Conduct and Competence Committee...4.5 MAR charts did not confirm that residents were receiving...

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Conduct and Competence Committee Substantive Hearing

6 - 10 March 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ

22 March 2017 Nursing and Midwifery Council, 61 Aldwych, London, WC2B 4AE

15-16 May 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ

Name of Registrant Nurse: Mr Nicholas Fraser NMC PIN: 77Y1865E

Part(s) of the register: RN2, Registered Nurse – Sub part 2

RN1, Adult Nursing - (15 February 1980)

Adult Nursing - (21 May 2004)

Registered Nurse – Sub part 1

Area of Registered Address: England

Type of Case: Misconduct

Panel Members: Dr Andy Thompson (Chair Lay member)

Alister Campbell (Registrant member)

David Crompton (Lay member)

Legal Assessor: Tim Bradbury (6-10 March 2017)

Robin Hay (22 March and 15-16 May 2017)

Panel Secretary: Nour Shaheen (6-10 March 2017)

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Charlotte Richardson (22 March and 15-16

May 2017) Mr Fraser: Not present and not represented.

Nursing and Midwifery Council: Represented by Mr Terrence Wong, counsel,

NMC Regulatory Legal Team (6-10 March

2017)

Represented by Ms Ayanna Nelson, counsel,

instructed by NMC Regulatory Legal Team (22

March and 15-16 May 2017)

Facts proved: 1.1, 1.2, 1.3, 1.4, 2, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6,

4.1, 4.2, 4.5 and 5

Facts not proved: 4.3, 4.4 and 4.6

Fitness to practise: Impaired

Sanction: Striking Off Order Interim Order: Interim Suspension Order – 18 months

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Details of charges, as amended:

That you, a Registered Nurse, whilst working between 17 May 2015 and 17 December

2015 at Foxholes Care Home, Hertfordshire ("the Home") :

1. On an unknown date/s between 21 September 2015 and 8 December 2015,

behaved inappropriately towards Colleague B, in that you, on one or more

occasion/s :

1.1 Touched Colleague B's back for approximately five to six seconds

1.2 Moved past Colleague B, by moving behind her and

1.2.1 placing your hand/s on her hip/s

1.2.2 as you brushed past her, your crotch made contact with her bottom

1.3 Commented on Colleague B's appearance by saying words to the effect of:

1.3.1 Colleague B had a great figure

1.3.2 Colleague B was slim

1.4 Looked inappropriately at Colleague B's body including, but not limited to, her

bottom

2. On a date between 1 and 30 November 2015, behaved inappropriately towards

Colleague B, in that you touched her leg.

3. Your conduct described in the following paragraphs of this charge was sexually

motivated :

3.1 1.1

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3.2 1.2

3.3 1.3.1

3.4 1.3.2

3.5 1.4

3.6 2

4. Following a Care Quality Commission inspection on 15 October 2015 did not

ensure an adequate standard of care was being provided in that:

4.1 Care plans and/or risk assessments did not adequately mitigate the risk

and/or manage pressure area damage.

4.2 Turn charts were not consistently completed

4.3 Prescribed medication was not always available

4.4 Sodium Valproate tablets were not in stock for a resident

4.5 MAR charts did not confirm that residents were receiving their medications as

prescribed

4.6 Medication was administered covertly without documentation to show a best

interest decision had been made

5. Between 15 October 2015 and 3 December 2015 did not audit medication

records.

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And in light of the above, your fitness to practise is impaired by reason of your

misconduct

Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Mr Fraser was not in attendance

and that written notice of this hearing had been sent to Mr Fraser’s registered address

by recorded delivery and by first class post on 12 December 2016. Royal Mail “Track

and Trace” documentation confirmed that the notice of hearing was sent to Mr Fraser’s

registered address by recorded delivery on that date.

The panel took into account that the notice letter provided details of the allegation, the

time, dates and venue of the hearing and, amongst other things, information about Mr

Fraser’s right to attend, be represented and call evidence, as well as the panel’s power

to proceed in his absence. The “Track and Trace” documentation also indicated that the

notice was received by “Fraser” on 13 December 2016.

The panel accepted the advice of the legal assessor.

In the light of all of the information available, the panel was satisfied that Mr Fraser has

been served with notice of this hearing in accordance with the requirements of Rules 11

and 34.

Decision on proceeding in the absence of the Registrant: The panel had regard to Rule 21 (2) (b) which states:

“Where the registrant fails to attend and is not represented at the hearing, the

Committee...may, where the Committee is satisfied that the notice of hearing has

been duly served, direct that the allegation should be heard and determined

notwithstanding the absence of the registrant...”

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Mr Wong invited the panel to continue in the absence of Mr Fraser on the basis that he

had voluntarily absented himself. Mr Wong submitted that there was no reason to

believe that an adjournment would secure his attendance on some future occasion.

The panel accepted the advice of the legal assessor. The panel noted that its

discretionary power to proceed in the absence of a registrant under the provisions of

Rule 21 is one that should be exercised “with the utmost care and caution” as referred

to in the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5.

The panel noted the correspondence from Mr Fraser, dated 2 March 2017, in which he

stated “I feel unless having copious money to throw at barristers, which I have not, then

I have to put up with a one-sided case. I would like some assurance that all my e-mail,

past and present exchanges will be presented at the panel.” [sic] The panel inferred

from this, along with previous statements, that Mr Fraser would not be attending the

hearing.

The panel decided to proceed in the absence of Mr Fraser. In reaching this decision, the

panel considered the submissions of the case presenter, and the advice of the legal

assessor. It had particular regard to the factors set out in the decision of Jones. It had

regard to the overall interests of justice and fairness to all parties. It noted that:

• no application for an adjournment has been made by Mr Fraser;

• there is no reason to suppose that adjourning would secure his attendance at

some future date;

• three witnesses have attended today to give live evidence, others are due to

attend, and not proceeding may inconvenience the witnesses, their employers

and, for those involved in clinical practice, the clients who need their professional

services;

• the charges relate to events that occurred in 2015;

• further delay may have an adverse effect on the ability of witnesses accurately to

recall events;

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• there is a strong public interest in the expeditious disposal of the case.

There is some disadvantage to Mr Fraser in proceeding in his absence. Evidence upon

which the NMC relies has been sent to him at his registered address. He will not be able

to challenge the evidence relied upon by the NMC and will not be able to give evidence

on his own behalf. However, in the panel’s judgment, this can be mitigated. The panel

can make allowance for the fact that the NMC’s evidence will not be tested by cross

examination and, of its own volition, can explore any inconsistencies in the evidence

which it identifies. Furthermore, the limited disadvantage is the consequence of Mr

Fraser’s decisions to voluntarily absent himself from the hearing, waive his rights to

attend and/or be represented and to not provide evidence or make submissions on his

own behalf beyond those made in correspondence to which the panel will have regard.

