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Conduct and Competence Committee Substantive Hearing

26-28 July 2017 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH

Name of Registrant Nurse: Tracey Anne Guy

NMC PIN: 90Y0177S

Part(s) of the register: Registered Nurse – Sub Part 1

Mental Health Nursing – November 1993

Area of Registered Address: Scotland

Type of Case: Misconduct

Panel Members: Brian Yates (Chair Lay member)

Penelope Tindle (Registrant member)

Adrian Smith (Lay member)

Legal Assessor: Bruce Erroch

Panel Secretary: Calvin Ngwenya

Nursing and Midwifery Council: Represented by Shelley Brownlee, Counsel,

instructed by NMC Regulatory Legal Team.

Mrs Tracey Guy: Not present or represented in her absence

Facts proved: 1.3 and 2;

Facts proved by admission: 1.1, 1.2, 3.1 and 3.2;

Fitness to practise: Impaired

Sanction: Strike Off Order

Interim Order: Suspension Order (18 months)

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

and that written notice of this hearing had been sent to her registered address by

recorded delivery and by first class post on 27 June 2017.

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 Mrs

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

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

notice was received and signed for by Mrs Guy on 28 June 2017. Ms Brownlee

submitted that 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.

In the light of all of the information available, the panel was satisfied that Mrs Guy has

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

and 34.

Application under Rule 19 of the Rules:

Ms Brownlee made an application that her submissions on proceeding in Mrs Guy’s

absence and some parts of this hearing should be held in private under Rule 19 on the

basis that in the course of this hearing reference will be made to matters pertaining to

Mrs Guy’s health.

The legal assessor reminded the panel that Rule 19 of the Rules provides, as a starting

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

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hold hearings partly or wholly in private if it is satisfied that this is justified by the

interests of any party or by the public interest.

The panel determined that it would hold the proceeding in absence application and

some parts of this hearing in private. The panel was satisfied that the interests in

maintaining the privacy of matters relating to Mrs Guy’s health outweighed the public

interest in holding this part of the hearing in public.

Decision on proceeding in the absence of the Registrant: Ms Brownlee invited the panel to exercise its discretion and proceed in the absence of

Mrs Guy on the basis that she had voluntarily absented herself. Ms Brownlee referred

the panel to an on table document consisting of correspondence between Mrs Guy and

her NMC Case Officer. In particular a telephone note dated 11 July 2017 and emails

from Mrs Guy dated 19 and 23 July 2017 where she stated:

“Im happy for the hearing to proceed in my absence.

Im happy to take call from panel members at specfic times.

Afternoon between 2pm and 4pm is the time im at my best to communicate”.

Ms Brownlee also referred the panel to written representations submitted by Mrs Guy

for the panel’s consideration in her email dated 19 July 2017 where she indicated that

she would not be attending this hearing [PRIVATE]. Ms Brownlee submitted that it is

clear from the documentation that Mrs Guy will not be attending the hearing and she is

content for the hearing to proceed in her absence. Ms Brownlee further submitted that

Mrs Guy has not requested a postponement of these proceedings and there is no

indication that an adjournment would secure her attendance in the future. She therefore

invited the panel to proceed in the public interest and the expeditious disposal of this

matter.

The panel accepted the advice of the legal assessor with regard to Rule 21 (2) (b) which

states:

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“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...”

The legal assessor also referred the panel to several authorities in relation to

proceeding in absence including reference to the cases of R. v Jones (Anthony William),

(No.2) [2002] UKHL 5 and General Medical Council v Adeogba [2016] EWCA Civ 162.

The panel took into account the email from Mrs Guy, dated 23 July 2017 and the written

representations she submitted for its consideration in an email dated 19 July 2017,

setting out her position. It noted that Mrs Guy had indicated that she would not be

attending this hearing and that she was content for the hearing to proceed in her

absence [PRIVATE].

