Page 1 of 54 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 12 March 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ. 15-16 March 2018, 19-23 March and 26-29 March 2018 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Resumed 10-12 July 2018 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Name of registrant: Mr Stewart Latimer Whyte NMC PIN: 91H0511S Part(s) of the register: Registered Nurse – Sub Part 1 Mental Health Nursing - 22 October 1994 Area of Registered Address: Scotland Type of Case: Misconduct Panel Members: John Penhale (Chair & Lay member) June Robertson (Lay member) Alice Clarke (Registrant member) Legal assessor: Nigel Pascoe Panel Secretary: Calvin Ngwenya; Ian Dennehey; Julia Wanless Nursing and Midwifery Council: Represented by Tom Orpin-Massey; Alistair Kennedy Registrant: Present (except for days 1, 3) and represented by Ms Heather McMahon, instructed by the Royal College of Nursing (RCN) No case to answer: charge 5 (in its entirety) No evidence offered: 1.8 and 2.5 Facts proved by admission: 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 2.1, 2.2, 2.3, 2.4, 2.6 and 2.7. Facts proved: N/A Fitness to practise: Impaired Sanction: 5 year Caution Order Interim Order: N/A
54
Embed
Nursing and Midwifery Council Fitness to Practise Committee … · 2018. 7. 25. · Represented by Tom Orpin-Massey; Alistair Kennedy . Registrant: Present (except for days 1, 3)
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Page 1 of 54
Nursing and Midwifery Council Fitness to Practise Committee
Substantive Hearing
12 March 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ.
15-16 March 2018, 19-23 March and 26-29 March 2018 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH
Resumed 10-12 July 2018 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH
Name of registrant: Mr Stewart Latimer Whyte NMC PIN: 91H0511S Part(s) of the register: Registered Nurse – Sub Part 1 Mental Health Nursing - 22 October 1994
Area of Registered Address: Scotland
Type of Case: Misconduct
Panel Members: John Penhale (Chair & Lay member) June Robertson (Lay member)
Alice Clarke (Registrant member)
Legal assessor: Nigel Pascoe
Panel Secretary: Calvin Ngwenya; Ian Dennehey; Julia Wanless
Nursing and Midwifery Council: Represented by Tom Orpin-Massey; Alistair Kennedy
Registrant: Present (except for days 1, 3) and represented
by Ms Heather McMahon, instructed by the Royal College of Nursing (RCN)
No case to answer: charge 5 (in its entirety)
No evidence offered: 1.8 and 2.5
Facts proved by admission: 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 2.1, 2.2, 2.3, 2.4, 2.6 and 2.7.
Facts proved: N/A
Fitness to practise: Impaired
Sanction: 5 year Caution Order
Interim Order: N/A
Page 2 of 54
Details of charge as amended:
That you, whilst employed by Orchard Care Homes as the Area Operations Manager for
Fairfield Manor Care Home (“Fairfield Manor”) and Woodlands Care Home
(“Woodlands”), Broadstairs, Kent:
1. Between October 2013 and August 2014, failed to ensure that Woodlands was
compliant with the following regulations:
1.1. Regulation 9 of the Health and Social Care Act 2008 (Regulated Activities)
Regulations 2010 – Care and welfare of service users; - admitted
1.2. Regulation 10 of the Health and Social Care Act 2008 (Regulated
Activities) Regulations 2010 – Assessing and monitoring the quality of
service provision; - admitted
1.3. Regulation 12 of the Health and Social Care Act 2008 (Regulated
Activities) Regulations 2010 – Cleanliness and infection control; - admitted
1.4. Regulation 13 of the Health and Social Care Act 2008 (Regulated
Activities) Regulations 2010 – Management of medicines; - admitted
1.5. Regulation 20 of the Health and Social Care Act 2008 (Regulated
In reaching its decision, the panel had careful regard to the contemporaneous records in
the CQC inspection report for Woodlands, dated August 2014. In relation to charge 1.7,
the panel noted that the CQC report highlighted that: “The provider did not ensure that
persons employed for the purpose of carrying on regulated activity were appropriately
supported in relation to their responsibilities, to enable them to deliver care and
treatment to service users safely and to an appropriate standard. Staff did not receive
regular supervision and appraisal and were not supported with professional
development.”
