1

Conduct and Competence Committee Substantive Hearing

7-10 March 2017, Resumed 19 -21 July 2017

Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Name of Registrant Nurse: Mr Neil Murphy NMC PIN: 99I1287S Part(s) of the register: Registered Nurse – Sub Part 1 Mental Health – November 2002 Area of Registered Address: Scotland Type of Case: Misconduct Panel Members: Timothy Cole (Chair, Lay member)

James Richardson (Registrant member) Stella Armstrong (Registrant member)

Legal Assessor: Graeme Henderson (March 2017)/ Mike Bell

(July 2017) Panel Secretary: Tafadzwa Taz Chisango (March 2017)/ Julia

Wanless (July 2017) Mr Murphy: Not present and not represented in absence Nursing and Midwifery Council: Represented by Ms Patricia Comiskey (March

2017)/ Yusuf Segovia (July 2017), counsel, instructed by NMC Regulatory Legal Team.

Facts proved: 1.1.1, 1.1.2, 1.1.3, 1.2.1, 1.2.2, 1.2.3, 2, 3.1,

3.2, 3.3 and 4 Facts not proved: 5.1, 5.2 and 6 Fitness to practise: impaired Sanction: Striking-off order Interim Order: 18 month interim suspension order

2

Details of charge: That you, a registered nurse: 1. Whilst working at Woodside Care Home:

1.1. On 20 September 2008, you:

1.1.1. failed to administer one or more residents’ prescribed medications; (found

proved)

1.1.2. signed MAR sheets to show that the medications in charge 1.1.1 had been administered when they had not; (found proved)

1.1.3. inappropriately disposed of the medications in a bin; (found proved) 1.2. In addition to the date in charge 1.1 above, on one or more unknown dates in

September 2008, you:

1.2.1. failed to administer one or more residents’ prescribed medications; (found proved)

1.2.2. signed MAR sheets to show that the medications in charge 1.2.1 above had been administered; (found proved)

1.2.3. inappropriately disposed of the medications in a bin. (found proved) 2. Your conduct as set out in charges 1.1.2 and/or 1.2.2 was dishonest in that you

sought to conceal that you had not administered residents’ medications; (found proved)

3. Whilst working at Nethanvale Care Home, on 30 August 2014, you : 3.1. failed to administer one or more of Resident B’s prescribed medication, as listed in

schedule 1; (found proved)

3.2. signed Resident B’s MAR sheet to show that medication had been administered when it had not; (found proved)

3.3. inappropriately disposed of the medication in a bin. (found proved)

3

4. Your conduct as set out in charge 3.2 was dishonest in that you sought to conceal that you had not administered Resident B’s medications. (found proved)

5. Whilst registered with H1 Healthcare Group recruitment consultancy (“H1”) and

subsequently having been made subject to an Interim Conditions of Practice Order (‘ICOPO’):

5.1. failed to promptly inform H1 that you were the subject of an ICOPO; (not proved)

5.2. whilst placed at Abbey Court Care Home, failed to promptly inform Abbey Court

Care Home that you were the subject of an ICOPO. (not proved) 6. Your conduct as set out at charge 5.1 and/or charge 5.2 above was dishonest in that

you sought to conceal that you were subject to an ICOPO. (not proved) And, in light of the above, your fitness to practise is impaired by reason of your misconduct. SCHEDULE 1

1. Omeprazole Capsule 10mg 2. Quetiapine 25mg tablet 3. Cyanocbalamin 50mcg 4. Digoxin 125m 5. Fluoxetine 20mg capsule 6. Irbesartan 150mg 7. Levothyrine 20mcg

Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Mr Murphy was not in attendance and that written notice of this hearing had been sent to Mr Murphy’s registered address by recorded delivery and by first class post on 27 January 2017. Royal Mail “Track and Trace” documentation confirmed that the notice of hearing was sent to Mr Murphy’s registered address by recorded delivery on that date. The panel took into account that the notice letter provided details of the allegations, the time, dates and venue of the hearing and, amongst other things, information about Mr Murphy’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

4

notice was delivered and signed for by the name of ‘Neil Murphy’ on 28 January 2017. Ms Comiskey submitted the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended (“the Rules”). The panel accepted the advice of the legal assessor who referred to the case General Medical Council v Adeogba 2016 EWCH 162. In the light of all of the information available, the panel was satisfied that Mr Murphy has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. It noted that the rules do not require delivery and that it is the responsibility of any registrant to maintain an effective and up-to-date registered address. 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...”

Ms Comiskey invited the panel to proceed in the absence of Mr Murphy on the basis that he had voluntarily absented himself and, as a consequence, 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 General Medical Council v Adeogba 2016 EWCH 162. The panel noted various emails between Mr Murphy and an NMC case officer. The case officer tried to establish whether Mr Murphy was intending to attend the hearing or not but Mr Murphy did not provide a response. The panel has decided to proceed in the absence of Mr Murphy. In reaching this decision, the panel has considered the submissions of the case presenter, and the advice of the legal assessor. It has had particular regard to the factors set out in the decision of Jones. It has had regard to the overall interests of justice and fairness to all parties. It noted that:

5

• no application for an adjournment has been made by Mr Murphy; • there is no reason to suggest that adjourning would secure Mr Murphy’s

attendance at some future date; • three witnesses have attended today to give live evidence, others are due to

attend; • not proceeding may inconvenience the witnesses, their employers and, for those

involved in clinical practice, the clients who need their professional services; • some of the charges relate to events that occurred in 2008 and 2014; • further delay may have an adverse effect on the ability of witnesses accurately to

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

In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mr Murphy. The panel will draw no adverse inference from Mr Murphy’s absence in its findings of fact. Application to admit hearsay evidence: Ms Comiskey invited the panel to admit the witness statements of Mr 4 and Mr 8 as hearsay evidence in accordance with the provisions of Rule 31 (1). Rule 31 (1) states:

“Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings.”