The panel decided to proceed in the absence of Mrs Guy. In reaching this decision, the

panel considered the submissions of Ms Brownlee, and the advice of the legal

assessor. It has 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 Mrs Guy;

• there is no reason to suppose that adjourning would secure Mrs Guy’s

attendance at some future date;

• two NMC witnesses have been warned to attend today to give live evidence;

• the charges relate to allegations which date back to 2012;

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

accurately recall events;

• Mrs Guy has submitted written representations setting out her position in relation

to the charges and has offered to participate by telephone if required;

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

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The panel concluded that Mrs Guy had chosen voluntarily to absent herself. The panel

had no reason to believe that an adjournment would result in her attendance. Having

weighed the interests of Mrs Guy with those of the NMC and the public interest in an

expeditious disposal of this hearing, the panel determined that it is fair and appropriate

to proceed in Mrs Guy’s absence. The panel will draw no adverse inference from Mrs

Guy’s absence in its findings of fact.

Decision and reasons on application to amend charge:

The panel heard an application made by Ms Brownlee, on behalf of the NMC, to amend

the wording of charge 2 under Rule 28(1) of the Rules. The proposed amendment was

to insert the words “For notes dated…” at the start of charge 2 so that the charge reads:

“For notes dated between 21 November 2012 and 7 December 2012, retrospectively

added or edited notes in respect of Patient A”. Ms Brownlee submitted that the

amendment was being made in order to address the matter at hand and properly reflect

the NMC’s witness evidence.

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 determined that the proposed amendment to charge 2 could be made without

injustice. The panel was of the view that the proposed amendment did not materially

alter the substance of the charge. The panel was therefore satisfied that there would be

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no prejudice or injustice caused to either party by the proposed amendments being

allowed. It was therefore appropriate to allow the amendments, as applied for, to ensure

accuracy.

Details of charges (as amended): That you, while employed by NHS Highland as a Community Mental health Nurse, did:

1. On 27 June 2012:

1.1 recorded in Patient D’s notes that you had implemented an AWI (adults with

incapacity) programme for Patient D when you had not done so and were

not qualified to do so;

1.2 when interviewed on 17 July 2013 with regard to the incident described at sub-

charge 1.1 stated that Colleague A had said that she, together with another

colleague, would implement the AWI programme in respect of Patient D,

when no such AWI was to be implemented;

1.3 your conduct at sub-charge 1.1 and/or 1.2 was dishonest in that you either knew

that no AWI was to be implemented, or alternatively had no knowledge as to

whether or not AWI was to be implemented;

2. For notes dated between 21 November 2012 and 7 December 2012,

retrospectively added or edited notes in respect of Patient A;

3. Between April 2013 and January 2014 in respect of one or more of the clients in

your caseload, as described in Schedule 1:

3.1 Did not maintain adequate records;

3.2 Did not provide an adequate Community Mental Health Nursing Service:

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

misconduct.

Schedule 1

Patient E, for whose care you became responsible on 2 September 2013:

1. Failed to ensure an adequate care plan was in place;

2. Failed to ensure an adequate level 2 risk assessment was in place;

3. Between October 2013 and 8 January 2014, when the matter came to light, failed

to record and/or communicate the fact that Patient E had not been compliant with

his medication since October 2013;

4. Did not contact adolescent services for information about Patient E until 25

November 2013, when they had been transitioned into your care on 2 September

2013.

Patient F, for whose care you became responsible in April 2013:

1. Failed to review and/or update one or more of the following documents whilst you

were responsible for Patient F’s care:

1.1 Care plan;

1.2 Crisis plan;

1.3 Single shared assessment.

2. Did not record any treatment plan for Patient F;

3. Did not record any effective interventions for Patient F;

4. Did not meet with Patient F weekly;

5. Did not follow up plans for Patient F to engage with a psychologist;

6. Did not follow up plans for Patient F to undertake mindfulness;

7. Did not maintain chronological case notes;

8. Made retrospective entries in Patient F’s case notes;

9. Made duplicate entries in Patient F’s case notes.

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Patient G

1. Exchanged a number of text messages with Patient G;

2. Did not attend Patient G’s Adult Protection Case Conference on 14 November

2013.

Patient H

1. Did not document that Patient H’s next medication treatment date (for

paliperidone) was 19 December 2013 in his case file or in a diary;

2. His care plan was deficient;

3. The registrant’s recorded interventions were deficient.

Patient I, for whose care you became responsible on 12 June 2013:

1. Did not see Patient I on 13 and 14 June 2013 as planned, when it had been

handed over to you that this patient required daily visits; Patient I went into crisis

on 14 June 2013 when she presented at casualty;

Patient J, for whose care you became responsible on 9 September 2013:

1. Did not see Patient J until 13 November 2013, when she had been transitioned

into your care on 9 September 2013, and it was documented in her care plans

that she was to be seen fortnightly or sooner.