Taking that into account and having considered all of the evidence in respect of this
allegation the panel found charge 1.7 proved on the balance of probabilities.
Charge 2.1:
2. Between October 2013 and August 2014, failed to ensure that Fairfield Manor
was compliant with the following regulations:
2.1. Regulation 9 of the Health and Social Care Act 2008 (Regulated Activities)
Regulation 2010 – Care and welfare of service users;
In relation to charge 2.1, the panel noted that the CQC report highlighted that: “The
registered person had failed to take proper steps to ensure that each service user is
protected against the risks of receiving care or treatment that is inappropriate or unsafe,
by means of – (a) The carrying out of an assessment of the needs of the service user;
and (b) The planning and delivery of care and, where appropriate, treatment in such a
Page 38 of 54
way as to – (i) Meet the service user’s individual needs (ii) Ensure the welfare and
safety of the service user….”
The panel also noted evidence of emails from Ms 1 highlighting concerns of the ability
to keep up to date with care to plans.
Taking that into account and having considered all of the evidence in respect of this
allegation the panel found charge 2.1 proved on the balance of probabilities.
Charge 2.2:
2. Between October 2013 and August 2014, failed to ensure that Fairfield Manor
was compliant with the following regulations:
2.2. Regulation 10 of the Health and Social Care Act 2008 (Regulated
Activities) Regulation 2010 – Assessing and monitoring the quality of
service provision;
In reaching its decision, the panel had careful regard to the contemporaneous records in
the CQC inspection report for Fairfield, dated August 2014. In relation to charge 2.2, the
panel noted that the CQC report highlighted that: “The registered person had not taken
steps to protect service users, and others…by means of the effective operation of
systems to Regularly assess and monitor the quality of the services and identify, assess
and manage risks relating to the health, welfare and safety of service users and others
who may be at risk from the carrying on of the regulated activity…The registered person
had not had regard to complaints and comments made…The registered person had not
where necessary made changes to the treatment or care provided in order to reflect
information…relating to the analysis of incidents that resulted in, or had the potential to
result in, harm to a service user…”
Taking that into account and having considered all of the evidence in respect of this
allegation the panel found charge 2.2 proved on the balance of probabilities.
Page 39 of 54
Charge 2.3:
2. Between October 2013 and August 2014, failed to ensure that Fairfield Manor was
compliant with the following regulations:
2.3. Regulation 11 of the Health and Social Care Act 2008 (Regulated
Activities) Regulation 2010 – Safeguarding people who use services from
abuse;
In reaching its decision, the panel had careful regard to the contemporaneous records in
the CQC inspection report for Fairfield, dated August 2014. In relation to charge 2.3, the
panel noted that the CQC report highlighted that: “There was information recorded
about two people in the records that should have been reported as a safeguarding
concern…No one checked the daily notes to ensure people received safe care in
accordance with their needs. This meant that people were at potential risk of harm
because no one knew what was happening to them…Accidents and incidents were not
reported properly and not taken seriously”
Taking that into account and having considered all of the evidence in respect of this
allegation the panel found charge 2.3 proved on the balance of probabilities.
Charge 2.4:
2. Between October 2013 and August 2014, failed to ensure that Fairfield Manor was
compliant with the following regulations:
2.4. Regulation 13 of the Health and Social Care Act 2008 (Regulated
Activities) Regulation 2010– Management of medicines;
In reaching its decision, the panel had careful regard to the contemporaneous records in
the CQC inspection report for Fairfield, dated August 2014. In relation to charge 2.4, the
panel noted that the CQC report highlighted that: “Medicines were not safely
Page 40 of 54
administered…People were at risk of harm because their medicines were not managed
in a safe or appropriate manner. People did not always receive their medicines on time
or in line with the prescriber’s instructions.”
Taking that into account and having considered all of the evidence in respect of this
allegation the panel found charge 2.4 proved on the balance of probabilities.
Charge 2.6:
2. Between October 2013 and August 2014, failed to ensure that Fairfield Manor was
compliant with the following regulations:
2.6. Regulation 20 of the Health and Social Care Act 2008 (Regulated
Activities) Regulation 2010 – Records;
In reaching its decision, the panel had careful regard to the contemporaneous records in
the CQC inspection report for Fairfield, dated August 2014. In relation to charge 2.6, the
panel noted that the CQC report highlighted that: “….appropriate records were not
maintained…Records were not kept securely and could not be located promptly when
needed...When records are missing it means that people’s care cannot be monitored in
order to ensure they are kept safe.”
