Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ

Transcription

1 Conduct and Competence Committee Substantive Hearing Tuesday 7 March 2017 And Wednesday 8 March 2017 And Thursday 9 March 2017 And Friday 10 March 2017 (part heard) Resumed on: Wednesday 26 April 2017 And Thursday 27 April 2017 And Friday 28 April 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Ikweninkie Bafikele 06I0254E RNMH, Registered Nurse (sub part 1) Mental Health (7 December 2006) England Misconduct Jane Kivlin (Chair Registrant member) Susan Foster (Registrant member) Deborah Jones (Lay member) Ian Ashford-Thom Aadil Anwar Mr Bafikele present and represented by Jude Imoh of Just and Brown solicitors 1

2 Nursing and Midwifery Council: Represented by Ms Helen Guest, Counsel, instructed by NMC Regulatory Legal Team (7, 8, 9 and 10 March 2017) Represented by Mr Neil Jeffs, Counsel, instructed by NMC Regulatory Legal Team (26, 27 and 28 March 2017) Facts proved: 1, 2, 3, 4, 5, 6, 7, 8, 9 Facts proved by admission: - Facts not proved: - Fitness to practise: Sanction: Interim Order: Impaired Striking-off order Interim suspension order (18 months) 2

3 Details of charge: That you, a registered nurse 1. Whilst employed by Barnet, Enfield and Haringey Mental Health NHS Trust as a staff nurse acted in an aggressive and/or inappropriate manner towards Patient A on 3 July 2014 And in light of the above your fitness to practise is impaired by reason of your misconduct 3

4 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 Ms Guest, on behalf of the NMC, and those made by Mr Imoh 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 is satisfied that it was more likely than not that the incidents occurred as alleged. Background The allegations in the charge arose whilst you were employed as a band 5 Registered Mental Health Nurse by Barnet, Enfield and Haringey Mental Health NHS Trust ( the Trust ). You normally worked for the Trust at Chase Farm Hospital ( the hospital ) on Sussex Ward. On this occasion, however, you were working an additional 12 hour day shift as a bank nurse on Dorset Ward ( the ward ). You were sitting in an arm chair in the lounge area of the ward. There were two or three patients sitting in the lounge. Patient A was sitting at a table reading. In relation to where you were seated, the table at which he was sitting and, closer to you, a row of arm chairs, were positioned between you and him. At about hours, Mr 1, a Health Care Assistant, approached you and asked you to assist him taking another patient outside for a cigarette break. It is alleged that you refused this request. Patient A overheard the exchange between you and Mr 1 and intervened by verbally abusing you for refusing to help. 4

5 It is alleged that you then reacted to Patient A s abuse in an aggressive and/or inappropriate manner by rising from your seat, pointing your finger at him and striding round the row of chairs towards the table where he was sitting while remonstrating with him. It is also alleged that you removed the lanyard with your ID badge from around your neck as a sign of aggression. As you approached Patient A, he rose from his seat and strode round the table towards you to confront you. You both stopped close to and facing one another, with Patient A, who was significantly bigger than you, facing down towards you. At this point the alarm was activated by Mr 1 and the Acting Ward Manager and others quickly arrived at the scene and intervened. There was a flash of movement between you, which appears to have involved an attempt by Patient A to assault you. After the incident, Patient A alleged that you had assaulted him by punching him. However, this allegation was investigated by both the Police and the Trust and was found to be without foundation. At the outset of the hearing, the Case Presenter made it clear that it was not suggested by the NMC that you assaulted Patient A. The panel entirely accepted that you did not assault Patient A. The panel has had sight of a CCTV recording of the lounge area which captured the incident as it happened. In reaching its decisions on the facts, the panel considered all the oral and documentary evidence in this case. The panel heard oral evidence from two witnesses called on behalf of the NMC: Mr 1, a Health Care Assistant and Mr 2, a Ward Manager at the Trust. The panel also heard evidence from you under oath. 5