In these circumstances, the panel decided that it is fair, appropriate and proportionate to

proceed in the absence of Mr Fraser.

Decision and Reasons on application pursuant to Rule 31

The panel heard an application made by Mr Wong under Rule 31 of the Rules to allow

Colleague B to give evidence by WebEx. Mr Wong submitted that whilst the NMC had

made sufficient efforts to ensure that this witness was present, she was unable to attend

today due to health matters. He further submitted that Colleague B is classified as a

vulnerable witness under the Rule 23(1)(e) of the Rules and that, therefore, measures

may be taken to facilitate her giving evidence.

The NMC had indicated to Mr Fraser in the case management form that it was intended

that this witness provide telephone evidence to the panel. Mr Fraser opposed this

position on the basis that her credibility could not be properly assessed. The NMC

therefore made an application for Colleague B to provide evidence by WebEx, which

would provide both audio and live image, in order to allow the panel to better assess her

credibility. Despite knowledge of the nature of the evidence to be given by this witness,

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Mr Fraser made the decision not to attend this hearing. On this basis Mr Wong

submitted that there was no lack of fairness to Mr Fraser in allowing Colleague B to give

evidence by WebEx.

The panel heard and accepted the legal assessor’s advice on the issues it should take

into consideration in respect of this application. This included that Rule 31 provides that,

so far as it is ‘fair and relevant,’ a panel may accept evidence in a range of forms and

circumstances, whether or not it is admissible in civil proceedings.

The panel gave the application in regard to Colleague B serious consideration. The

panel noted that her witness statement had been prepared in anticipation of being used

in these proceedings and contained the paragraph “This statement … is true to the best

of my information, knowledge and belief” and was signed by her on 26 July 2016.

The panel also considered that Colleague B was a vulnerable witness under Rule

23(1)(e) and was therefore eligible for special measures under Rule 23(3) including a

video link.

The panel considered whether Mr Fraser would be disadvantaged by Colleague B

giving evidence by WebEx. The panel considered that as Mr Fraser had been provided

with a copy of Colleague B’s statement and, as the panel had already determined that

Mr Fraser had chosen voluntarily to absent himself from these proceedings, he would

not be in a position to cross examine this witness in any case. There was also public

interest in the issues being explored fully which supported the admission of this

evidence into the proceedings. The panel also considered that it would be able to

properly asses the credibility of the witness, if received via WebEx.

In these circumstances, the panel came to the view that it would be fair to accept

Colleagues B’s evidence by WebEx.

Background

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The charges arose whilst Mr Fraser was employed as a Home Manager by Foxholes

Home (the “Home”). Mr Fraser was employed by the Home between 18 May 2015 and

18 December 2015.

The NMC’s case is that Mr Fraser’s duties included ensuring that an adequate standard

of care was provided to the residents whilst at the Home. During the course of Mr

Fraser’s time as Home Manager, the Home included residents requiring both nursing

and residential care.

Whilst employed at the Home, it is alleged that Mr Fraser sexually harassed a

colleague, Colleague B, in that; it is alleged that Mr Fraser made unwarranted

comments about Colleague B’s physical appearance, had inappropriately looked at

Colleague B and he had touched her in an inappropriate manner which was sexually

motivated.

The Home was the subject of two adverse inspections by the Care Quality Commission

("CQC") on 15 October 2015 and 4 December 2015 respectively. Over the course of

these inspections, it is alleged that the Home's standard of care fell below that required

and that the care plans and risk assessments regarding pressure area damage were

inadequate, turn charts were not consistently completed, medication availability was

inadequately managed and there was a lack of evidence to show appropriate decision

making to support the use of covert administration of medication. Concerns were found

not to have been remediated by 4 December 2015, and also that between 15 October

2015 and 3 December 2015, there had been no auditing of medication records. It is

alleged that Mr Fraser, as the Home Manager, failed to address or remedy the failings

identified following the inspection on 15 October 2015.

Decision and reasons on application to amend charge

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Mr Wong, on behalf of the NMC, applied to amend the wording of charge 2 so as to

provide clarity and more accurately reflect the evidence. He submitted that there would

be no injustice to Mr Fraser in allowing the amendment.

The charge currently reads:


Colleague B, in that you touched her leg, below the knee

The proposed amendment:


Colleague B, in that you touched her leg.

The panel accepted the advice of the legal assessor that Rule 28 of the Rules states:

28 (1) At any stage before making its findings of fact …

(i) … the Conduct and Competence Committee, may amend

(a) the charge set out in the notice of hearing …

unless, having regard to the merits of the case and the fairness of the

proceedings, the required amendment cannot be made without injustice.

The panel was of the view that such an amendment, as applied for, was in the interest

of justice. The panel was satisfied that there would be no prejudice to Mr Fraser and no

injustice would be caused to either party by the proposed amendment being allowed

because the substance of the allegation remained the same. It was therefore

appropriate to allow the amendment, as applied for, to ensure clarity and accuracy.

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Decision to hold parts of the hearing in private Having heard that there will be reference to the health of Colleague B’s family member,

the panel determined to hold such parts of the hearing in private. The panel determined

to rule on whether or not to go into private session in connection with the health of

Colleague B’s family member as and when such issues were raised.

Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel considered all the evidence adduced in

this case together with the submissions made by Mr Wong on behalf of the NMC and

those made by Mr Fraser in his various exhibited communications.


The panel was aware that the burden of proof rests on the NMC, and that the standard

of proof is the civil standard, namely the balance of probabilities. This means that the

facts will be proved if the panel was satisfied that it was more likely than not that the

incidents occurred as alleged.

The panel has drawn no adverse inference from the non-attendance of Mr Fraser.

The panel heard oral evidence from four witnesses called on behalf of the NMC:

Mr 1, Director, at Foxholes Care Home Limited;

Colleague B, previously Receptionist, at Foxholes Care Home Limited;

Mrs 2, Inspector for Adult Social Care, at Care Quality Commission; and

Miss 3, Human Resources Manager, at Foxholes Care Home.

The panel also took into account Mr Fraser’s written accounts and correspondence to

date.

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The panel found Mr 1’s evidence, in a number of respects, was inconsistent and lacked

clarity, however, the panel noted that some of Mr 1’s evidence was corroborated by

further evidence which was adduced following his oral evidence. Mr 1 had some

recollection of the events but this was generally vague. He was somewhat defensive

when asked questions, the answers to which might have reflected adversely on the

running of the home by the directors.

The panel found Colleague B to be a credible, fair and balanced witness. She bore no

malice towards Mr Fraser and did not embellish her account of the events. When she

did not remember something, she said so.