Taking that into account and having considered all of the evidence in respect of this
allegation the panel found charge 2.6 proved on the balance of probabilities.
Charge 2.7:
2. Between October 2013 and August 2014, failed to ensure that Fairfield Manor was
compliant with the following regulations:
2.7. Regulation 22 of the Health and Social Care Act 2008 (Regulated
Activities) Regulation 2010 – Staffing.
Page 41 of 54
In reaching its decision, the panel had careful regard to the contemporaneous records in
the CQC inspection report for Fairfield, dated August 2014. In relation to charge 2.7, the
panel noted that the CQC report highlighted that: “Visitors were also concerned about
staffing levels. One visitor told us…There is hardly any staff and half the time I don’t
know who they are especially the nurses as it is always agency…They don’t take any
notice of call bells because they haven’t got time.”
The panel also noted evidence of emails from Ms 1 highlighting concerns relating to
staffing levels.
Taking that into account and having considered all of the evidence in respect of this
allegation the panel found charge 2.7 proved on the balance of probabilities.
Submissions on misconduct and impairment:
Having announced its finding on all the facts, the panel then moved on to consider
whether the facts found proved amount to misconduct and, if so, whether your fitness to
practise is currently impaired. The NMC has defined fitness to practise as a registrant’s
suitability to remain on the register unrestricted. The panel considered all the
documentary evidence presented at this stage, including two testimonials submitted on
your behalf. The panel took into account the submissions from Mr Orpin-Massey, on
behalf of the NMC and those made by Ms McMahon on your behalf. You gave further
oral evidence to the panel at this stage.
Mr Orpin-Massey submitted that there is no burden or standard of proof at this stage
and the question of misconduct and or impairment is for the panel’s independent
judgement. He referred the panel to the cases of Roylance v General Medical Council
(no. 2) [2000] 1 AC 31, Nandi v General Medical Council [2004] EWHC 2317 (Admin)
and Remedy UK Limited v The General Medical Council [2010] EWHC 1245 (Admin).
He submitted that to amount to misconduct, the acts or omissions must be sufficiently
serious. Mr Orpin-Massey submitted that the misconduct in this case in relation to all
three registrants is as defined in the case of Remedy, involving sufficiently serious
Page 42 of 54
misconduct in the exercise of professional practice such that it can properly be
described as misconduct going to fitness to practise.
Mr Orpin-Massey highlighted the reasons why the matters found proved in respect of all
three registrants in this case amount to misconduct. He submitted that the CQC
inspection reports for the homes identified very serious failings which placed residents
at risk of harm. Therefore the registrants failed to “provide a high standard of practice
and care at all times”. He submitted that the non-compliance with CQC regulations at
the homes occurred over a protracted period of time of 7 months and none of the
registrants blew the whistle about how grave the problems had become. Mr Orpin-
Massey submitted that the residents suffered considerable distress as a result of the
closure of the homes and Orchard appeared to put profit before residents’ safety. He
submitted that the registrants, as senior managers with responsibility and accountability,
all failed in their roles to ensure regulatory compliance.
Mr Orpin-Massey invited the panel to take the view that the registrants’ actions in
respect of the matters proved amounted to breaches of The Code: Standards of
conduct, performance and ethics for nurses and midwives 2008 (“the Code”),
particularly the requirements of paragraphs 32, 33, 34 and 58.
With regard to the question of impairment, Mr Orpin-Massey referred the panel to the
cases of Cohen v General Medical Council [2008] EWHC 581 (Admin) and General
Medical Council v Meadow [2006] EWCA Civ 1390 (Admin), for the considerations it
should take into account. Mr Orpin-Massey invited the panel to make a finding of
impairment against all three registrants on public interest grounds on the basis of the
failings as outlined in his misconduct submissions. He invited the panel to consider
whether a finding of no impairment might harm the reputation of both the profession and
the regulator in the eyes of an ordinary member of the public, with knowledge of the
relevant facts of the case.
Mr Orpin-Massey submitted that in these circumstances a finding of impairment on the
grounds of the public interest is necessary in order to uphold proper professional
standards and public confidence in the profession and the NMC as regulator.