6 The panel found the NMC witnesses to be credible and reliable. In relation to Mr 1, the panel found him to be credible. The panel noted that he was the only person called at the hearing who was an eye witness to the incident. The panel believed that he was trying to answer questions honestly despite being significantly challenged by Mr Imoh in his recollection of the events. The panel also found Mr 2 to be a credible and reliable witness. The panel bore in mind that his role was to investigate an allegation of an assault. He took over the investigation from another manager. In addition, the panel noted that Mr 2 s role in the investigation was to merely identify issues in relation to the alleged incident and not to make an autonomous decision regarding the outcome of the investigation. His report in relation to the alleged incidents was to inform the Trust s decision whether to progress matters further. You also gave evidence under oath. The panel found your evidence at times to be evasive, unclear and inconsistent. The panel considered that you were unwilling to accept personal responsibility for your actions and repeatedly attempted to shift that responsibility onto others, including Patient A. The panel also considered that you lacked the clinical judgement one would expect of an experienced Registered Mental Health Nurse working in an acute ward regarding the needs and behaviours of patients. The documentary evidence before the panel included Patient A s handwritten account of the incident dated 7 July 2014 on a complaint form. For reasons identified by the legal assessor in his advice, the panel concluded that it would not be safe to place any reliance on this evidence. The panel considered the allegations in the charge and made the following findings: Charge 1: That you, a registered nurse 6

7 1. Whilst employed by Barnet, Enfield and Haringey Mental Health NHS Trust as a staff nurse acted in an aggressive and/or inappropriate manner towards Patient A on 3 July 2014 This charge is found proved. In reaching this decision, the panel took into account the evidence, in particular, the CCTV footage. The panel noted that you were seated whilst conversing with Mr 1. The panel accepted that Patient A intervened by verbally abusing you, and that this included racial abuse. The panel was satisfied that you reacted inappropriately by rising from your seat, pointing your finger at Patient A and hurriedly walked round the row of chairs towards the table where he was sitting. In cross-examination, you accepted that your behaviour had been inappropriate. You did not accept, however, that you were aggressive. You told the panel that the effect on you of Patient A s abuse was bad. In cross-examination you said that you felt insulted, but that you were not angry or aggressive. You told the panel that you were seeking to de-escalate the situation. You considered it appropriate to tell Patient A at once that his behaviour was unacceptable. The panel had no doubt that your actions in rising rapidly from your seat, pointing your finger at Patient A and walking rapidly towards him were confrontational and aggressive. The panel rejected your assertion that you were trying to de-escalate the situation. It must, or should, have been obvious, to you as an experienced Registered Mental Health Nurse, that your actions were likely to inflame the situation by provoking Patient A, as they in fact did. 7

8 The panel determined that many of the interventions in the Prevention and Therapeutic Management of Violence and Aggression (PTMVA) Policy were not followed, in particular: De-Escalation: Actively listen to what the patient is saying Remain calm. Maintain eye contact, avoid staring and maintain an appropriate tone of voice Avoid signalling your anger or even your potential aggression (Through verbal and non-verbal behaviour) Avoid heavy criticism or being contrary Above all you must be perceived as trying to help In addition, the panel also determined that you, as a ward based member of staff, breached the following parts of the Trust s policy, at page 195: 3. We must gauge our own stress levels and assess whether our own judgement is impaired 7. Try to place physical barrier between you and your patient i.e. a table. 9. Be aware of personal space. (Remain at least arms and legs length away). 10. Adopt appropriate body stance. (Side on, open hands). 13. Avoid any provocation whether verbal or non-verbal. 17. Observe all signs whether they are verbal or non-verbal and act upon them. The panel did not accept your assertion that your reaction would have been entirely different had you been made aware at handover that Patient A had a history of violence and aggression. The panel was satisfied that you should, as an experienced Mental Health Nurse, have been well aware that any patient detained under the Mental Health Act on an acute psychiatric ward might have such a history, or might act in an unpredictable manner. 8

9 The panel also rejected your evidence that you stood up to make your way to the office. The panel was satisfied that the nearest entry to the office was in the opposite direction to that in which you were walking. The panel, however, did not find that your action in removing your broken lanyard with your ID badge was aggressive or inappropriate in the circumstances. The panel accepted that you did this for your own safety. For the above reasons, the panel found the charge proved. Following the announcement of its findings on fact in relation to charge 1, the panel was then told by the Case Presenter that there were further charges to consider. As they related to convictions and a caution, in accordance with Rules 29 (2) of the Nursing and Midwifery (Fitness to Practise) Rules 2004 ( the Rules ) the panel had not been informed of them until after the allegation in Charge 1 had been heard and determined. Details of charges: That you, a registered nurse 2. Were convicted on 26 November 2004 at the Magistrates sitting at Haringey of driving a motor vehicle with excess alcohol contrary to section 5 (1) (a) of the Road Traffic Act Did not declare your 2004 conviction on the Notification of Practice form dated 25 November Did not declare your 2004 conviction on the Notification of Practice form dated 4 December Your conduct as alleged in charges 3 and/or 4 were dishonest, in that you: 9