Ms Comiskey submitted that both witnesses would not be attending the hearing. Ms Comiskey informed the panel that Mr 4’s evidence is relevant and it would provide a detailed background to the case. Mr 8 is a registered nurse manager who commenced employment in August 2016. This postdates the events that took place however his evidence is relevant to charge 5. Ms Comiskey informed the panel that Mr Murphy had been made aware that both witnesses would be unable to attend the hearing. Mr Murphy was invited by the NMC to object to both witnesses’ statements being submitted as hearsay evidence however he has not responded. Ms Comiskey submitted that Mr Murphy has not objected to this application to admit either of these statements under Rule 31(1).

6

The panel accepted the advice of the legal assessor. There is no dispute that the evidence of these witnesses is relevant. Allowing the admission of their evidence in this way does mean that it will not be challenged, however, the application is not opposed. The panel was satisfied that there was no reason to reject the application. The panel therefore considered it would be fair and relevant to accept both witnesses’ statements along with their supporting documents (exhibits) into evidence. The panel will in due course determine what weight to attach to the witness statements once it has heard and evaluated all of the evidence before it. Application to admit evidence: Ms Comiskey invited the panel to admit a report that was relevant to Ms 7’s evidence. Ms 7 had informed Ms Comiskey that there was a report that was not contained in the NMC hearing bundle that was relevant to charge 5. This report had been provided to the NMC prior to this hearing. Ms Comiskey submitted to the panel that this report should now be included in the evidence and made an application for the evidence to be admitted. She told the panel that Mr Murphy has had sight of this report previously as it accompanied a notice to him of an interim order hearing. As Mr Murphy has already had sight and been served this report it would not be a question of unfairness on his part. This is evidence that is relevant and could be relied upon. The panel accepted the advice of the legal assessor. In the panel’s judgement, the evidence in question could be relevant to the charge, however even if this evidence were relevant, it would in any event be unfair to allow its admission. The evidence is not the sole or decisive evidence in relation to the charges. The panel had in mind Mr Murphy denied the charge. The charges are serious and, if found proved, could have a profound impact upon Mr Murphy. The panel noted that the NMC served this evidence on Mr Murphy but this was prior to this substantive hearing. The panel is of the view that the NMC should have served this information to Mr Murphy at this point in time as these are different circumstances. The panel determined that its ability to apply weight to particular evidence did not, in this case, overcome the fundamental unfairness to Mr Murphy in admitting this evidence. Therefore the panel did not allow the application. Application to adjourn:

7

During the NMC case on facts and prior to hearing from the last witness Ms 6, Ms Comiskey applied to adjourn the hearing overnight. Ms Comiskey informed the panel that Ms 6 is unable to attend the hearing for health reasons. She provided a medical certificate (valid for the period 1 March 2017 to 8 March 2017) in support of this. She advised that on 6 March 2017 the NMC was informed by the witness that she may be unable to attend this hearing and the medical certificate was only received by her on 8 March 2016. She submitted that the NMC had subsequently been unable to make contact with the witness today by telephone. Ms Comiskey requested that the hearing be adjourned overnight to allow the witness the opportunity to respond to the NMC’s attempts to contact her. The legal assessor advised the panel that should the panel decide not to adjourn, the only other alternative to the NMC would be for an application to be made for the witness statement to be read. The panel noted the lateness of the hour and was satisfied that an overnight adjournment would cause no injustice to the parties. However, the panel was mindful that there is a public interest in dealing with this matter expeditiously. It therefore decided to adjourn the hearing until 09:00 on 9 March 2017. Hearing resumed 09:00 9 March 2017 Decision and reasons on application to amend charge: When the panel resumed the hearing on 9 March 2017 Ms Comiskey made an application on behalf of the NMC, to amend the wording in schedule 1 of charges in particular item 3, 4 and 7. The proposed amendment to schedule 1, item 3, 4 and 7 was to change the spelling of the medications. Ms Comiskey proposed item 3 be changed from ‘Cyanocbalamin’ to ‘Cyanocobalamin’. In regard to item 4 she proposed to change ‘Digoxin 125m’ to ‘Digoxin 125mcg’ and in regard to item 7 to change ‘Levothyrine’ to Levothyroxine’. In relation to fairness she submitted that the amendment was sought to address an obvious typographical error. The panel invited Ms Comiskey to amend charge 1.1.3 and 1.2.3. The proposed amendment to both the charges was to add the words ‘sharps/clinical waste’. Ms Comiskey did not object to the amendment of both charges. Ms Comiskey informed the

8

panel that the proposed amendments would provide clarity and more accurately reflect the evidence that was before them. The panel accepted the advice of the legal assessor that Rule 28 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended 2012) (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 amendments, as applied for, were in the interests of justice. The panel was satisfied that there would be no prejudice to Mr Murphy and no injustice would be caused to either party by the proposed amendments being allowed. It was therefore appropriate to allow the amendments, to ensure clarity and accuracy. The panel determined that the charges be amended to read: 1.1.3 inappropriately disposed of the medications in a sharps/clinical waste bin 1.2.3 inappropriately disposed of the medications in a sharps/clinical waste bin SCHEDULE 1

1. … 2. … 3. Cyanocobalamin 50mcg 4. Digoxin 125mcg 5. … 6. … 7. Levothyroxine 20mcg

Hearing concluded prior to facts on 10 March 2017. The panel considered an interim order but it was not imposed.

9

Hearing resumed 19 July 2017 At the outset of the resumed hearing, and prior to announcing its decision on the facts, the panel was informed that Mr Murphy was not in attendance. The panel therefore first considered whether to proceed in Mr Murphy’s absence. Decision on Service of Notice of Hearing: The panel was informed by Mr Segovia, on behalf of the NMC, that written notice of this hearing had been sent to Mr Murphy’s registered address by recorded delivery and by first class post on 14 March 2017. Royal Mail “Track and Trace” documentation confirmed that the notice of hearing was sent to Mr Murphy’s registered address by recorded delivery on that date. The panel took into account that the notice letter provided details of the time, dates and venue of the resumed hearing and, amongst other things, information about Mr Murphy’s right to attend, as well as the panel’s power to proceed in his absence. The “Track and Trace” documentation also indicated that the notice sent by recorded delivery was returned to sender on 18 April 2017. The panel accepted the advice of the legal assessor in relation to Rule 32 (3) which states, “Where the proceedings have been adjourned, the Practice Committee shall, as soon as practicable, notify the parties of the date, time and venue of the resumed hearing”. In the light of all of the information available, the panel was satisfied that Mr Murphy has been served with notice of this hearing in accordance with the requirements of the Rules. Decision on proceeding in the absence of the Registrant: The panel had regard to Rule 21 (2) (b).