Page 43 of 54
Ms McMahon, on your behalf, submitted that whilst your case arises out of your conduct
as a registered nurse, strictly speaking, it is not a case of clinical misconduct but
operational misconduct. However, it engages the first limb of Cohen. She noted that in
cases concerning alleged misconduct of a clinical nature, the matters to be considered
at the impairment stage will include: the need to protect the public and maintain public
confidence; whether the material errors are easily remediable, have been remedied,
and are highly unlikely to be repeated. However, in cases concerning alleged
misconduct of a non-clinical nature, efforts at remediation will be of less weight,
depending on the gravity of the misconduct. She invited the panel to consider the level
of your insight and remediation and take into account testimonials attesting to your
current skills and fitness to practise.
Ms McMahon submitted that in light of the NMC’s position that there are no public
protection issues in your case, if the panel is to find impairment on public interest
grounds alone, then it has to be clear about its reasons for such a finding.
Ms McMahon submitted that you accepted the NMC’s case on the basis of a shared
responsibility to ensure CQC compliance. However, the evidence from all three
witnesses in this case was that you recognised the issues at the homes and you made
considerable and appropriate efforts to address the concerns, albeit that the objectives
were not achieved. She invited the panel to consider amongst other things, that you
appointed PMs to turn things around at the homes, you sought and secured Board
approval to increase pay rates to deal with staffing issues and proposed the closure of
at least one of the homes. However, despite seeking support through the appropriate
channels, you did not receive the additional support and your efforts were restricted in
their success, not least because you had to seek Board approval for important
decisions. Ms McMahon submitted that as you are not charged with a failure to whistle-
blow, that matter is not relevant at this stage. She invited the panel to consider your
failings in the context of your unblemished nursing career spanning some 24 years and
the difficult circumstances at the homes following transfer. Ms McMahon submitted that
your failings did not seriously fall short of professional conduct or constitute a deplorable
failure. Therefore, the panel should find that there is no misconduct.
Page 44 of 54
With regard to the question of impairment, Ms McMahon submitted that the failings
which are admitted and relate to a discrete area, are remediable, have been remedied
and are unlikely to be repeated. She referred the panel to your evidence at this stage
and submitted that you have demonstrated full insight and remorse. She noted how you
have changed your practice and how you would act differently if you found yourself in a
similar situation, particularly in relation to whistleblowing. She stated that you have
learned a salutary lesson from your past failings. She referred the panel to positive
testimonials attesting to your leadership and clinical skills, noting that there has been no
repetition of the matters found in your case. Ms McMahon submitted that there is no
need for a finding of impairment on public protection or public interest grounds. She
reminded the panel of the public interest in allowing an otherwise safe nurse to practise
without restriction.
The panel heard and accepted the advice of the legal assessor which included
reference to the cases of Council for Healthcare Regulatory Excellence v (1) Nursing
and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) (for the test of impairment of
fitness to practise) and Pillai v GMC [2009] WHL 1948 (Admin).
Decision on misconduct:
When determining whether the facts found proved amount to misconduct the panel had
regard to the terms of the Code.
The panel, in reaching its decision, had regard to the public interest and accepted that
there was no burden or standard of proof at this stage and exercised its own
professional judgement.
The panel determined that your conduct in respect of the charges found proved,
amounted to breaches of, or a failure to identify adequately breaches of, the following
provisions of the Code:
Page 45 of 54
“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.
28. You must make a referral to another practitioner when it is in the best interests of
someone in your care.
32. You must act without delay if you believe that you, a colleague or anyone else may
be putting someone at risk.
33. You must inform someone in authority if you experience problems that prevent you
working within this code or other nationally agreed standards.
34. You must report your concerns in writing if problems in the environment of care are
putting people at risk.
35. You must deliver care based on the best available evidence or best practice. 58. You must ensure that your professional judgement is not influenced by any
commercial considerations.