10 (a) knew that you were required to disclose/declare your conviction(s) in the Notification of Practice form(s), but did not do so; (b) intended to conceal the fact that you had received the conviction(s) in question and/or create the impression that you had not received such conviction(s) 6. Were convicted on 7 March 2014 at the Magistrates sitting at North London of driving a motor vehicle with excess alcohol contrary to section 5 (1) (a) of the Road Traffic Act On 14 January 2016 accepted a police caution for common assault 8. Did not inform the NMC of your police caution dated 14 January 2016 in a timely manner 9. Your conduct as alleged in charge 8 was dishonest in that you: (a) knew that you were required to disclose/declare the police caution to the NMC, but did not do so; (b) intended to conceal the fact that you had received the police caution in question and/or create the impression that you had not received such a caution And in light of the above your fitness to practise is impaired by reason of your convictions in relation to charges 2 and 6 above, by reason of your caution in relation to charge 7 above, and by reason of your misconduct in relation to 3, 4, 5, 8 and 9 above. Admissions You admitted the following charges; That you, a registered nurse 10

11 2. Were convicted on 26 November 2004 at the Magistrates sitting at Haringey of driving a motor vehicle with excess alcohol contrary to section 5 (1) (a) of the Road Traffic Act Did not declare your 2004 conviction on the Notification of Practice form dated 25 November Did not declare your 2004 conviction on the Notification of Practice form dated 4 December Were convicted on March 2014 at the Magistrates sitting at North London of driving a motor vehicle with excess alcohol contrary to section 5 (1) (a) of the Road Traffic Act On 14 January 2016 accepted a police caution for common assault The Chair therefore announced that the facts of these five charges were found proved. The panel then went on to consider the remaining charges. The panel received in evidence the agreed witness statements dated 22 July 2016 and 24 August 2006 of David Dewar, a Senior Case Investigation Officer employed by the NMC, together with a bundle of documents relied on by the NMC. The panel also received from you your letter of self-referral dated 4 September 2015 and a number of documents relating to your police caution for common assault. You gave oral evidence to the panel on oath. The panel found you to be evasive, selfcontradictory and lacking in honesty and credibility as a witness. You once again demonstrated a lack of responsibility for your actions as an experienced Registered Mental Health Nurse. 11

12 In reaching its decisions on the facts, the panel considered all the evidence adduced in this case together with the submissions made by Ms Guest, on behalf of the NMC, and those made by Mr Imoh 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 is satisfied that it was more likely than not that the incidents occurred as alleged. Background and findings of fact You yourself made a referral to the NMC received on 9 September 2015 in respect of two convictions for driving a motor vehicle with excess alcohol. The caution, dated 14 January 2016, had not yet been administered. Your self-referral was in respect of the two convictions. Charge 2 relates to the first conviction. The memorandum of conviction shows that the offence was committed on 13 October The alcohol level is recorded as A109. It is not clear from this whether the figure relates to alcohol in breath, blood or urine. Your evidence, however, was that the police tested your breath five times on this occasion. The legal limit for driving with alcohol is 35 micrograms in 100 millilitres of breath. You were disqualified from driving for 12 months and fined 150. In your evidence you told the panel that you had dined in a restaurant with a friend who gave you a bottle of energy drink. You did not know it contained alcohol as your friend did not inform you of this and there was nothing to indicate this on the bottle. In cross-examination, however, you admitted that you had realised that it contained alcohol immediately after you had drunk it. Despite this you decided to drive because although you had consumed alcohol, you did not think that you were drunk and did not feel unsafe to drive. You stated in your letter to the NMC dated 4 September 2015 that I was in full control of the vehicle I was 12