Mr Segovia invited the panel to proceed in the absence of Mr Murphy on the basis that he had voluntarily absented himself and, as a consequence, there was no reason to believe that an adjournment would secure his attendance on some future occasion. Mr Segovia highlighted Mr Murphy’s history of non-attendance at the original hearing. He submitted that Mr Murphy responded to the notice of hearing in an e-mail dated 9 July 2017 stating that he was happy for the hearing to take place in his absence. He also referred the panel to an earlier e-mail dated 9 March 2017 indicating that, should the panel make a finding on impairment, Mr Murphy may wish to be contacted. Mr

10

Segovia submitted that the NMC therefore sought further clarification from Mr Murphy. Mr Murphy responded in a telephone call dated 19 July 2017 indicating that he did not wish to participate in the hearing or be contacted by the panel at any point. The panel accepted the advice of the legal assessor. The legal assessor advised that the panel has a 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 has decided to proceed in the absence of Mr Murphy. In reaching this decision, the panel has considered the submissions of the case presenter, and the advice of the legal assessor. It has had particular regard to the factors set out in the decision of Jones. It has had regard to the overall interests of justice and fairness to all parties. It noted that:

• Mr Murphy has had notice of this resumed hearing since March 2017 • He indicated in various correspondence that he is happy for the hearing to

proceed in his absence; • No application for an adjournment has been made by Mr Murphy; • There is no reason to suggest that adjourning would secure Mr Murphy’s

attendance at some future date; • The panel concluded that Mr Murphy has voluntarily absented himself and was

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

In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mr Murphy. Background: In 2008 Mr Murphy was working at Woodside Care Home (Woodside) as a Deputy Manager. The Home provided nursing care for residents with dementia and offered respite services. The Home had three units, Thistle and Fir Unit which provided dementia care, and Heather Unit which provided care for the elderly. On or around 20 September 2008 concerns were raised with Mr Murphy’s drug administration. It is alleged that Mr Murphy did not administer residents’ prescribed medications during the 2pm and 6pm drug round on Fir Unit. Mr Murphy is alleged to have been signing MAR sheets to indicate that he had administered the medication. The Home Manager requested that staff members conduct a search of waste bins and sharps/clinical waste bins for medications. The sharps bin in the Fir Unit was inspected and was alleged to have medication in it. Following the inspection of the bins Mr Murphy was suspended

11

from duty on 22 September 2008 pending an investigation. Mr Murphy was dismissed from the Home on 3 October 2008 following a disciplinary hearing. Further allegations arose about Mr Murphy whilst he was working at Nethanvale Care Home (Nethanvale) as a staff nurse. Nethanvale provides general nursing care and care for residents with dementia. Mr Murphy worked predominantly in the dementia unit. He commenced employment at Nethanvale on 30 April 2014. It is alleged that on 30 August 2014 Mr Murphy was seen disposing of Resident B’s medication in a bin. The act was witnessed by a care assistant, who checked Resident B’s MAR sheet, which showed that Mr Murphy had allegedly signed the chart to indicate that the medication had been administered. The care assistant checked the bin and apparently found Resident B’s medication wrapped in a paper towel in the bin. Mr Murphy was suspended from duty on 3 September 2014 and subsequently dismissed on 6 October 2014 following a hearing. In January 2014 Mr Murphy registered with H1 Healthcare Group Recruitment Consultancy (H1). Mr Murphy commenced clinical shifts with H1 in April 2014. Following an NMC interim order hearing on 4 November 2014 Mr Murphy was made the subject of an interim conditions of practice order (ICOPO). Mr Murphy alerted one of the operations managers at H1 that he had an upcoming NMC interim order review hearing on 12 May 2015. Mr Murphy had requested a supporting reference from H1 to present at the hearing. The matter was escalated to the operations director of H1 who stated that he did not know that Mr Murphy had been made the subject of an ICOPO. It is alleged that Mr Murphy had not disclosed any information to H1 regarding his ICOPO. Mr Murphy stopped working with H1 in June 2015. Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel considered all the evidence adduced in this case together with the submissions made by Ms Comiskey, on behalf of the NMC. The panel heard and accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the panel was satisfied that it was more likely than not that the incidents occurred as alleged. The panel has drawn no adverse inference from the non-attendance of Mr Murphy.

12

In reaching its decisions on the facts, the panel took into account all the oral and documentary evidence in this case. The panel heard oral evidence from six witnesses called on behalf of the NMC: Ms 1, Team Leader employed by Woodside who was working as a healthcare assistant at the relevant time; Ms 2, Home Manager employed by Woodside; Ms 3 Deputy Manager employed by Woodside ; Ms 5 Care Assistant employed at Nethanvale; Ms 6 Staff Nurse at Nethanvale; and Ms 7 Operations Manager and Registered Manager for H1. The written statements of Mr 4, Home Manager at Nethanvale and Mr 8, Registered Nurse Manager at H1 were read into the record. The panel found Ms 1 to be a clear and credible witness. Ms 1 had a good recollection of events and it went to her credibility that she had challenged Mr Murphy even though she was concerned that this might result in her losing her job. The panel found Ms 2 to be a reliable and credible witness. She gave clear and consistent evidence throughout. The panel found Ms 3 to be a credible witness and to have clear recollection of events. The panel found Ms 5 had clear recollection of events. She assisted the panel and added clarity to any issues the panel had. The panel noted that Ms 6 tried her best to assist the panel but she struggled whilst giving evidence. She was unclear in some of the evidence she gave and did not have a good recollection of the events that occurred approximately three years ago. The panel found Ms 7 to be an open and honest witness. She was professional and dealt with a difficult situation (not being able to rely on the report referred to in the Rule 31 application above) in a professional manner with the limited information she had. The panel found her to be a credible witness. The panel went on to consider the charges and made the following findings: Charge 1.1.1: Whilst working at Woodside Care Home: On 20 September 2008, you:

13

1.1.1 failed to administer one or more residents’ prescribed medications; This charge is found proved. In reaching this decision, the panel took into account all the documentary evidence and the oral evidence of Ms 1. Ms 1 in her evidence stated that she and another healthcare assistant had reported their concerns about Mr Murphy’s drug administration on 20 September 2008 to Ms 3 on the same day. Ms 1 informed the panel that she witnessed Mr Murphy “doing the 10am drug round”, which he completed in approximately 30 minutes. Ms 1 was in the lounge of the Fir Unit during the times when the 2pm and 6pm drug rounds should have taken place. She told the panel that Mr Murphy did not enter the lounge during this period. As a result Ms 1 did not see Mr Murphy administer medications to residents in the lounge during the 2pm and 6pm drug rounds. Ms 1 told the panel she had been first been concerned two weeks prior that residents were not receiving their prescribed medication, and had challenged Mr Murphy at that time. Ms 1 then went on holiday for a week and when she returned a healthcare assistant raised similar concerns that medication was not being administered to residents on the 2pm and 6pm drug rounds when Mr Murphy was on duty. In response to the concerns raised by the two healthcare assistants, Ms 3 was instructed by Ms 2 to check the clinical waste bins. When the bins were opened the following day, in the presence of the Managing Director, Ms 2 and Ms 3, the bin belonging to the Fir Unit was found to contain a large amount of medication. The medication found was cross referenced with the residents’ MAR sheets and it was identified which residents were not getting their medication. Ms 3 stated that it was clear that the residents had not been getting medications on the 2pm and 6pm shifts for approximately three to four weeks. The panel noted that the bins were routinely disposed of every four weeks. Ms 1’s evidence to the panel was that the nurse on shift would administer medication to residents. Ms 1 also told the panel that when she challenged Mr Murphy about residents not receiving their medication he assured her that he was administering all the medication. Further, Mr Murphy has not challenged that this was his responsibility in any of his written representations to the NMC.

14

In an email dated 12 February 2017, to the NMC case officer, Mr Murphy disputed the charges, in general, relating to his employment at Woodside. He made reference to insufficient evidence and the case having been previously closed. The panel preferred and accepted the evidence of Ms 1 and Ms 3, which was supported by the evidence of Ms 2 who witnessed the bins being searched. In the circumstances the panel was satisfied that on 20 September 2008 Mr Murphy had the responsibility to administer all the residents’ medication and it was more likely than not, that on the 2pm and 6pm drug rounds, he failed to do so. This charge is therefore found proved. Charge 1.1.2: signed MAR sheets to show that the medications in charge 1.1.1 had been administered when they had not; This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 3 and Ms 2. Their evidence was that the prescribed medication found in the bin was cross referenced with the residents’ MAR sheets and it was identified which residents were not getting their medication. Mr Murphy had signed the MAR sheets to indicate that the prescribed medication had been administered. The panel did not have sight of the MAR sheets referred to by the NMC witnesses. However, it accepted the corroborative evidence of Ms 2 and Ms 3. It was satisfied that Mr Murphy had signed the MAR sheets referred to, but, at least on the 2pm and 6pm drug rounds, had not administered the medication to one or more residents. Therefore on the balance of probabilities the panel found this charge proved. Charge 1.1.3: Inappropriately disposed of the medications in a sharps/clinical waste bin This charge is found proved. The panel accepted the evidence of Ms 2 and Ms 3 regarding the contents of the clinical waste bins and the cross reference exercise with the MAR sheets that was

15

subsequently undertaken. There was no evidence before the panel that the medication recovered from the bins included medication which was not administered during 20 September 2008. However, there was also no evidence that this medication was disposed of in any other manner. The panel concluded that it could be reasonably inferred that the medication recovered from the bin included the medication which had not been administered on 20 September 2008. The panel was satisfied that it was inappropriate to dispose of the medication in this manner given that Mr Murphy had signed the MAR sheets to indicate that the medication had in fact been administered. Accordingly this charge is found proved. Charge 1.2, 1.2.1, 1.2.2 and 1.2.3: In addition to the date in charge 1.1 above, on one or more unknown dates in September 2008, you:

1.2.1 failed to administer one or more residents’ prescribed medications; 1.2.2 signed MAR sheets to show that the medications in charge 1.2.1 above had been

administered;

1.2.3 Inappropriately disposed of the medications in a sharps/clinical waste bin This charge is found proved. In reaching this decision, the panel took into account all the evidence as set out at charge 1.1 above. For the reasons set out in the panel’s decision in relation to charge 1.1. it is satisfied that in the three/four week period preceding 20 September 2008 Mr Murphy failed to administer one or more residents’ prescribed medications. Further the panel is satisfied that during this period Mr Murphy signed MAR sheets to show that these medications had been administered when in fact he had inappropriately disposed of the medications in a sharps/clinical waste bin. Accordingly this charge is found proved in its entirety. Charge 2: Your conduct as set out in charges 1.1.2 and/or 1.2.2 was dishonest in that you sought to conceal that you had not administered residents’ medications; This charge is found proved.

16

In reaching this decision, the panel took into account all of the oral and documentary evidence presented in this case. The panel was aware of the relevant test for dishonesty in R v Ghosh [1982] QB 1053, further explained in Hussain v GMC [2014] EWHC (CIV) 2246. The panel was satisfied that, on the facts of this case, the standards of registered nurses would be no different from those of people in general. The panel noted that this charge narrates that the alleged dishonesty arises from Mr Murphy seeking to conceal that he had not administered residents’’ medication as set out in charges 1.1.2 and 1.2.2. The panel therefore firstly considered whether Mr Murphy’s actions as found proved in these charges were an attempt to conceal. Having considered all of the evidence the panel was satisfied that by signing the MAR sheets Mr Murphy intended to record that the relevant residents had received their prescribed medication. The panel was further satisfied that Mr Murphy was fully aware that he had not administered this medication. In these circumstances the panel concluded that Mr Murphy’s actions in charges 1.1.2 and 1.2.2 were attempts to conceal that he had not administered residents’ medication. The panel considered that such actions would, according to the standards of reasonable and honest people, be considered to be dishonest. The panel further considered that, given his professional registration and experience, Mr Murphy would himself have realised that what he was doing was by those standards dishonest. The panel therefore found charge 2 proved. Charge 3.1: Whilst working at Nethanvale Care Home, on 30 August 2014, you : 3.1 failed to administer one or more of Resident B’s prescribed medication, as listed in

schedule 1; This charge is found proved. In reaching this decision, the panel took into account all the documentary evidence and the evidence of Mr 4, Ms 5 and Ms 6.