61. You must uphold the reputation of your profession at all times.”
The panel bore in mind that breaches of the Code do not automatically equate to a
finding of misconduct. However, the panel determined that the charges found proved
were sufficiently serious to amount to misconduct, particularly given the fact that the
misconduct occurred over a long period of time. The CQC inspection reports in July
2014 for both Fairfield and Woodlands homes highlighted very serious and wide ranging
failings which placed vulnerable residents at unwarranted risk of harm. The failures to
ensure compliance with CQC regulatory standards led to poor care being provided to
Page 46 of 54
residents as outlined in the CQC reports. That poor care led, as a direct consequence,
to the inevitable closure of the two homes, notwithstanding your own efforts to alleviate
the position. These closures, on the evidence, and as a matter of obvious inference,
caused considerable distress to elderly vulnerable residents who had to be relocated to
different homes. As Operations Manager, you had responsibility and accountability for
regulatory compliance, in order to ensure that inadequate practice was addressed and
that risk was appropriately considered. However, you failed to fulfil that aspect of your
role adequately.
The panel acknowledged that you sought to address some of the concerns at the
homes and noted the measures and actions you undertook. It also considered that you
were hampered in your attempts to address the issues at the homes by a Board which
seemed to place profit making before residents’ safety. However, in the panel’s view
registered nurses are personally accountable for their nursing practice and have an
individual responsibility and overriding duty to patient care. As an experienced nurse
you were expected to whistle-blow to protect the residents if you felt that you were being
prevented from ensuring residents’ care and safety. However, you stated that you did
not do so because you feared that you may lose your job. The panel determined that
your failure to escalate the concerns at the homes to another authority fell below what
was expected in the circumstances.
In light of the above, the panel determined that your actions in respect of the charges
found proved fell significantly below the standard required of a registered nurse and
therefore amounted to misconduct.
Decision on impairment: The panel next went on to decide if as a result of this misconduct your fitness to practise
is currently impaired.
The panel had regard to the guidance given in the judgment of Mrs Justice Cox in the
case of Grant. At paragraph 74 of that judgment, she said:
“In determining whether a practitioner’s fitness to practise is impaired by
reason of misconduct, the relevant panel should generally consider not
Page 47 of 54
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.
Mrs Justice Cox went on to say in Paragraph 76, quoting from Dame Janet Smith in her
Fifth Shipman Report at 25.67:
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/or is liable in the future to act so as to put
a patient or patients at unwarranted risk of harm;
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. …”.
The panel considered that your actions had engaged limbs a, b and c of the test as set
out above. The panel determined that as Operations Manager at Orchard you were
responsible for ensuring regulatory compliance and taking action to address regulatory
concerns. However, your failure to ensure regulatory compliance, which led to a failure
to manage clinical risk, placed residents at the homes at unwarranted risk of harm. The
panel considered that the public place trust and confidence not only in individual nurses
but also in senior managers to hold them to account, and to manage properly clinical
risk. In failing to adhere to these expectations, you brought the profession into
disrepute. By failing to provide a high standard of practice and care at all times, your
actions breached a fundamental tenet of the profession.
The panel considered that the issue it had to determine was that of current impairment.
It therefore considered whether you are liable in future to act in such a way as to place
Page 48 of 54
patients at unwarranted risk of harm, breach fundamental tenets of the profession or
bring the profession into disrepute. That decision about the risk of repetition in this case
would be informed by consideration of the level of insight and remorse you have
demonstrated and by whether your misconduct has been or is capable of being
remedied. The panel had regard to the oral evidence you gave at this stage.
The panel took into account that you accepted your failings and shortcomings in the
course of these proceedings. The panel had regard to the fact that you have clearly
reflected on your failings and demonstrated insight and genuine remorse in the course
of your oral evidence. You were able to explain how you would act appropriately if faced
with a similar situation in the future. You assured the panel that you would not hesitate
today to whistle-blow if you felt patient safety was being compromised. You now have
the active support of your present line manager in a new post within the care home
environment. You no longer have operational management responsibility for a number
of homes. You are now a care home manager for one home.
The panel took into account that you have been practicing in a similar area of nursing
since August 2017 without any concerns or repetition of the matters found proved. It
noted the positive testimonials submitted on your behalf and one from your current
employer, particularly where it states: “Stewart is an excellent clinician who is dedicated
to people’s care. His vast managerial experience is evident. He has the skills and
knowledge to manage a care home. He is aware of the standards that he is expected to
meet in relation to Health and Social Care Standards and any other legislative
requirements.” The panel was satisfied that you have remediated the shortcomings in
your practice and that these regulatory proceedings have been a salutary lesson for
you. Taking into account all those factors, the panel determined that the likelihood of
repetition of your misconduct is minimal. In the light of these considerations, the panel
determined that a finding of impairment on public protection grounds was not
necessary.