The panel found Mrs 2’s evidence to be credible. She was knowledgeable and

authoritative about the CQC processes and procedures and her evidence was

corroborated by reports and statements she had produced. Mrs 2 assisted the panel by

expanding on her written statement and provided the panel with additional documentary

evidence when requested to do so.

The panel found Miss 3’s evidence to be credible. She was not evasive and she had a

good recollection of events, making known to the panel when she did not remember

something. Miss 3’s evidence corroborated the events and dates and she provided the

panel with additional documentary evidence when requested to do so.

The panel considered each charge and made the following findings:

Charge 1:

1. On an unknown date/s between 21 September 2015 and 8 December 2015,

behaved inappropriately towards Colleague B, in that you, on one or more

occasion/s :

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1.1 Touched Colleague B's back for approximately five to six seconds

1.2 Moved past Colleague B, by moving behind her and

1.2.1 placing your hand/s on her hip/s

1.2.2 as you brushed past her, your crotch made contact with her bottom

1.3 Commented on Colleague B's appearance by saying words to the effect of:

1.3.1 Colleague B had a great figure

1.3.2 Colleague B was slim

1.4 Looked inappropriately at Colleague B's body including, but not limited to, her

bottom

This charge is found proved in its entirety.

Charge 1.1

Colleague B said “I found the inappropriate behaviour from Mr Fraser [sic] towards me

started as soon as I [sic] began to work at the Home on 21 September 2015. The

unwanted physical contact started with Mr Fraser [sic] resting his hand on my back for

an uncomfortable period of time, for approximately five to six seconds. It was not the

case that Mr Fraser [sic] was tapping my back to gain my attention, but it instead felt as

if he was using it as an opportunity to touch me. This contact would take place during

the course of conversations with Mr Fraser [sic]. I did not want Mr Fraser [sic] to touch

my back, but I did not say anything to him. I was a new member of staff so I did not feel

able to stand up to him.” Colleague B’s oral evidence corroborated her written statement

and the statement she made at the Home in December 2015, at the time of her

employment. She described that Mr Fraser would place his open palm on her back,

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around her bra line, for approximately six seconds. Colleague B said she would arch her

back away from him when he did this as it made her feel uncomfortable.

Mr Fraser made no specific response save so as to deny this allegation in his written

statements.

The panel considered that it was a natural occurrence for colleagues to have contact

with one another in the working environment. However, it was of the view that this

contact becomes inappropriate when it is unnecessary and prolonged, as it has the

potential to impose on another colleague’s personal space and make them feel

uncomfortable. On the basis of the evidence before it, the panel was satisfied that Mr

Fraser inappropriately touched Colleague B’s back for approximately five to six seconds

on one or more occasions between 21 September 2015 and 8 December 2015. It

therefore found this charge proved.

Charge 1.2

Colleague B said “The bar area is a relatively large space and even if somebody is

accessing a cupboard, it is possible to walk past the person without making physical

contact. Instead of either waiting for me to move out of the way or walking around me,

Mr Fraser [sic] would move behind me, place both hands on my hips, and then brush

himself past me. As he brushed past, his crotch area rubbed against my bottom. When

this happened I would immediately move away from him and ask if he could not have

waited for me to have moved out of the way. I felt disgusted by this physical contact that

was entirely unwanted and unnecessary. This happened on a number of occasions.”

Colleague B’s oral evidence corroborated her written statement and the statement she

made at the Home in December 2015, at the time of her employment. In her oral

evidence Colleague B described that Mr Fraser would hold her hips with both hands

and move her to the side. She said that when he did this she felt his crotch area brush

against her bottom, but said that it was not done in a rubbing motion.

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The panel found no reason to doubt the truth of Colleague B’s account.


statements.

The panel was of the view that it was not appropriate for Mr Fraser to move past

Colleague B by moving behind her whilst she was in the bar area. The panel considered

that Mr Fraser should have waited for Colleague B to finish getting what she needed

from the cupboard before attempting to place himself behind the bar. It further

considered that it was not necessary for Mr Fraser to have touched Colleague B in

order to go past her as there was sufficient space for him to move around her without

coming into contact with her. On the evidence before it, the panel was satisfied that,

between 21 September 2015 and 8 December 2015, Mr Fraser inappropriately placed

his hands on Colleague B’s hips and, as he brushed past her, his crotch made contact

with her bottom. It therefore found this charge proved.

Charge 1.3

Colleague B said “Mr Fraser [sic] persistently commented on my body, saying that I was

slim, and that I had a great figure. As such comments were made, I saw that Mr

Fraser’s [sic] eyes would look up and down my body, which made me feel that he was

looking at me for his own gratification” and “Mr Fraser [sic] also made comments about

my weight and whether or not I was eating enough. He would often ask me how it was

that I was able to stay so slim. I found such comments embarrassing.” Colleague B’s

oral evidence corroborated her written statement and the statement she made at the

Home in December 2015, at the time of her employment. Colleague B said that Mr

Fraser would say things like “you have a nice body” and look her up and down and lick

his lips. She said that it would make her skin crawl when he gave her a compliment.

Colleague B said that when Mr Fraser made such comments about her appearance she

would make a facial expression “to kind of like say why would you be saying that to

me?” She said that it got to the point where she had to tell Mr Fraser to “back off” and

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after having done so he got frustrated and said to her “why won’t you accept a

compliment” and then proceeded to accuse her of having an eating disorder and called

her “a little bitch”. Colleague B said that this outburst was witnessed by Mr 1 which then

led her to revealing to him previous incidents where she was made to feel

uncomfortable by Mr Fraser. Colleague B said that as a direct result of Mr Fraser’s

inappropriate comments about her physical appearance she altered her work attire in

order to divert attention away from her body.

Mr 1 said that Colleague B was “a little aware of her own weight” and that Mr Fraser

would comment on her weight. He said that Mr Fraser would probably make those

comments with good intentions but quite possibly, and more likely, with an ulterior

motive.


statements.

The panel considered that these comments were not made on a single instance, given

the context of the evidence before it. The panel was of the view that these comments

were inappropriate as they made Colleague B feel uncomfortable and this would have

been clear to Mr Fraser as she had asked him to stop referring to her figure and weight.

Colleague B changed her work attire as a direct result of Mr Fraser’s comments about

her appearance and this, in the panel’s judgement, aggravated the level of

inappropriateness. The panel was satisfied that between 21 September 2015 and 8

December 2015, Mr Fraser inappropriately commented on Colleague B’s appearance

by saying words to the effect of, Colleague B had a great figure, and Colleague B was

slim. It therefore found this charge proved.