13 driving and was not under influence although I was found to be over the legal drink limit. Charge 6 relates to the second conviction. The offence took place on 13 February The alcohol level was 51 micrograms in 100 millilitres of breath. You were disqualified from driving for 36 months, fined 200 and ordered to pay some costs. The period of disqualification was reduced by 9 months because you attended an alcohol awareness course. You told the panel that you had had one or two glasses of wine on this occasion. You told the panel that you had given up alcohol following this conviction. You produced a letter dated 17 September 2015 from your GP stating that you have no recorded history of alcohol or drug related issues over the 13 years you have been registered with the practice. You admitted that you did not declare your 2004 conviction on the Notification of Practice forms completed by you on 25 November 2009 and 4 December Charge 5: 5. Your conduct as alleged in charges 3 and/or 4 were dishonest, in that you: (a) knew that you were required to disclose/declare your conviction(s) in the Notification of Practice form(s), but did not do so; (b) intended to conceal the fact that you had received the conviction(s) in question and/or create the impression that you had not received such conviction(s) This charge is found proved. In reaching this decision, the panel took into account all the documentary evidence before it and had regard to the oral evidence given by you under oath. 13

14 Initially, you claimed that you did not know that you were required to declare your convictions to the NMC because you had informed your employer of the convictions and assumed that your employers would inform the NMC. You pointed out that you had voluntarily disclosed the convictions in your letter of self-referral to the NMC dated 4 September You told the panel that you had done this because you had declared the convictions to a new employer at an interview for employment and had been advised by the interviewer that you should have disclosed them to the NMC. You pointed out that this advice is referred to in the last paragraph of your letter and that your new employer and the name of your interviewer are shown at the bottom of the letter as having been sent a copy of your letter. In cross-examination, however, you at one stage admitted that you had been dishonest when you completed and signed the forms without declaring your conviction on them. You later told the panel, however, that you did not know what dishonesty or deception meant. The panel noted that the terms of the Notification of Practice forms are crystal clear. You were required to put a cross in a Yes box if you had been convicted of a crime since 1 August 2004, other than motoring offences which did not lead to your disqualification from driving for any period of time. You left this box blank. You then signed the forms under a declaration in bold type that all of the above information is a true and accurate statement. You had clearly placed x in the boxes confirming practice hours and CPD. The panel could see no reason for you to confirm these matters and not that in the conviction box, unless you intended the NMC to understand that you had no such convictions. The section of the forms relating to convictions has written below the Yes box the words, If NO, please go direct to Step 2. Step 2 is the box to be signed below the declaration of truth. On the form completed by you on 4 December 2012, you have 14

15 placed a tick beside these words, thereby, on the face of it, expressly asserting that you do not have any such conviction. You told the panel that you did not know why you had made this tick. You said at one point that you did not read the words in this section of the form and that you had just put a tick there without knowing what you were ticking because you were in a hurry. You also said that you did not understand the form very well. The panel did not believe you. The panel found it most implausible that you would have placed a tick beside these words without having read both those words and the words above them, as the meaning of the words beside which you placed your tick could only be understood by reading them in conjunction with those words. The panel did not believe you when you claimed that you believed that you did not need to declare your conviction on the forms as you had assumed your employer would have notified the NMC. Nor did the panel believe you when you claimed that the catalyst for the disclosure of your convictions in your letter of 4 September 2015 was advice in an employment interview. The panel noted that the assault by you on Patient B had occurred on 16 May 2015, and that at the time of your letter you were under the police investigation for that assault which led to your caution on 14 January The panel considered that the most likely explanation for your decision to send that letter was your realisation that the assault which you had committed was likely to be the subject of a referral to the NMC, leading to investigations by the NMC into your criminal record, and that you decided that it would be better for you to disclose your convictions belatedly than have them discovered by such investigations. The panel had no doubt that you knew perfectly well that you were required to disclose your 2004 conviction on the forms and that you deliberately failed to do so because you intended to conceal the fact of the conviction because you were concerned that your livelihood as a registered nurse would be jeopardised had you made such disclosure. 15