However, the panel went on to consider whether a finding of impairment was necessary
to uphold proper professional standards and public confidence in the profession. The
panel considered that the misconduct in your case was serious and had placed
vulnerable residents at unwarranted risk of harm. The public would expect someone of
Page 49 of 54
your experience and seniority to have acted appropriately by addressing or escalating
the concerns at the homes and if not, that you would have reported the matter to a
regulator. Therefore anything other than a finding of impairment would not be
appropriate. The panel also determined that the public would rightly deplore the failures
which led to your misconduct, notwithstanding your own efforts to improve the position.
In view of these considerations, the panel determined that a finding of impairment on
public interest grounds was required to mark your behaviour as unacceptable.
Having regard to all of the above, the panel was satisfied that your fitness to practise is
currently impaired.
Determination on adjourning the hearing:
After formally handing down its determination on misconduct and impairment and
giving the parties sufficient time to consider that determination, the panel decided that it
would be appropriate after considering any other applications, to adjourn the hearing at
this stage before moving on to the next stage of the proceedings. The panel determined
that there would not be sufficient time for it to give proper consideration to the next
stage of these proceedings.
In the panel’s judgement, it cannot ensure a fair and just hearing if it were to continue to
the next stage of these proceedings in the time available.
The panel therefore decided to adjourn the hearing at this stage, prior to embarking on
its consideration of sanction and after it had considered any outstanding applications.
Determination on Interim Order: Mr Kennedy invited the panel to consider whether an interim order should be imposed.
Page 50 of 54
Ms McMahon submitted that the necessity and threshold for imposing an interim order
has not been met.
The panel accepted the advice of the legal assessor.
The panel had regard to the circumstances of the case and was satisfied that an interim
order was not necessary. The finding of impairment in this case was on public interest
grounds alone. The panel was not satisfied that it was necessary or proportionate to
impose an interim order solely on this ground.
Resumed hearing 10 -12 July 2018. At the resumed hearing, you were present and represented by Ms McMahon.
Determination on sanction: The panel considered this case very carefully and decided to make a Caution Order for
a period of five years. The effect of this order is that your name on the NMC register will
show that you are subject to a caution order and anyone who enquires about your
registration will be informed of this order.
In reaching this decision, the panel has had regard to all the evidence that has been
adduced in this case.
The panel noted Mr Kennedy’s submission that the decision on sanction is a matter for
the panel taking into account the public interest and the need to act proportionately. He
stated that the NMC’s sanction bid in relation to all of the registrants in this case is
‘suspension with review’. He stated that the registrants were informed of the NMC’s
sanction bid in the notice of hearing. He emphasised that the bid is not binding on the
panel. However, he submitted that all three registrants failed in their duties and the
public interest in this matter requires a sanction to be imposed against all of them.
Page 51 of 54
Ms McMahon, on your behalf, invited the panel to take no action or to consider imposing
a caution order. She highlighted mitigating factors which could be taken into account at
this stage, including the positive reference form your employer and full engagement with
this process. She emphasised that you have accepted your share of responsibility for
the failings that occurred. You made admissions during the hearing because it became
clear to you that the NMC case was that your responsibility was shared with others. You
have engaged and are grateful for the steps taken by the NMC to enable you to attend
the hearing in Scotland. She disclosed [PRIVATE] and you have been working well as a
home manager. She submitted that if the panel considered a conditions of practice
order was appropriate a condition to confine your practice to being a home manager in
one care home or to not go above the level of home or ward manager in either the
public or private sector may be suitable. She submitted that a more restrictive sanction,
such as a prolonged suspension, would be disproportionate. She submitted that an
order requiring a review would serve no useful purpose given the finding of impairment
was made on public interest alone.
No oral submissions were made on behalf of Registrant B or Registrant C. Neither were
present nor represented at the resumed hearing.
The panel accepted the advice of the legal assessor. The legal assessor advised that
the public interest includes upholding public confidence in the profession and
maintaining the standards expected of a registered nurse. He also advised the panel to
take into account that the regulatory process can sometimes appear to be punitive, but
may also enhance the skills and understanding of a nurse undergoing the process. He
advised that the public interest may therefore also include returning a good nurse to
practise. In relation to the registrants who are not in attendance, the legal assessor
reminded the panel to take account of their written representations.