Charge 1.4

Colleague B said “I saw that Mr Fraser’s [sic] eyes would look up and down my body,

which made me feel that he was looking at me for his own gratification. It was also the

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case that when I needed to bend over by the reception desk, or when I was cleaning

tables in the café. Mr Fraser [sic] would look at my body, in particular my bottom. It

appeared clear to me that Mr Fraser [sic] found me attractive, but it was inappropriate

for him to have expressed himself by looking at my body in the way that he did, which I

found perverse.” She said that on one occasion a relative of a resident at the Home told

her that they had seen Mr Fraser looking at her body whilst she was bent over. She said

that when relatives would see him looking at her body he would nod at them and carry

on. Colleague B said that when she would catch Mr Fraser staring at her body he would

carry on looking at her, not bothered that he had been seen. Colleague B’s oral

evidence corroborated her written statement and the statement she made at the Home

in December 2015, at the time of her employment.


statements.

The panel considered that it was significant that a member of the public had seen an act

that they considered was so inappropriate that they had chosen to notify Colleague B of

its occurrence. Given the overall context of Mr Fraser’s behaviour, and the earlier

findings of inappropriate behaviour towards Colleague B, the panel was satisfied that,

on the balance of probabilities, between 21 September and 8 December 2015, Mr

Fraser looked inappropriately at Colleague B’s body including, but not limited to, her

bottom. It therefore found this charge proved.

Charge 2:


Colleague B, in that you touched her leg

This charge is found proved.

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Colleague B said that around mid-October to early November 2015 she received a call

whilst she was at work relating to her mother’s health. She said “I needed to speak with

management at the Home in order for them to be aware of my situation and understand

that there would be occasions whereby I may be distracted at work. I also wanted some

understanding as to any leave requirements necessary. I spoke with Mr Fraser [sic] in

his office, and I made him aware of my situation. The conversation with Mr Fraser [sic]

was a very emotional one, as I was very distressed with my mother’s illness but at the

end of the discussion, I felt some comfort on the basis that I knew that I told Mr Fraser

[sic] of my situation and therefore, I expected some understanding” She said “Later on

that same day, I entered Mr Fraser’s [sic] office in order to use the printer. On the day in

question, I was wearing a dress and a pair of tights. Mr Fraser [sic] was sat in his chair

behind his desk and turned around in order to face me whilst I was using the printer. Mr

Fraser [sic] then ran his hand down my leg, below the knee and asked me if I was okay.

In response, I picked up the pieces of paper I had printed and stormed out of his office.”

Colleague B’s oral evidence corroborated her written statement and the statement she

made at the Home in December 2015, at the time of her employment. Colleague B

described how Mr Fraser had put his hands on the inside of her knee and made a

rubbing motion. She said that he asked her if she was okay and winked at her.

Colleague B said she thought to herself “are you joking?” She said she was upset and

angry after this and went and “had a little cry”. Colleague B said that she felt that Mr

Fraser had used her vulnerability to his own advantage in order to touch her whilst

pretending to be concerned about her. She said that she understood how as a

professional you can show empathy towards a colleague without forcing physical

contact and that his behaviour was entirely inappropriate and upsetting.


statements.

The panel agreed with Colleague B that it was possible and appropriate to show

empathy to a colleague when they are distressed. However, it was of the view that it

was highly inappropriate for Mr Fraser to demonstrate this empathy by touching

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Colleague B, particularly in a place which is not usually touched by anyone other than in

intimate circumstances. The panel was of the view that Mr Fraser used Colleague B’s

vulnerability to his own advantage, which was particularly aggravating in the light of her

personal circumstances, which was known to him at the time. On the basis of the

evidence before it, the panel was satisfied that on a date between 1 and 30 November

2015, Mr Fraser behaved inappropriately towards Colleague B, in that he touched her

leg. It therefore found this charge proved.

Charge 3:

3. Your conduct described in the following paragraphs of this charge was sexually

motivated :

3.1 1.1

3.2 1.2

3.3 1.3.1

3.4 1.3.2

3.5 1.4

3.6 2

This charge is found proved in its entirety. The panel considered these charges in the context of the evidence of witnesses and the

contemporaneous correspondence which it has been presented with at the beginning,

and throughout these proceedings.

Although not specifically charged, it is evident from Mr 1’s email to Mr Fraser’s recruiter,

on 29 May 2015, which states “He’s doing it again…! French maid outfits comments”,

that the directors of the Home were aware of the nature of Mr Fraser’s inappropriate

comments to various members of staff. A further email from Mr 1 to Mr Fraser’s

recruiter, dated 19 November 2015, states “Just update you about Nick Fraser, lovely

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guy, issues such as being over friendly with ladies is just part of his personality,

constant warnings don’t seem to have much effect. He will get himself in trouble one

day. He’s been advised if he keeps it up he’ll be asked to leave. The administrator won’t

even be in the ams [sic] room, she is a bit precious but still feels uncomfortable.” This, in

the panel’s judgement clearly shows that Mr Fraser’s inappropriate behaviour started

within days of his commencement and that he had been warned by the directors on a

number of occasions. Therefore he would have been well aware of how his behaviour

was perceived by others.

The panel considered that Mr Fraser’s behaviour, overall, was without dispute,

inappropriate. It considered that his behaviour was sexually motivated to the extent that

it plainly demonstrated a sexual interest and attraction towards Colleague B and which

was not reciprocated by her. The panel was also of the view that Mr Fraser was doing

things in a clever and subtle way, allowing him to maintain that it was done innocently,

whilst abusing his position of authority. It went on to consider each charge individually.

The panel noted that Mr Fraser made no specific response save so as to deny this

allegation in his written statements.

Charge 3.1

The panel noted that, in her oral evidence, Colleague B said that at the time she did not

think Mr Fraser was touching her back in a sexually motivated way, but maintained that

she felt that it was inappropriate. However, the panel considered this act in the light of

Mr Fraser’s course of conduct and the facts already found proved. In the panel’s

judgement, Mr Fraser’s gesture overstepped and overstayed its welcome. It was

unnecessary for him to touch Colleague A in the vicinity of her bra strap, and to keep his

hand there for five to six seconds. The panel considered this as a part of a developing

behaviour which had nothing other than sexual motivation. It therefore found this charge

proved.

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Charge 3.2

The panel considered that there was no need for Mr Fraser to hold Colleague B’s hips

and move her to the side. The panel was of the view that Mr Fraser did this in order to

make contact with Colleague B’s bottom with his crotch and that the only motivation for

this was sexual. It therefore found this charge proved.

Charge 3.3

The panel considered Mr Fraser’s body language at the time he was making these

comments regarding Colleague B’s appearance. It heard evidence that Mr Fraser would

look Colleague B up and down and lick his lips during these incidents. It was satisfied,

on this basis, that this comment was sexually motivated. It therefore found this charge

proved.