16 The panel considered whether your conduct as described above was dishonest by the ordinary standards of reasonable and honest registered nurses. The panel had no hesitation in deciding that it would. The panel then considered whether you yourself must have known that what you were doing was dishonest by those standards. The panel decided that it was obvious that you must have known that this was the case. The panel therefore found charge 5 proved. Charge 8: 8. Did not inform the NMC of your police caution dated 14 January 2016 in a timely manner This charge is found proved. You admitted that on 14 January 2016 you accepted a police caution for common assault. The panel noted that you first informed the NMC of this caution on 16 June This was in a form that the NMC had sent to you for you to complete to allow the police to disclose information in relation to you to the NMC. (It is clear from Mr Dewar s statement of 24 August 2016 that the NMC had discovered the existence of the caution from the Police National Computer on 17 May 2016 in the course of investigating the drink driving convictions.) You denied that this amounted to a failure on your part to inform the NMC of your caution in a timely manner. You claimed that you believed that you were not required to disclose your caution at an earlier date because during this period you were appealing against the caution which you had accepted. You produced correspondence and documents showing that on 11 February 2016 you wrote to the Independent Police Complaints Commission complaining that the decision by the police to give you the caution was unfair because you had been acting in self-defence. You claimed that you believed that, having 16

17 appealed, you were not required to disclose the caution until your appeal had been resolved. The panel noted that 4 weeks elapsed after your caution before you wrote your letter of 11 February The panel also noted the caution form, signed by you on 14 January 2016 confirming the offence and your acceptance of the caution. The panel did not accept that you did not realise what you were signing. Although the panel was not given a clear explanation for the delay in making your appeal, the reasons you gave for the appeal gave the panel considerable concern regarding your judgement in a clinical setting as an experienced Registered Mental Health Nurse. The panel noted the terms of the police caution and the summary of the circumstances of the offence attached to it. It is stated that Patient B had been admitted as a suicide risk suffering from depression to the ward where you were working. Patient B had told you that he wished to leave the hospital. You were attempting to persuade him to remain until he was seen by a consultant when he had lashed out with both arms striking you. You had activated the alarm and a response team attended. They restrained Patient B and escorted him to a seclusion room. You were not present when this was taking place. Patient B had been placed on a bed in the seclusion room with staff holding his arms and legs. After a few minutes the staff appeared to be making him comfortable and he was not fighting them. You then entered the seclusion room. You walked over to one of the walls and looked into a mirror. Within seconds of looking in the mirror you walked over to Patient B who was lying on the bed and punched him twice in the face causing common assault injury. The staff member standing near Patient B s legs then appears to have intervened to stop you from hitting Patient B again. You then left the room. The panel received evidence that at no point on the CCTV does it show the victim fighting back or retaliate [sic]. 17

18 You gave evidence about the incident. You told the panel that you had been badly injured by Patient B. You produced evidence including photographs of your injuries. You suffered an eye injury which required surgery. You told the panel that the pain in your eye was excruciating. You also suffered facial lacerations. You told the panel that you had blood gushing from your face. You told the panel that when you looked in the mirror and saw the extent of your injuries you had an instinctive reaction. You admitted that you struck the patient twice. You told the panel that it is easy to judge if you are not involved. You told the panel that in view of the way you were gushing blood and in pain in your eye the law was not mathematic =2 and there was a human side to your reaction. It was put to you in cross-examination that your behaviour was pure retaliation. Patient B was by then posing no threat to you or to anyone else. You denied that you had assaulted Patient B in retaliation. You claimed that if you had not punched him he would have assaulted other staff. The panel noted the terms of your letter of complaint to the Independent Police Complaints Commission dated 11 February 2016, including the following passage: I had strong pain in my left eye, I went to checked [sic] on the seclusion room s mirror and saw that my face was cover [sic] with blood, I had an emotional reaction, uncontrolled and punched him twice and said stop attacked staffs [sic] for nothing. He replied sorry and I said to him sorry too and left the ward and went to attend A & E. I used that reasonable force to push him back and stop him continue attacking us. My force did not hurt him, no cut, no swollen and no bruise. According to ACT 1967 criminal lawlegislation.gov.uk, regarding the SELF DEFENCE states that: A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. He was ready to attack again. 18

19 The panel wholly rejected your claims that your assault on Patient B was justified on legal or any other grounds. The panel had no doubt that your assault was an inexcusable and criminal act of retaliation against a vulnerable patient. The panel did not believe your claim that you did not realise you were required to declare your caution because you were appealing against it. The panel was satisfied that you were well aware of your duty to disclose your caution promptly to the NMC and that you failed to do so in a timely manner. During this period, you may have been under the illusion that your complaint to the Independent Police Complaints Commission might result in the caution being overturned. The panel accordingly found charge 8 proved. Charge 9: 9. Your conduct as alleged in charge 8 was dishonest in that you: (a) knew that you were required to disclose/declare the police caution to the NMC, but did not do so; (b) intended to conceal the fact that you had received the police caution in question and/or create the impression that you had not received such a caution This charge is found proved. For the above reasons, the panel was satisfied that you knew full well that you were required to disclose your caution to the NMC promptly. The panel was also satisfied that you deliberately failed to do so because you intended to conceal the fact that you had received the police caution because you were 19

