your actions demonstrated a significant departure from the standards expected of a registered nurse, and are therefore fundamentally incompatible with you remaining on the register. The panel was of the view that the findings in this particular case demonstrate that your actions were so serious, that to allow you to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body. Balancing all of these factors and after taking into account all the evidence before it during this case, the panel determined that the only appropriate and proportionate sanction is that of a striking-off order. Having regard to the matters it identified, in particular the effect of your actions in bringing the profession into disrepute by adversely affecting the public s view of how a registered nurse should conduct himself, the panel has concluded that nothing short of this would be sufficient in this case. The panel considered that this order was necessary to mark the importance of maintaining public confidence in the profession, and to reinforce to the public and the profession a clear message about the standard of behaviour required of a registered nurse. 27

28 Determination on Interim Order Under Article 31 of the Nursing and Midwifery Order 2001 ( the Order ), the panel considered whether an interim order should be imposed in this case. A panel may only make an interim order if it is satisfied that it is necessary for the protection of the public, and/or is otherwise in the public interest, and/or is in the registrant s own interests. Mr Smalley, on behalf of the NMC, submitted that an interim order for a period of 18 months should be made on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. Ms Iyer, on your behalf, opposed the application for an interim suspension order. She submitted that the conditions of practice order that you have been subject to before this hearing sufficiently protect the public and address the public interest. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision to impose a striking-off order in reaching the decision to impose an interim order. To do otherwise would be incompatible with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by the striking-off order 28 days after you are sent the decision of this hearing in writing. That concludes this determination. 28