Charge 3.4

The panel considered Mr Fraser’s body language at the time he was making these

comments regarding Colleague B’s appearance. It heard evidence that Mr Fraser would

look Colleague B up and down and lick his lips during these incidents. It was satisfied,

on this basis, that this comment was sexually motivated. It therefore found this charge

proved.

Charge 3.5

The panel considered that Mr Fraser’s actions were sexually motivation when he looked

inappropriately at Colleague B’s body. The panel was satisfied that, if a member of the

public felt compelled to notify Colleague B that Mr Fraser kept looking at her body whilst

she was bent over, this was an indication of the level of sexual motivation behind the

behaviour. It therefore found this charge proved.

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Charge 3.6

The panel considered that there were ample ways for Mr Fraser to demonstrate

empathy towards Colleague B. In the panel’s judgement, Mr Fraser used Colleague B’s

vulnerability on that day as an opportunity to test the waters. The panel could find no

other explanation, other than sexual motivation, for Mr Fraser to touch Colleague B’s

leg. It therefore found this charge proved.

The panel did not find any evidence to support the suggestion that Colleague B had

given a false account for either financial or malicious reasons.

Charge 4:

4. Following a Care Quality Commission inspection on 15 October 2015 did not

ensure an adequate standard of care was being provided in that:

4.1 Care plans and/or risk assessments did not adequately mitigate the risk

and/or manage pressure area damage.

4.2 Turn charts were not consistently completed

4.3 Prescribed medication was not always available

4.4 Sodium Valproate tablets were not in stock for a resident

4.5 MAR charts did not confirm that residents were receiving their medications as

prescribed

4.6 Medication was administered covertly without documentation to show a best

interest decision had been made

23

The panel accepted that Mr Fraser had originally been employed for the role of Home

Manager with a view to being registered with the CQC following his three month

probation period. The panel further accepted that Mr Fraser’s probation period was

extended for a further three months and consequently he was not registered with the

CQC as Registered Manager, retaining the title Home Manager instead.

The panel was of the view that irrespective of registration with the CQC, and further,

irrespective of his managerial position at the Home, Mr Fraser, as a registered nurse,

had the duty to ensure an adequate standard of care. Additionally, it is evident from his

curriculum vitae that Mr Fraser had previously held the positions of both Home Manager

and Registered Manager, and therefore he was in a position to be fully aware of the

responsibilities and duties required of him by the CQC.

The panel considered that Mr Fraser’s contract of employment placed the duty on him

to ensure an adequate standard of care. The panel noted that Mr Fraser had not signed

his contract of employment. However, on the basis of documentary evidence, it was

satisfied that he knew of the contract, and that it was accepted, as he carried on

working. The panel also heard evidence from Mr 1 and Miss 3 that Mr Fraser had the

duty to ensure an adequate standard of care was being provided.

The panel heard evidence from Mrs 2 that Mr Fraser held himself out as the manager of

the Home and informed her that he was in the process of registering with the CQC, but

was not registered at the time. She said that he said that his main responsibilities were

to ensure that the service was safe and good, and that he was the lead clinician in

charge of the nursing unit. The panel further noted that Mr Fraser had signed the CQC

headline report on 15 October 2015, which is usually signed by the Registered

Manager, corroborating Mrs 2’s evidence that he held himself out to be the responsible

party, and therefore inferring a duty on him to respond to the report and provide an

adequate standard of care following the first CQC investigation.

24

The panel also had sight of correspondence between Mr Fraser and the Directors of the

Home which led it to the view that Mr Fraser was aware of his duties as the Home

Manager to respond to the CQC inspection report following the inspection on 15

October 2015.

Mr Fraser, in his written responses said that he was not responsible for the failings of

the Home, as found by the CQC as he had fulfilled his duties. He said that these failings

were the fault and responsibility of the Deputy Manager and the Health Services

Manager, both of whom are not registered nurses.

The panel accepted that it was within Mr Fraser’s managerial powers to delegate tasks

and responsibilities to others. However, it concluded that Mr Fraser had the final and

ultimate responsibility to ensure that the deficiencies identified by the CQC were

rectified following the inspection on 15 October 2015.

The panel considered each charge separately.

Charge 4.1


Mrs 2’s evidence corroborated the CQC report, dated 22 January 2016, which outline

the findings from the inspection on 4 December 2015. It states “We found a person who

had a pressure ulcer which they developed whilst living at the home. Their care plans

detailed individual needs and provided guidance for staff on the actions to take to meet

their needs however it was not detailed who had recommended for this persons to be

turned three hourly. We discussed our concerns regarding how often people were

repositioned and with a team leader who told us that the frequency was established by

a nurse who no longer worked for the provider. We were not able to establish if the

frequency of repositioning was recommended by a specialist nurse or GP or if these

plans followed nationally recognised guidelines. This meant that, although people were

25

repositioned by staff at the frequency recommended by a nurse no longer employed at

the home, these may not have followed national guidance or met people’s needs. We

found that the provider continued to be in breach of Regulation 12 of the Health and

Social Care Act 2008 (Regulated Activities) Regulation 2014 as they did not ensure that

the identified risks to people’s health and welfare were sufficiently mitigated to keep

people safe.”

In the light of this evidence, the panel found this charge proved.

Charge 4.2


Mrs 2’s evidence corroborated the CQC report, dated 22 January 2016, which outline

the findings from the inspection on 4 December 2015. It states “Last time we inspected

we reported that records central to people’s care were not accurately completed and

were not reflective of the care people received. At this inspection we found continued

failings in record keeping and a lack of oversight from management which adversely

impacted on the monitoring of the service for safety and quality. We found records

which were not contemporaneous, not completed in a timely manner and there were not

a true reflection of the care people received. For example turning charts had gaps in

recording the times when people were turned.”


Charge 4.3

This charge is found not proved.

26

The panel considered that there was insufficient evidence before it that following a CQC

inspection on 15 October 2015, Mr Fraser did not ensure an adequate standard of care

was being provided in that prescribed medication was not always available.

It therefore found this charge not proved.

Charge 4.4




was being provided in that Sodium Valproate tablets were not always in stock for a

resident.


Charge 4.5

This charge is found proved. Mrs 2’s evidence corroborated the CQC report dated 22 January 2016, which outline

the findings from the inspection on 4 December 2015. It states “Another person were

[sic] taking medicine every morning. We have checked the medicine administration

records and saw that there were signed as administered daily however when we

counted the medicines with the deputy manager we found five extra tablets in the box

suggesting that the medicines had been signed for however there were not

administered. This meant that the person was exposed to risks associated with

mismanagement of medication because they had not received the prescribed medicines

in accordance with the prescriber’s instructions” and “We found gaps in medicine

records.”