20 concerned that your livelihood as a registered nurse would be jeopardised had you made such disclosure. The panel considered whether your conduct as described above was dishonest by the ordinary standards of reasonable and honest registered nurses. The panel had no hesitation in deciding that it would. The panel then considered whether you yourself must have known that what you were doing was dishonest by those standards. The panel decided that it was obvious that you must have known that this was the case. Accordingly, the panel found charge 9 proved. 20

21 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 in charges 1, 3, 4, 5, 8 and 9 amount to misconduct and, if so, whether your fitness to practise is currently impaired by reason of misconduct. The panel also had to consider whether your fitness to practise is impaired by reason of your convictions in charges 2 and 6 and/or by reason of your caution in charge 7. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel heard further oral evidence from you under oath. In addition, the panel also had regard to the documentary evidence that you submitted at this stage, including an ed reference dated 30 March 2017 from Ms 1, the Registered Manager of ANA Nursing, the agency for which you have recently been working as a healthcare assistant. You also provided certificates of your completion of online training courses; your undated written personal reflective piece; a letter from Moorfields Eye Hospital dated 29 June 2016; a letter from the Disclosure and Barring Service dated 3 June 2016; photographs of your injuries following the incident with Patient B; a letter from Islington Housing and Adult Social Services dated 3 June 2015; a photocopy of a receipt of purchase from Eye Value Opticians dated 16 January 2015; an invoice from Eye Value Opticians dated 7 January 2015; death certificates in relation to two of your family members dated 25 July 2014 and 13 May 2015; a letter from Gospel Tabernacle Church of London dated 2 September 2015; a letter dated 14 March 2014 from VMCL Limited in relation to a drink driving course and a letter from Amwell Group Practice dated 17 September In relation to the ed reference dated 30 March 2017, shortly after the panel went into camera to begin its deliberations, the Case Presenter, Mr Jeffs, asked the panel to reconvene. Mr Jeffs told the panel that he had just received s from the Case Officer, who had contacted Ms Luca by telephone and on 26 April 2017 to carry out a routine check in respect of the authenticity of the reference. Whilst it was clear that 21

22 Ms Luca accepted that she was indeed the author of the reference, Mr Jeffs pointed out that Ms Luca had stated in her latest that we are not aware of the current NMC proceedings. Mr Jeffs suggested that this appeared to conflict with your statement in oral evidence that you had informed the agency about these NMC proceedings. Mr Imoh on your behalf submitted that you had not said anything in your evidence which was untrue, although he did not intend to call you to give further evidence as you had found giving evidence very stressful. Mr Imoh then told the panel that you accepted that you had not informed Ms Luca of these proceedings at the time she was asked to provide the reference, although it was not you who had requested it. The panel received and accepted legal advice in respect of this issue. The panel considered that your oral evidence as to what information you had given to the agency in relation to these NMC proceedings had been somewhat vague. The panel was not satisfied that you had said anything in your evidence in relation to this reference which was untrue or which was intended to mislead the panel. The panel accordingly drew no conclusion adverse to you from Ms Luca s latest . In his submissions Mr Jeffs invited the panel to take the view that your actions in charges 1 6 amount to breaches of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the 2008 Code ) and, in respect of charges 7 9, to breaches of The Code: Professional standards of practice and behaviour for nurses and midwives 2015 ( the 2015 Code ). Mr Jeffs identified the relevant paragraphs from the Codes relied on by the NMC. Mr Jeffs 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 22

23 profession and in the NMC as a regulatory body. Mr Jeffs referred the panel to a number of cases including Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Mr Imoh, on your behalf reminded the panel that you have undertaken a course which included elements of conflict resolution and that you have also abstained from alcohol since you were convicted of your second drink driving offence. Mr Imoh also reminded the panel of the personal circumstances at the time of the incident to which charge one related. He explained that these issues clouded your judgement at the time and submitted that you are not an aggressive person. He submitted that you committed the assault for which you received the Police caution as a result of an emotional reaction to the acute pain from your eye injury and the extent of your facial bleeding. The panel has accepted the advice of the legal assessor which included reference to a number of cases which are relevant including: Roylance, Grant and Cohen v GMC [2008] EWHC 581 (Admin). Decision on misconduct In considering this issue, the panel had regard to the 2008 and 2015 Codes. 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 both Codes. Specifically, in respect of the 2008 Code: From the preamble: 23