17

Ms 5 in her evidence stated that, on 30 August 2014, Mr Murphy assigned himself to administer Resident B’s medication. She was observed Mr Murphy in Resident B’s room removing medication from a blister pack. Resident B was not in the room at the time. She watched Mr Murphy leave Resident B’s room and go towards the kitchen. She saw Resident B asleep in a chair near the kitchen and was mindful that a resident needs to be woken up if they are due medication. As Resident B was fast asleep Ms 5 did not believe he had received his medication. When Ms 5 entered the kitchen she saw Mr Murphy acting suspiciously. He had wrapped something in a blue paper towel and disposed of it in the bin. When she looked in the bin she found the medication which belonged to Resident B. After finding the medication she reviewed this against Resident B’s MAR sheet and noted that Mr Murphy had signed the MAR sheet to indicate that he had administered Resident B’s medication. Ms 5 retained the tissue paper with the medicines inside and gave it to Ms 6. Ms 6 stated that on 30 August she received the tablets from Ms 5 who had found them in the kitchen bin. Ms 6 reviewed the tablets and compared them with Resident B’s MAR sheet. The MAR sheet had been signed as administered. Ms 6 was able to identify the medications that should have been given to Resident B as Digoxin, Irbesartan, Omeprazole, Cyanocobalamin, Quetiapine and Fluoxetine. Ms 6 confirmed that Mr Murphy could not have administered the prescribed medication as required. Mr 4 in his evidence stated that he was notified by Ms 6 that Ms 5 had found medication in the kitchen bin after witnessing Mr Murphy disposing of it. Mr 4 stated that Ms 6 had been given the medication by Ms 5 still wrapped up in the tissue paper. Mr 4 took the medication and checked Resident B’s MAR sheet and confirmed that the tablets corresponded with those the resident should have been given at the time the incident was observed by Ms 5. Mr Murphy denied this allegation in his email of 20 November 2014 to the NMC. He stated that he had administered this medication to Resident B. He further stated that Resident B is very compliant with taking his medication so there would be no reasons for him to not administer it. The panel considered the evidence before it and noted that Ms 5’s evidence was corroborated by Ms 6’s. The panel noted that both Ms 5 and Ms 6 were clear in their evidence that Mr Murphy had not administered this medication. The panel did not accept Mr Murphy’s response in this matter and preferred the evidence of Mr 4, Ms 5 and Ms 6.

18

Therefore on the balance of probabilities the panel found this charge proved. Charge 3.2: signed Resident B’s MAR sheet to show that medication had been administered when it had not; This charge is found proved. In reaching this decision, the panel took into account all the documentary evidence, including Resident B’s MAR sheet, and the evidence of Ms 5, Ms 6 and Mr 4 as summarised at charge 3.1 above. The panel had regard to Resident B’s MAR sheet from 8 August to 4 September 2014. The panel noted that on 30 August 2014 Resident B’s prescribed medication as listed in schedule 1 had been initialled by Mr Murphy to indicate that he had administered it to Resident B by him. The panel noted that all of the medication listed in schedule 1 were identified by Mr 4 and Ms 6 as the medication that Mr Murphy had disposed of. The panel is of the view that it is more than likely that not that Mr Murphy had signed the MAR sheets to show that he had administered the medication when he had not done so. Therefore on the balance of probabilities the panel found this charge proved. Charge 3.3: Inappropriately disposed of the medication in a bin This charge is found proved. In reaching this decision, the panel took into the evidence summarised at charges 3.1 and 3.2 above. The panel was satisfied that it was inappropriate to dispose of the medication in this manner given that Mr Murphy had signed the MAR sheet to indicate that the medication had in fact been administered to Resident B. In addition the panel had regard to the medications administration policy. There are clear instructions of how medication should be disposed of and the panel was satisfied that Mr Murphy failed to follow them. Based on the evidence before it, the panel found that Mr Murphy had inappropriately disposed of the medication in the bin. Therefore this charge is found proved.

19

Charge 4: Your conduct as set out in charge 3.2 was dishonest in that you sought to conceal that you had not administered Resident B’s medications. This charge is found proved. In reaching its decision the panel noted the test of dishonesty in charge 2. The panel was satisfied that, on the facts of this case, the standards of registered nurses would be no different from those of people in general. The panel noted that as in charge 2 this charge narrates that the alleged dishonesty arises from Mr Murphy seeking to conceal that he had not administered medication, in this case to Resident B. For the same reasons as set out in charge 2, the panel is satisfied that Mr Murphy’s actions as set out in charge 3.2 were attempts to conceal that he had not administered Resident B’s medications. The panel considered that such actions would, according to the standards of reasonable and honest people, be considered to be dishonest. The panel further considered that, given his professional registration and experience, Mr Murphy would himself have realised that what he was doing was by those standards dishonest. The panel therefore found charge 4 proved. Charge 5.1: failed to promptly inform H1 that you were the subject of an ICOPO; This charge is not proved. In reaching this decision, the panel took into account all the documentary evidence, the evidence of Ms 7, the witness statement of Mr 8 and the various responses from Mr Murphy to the NMC and H1. The panel noted that this charge alleges that Mr Murphy failed to “promptly” inform H1 that he had been made the subject of an ICOPO. The panel considered that to find this charge proved it required to be satisfied that there had been little or no delay between the imposition of the ICOPO and Mr Murphy advising H1 of its existence.