27


Charge 4.6




was being provided in that medication was administered covertly without documentation

to show a best interest decision had been made.


The panel accepted that Mr Fraser may have taken some steps to address the

inadequate standard of care identified following the CQC inspection of 15 October 2015,

either by taking action himself or directing others to do so. However, the panel was

satisfied that any such steps that may have been taken were wholly inadequate and that

Mr Fraser failed in his duty to ensure an adequate standard of care.

Charge 5:

5. Between 15 October 2015 and 3 December 2015 did not audit medication

records.


Mrs 2’s evidence corroborated the CQC report dated 22 January 2016, which outline

the findings from the inspection on 4 December 2015. It states “We met the manager at

the end of our inspection as they conducted a medicine audit following the concerns we

raised when we had checked the medicines earlier. We asked them if they conducted

28

any audits following the previous concerns we raised on the 15 October 2015 and they

told us they had not done any medicine audits or other quality audits since then. They

told us they were just conducting a medicine audit and help the agency nurse to

administer medicines to people which should have been administered at 14.00 however

the audit in the same time slowed the process.”

In the light of the evidence before it, the panel found this charge proved.

Determination on Interim Order The panel has considered the submissions made by Mr Wong that a 12 month interim

suspension order should be made on the grounds that it is necessary for the protection

of the public and is otherwise in the public interest.


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 for the

substantive 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 12 months as it is as yet not confirmed when this case will

be restored for hearing.

Unless your case has already been concluded, this order must be reviewed before the

end of six months and every three months after that. Additionally, you or the NMC’s

case presenter may ask for the order to be reviewed if any new evidence becomes

available that may be relevant to the order.

At any review the panel may revoke the order, confirm it, or vary it.

29

This hearing has been scheduled to resume on 22 March 2017.

Resuming Hearing: 22 March 2017 Decision on Service of Notice of Hearing At the outset of this resuming hearing, the panel heard that Mr Fraser was not in

attendance. The panel was informed that notice had been sent to Mr Fraser at his

registered address by first class post and recorded delivery on 14 March 2017. As this

is a resuming hearing, the panel was informed that notice has to be reasonable in all the

circumstances.

Although there has been only a very short period since the previous adjournment, the

date of today’s hearing was decided when the hearing was adjourned and Mr Fraser

was informed accordingly. The correspondence from Mr Fraser and his recently

appointed representatives indicates that he is aware of today’s hearing. Despite the

relatively short notice, the panel was satisfied that this was reasonable in the light of the

short period between the adjournment and today’s resuming hearing.

The panel therefore determined that notice of today’s hearing had been effectively

served.

Decision and Reasons on application under Rule 19

Ms Nelson, on behalf of the NMC, applied for the hearing to be held in private on the

basis that proper exploration of the reasons for Mr Fraser’s non-attendance would

involve references to his health.

The panel had regard to Rule 19 (1) which provides, as a starting point, that hearings

shall be conducted in public, Rule 19 (3) states that the panel may hold hearings partly

30

or wholly in private if it is satisfied that this is justified by the interests of any party or by

the public interest.

Having heard that there will be reference to Mr Fraser’s health, the panel determined to

hold those parts of the hearing, when such matters were raised, in private.

Proceeding in Absence The panel was informed that Mr Fraser was now represented and had requested, both

personally in an email and via his representative, that the resuming hearing be

adjourned. The adjournment was sought on the grounds that Mr Fraser’s

representatives, the Independent Democratic Union (IDU) would need time to properly

instruct a representative and prepare the case in relation to current impairment.

Furthermore, Mr Fraser, who says that he is currently suffering from ill-health

[PRIVATE], is unable to attend the hearing today. [PRIVATE]

Ms Nelson submitted that the panel should proceed in the absence of Mr Fraser. She

submitted that it is in the interests of justice to proceed, as there is a strong public

interest in the expeditious conclusion of this case. She reminded the panel that, at the

last hearing, it had decided to proceed in the absence of Mr Fraser. She submitted that,

following certain facts being found proved at the previous hearing, this application was

an attempt by Mr Fraser to cause undue delay and to frustrate the regulatory process.

Ms Nelson alerted the panel to the fact that Mr Fraser had not provided any medical

evidence in support of his health concerns.


In reaching its decision, the panel had regard to Rule 32 of the Rules which states:

“32 (2) A Practice Committee considering an allegation may, of its own motion or upon

the application of a party, adjourn the proceedings at any stage, provided that

31

(a) no injustice is caused to the parties; and

(b) the decision is made after hearing representations from the parties (where

present) and taking advice from the legal assessor.

….

(4) In considering whether or not to grant a request for postponement or adjournment,

the Chair or Practice Committee shall, amongst other matters, have regard to

(a) the public interest in the expeditious disposal of the case;

(b) the potential inconvenience caused to a party or any witnesses to be called

by that party; and

(c) fairness to the registrant.”

Although the panel could not be certain that Mr Fraser’s professed health conditions

would prevent him from participating in the resuming hearing, given the absence of any

medical evidence, it had in mind that he had been complaining of ill health for some

time. Furthermore, it appears from the correspondence that he now wishes to attend.

The panel also considered the short period between the previous hearing and today,

effectively 6 business days. It accepted that this might well be insufficient time for Mr

Fraser’s recently appointed representatives to take proper instructions and to assemble

the necessary supporting evidence regarding his current fitness to practice. It

determined that it would be unfair to Mr Fraser to proceed without giving him the

opportunity to properly present his case and to attend.

Although the decision to proceed in the absence of Mr Fraser at the previous hearing

was well-founded on a clear inference from the correspondence that he did not intend to

attend the hearing, in the light of the recent correspondence, the panel could not be

satisfied that Mr Fraser has voluntarily absented himself today.

The panel considered the public interest in the expeditious disposal of this case, but

determined that it was outweighed by the potential injustice to Mr Fraser if the

32

proceedings were not adjourned. Further, it is in the public interest that Mr Fraser

should have sufficient time to prepare and present his case at the impairment stage.

The panel therefore determined that it should not proceed in Mr Fraser’s absence and

that as a consequence the hearing should be adjourned.

Resuming Hearing: 15 May 2017 Decision on Service of Notice of Hearing At the outset of this resuming hearing, the panel heard that Mr Fraser was not in

attendance. The panel was informed that notice had been sent to Mr Fraser at his

registered address by first class post and recorded delivery on 31 March 2017. As this

is a resuming hearing, the panel was aware that the period of notice has to be

reasonable in all the circumstances.