24 The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must: make the care of people your first concern, treating them as individuals and respecting their dignity provide a high standard of practice and care at all times provide a high standard of practice and care at all times As a professional, you are personally accountable for actions and omissions in your practice, and must always be able to justify your decisions. You must always act lawfully, whether those laws relate to your professional practice or personal life. Numbered paragraphs: 1. You must treat people as individuals and respect their dignity. 3. You must treat people kindly and considerately. 50 You must inform the NMC if you have been cautioned, charged or found guilty of a criminal offence. 61 You must uphold the reputation of your profession at all times. And in respect of the 2015 Code: 1 Treat people as individuals and uphold their dignity 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 24

25 19 Be aware of, and reduce as far as possible, any potential for harm associated with your practice 20 Uphold the reputation of your profession at all times 20.1 keep to and uphold the standards and values set out in the Code 20.2 act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment 20.3 be aware at all times of how your behaviour can affect and influence the behaviour of other people 20.4 keep to the laws of the country in which you are practising 20.5 treat people in a way that does not take advantage of their vulnerability or cause them upset or distress 23 Cooperate with all investigations and audits 23.2 tell both us and any employers as soon as you can about any caution or charge against you The panel appreciated that breaches of the Codes do not automatically result in a finding of misconduct. The panel accepted that, in this case, the incidents that led to the breaches of the above parts of the Codes occurred whilst you were working during a stressful time in your life. However, the panel determined that you, as an experienced Registered Mental Health Nurse, should have been able to act in a professional manner and to implement coping strategies to allow you to function appropriately in the workplace. The panel also noted that there was a period of time between the incidents which should have allowed you to reflect on the earlier incident and to develop appropriate strategies to prevent any repetition. The panel found that the facts of charges 1, 3, 4, 5, 8 and 9 did fall seriously short of the 25

26 standards expected of a registered nurse and amounted to misconduct. The panel was satisfied that your conduct in respect of each of these charges would be viewed as deplorable by fellow registered nurses. With regard to your convictions for drink driving and your caution for assaulting a patient, the panel had no doubt that such convictions and such a caution were sufficiently serious as to impair a registered nurse s fitness to practice. Decision on impairment The panel next went on to decide whether by reason of your misconduct and/or your convictions and/or your caution 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. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. 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 would be undermined if a finding of impairment were not made in the particular circumstances. 26

27 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. The panel finds all four parts of the above test to be engaged, with regard to both the past and your liability in the future. Regarding remorse, insight and remediation, the panel considered your written reflection and your oral evidence that you had reflected upon the incidents and the panel s findings of fact. 27

28 The panel was unimpressed by your written reflection. You informed the panel that the date of this document was 10 March 2017, which was the last day of the first part of this hearing and the date on which the panel handed down its findings of facts. It was then established that you had originally provided the NMC with this reflection on 16 December 2016 in its current form, save for the later insertion by you in handwriting of the word personal before development on the third page. You confirmed that you had reviewed this written reflection following the findings of fact on 10 March 2017, and that, with the addition noted above, it still represented your current reflection on what were now facts found proved. To the extent to which your written reflection purports to consist of reflection on the incidents to which the charges relate, it signally fails to demonstrate convincingly that you have sincerely reflected on the causes of those incidents or that you have understood or accepted your personal responsibility and culpability for their occurrence. On the contrary, your reflection is disturbing in that you persist in blaming others for your behaviour and seek to minimise and excuse your wrongdoing. You continue to qualify your purported acceptance of any responsibility for your behaviour towards Patient A by asserting that I was the victim of abuse from an unprovoked service user when I was talking to my colleague With regard to your responsibility for assaulting Patient B by punching him twice in the face, you preface your reflection on this incident with, Although I am the one who was beaten unprovoked This insistence that you were the victim undermines the sincerity of your expression of regret for reacting emotionally due to acute pain and the way the blood was gassing [sic] from my face. You appear to believe that Patient A s and Patient B s culpability for abusing and assaulting you was no less than your culpability for behaving aggressively towards Patient A and assaulting Patient B. You seem unable to understand that Patient A and Patient B were vulnerable patients in your care and that your reactions to their behaviour were wholly inexcusable. 28