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. As advised the panel had careful regard to the Sanctions Guidance
(“SG”) published by the NMC. It recognised that the decision on sanction is a matter for
the panel, exercising its own independent judgement.
Page 52 of 54
The panel found the aggravating factors in this case to include:
- the misconduct occurred over a number of months
- elderly vulnerable residents were placed at unwarranted risk of harm
- the closure of the two homes led to the displacement of all residents and
considerable distress was caused to them as a result
- you were in a senior management position with direct responsibility for ensuring
compliance with the CQC regulations
- you did not whistle blow because you put your own interests, namely fear you
may lose your job, before the interests of the residents.
The panel found the mitigating factors in this case to include:
- your previously long and unblemished career with no previous NMC referrals
- the evidence provided at this hearing that you took considerable steps to address
the concerns, including on three separate occasions recommending that the
Board close the homes. The panel noted that your efforts were hampered by a
Board that appeared to put profit making above resident safety
- [PRIVATE] you engaged and participated with the hearing [PRIVATE]
- you immediately admitted the facts once the NMC case was clarified for you
- you have demonstrated insight into your failings and the panel has assessed
your remorse to be genuine
- you have provided positive testimonials including a recent positive testimonial
from your current employer relating to your role as a home manager.
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 Indicative Sanctions Guidance, 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 was satisfied that you have
Page 53 of 54
shown insight into your conduct and shared responsibility. The panel also noted your
admissions and genuine remorse. It was persuaded that you would not now hesitate to
blow the whistle if you felt patient safety was being compromised.
The panel also noted the remedial steps you have taken since the events relating to this
referral. You have been employed as a Home Manager with Royal Blind since August
2017 and have provided positive testimonials relevant to your current practice. These
testimonials, from a senior nurse and senior manager, support that you are a good
caring nurse. The testimonial from Head of Care (5 July 2018) set out that you provide a
high level of care and contributed to the positive outcome of a recent two day inspection
from the Health and Social Care partnership. The testimonial from a senior nurse (28
February 2018) describes you as an ‘excellent clinician who is dedicated to older
peoples care’. The testimonial also highlights that you have the skills and knowledge to
manage a care home, are aware of the standards expected in relation to Health and
Social Care standards and other legislative requirements. It is clear to the panel that
you have worked effectively managing a single care home for the past year.
Taking all of the above into account the panel was satisfied that the public may best be
served by enabling you to continue to practice without a more restrictive sanction.
Prior to reaching a final decision the panel considered whether it would be proportionate
to impose a more restrictive sanction and looked at conditions of practice. The panel
noted that you have been working well with your current employer, without restriction,
for an extended period. The panel concluded that no useful purpose would be served by
a conditions of practice order.
The panel further considered that a suspension order would be wholly disproportionate
in your case. It was mindful that the public interest also includes allowing a good nurse
to continue to practice safely and it is clear that this regulatory process has served a
salutary lesson to you. It was further satisfied that a sanction that may require a review
was not necessary as you have already demonstrated full insight and the responsible
steps you have taken towards remediation.
Page 54 of 54
The panel therefore determined that a caution order is the proportionate sanction in this
case. When considering the length of the order the panel reflected on the aggravating
factors listed above. It determined that nothing less than the maximum period of caution
would suffice in such a serious case. It was mindful that the CQC was required to make
safeguarding referrals for neglect.
Having considered the general principles above and looking at the totality of the findings
on the evidence, the panel has determined that to impose a caution order for a period of
five years would be the appropriate and proportionate response. It would mark not only
the importance of maintaining public confidence in the profession, but also send the
public and the profession a clear message about the standards required of a registered
nurse in a managerial position responsible for ensuring the safety of patients.
The panel has decided that a caution order would adequately meet the public interest
considerations in this case. For the next five years your employer or any prospective
employer will be on notice that your fitness to practise has been found to be impaired
and that your practice is subject to a restriction.
At the end of this period the note on your entry in the register will be removed. However,
the NMC will keep a record of the panel’s finding that your fitness to practise had been
found impaired. If the NMC receives a further allegation that your fitness to practise is
impaired, the record of this panel’s finding and decision will be made available to any
practice committee that considers the further allegation.
This decision will be confirmed to you in writing.