The panel took into account that the notice letter provided details of the allegation, the

time, dates and venue of the hearing and, among other things, information about Mr

Fraser’s right to attend, be represented and call evidence, as well as the panel’s power

to proceed in his absence. The “Track and Trace” documentation also indicated that the

notice was collected by “Fraser” on 19 April 2017. A copy had also been sent to Mr

Fraser’s representative at the Independent Democratic Union.

The panel therefore determined that the period of notice was reasonable in all the

circumstances and that notice of today’s hearing had been effectively served.

Decision on proceeding in the absence of the Registrant: Ms Nelson submitted that the panel should proceed in the absence of Mr Fraser. She

said that an adjournment would not secure the attendance of Mr Fraser, who has

indicated in written representations, dated 12 May 2017, made on his behalf by his

33

union representative that he feels his health will suffer if he attends. She said that Mr

Fraser has not requested an adjournment and had chosen to absent himself from

proceedings. Ms Nelson submitted that it was in the public interest to ensure the

expeditious disposal of this case, especially considering the panel’s previous decision to

adjourn in order to give Mr Fraser the opportunity to attend.

In reaching its decision, the panel considered all the information before it, together with

the submission of Ms Nelson and the written representations on behalf of Mr Fraser.


The panel decided to proceed in the absence of Mr Fraser. In the written

representations made on his behalf, it was stated “For the reasons documented above,

the Registrant does not feel that he is able to attend the reconvened hearing.” The

panel inferred from this that Mr Fraser had chosen to voluntarily absent himself.

The panel had regard to its previous decision not to proceed in the absence of Mr

Fraser, which was made following a clear indication from Mr Fraser and his

representative that he would attend to give evidence, and for evidence to be called and

representations made in relation to current impairment. Having given Mr Fraser that

opportunity, the panel was satisfied that it had been fair to Mr Fraser and that a further

adjournment would serve no useful purpose. Furthermore, there had been no

application to adjourn and there was nothing to indicate that if the matter were

adjourned, Mr Fraser would attend or be represented at some future date.

The panel was satisfied that there is a high degree of public interest in the expeditious

conclusion of the case, both generally and specifically in the interests of the

complainant, Colleague B. It therefore determined to proceed in the absence of Mr

Fraser.

Submission on misconduct and impairment:

34

Having announced its finding on the facts, the panel then considered whether the facts

found proved amount to misconduct and, if so, whether Mr Fraser’s fitness to practise is

currently impaired. The NMC has defined fitness to practise as a registrant’s suitability

to remain on the register unrestricted.

Ms Nelson submitted that Mr Fraser’s actions amount to breaches of The Code:

Professional standards of practice and behaviour for nurses and midwives (2015) (“the

Code”) and directed the panel to specific paragraphs. She submitted that the nature of

these breaches, both in relation to Mr Fraser’s failings as a manager and to his attitude

towards female colleagues, was such that members of the public and the nursing

profession would find his conduct to be deplorable and therefore that it amounted to

misconduct.

Ms Nelson addressed the issue of impairment. She made submissions in regard to the

need to protect the public and to the wider public interest, which includes the need to

declare and maintain proper standards and maintain public confidence in the profession

and in the NMC as a regulatory body. Ms Nelson referred the panel to the case of

Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2)

Grant [2011] EWHC 927 (Admin).


The panel adopted a two-stage process in its consideration. First, the panel must

determine whether the facts found proved amount to misconduct. Second, that if the

facts found proved amount to misconduct, whether Mr Fraser’s fitness to practise is

currently impaired as a result of that misconduct.

Decision on misconduct

35

When determining whether the facts found proved amount to misconduct the panel

considered all the evidence and information before it, together with the submissions by

Ms Nelson and the written submissions on behalf of Mr Fraser. It had regard to the

terms of the Code and to the public interest. It exercised its own professional judgement

in reaching its decision.

The panel found that Mr Fraser’s actions did fall significantly short of the standards

expected of a registered nurse, and that they amounted to breaches of the Code.

Specifically:

8.4 Work with colleagues to evaluate the quality of your work and that of the team

8.5 Work with colleagues to preserve the safety of those receiving care

8.6 Share information to identify and reduce risk

…

20.2 Act with honesty and integrity at all times, treating people fairly and without

discrimination, bullying or harassment.

…

20.5 Treat people in a way which does not take advantage of their vulnerability or

cause them upset or distress

…

25. Provide leadership to make sure people’s wellbeing is protected an to improve their experiences of the healthcare system

To achieve this, you must:

25.1. Identify priorities, manage time, staff and resources effectively and deal with risk to make sure that the quality of care or service you deliver is maintained and improved, putting the needs of those receiving care or services first, and

The panel appreciated that breaches of the Code do not automatically result in a finding

of misconduct. However, it determined that the sexually motivated allegations amounted

to misconduct, as did the allegations of poor management. In respect of his failure to

adequately manage the care home, the panel concluded that he had placed patients at

a clear risk of harm and failed to meet the public expectation that they and their families

36

would receive quality care in line with CQC standards. This was especially so in the light

of Mr Fraser’s considerable nursing and managerial experience. The panel also

determined that Mr Fraser’s conduct towards Colleague B was completely

unacceptable, and that he had demonstrated a lack of integrity by failing to treat her

with respect. Having heard Colleague B’s account of how Mr Fraser’s attitude towards

her had affected her both professionally and psychologically, the panel had no doubt

that his conduct would be considered abhorrent by members of the profession and by

the public and that it was sufficiently serious to amount to misconduct.

Decision on impairment The panel then considered whether, if, as a result of this misconduct, Mr Fraser’s fitness

to practise is currently impaired.

The panel exercised its own judgement in reaching its decision. In doing so, it

considered all the evidence and information before it, together with the submissions

made by Ms Nelson and the written submissions made on behalf of Mr Fraser.

The panel considered also paragraph 76 of the judgement of Mrs Justice Cox in the

case of Grant, and her consideration of the issues outlined by Dame Janet Smith in the

5th Shipman Report:

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

37

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 determined that Mr Fraser’s misconduct engaged these three limbs of the

test, as he had acted in the past so as to put patients at unwarranted risk of harm, had

brought the profession into disrepute and had breached a fundamental tenet of the

nursing profession, namely, to act with integrity and trustworthiness.

The panel then considered whether, as a result, Mr Fraser is currently impaired or

whether, through insight and remediation, he had sufficiently demonstrated that he no

longer presented a risk of harm to the public. In doing so, the panel considered the

various submissions made by Mr Fraser, including those received today.