20

The panel noted that Mr Murphy was made the subject of ICOPO on 4 November 2014. Ms 7 was the operations manager at H1 when Mr Murphy asked for a reference for an upcoming interim order review on 12 May 2015. However she had restricted access to the H1 system and could see nothing logged about this matter. She asked Mr Murphy for the document relating to his ICOPO but Mr Murphy had only sent Ms 7 one page of the ICOPO decision to her. H1 conducted its own investigation into this matter. Mr 8’s evidence was that the first entry that indicated that anyone at H1 was aware of Mr Murphy’s ICOPO was on 17 March 2015. The ICOPO was picked up during the annual PIN check by the compliance manager, Ms 10, who put a note on Mr Murphy’s file about the ICOPO and that Ms 9, the then nurse manager, was aware. The panel did not have sight of that note. Mr 8 was reportedly informed by Ms 10 that Ms 9 was already aware of the imposed restrictions (however there was no system entry to indicate when this was). The panel did not have the benefit of evidence from Ms 9 or Ms 10. Mr Murphy in his email to the NMC, dated 12 February 2017, stated that he had informed H1 of his restrictions. Mr Murphy explained that his manager did not pass on the information to his predecessor. Mr Murphy stated that there were several changes of managers at H1 however there are emails between H1, the NMC and himself that date back to October 2014 which indicate he had made H1 aware of the ICOPO. The panel had regard to emails between the NMC and H1 dated 21 October 2014. The email correspondence indicated that H1 was aware that the NMC had received a referral about Mr Murphy. In an internal H1 file note, seen by the panel, dated 9 March 2015, Ms 9 indicated that she was aware that Mr Murphy was on an 18 month ICOPO. The panel noted that this was shortly before the annual PIN check recorded on H1’s system. Albeit the panel has been provided with no evidence of when Ms 9 first became aware of Mr Murphy’s ICOPO, it is of the view that based on the content of the emails and file notes over the period October 2014 to March 2015 it was more likely than not that H1 was aware of Mr Murphy’s ICOPO prior to 9 March 2015.

21

The panel noted Ms 7’s evidence that during 2014 to 2015 there had been several changes to management. In the panel’s view, the changes could have affected Mr Murphy in terms of H1’s awareness of his ICOPO. In these circumstances the panel is unable to draw any safe conclusion as to exactly when Mr Murphy did advise H1 that he was subject to an ICOPO. It is therefore unable to reach any conclusion that he did not do so “promptly”. The panel concluded that the NMC had failed to meet the standard of proof required to show that Mr Murphy had not advised H1 promptly of his ICOPO, and therefore the charge is found not proved. Accordingly this charge is not found proved. Charge 5.2: whilst placed at Abbey Court Care Home, failed to promptly inform Abbey Court Care Home that you were the subject of an ICOPO This charge is not proved. In reaching this decision, the panel took into account all the documentary evidence. The panel noted an Investigating Committee decision letter to Mr Murphy dated 23 July 2015 following an interim order review hearing on 21 July 2015. As part of the decision, the letter stated ‘you had previously worked at Abbey Court Care Home, now closed’. This was the only evidence provided in relation Mr Murphy’s alleged employment at this home. There was no information before the panel to allow it to reach any conclusion as regard to the period during which Mr Murphy may have been employed at Abbey Court Care Home or whether he had failed to promptly inform it that he was the subject of an ICOPO. The panel concluded that the NMC has not provided sufficient evidence to discharge the burden of proof in relation to this charge. The panel therefore determined that this charge is not proved. Charge 6: Your conduct as set out at charge 5.1 and/or charge 5.2 above was dishonest in that you sought to conceal that you were subject to an ICOPO.

22

This charge is not proved. Having found charge 5.1 and 5.2 not proved, charge 6 falls. The panel therefore determined that this charge is not proved. Determination on impaired fitness to practise Having announced the facts the panel has now considered whether on the basis of the facts found proved, Mr Murphy’s fitness to practise is currently impaired. This is a two stage process. The panel must first determine if Mr Murphy’s actions amounted to misconduct. If misconduct is found, the panel must consider whether that misconduct amounts to current impairment of his fitness to practise. When coming to its decision the panel has taken into account all of the facts found proved. It has taken account of all the evidence before it and the submissions of Mr Segovia on behalf of the NMC. The panel has accepted the legal assessor’s advice. Mr Segovia submitted that the panel must exercise its own professional judgement as there is no standard or burden of proof that is applied at this stage in the process. He directed the panel to the case of Roylance v GMC (no. 2) [2000] 1 AC 311 which defines misconduct as ‘a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances.’ In relation to the standards required to be followed by a registered nurse he referred the panel to aspects of the code: Standards of conduct, performance and ethics for nurses and midwives 2008 (the code) and the NMC’s Guidance on Record Keeping which were, in the NMC’s view, breached. He submitted that, in any event, the panel should find that Mr Murphy’s dishonest actions were so serious as to amount to misconduct. In relation to current impairment Mr Segovia referred the panel to the remarks made in the case of CHRE v The Nursing and Midwifery Council and Grant, [2011] EWHC 927 (Admin). He highlighted the similarity of Mr Murphy’s dishonest behaviour at the two different care homes. He informed the panel that Mr Murphy has been on an interim suspension order since October 2015 and has therefore been unable to demonstrate remediation in practice as a registered nurse. In addition the panel has no information in relation to Mr Murphy’s insight to suggest that the risk of repetition has been minimised. Mr Segovia also emphasised the fundamental public interest considerations to be taken

23

into account at this stage and invited the panel to find that Mr Murphy’s fitness to practise is currently impaired. The panel heard and accepted the advice of the legal assessor. He advised that the panel must determine whether the Mr Murphy’s fitness to practise is currently impaired by reason of misconduct. In relation to misconduct he referred the panel to the case of Roylance and also to the case of Calhaem v GMC [2007] EWHC 2606 (Admin). He advised that it was a matter for the panel whether Mr Murphy’s actions in relation to the charges that have been found proved amounted to misconduct. In relation to impairment, the legal assessor made further reference to paragraphs 74 and 116 in the case of Grant and to the holistic approach set out in the case Cohen v General Medical Council [2008] EWHC 581 (Admin), whether the conduct is remediable, has it been remedied and is it likely to be repeated. Decision on whether the facts found proved amount to misconduct: When determining whether the facts found proved amount to misconduct the panel was satisfied that Mr Murphy breached the following preamble and paragraphs of the code; ‘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 • be open and honest, act with integrity and uphold the reputation of your profession. As a professional, you are personally accountable for actions and omissions in your practice, and must always be able to justify your decisions. 42 You must keep clear and accurate records of the … medicines you give, and how effective these have been. 61 You must uphold the reputation of your profession at all times’. The panel primarily focused on the standards as set out in the code given that the code covered the time period of both charges, whereas the NMC record keeping guidance had only just come into force by the time of the incident relating to Resident B. The panel considered the charges as a whole and was satisfied that, by signing MAR sheets to indicate that medication had been administered, but, in reality disposing of it,