Decision and Reasons on application pursuant to Rule 31:

The panel heard an application made by Ms Brownlee under Rule 31 of the Rules to

allow the written statements of Ms 3, Colleague A, Mr 4 and Mr 5 into evidence. Ms

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Brownlee informed the panel that it was always the NMC’s intention to have these

witnesses’ statements read given the admissions and concessions from Mrs Guy. Ms

Brownlee told the panel that Mrs Guy was served with the statements on 21 June 2017.

However, Mrs Guy was not given an express indication of the NMC’s intention to have

the statements read. Ms Brownlee told the panel that an NMC case officer had

contacted Mrs Guy today to find out if she had any objections to the statements being

allowed into the evidence and Mrs Guy stated that although she had not read the

statements, she objected to the statements of Colleague A and Mr 5 being allowed into

the evidence.

Ms Brownlee submitted that all the witness statements were clearly relevant and would

assist the panel with the factual background to the allegations. With regards to fairness,

Ms Brownlee submitted that Mrs Guy who had been served with the statements in

advance, admitted to not having read them and notwithstanding her knowledge of the

nature of the evidence, she made the decision not to attend this hearing. Therefore, she

would not be able to test the evidence. On this basis Ms Brownlee submitted that there

would be no lack of fairness in allowing the written statements into evidence.

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 admit oral, documentary or other evidence,

whether or not it is admissible in civil proceedings. The legal assessor also gave the

panel advice in relation to the case of Thorneycroft v NMC [2014] EWHC 156 (Admin).

The panel first considered the relevance of the written statements. It concluded that the

witness statements were relevant, however, in light of Mrs Guy’s admissions, relevance

should relate to the disputed matters in charge 2. The panel determined that none of the

witness statements that were the subject of this application were relevant to the

disputed matters in charge 2. In any event, the panel considered that it would be unfair

to admit the witness statements into evidence given the short notice of the NMC’s

intention to Mrs Guy. The panel was of the view that, although Mrs Guy had chosen not

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to attend this hearing, she was not aware at the time of making that decision, of this

application to have statements read. In these circumstances the panel refused the

application in the interests of fairness.

Background: Mrs Guy was referred to the NMC in January 2016 by the Lead Nurse at the Argyll and

Bute NHS Highland (NHS Highland) following internal investigations and disciplinary

procedures. Mrs Guy had worked for NHS Highland in various roles dating back to

August 1994 until her referral to the NMC in January 2016. The first set of allegations against Mrs Guy occurred while she was employed by the

Bute Community Mental Health Team (the Bute team) as a Band 6 Community Mental

Health Nurse. Following an initial complaint in relation to her clinical practice and

conduct at the Bute team, Mrs Guy was redeployed to Cowal Community Mental Health

Team (the Cowal team) in April 2013 whilst the internal investigation was conducted.

The concerns in relation to Mrs Guy’s practice at the Bute team were investigated by Ms

1 (Team Lead Physiotherapist at NHS Highland). Ms 1 was tasked with undertaking the

investigation as it was NHS Highland’s approach to assign internal investigations and

disciplinary proceedings to a member of staff with a different discipline to that of the

person being investigated.

In the course of her investigation into the allegations against Mrs Guy, Ms 1 analysed

and reviewed her documentation. Ms 1 found inconsistencies in the manner in which

Mrs Guy completed her documentation and several issues relating to caseload

management, poor documentation, record keeping and inadequate patient case notes.

There were further concerns that Mrs Guy had made retrospective entries in patients’

notes, falsified documentation and recorded that she had completed work that she had

not. It is alleged that on 27 June 2012 Mrs Guy recorded in Patient D’s notes that she

had implemented an AWI (adults with incapacity) programme for Patient D when she

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had not done so and was not authorised to implement such a measure. The

implementation of an AWI would have required inputs from a mental health officer,

clinical psychologist or psychiatrist in order to action it. Mrs Guy allegedly stated that her

colleague, Colleague A (Specialist Occupational Therapist) had agreed to implement

the AWI on her behalf. However, Colleague A confirmed that no AWI was ever

implemented. It is further alleged that in her notes for the period between 21 November

2012 and 7 December 2012, Mrs Guys retrospectively added or edited notes in respect

of Patient A.