The panel found it significant that Mr Fraser continued to deny the charges which have

been found proved, and had suggested that he was effectively the victim of a witch

hunt. Furthermore, in his written submissions dated 12 May 2017, it was suggested that

in order to invite a finding that he is not currently impaired, Mr Fraser must “dishonestly

present to the panel that he shows insight into proven allegations against him, despite

maintaining the honestly held belief that he is innocent, in order to persuade the panel

that he is fit to continue practising.” The panel concluded that, in the light of this

statement, it could not find that Mr Fraser had insight into his conduct. The panel found

significant the NMC guidance on remediation and insight, which indicates that a

registrant may maintain a position of innocence while demonstrating an awareness of

why the alleged behaviour is unacceptable. As Mr Fraser had declined to do this, the

panel determined that he had demonstrated a total lack of self-awareness and

understanding of the severity of his conduct and its impact on Colleague B, his other

colleagues and the public. This was compounded by the evidence that Mr Fraser, in

abusing his position of authority, acted disrespectfully and harassed female colleagues

in the work place. This was further indicative of his deep-seated attitudinal problem.

38

Although Mr Fraser’s managerial failings could be remedied, the panel determined that

this might be difficult in the light of his attitude, based on his experience and self-regard.

However, the panel was not convinced that it would be possible for him to remedy his

attitude towards female colleagues in the work place. There is certainly no evidence that

he has done so. The panel therefore could not be satisfied that there is no risk of

repetition of such sexual misconduct.

The panel therefore determined that a finding that Mr Fraser’s fitness to practise was

currently impaired was necessary for the protection of the public.

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 had further regard to the case of Grant and

paragraph 74 of the judgement which states:

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.

The panel bore in mind that the overarching objectives of the NMC are to protect,

promote and maintain the health, safety and well-being of the public and patients, and

to uphold/protect the wider public interest, which includes promoting and maintaining

public confidence in the nursing profession and upholding the proper professional

standards for members of that profession. The panel determined that a finding of

39

impairment on public interest grounds was required. Such a finding was necessary to

maintain appropriate standards of care provided by managers in healthcare settings and

to reinforce the importance of effective management. The panel also considered that a

finding of current impairment was also necessary to mark the seriousness and

unacceptability of Mr Fraser’s sexual misconduct, especially in the light of the position of

authority which he held at the time.

The panel therefore determined that Mr Fraser’s fitness to practise is currently impaired.

Determination on sanction: The panel has decided to make a striking-off order. It directs the registrar to strike Mr

Fraser’s name from the register. The effect of this order is that the NMC register will

show that Mr Fraser has been struck-off the register.

In reaching this decision, the panel has had regard to all the evidence and information

before it, together with the submissions of Ms Nelson and the written submission on

behalf of Mr Fraser. 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 regard to the NMC’s Indicative Sanctions

Guidance (“ISG”).


The decision on sanction is a matter for the panel, exercising its own independent

judgement. It has exercised the principle of proportionality at all times.

The panel first considered the aggravating and mitigating factors. The aggravating

factors are:

• Mr Fraser’s sexual misconduct was not an isolated incident but was spread over

a period of approximately two and a half months

40

• Mr Fraser’s managerial failings occurred over a period of several months

• Mr Fraser lacks insight, has shown no remorse and has taken no responsibility

for his actions

• Mr Fraser abused his position of authority in the Home

• Colleague B was significantly distressed by Mr Fraser’s actions

• Patients were put at risk as a result of Mr Fraser’s managerial failings

It considered a mitigating factor to be:

• The evidence indicated that Mr Fraser was not well managed by those senior to

him in the Home’s management structure

Although Mr Fraser’s career as a nurse spanned some 35 years and there have been

no previous regulatory findings against him, he should have been sufficiently

experienced to be able to manage the Home adequately, ensuring the safety and high

standard of care of all residents.

The panel first considered whether to take no action but concluded that this would be

inappropriate in view of the risk of repetition identified and the seriousness of the case.

The panel decided that take no further action would be wholly insufficient to protect the

public and would undermine public trust and confidence in the nursing profession and in

the NMC. Misconduct of this nature demands a sanction.

Next, in considering whether a caution order would be appropriate, 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

determined that Mr Fraser’s sexual and managerial misconduct was in fact at the higher

end of the spectrum and that a caution order would be inappropriate in view of the

continuing risk to patients and the public and the seriousness of the case. A caution

order would not be appropriate or proportionate nor would it be sufficient to address the

public interest.

41

The panel next considered a conditions of practice order. The panel is mindful that any

conditions imposed must be proportionate, measurable and workable. The panel took

into account the ISG, in particular whether:

64.8 It is possible to formulate conditions and to make provision as to how

conditions will be monitored

There are no practical or workable conditions that could be formulated, given the nature

of the facts found proved. Although it is conceivable that the managerial failings could

be remedied by such an order, Mr Fraser has shown a persistent lack of insight and

refusal to accept responsibility for these failings, exemplified by the lack of improvement

shown during the CQC’s second visit to the Home. Based on this evidence, the panel

determined that Mr Fraser would be unlikely to engage with a conditions of practice

order.

Furthermore, in regard to the sexual misconduct, Mr Fraser’s attitudinal problem is such

that no conditions could be formulated which would be appropriate, workable, and

sufficient to protect the public or to address the public interest.

The panel then considered a suspension order.

The misconduct found proved was a significant departure from the standards expected

of a registered nurse. Although a suspension order would protect patients and the public

while in force, Mr Fraser’s persistent lack of insight, failure to accept responsibility and

the consequent risk of recurrence, indicated that temporary removal would not be

sufficient. The panel concluded that the serious breach of the fundamental tenet of the

profession evidenced by Mr Fraser’s actions is incompatible with his remaining on the

register. The panel determined that a suspension order would not be a sufficient,

appropriate or proportionate sanction.

42

Mr Fraser’s actions were significant departures from the standards expected of a

registered nurse, and are fundamentally incompatible with his remaining on the register.

The misconduct found proved was so serious that to allow Mr Fraser to remain in

practice would undermine public confidence in the nursing profession and in the NMC

as a regulatory body.

Balancing all these factors, the panel has determined that the only sufficient,

appropriate and proportionate sanction is that of a striking-off order. Having regard to

the matters it identified, in particular the effect of Mr Fraser’s 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. Indeed, a right minded and informed member of the public would be

concerned if a striking off order were not made.

The panel concluded that this order was necessary to mark the importance of

maintaining public confidence in the profession, and to send to the public and the

profession a clear message about the standard of behaviour required of a registered

nurse.

Determination on Interim Order The panel considered the submissions made by Ms Nelson that an interim order should

be made on the grounds that it is necessary for the protection of the public and is

otherwise in the public interest.


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 for the

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substantive 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 Mr Fraser is sent the decision of this hearing in writing.

That concludes this determination.

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