29 At one point, when questioned during the course of your evidence as to how you would feel if Patient B had been a family member or friend of yours, rather than demonstrating insight into why your actions were wrong, you explained that you would be sympathetic to the nurse s actions. Whilst there was some evidence of remorse on your part, including the distress which was apparent to the panel on a number of occasions while you were giving your evidence, the panel was not confident that the origins of this was remorse for the wrong you had done to Patients A and B, or for the impact of your behaviour on the profession, as opposed to feeling sorry for yourself for any detrimental consequences which these proceedings may have on you. With regard to your reflection on your convictions for drinking and driving, it is of considerable concern that you continue to seek to excuse your behaviour, claiming that, in both incidences, I was in full control of the vehicle. I was driving and was not under the influence of alcohol. With regard to reflection on the panel s findings of fact, your written reflection is of no relevance. It pre-dates those findings, and the handwritten addition of the word personal adds nothing of substance to it. The panel found little, if any, reassurance from your oral evidence that you have sincerely reflected further on the incidents giving rise to the charges, or on the panel s findings of fact. Whilst the panel recognised that it would not be realistic to expect you, in the light of the panel s findings, now to admit the facts of the charges you denied, the panel would have expected some evidence of attempts, at least, on your part, to reflect on the rationale for the panel s conclusions, in particular its findings of dishonesty, and some recognition on your part of the damaging impact which a finding by a panel of dishonesty against a registered nurse is likely to have on the profession. There was nothing to suggest that you understood why a failure on the part of a registered nurse to 29

30 comply with his duty to declare convictions and cautions could be seen as dishonest by the ordinary standards of reasonable and honest nurses. In its consideration of what efforts you have made to remediate your deficiencies, the panel took into account the online courses that you have recently completed and the reading you have undertaken. However, the panel was not satisfied that you have taken sufficient steps to undergo in-depth and effective training in conflict resolution, anger management and dealing with challenging behaviour from potentially violent patients. The panel was also concerned by your initial claim that you were up to date with your training. When you were constrained to admit that this was not the case and asked how you would address this, you told the panel that you would ask your employer to find suitable training for you, rather than assuring the panel that you would take the initiative in sourcing suitable training yourself. Once again, you appeared to be attempting to shift your own responsibilities onto others. Given your lack of insight and remediation, and your limited remorse, the panel concluded that there remains a real risk of similar violent or aggressive behaviour towards patients, and a risk of dishonest conduct on your part in the future. Accordingly, the panel found that your fitness to practice is currently impaired on the grounds of the need for 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 and protect the wider public interest, which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding proper professional standards for members of those professions. The panel had no doubt that these objectives would be seriously undermined if a finding of impairment were not made in the particular circumstances of your case. Accordingly, the panel also found that your fitness to practise is impaired on the grounds of public interest. 30

31 Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired by reason of your misconduct, by reason of your convictions and by reason of your caution. 31

32 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 Jeffs, on behalf of the NMC and from Mr Imoh on your behalf. 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 consequences. The panel had careful regard to the Indicative Sanctions Guidance ( ISG ) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel found the aggravating factors in this case to be as follows: There was repeated patient harm; The patients involved were by their nature vulnerable, as in-patients on an acute mental health ward, and under your care; You were in a position of trust and in a privileged position; You were a sign-off mentor for student nurses and, as such, should have been a positive role model; There was repeated dishonesty involving your regulator, designed to avoid or frustrate the regulatory process; Your conduct led to your involvement with the criminal justice system on three occasions; The absence of any meaningful reflection in relation to these incidents and your lack of insight; You have persistently tried to minimise your involvement and your accountability and to excuse your wrongdoing; 32

33 Your actions give rise to significant damage to the reputation of, and public confidence in, the nursing profession. The panel found the mitigating factors in this case to be as follows: There are no previous regulatory findings; There is some evidence of external stressors at the time of the incidents involving Patients A and B; You have engaged with these NMC proceedings, attended these hearings and made some admissions; You have demonstrated some remorse. 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. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the ISG, 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 impairment 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 be neither proportionate nor in the public interest to impose a caution order. 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 took into account the ISG, in particular: 33