24

Mr Murphy’s actions fell well below the standard expected of a registered nurse. In the panel’s view medication administration is one of the primary functions of a registered nurse working in a care home. Mr Murphy’s employers, his colleagues, residents and their families and the wider public would have expected that as a registered nurse he could be trusted to administer prescribed medication in the homes in a safe and honest way. Instead Mr Murphy undertook a course of action to deliberately deprive residents at Woodside and Resident B at Nethanvale of their prescribed medication and to conceal his conduct. It was of real concern that the incidents only came to light as a result of suspicions of healthcare assistants at the relevant homes. Mr Murphy did not make the residents involved his first concern. Not only did the residents not get their prescribed medication, Mr Murphy’s colleagues would also have been unaware as a result of the false impression created by Mr Murphy’s inaccurate recordings on the MAR sheets. Mr Murphy did not provide a high standard of care and as the only registered nurse on shift, did not present as a good role model. Furthermore, he deliberately concealed his conduct and did not act with integrity either at the time, or when concerns were first brought to his attention. Given the seriousness of the facts found proved, the panel considers that Mr Murphy’s dishonest conduct is a serious departure from the standards expected of a registered nurse. Therefore for all of the above reasons the panel determined that the facts found proved do amount to misconduct. Decision on impairment: Having found misconduct, the panel next had to decide whether Mr Murphy’s fitness to practise is currently impaired. The NMC defines fitness to practise as a registrant’s suitability to remain on the register unrestricted, and in this regard the panel took into account the following; The panel had in mind the remarks in the case of Grant in relation to the appropriate guidance identified by Dame Janet Smith in the Fifth 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:

25

a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. has in the past acted dishonestly and/or is liable to act dishonestly in the future”

The panel was satisfied that all limbs were engaged in this case. In respect of the past, the panel was satisfied that the residents who did not receive their prescribed medication were put at unwarranted risk of harm, both as a result of their medication not being administered and in terms of continuity of care, given that Mr Murphy’s colleagues were unaware that residents’ medication had been missed. The panel was satisfied that Mr Murphy breached fundamental tenets of the profession which include the principles set out in the preamble of the code and narrated in the panel’s decision on misconduct above. Furthermore, Mr Murphy’s dishonesty occurred in two separate clinical settings six years apart and whilst Mr Murphy was the sole nurse in charge. But for the suspicions of the healthcare assistants on duty, Mr Murphy’s conduct, which had the real potential to impact on patient safety, would not have come to light. The panel therefore determined that Mr Murphy’s dishonest actions have brought the profession into disrepute. The panel next considered future risk. It noted that Mr Murphy exhibited similar dishonest behaviour at two different care homes. There is nothing to suggest there has been any variation to Mr Murphy’s general denial of the charges as set out in his e-mail of February 2017. The panel has no information from Mr Murphy regarding why the incidents set out in charges 1, 2, 3 and 4 (now proved) occurred. Nor has Mr Murphy sought to persuade the panel that the risk of repetition of his wholly inappropriate conduct has been minimised. The panel accepts that Mr Murphy will have been unable to practise as a registered nurse from the time of his interim suspension order and therefore will have had limited opportunity to demonstrate remediation in practise. However he has made no apology and demonstrated no insight. The panel bore in mind the overarching objective of the NMC: to protect, promote and maintain the health safety and well-being of the public and patients and the wider public

26

interest which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. The panel determined that, in this case, a finding of impairment is required on the grounds of public protection given the risk of repetition. A finding of impairment is also necessary on public interest grounds given the seriousness of Mr Murphy’s dishonest conduct, at two separate care homes, which had the potential to cause real harm. The panel has therefore determined that Mr Murphy’s fitness to practise is currently impaired by reason of his misconduct. To find otherwise would undermine public confidence in the profession and in the regulatory process. Determination on sanction: Having determined that Mr Murphy’s fitness to practise is impaired, the panel has now considered what sanction, if any, it should impose. The panel can dispose of the case by taking no action, imposing a caution order for one to five years, a conditions of practice order for no more than three years, a suspension order for a maximum of one year or a striking-off order. In reaching its decision, the panel has considered all the evidence that has been placed before it and taken account of Mr Segovia’s submissions on behalf of the NMC. It has accepted the advice of the legal assessor. Mr Segovia submitted that the appropriate sanction was a matter for the panel exercising proportionality. In accordance with the case law of Kamberova v NMC [2016] EWHC 2955 (Admin) Mr Segovia informed the panel that Mr Murphy has been subject to an interim suspension order since 15 October 2015. The legal assessor advised the panel to take account of the NMC’s Indicative Sanctions Guidance, (ISG) and to employ the principles of proportionality, weighing the interests of patients and the public with Mr Murphy’s own interests. He endorsed Mr Segovia’s submission in relation to the case of Kamberova and how to assess the issue of an interim order at this stage of the proceedings. He also referred the panel to the guidance provided by the judgment of Mr Justice Mitting in the case of Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin) concerning the seriousness of findings of dishonesty against a registered nurse. As advised, the panel has considered the least restrictive sanctions first, before moving on to consider more restrictive sanctions. It has borne in mind that the purpose of a sanction is not to be punitive, though it may have a punitive effect. The panel has had

27

regard to both the public interest and Mr Murphy’s own interest and has considered whether there are any mitigating and aggravating factors in this case. The panel has borne in mind that the public interest includes the protection of patients, the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour. The panel determined that the aggravating factors are:

• Mr Murphy was employed in a senior position as the Deputy Manager at Woodside

• This case involves similar dishonest conduct that occurred at two separate care homes approximately six years apart

• The care home residents were particularly vulnerable in that they relied wholly on Mr Murphy to administer their prescribed medication when he was the nurse in charge of the shift

• There was an abuse of trust • There was real potential for patient harm as a result of the missed doses of

medication and the fact that Mr Murphy concealed from his colleagues that he had failed to administer prescribed medication

• Mr Murphy has not demonstrated any insight or remorse The panel carefully considered all of the information available to it but was unable to identify any mitigation in this case. The panel has no information regarding Mr Murphy’s motivation for what occurred and had no information before it to suggest that there were any extenuating circumstances that could be linked to, or provide any explanation for, his dishonest conduct at the relevant times. Furthermore, as the conduct dates as far back as 2008, in the panel’s view this is not a case where it could be said that the registrant has had a previously ‘unblemished career’.