Following her investigation Ms 1 concluded that a level of supervision was required on

Mrs Guy’s practice and recommended that additional training and support be put in

place in order to assist her with those aspects of her practice.

The second set of allegations occurred during Mrs Guy’s redeployment with the Cowal

team. Further concerns regarding Mrs Guy’s clinical practice, abilities and conduct at

work were raised by other community mental health nurses in the Cowal team. Ms 2,

Clinical Services Manager, was asked to undertake an investigation and produce a

report on Mrs Guy. The concerns raised by the Cowal team related to issues of:

• Poor quality care-planning within clinical records to support care and

administration of depot medication;

• Failure to maintain chronological case notes;

• Making retrospective and duplicate entries in patient case notes;

• Poor documentation - records not contemporaneous, errors within notes

regarding appointment times with patients and fellow colleagues and other

medical professionals ;

• Clinical ability - disorganised approach to care for patients, lack of discharge

planning, sporadic contact with patients;

• Inappropriate contact with patients by mobile phone (in particular text messaging)

which was not a practice associated within the team.

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These concerns led to allegations that between April 2013 and January 2014 in respect

of six patients in Mrs Guy’s caseload as outlined in schedule 1 above, she failed to

maintain adequate patient records. Further she did not provide an adequate community

mental health nursing service to those patients in her case load.

Admissions:

Prior to the start of the NMC’s witness evidence, Ms Brownlee referred the panel to Mrs

Guy’s Standard Directions ‘Your response to the charges’ form (at exhibit 3) and

submitted that Mrs Guy made unequivocal admissions to charges 1.1, 1.2, 3.1 and 3.2.

The panel took into account Mrs Guy’s response to the charges (at exhibit 3). In light of

the unequivocal admissions therein, the panel found charges 1.1, 1.2, 3.1 and 3.2

proved by way of Mrs Guy’s admissions.

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 Brownlee, on behalf of the NMC. It

also took into account Mrs Guy’s written representations in her emails dated 19 and 23

July 2017 and her response to the charges at exhibit 3. The panel noted that Mrs Guy

had offered to participate by telephone if necessary. The panel determined that Mrs Guy

had clearly set out her position in relation to the disputed charges in her written

representations. Therefore it was not necessary to telephone her.

The panel heard and accepted the advice of the legal assessor, including references to

the cases of R v Ghosh [1982] Q.B. 1053, and Hussain v General Medical Council

[2014] EWCA Civ 2246.

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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 took into account all the oral and documentary evidence in this case. The

panel heard evidence from two witnesses called on behalf of the NMC:

Ms 1 (Team Lead Physiotherapist at NHS Highland);

Ms 2 (Clinical Services Manager at NHS Highland).

The panel began by considering the credibility of the witnesses it heard. The panel was

of the view that both Ms 1’s and Ms 2’s evidence was clear, concise, credible and

reliable. They both answered the panel’s questions to the best of their knowledge and

they were both careful not to speculate on matters that were beyond the scope of their

remit as investigators.

The panel then went on to consider the remaining charges.

The panel considered each charge and made the following findings:

Charge 1.3:

1.3 your conduct at sub-charge 1.1 and/or 1.2 was dishonest in that you either knew

that no AWI was to be implemented, or alternatively had no knowledge as to

whether or not AWI was to be implemented;

This charge is found proved.

The allegation of dishonesty made against Mrs Guy is that in recording in Patient D’s

notes that she had implemented an AWI programme when she had not, and by stating

that Colleague A had said that she would implement the AWI in respect of Patient D

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when no such AWI was to be implemented, her conduct was dishonest in that she either

knew that no AWI was to be implemented, or alternatively she had no knowledge as to

whether or not an AWI was to be implemented.

In reaching its decision, the panel took into account the evidence from Ms 1 who

adopted her witness statement and supplemented that by oral evidence. The panel

found this witness to be credible and reliable. The panel accepted her evidence that Mrs

Guy admitted recording in Patient D’s notes that she had implemented an AWI

programme when she had not, and that she stated that Colleague A had said that she

would implement the AWI in respect of Patient D when no such AWI was to be

implemented. The panel also considered Mrs Guy’s response to the allegation of

dishonesty where she states: “I was not intending to personally implement AWI as I

could not and had not been trained to do this. I had been told by both staff members

that in attendance of the emergency that they would attend to this…”

The panel has determined that Mrs Guy would not have known whether or not an AWI

was to be implemented, as she was not qualified to do so and such a decision would

have required the input of a multi-disciplinary team. The panel also considered the

evidence that Patient D did not require an AWI. However, when challenged about the

incident in an interview on 17 July 2013, Mrs Guy had sought to implicate Colleague A

as outlined in the admitted charge 1.2.