The panel first considered whether to take no action, but concluded that this would be inappropriate in view of the seriousness of Mr Murphy’s dishonest actions and the risk of repetition identified. The panel decided that to take no action would not take into account the need to protect the public nor would it take into account the need to uphold confidence in the profession and to maintain the standards expected of a registered nurse.

Next, in considering whether a caution order would be appropriate, the panel took into account that a caution order is the least restrictive sanction that can be applied in a case where a panel has concluded that a nurse or midwife’s fitness to practise is impaired. It does not restrict the nurse or midwife’s ability to practise, but is recorded on the Register and published on the NMC’s website. Therefore, a caution may be

28

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 reflected on the aggravating features identified and was satisfied that the nature of the dishonesty found was not at the lower end of the spectrum of fitness to practise. The dishonesty occurred in clinical settings and there was a real risk of patient harm. In addition the panel has found that there remain ongoing public protection concerns and accordingly some form of restriction would be required to ensure patient safety. The panel therefore determined that for the same reasons as given above this sanction is neither appropriate nor proportionate. The panel next considered a conditions of practice order. The panel was mindful that this is not a case where Mr Murphy, as an experienced nurse, was not competent to administer medication. Rather, taking into account the quantity of medication found in the clinical waste bins on the Fir Unit and the repetition of similar dishonest conduct approximately six years later at another home, Mr Murphy demonstrated conduct that was deep seated and attitudinal. The panel determined that it could not formulate appropriate, practicable and workable conditions of practice which would be sufficient to protect patients whilst it is in force or appropriately address the abuse of trust identified in this case. In any event the panel considered that such a sanction would not be proportionate in the public interest, given the seriousness of this case.

The panel next considered a suspension order. It was satisfied that a sanction preventing Mr Murphy from working as a registered nurse would be sufficient to protect patients. The panel therefore next considered whether a period of temporary removal would be sufficient to meet the wider public interest considerations. The panel noted that this is not a case relating to a single incident of misconduct, but rather similar dishonest conduct occurring at two separate care homes approximately six years apart. It was particularly aggravating that there was a repetition of similar behaviour even after Mr Murphy had been dismissed from Woodside for his conduct in relation to charge 1. Furthermore there is no understandable reason for what occurred and the panel could only conclude that Mr Murphy’s conduct was deep seated and attitudinal. The panel took account of the case of Parkinson which states, “A nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register. A nurse who has acted dishonestly, who does not appear before the Panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than direct erasure.”

29

The panel accepted the advice of the legal assessor that this decision does not mean that in cases of dishonesty panels are left with an arbitrary choice between suspension and striking-off, or that in the absence of special circumstances a striking-off order is to be seen as a ‘default’ outcome. Rather, that this decision makes clear that dishonesty is a highly serious matter and that a striking-off order will almost always be a possible outcome. When assessing the seriousness of the dishonesty identified in this case the panel had regard to the following as stated in the ISG, ‘Dishonesty, even where it does not result in direct harm, is particularly serious because it can undermine the trust the public places in the profession. Honesty, integrity and trustworthiness are considered to be the bedrock of any nurse’s practice’. Mr Murphy was in a position of trust as Deputy Manager at Woodside and staff nurse at Nethanvale. The panel reflected on the unwarranted risk of harm that the residents in Fir Unit and Resident B were exposed to at the relevant times and whilst they were in Mr Murphy’s care. It also reflected on the fact that concerns only came to light as a result of the vigilance of Mr Murphy’s healthcare assistant colleagues. Particularly aggravating in this respect is that the clinical waste bins at Woodside were sealed and would not normally have been opened to examine their contents. In the panel’s view Mr Murphy’s dishonest conduct was attitudinal, persistent and covered up. Mr Murphy has consistently maintained his denials as set out in his email of 12 February 2015 and has not taken the opportunity to engage meaningfully with this panel. The panel therefore has no evidence of insight, remorse or understanding that his actions were dishonest or the seriousness of his actions and the potential consequences. The panel determined that this is a case which falls within the category identified in Parkinson where Mr Murphy’s position is such that he has forfeited any chance of leniency. The panel concluded that the seriousness of this case is incompatible with ongoing registration and that a suspension order would not reflect the very serious nature of Mr Murphy’s actions. The panel therefore concluded that striking-off is the only sanction which is sufficient to both protect patients and maintain public confidence in the profession and the NMC as regulator. The striking-off order results in the removal of Mr Murphy’s name from the register, thus preventing him from working as a registered nurse. He may not apply for restoration until a period of five years has elapsed since the striking-off order was made. An application for restoration will not be granted unless a fitness to practise panel is

30

satisfied that he meets the requirements for admission to the register and in addition, is a fit and proper person to practise as a nurse or midwife. Decision on Interim Order and reasons:

The striking-off order will not take effect until the end of the appeal period (28 days after the date on which the decision letter is served) or, if an appeal has been lodged, before the appeal has concluded. The panel therefore considered the submissions made by Mr Segovia that an interim suspension order should be made to cover the appeal period. The panel accepted the advice of the legal assessor and took account of the guidance issued to panels by the NMC when considering interim orders and the appropriate test as set out at Article 31 of The Nursing and Midwifery Order 2001. It may only make an interim order if it is satisfied that it is necessary for the protection of the public, is otherwise in the public interest or in Mr Murphy’s own interest. The panel is satisfied that an interim suspension order is necessary for the protection of the public and in the public interest to uphold the reputation of the profession and public confidence in the profession and the NMC as the regulator. In reaching the decision to impose an interim order the panel has had regard to the seriousness of the dishonest conduct and the risk of repetition as set out in its decision for the substantive 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 suspension order will be replaced by the striking-off order 28 days after Mr Murphy is sent the decision of this hearing in writing. That concludes this hearing.