The panel went on to consider whether Mrs Guy’s actions would be regarded as

dishonest according to the standards of reasonable and honest members of the nursing

profession. It concluded that it would. The panel was of the view that a reasonable

nurse would consider it dishonest to mislead an investigation and implicate a colleague

in something that she had no knowledge of.

The panel then went on to consider whether at the time Mrs Guy understood that her

actions would be regarded as dishonest by the standards of reasonable and honest

members of the profession. Given the circumstances the panel is satisfied that at the

time Mrs Guy knew that reasonable and honest nurses would have regarded her

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actions as dishonest. It is therefore satisfied that Mrs Guy’s actions were dishonest and

it finds charge 1.3 proved.

Charge 2:

2. For notes dated between 21 November 2012 and 7 December 2012,

retrospectively added or edited notes in respect of Patient A;

This charge is found proved.

In reaching this decision, the panel took into account the evidence of Ms 1 which was

admitted as her evidence in chief. In her witness statement she stated: “There were

further concerns regarding this patient’s case-notes. They were not numbered

chronologically, and had been completed by [Colleague B], Tracey Guy and Colleague

A from 31 October 2012 until 25 April 2013. When these notes were considered by the

panel during the hearing, it was thought that Tracey’s entries were not

contemporaneous. The first nine pages were completed by [Colleague B] on the Bute

documentary template, then a blank A4 page appears before three pages of entries

have been made by Tracey Guy. These three pages are on the Cowal documentary

template, and then the final five pages – completed by Colleague A are on the correct

Bute template. I felt that Tracey’s entries had been replaced or added after the event,

and that the pages had all been numbered (incorrectly) retrospectively. This gave rise to

the suspicion that Tracey’s entries had been edited.”

In her oral evidence Ms 1 told the panel that after reviewing the notes in respect of

Patient A, they appeared to be very precise records which did not reflect the format of

Mrs Guy’s record keeping skills.

The panel had careful regard to Patient A’s notes which showed that the entries made

by Mrs Guy for notes between 21 November 2012 and 7 December 2012 were on a

different paper template with the wrong headed paper which would not have been used

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for that area and were incorrectly numbered. The panel compared the notes in Patient

A’s records to those Mrs Guy had previously written and noted that they were very

detailed, written neatly and that the style was markedly different from Mrs Guy’s other

patient notes. The panel found that the information in the notes and the style of writing

was inconsistent with the way Mrs Guy had written her notes previously. The panel

noted that when Mrs Guy was questioned about the alleged retrospective entries by Ms

1, she allegedly got very upset and could not offer an explanation.

Having accepted the evidence of Ms 1 and weighed the documentary evidence in

support of this charge, the panel concluded that it is more likely than not that for notes

dated between 21 November 2012 and 7 December 2012, Mrs Guy retrospectively

added or edited notes in respect of Patient A.

Accordingly, the panel found charge 2 proved.

Submission on misconduct and impairment:

Having announced its finding on all the facts, the panel then moved on to consider,

whether the facts found proved amount to misconduct and, if so, whether Mrs Guy’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 Brownlee invited the panel to consider the charges found proved cumulatively and

find that there has been misconduct of a serious nature. She referred the panel to the

case of Roylance v General Medical Council (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.

Ms Brownlee invited the panel to take the view that Mrs Guy’s actions amount to serious

breaches of The Code: Standards of conduct, performance and ethics for nurses and

midwives 2008 (“the Code”). She directed the panel to specific paragraphs and

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identified where, in the NMC’s view, Mrs Guy’s actions amounted to misconduct. Ms

Brownlee submitted that Mrs Guy failed to adhere to the four bullet points of the

Preamble to the Code and the requirements of paragraphs 9, 38, 40, 42 and 43. She

outlined how Mrs Guy’s actions breached the relevant parts of the Code. Ms Brownlee

submitted that Mrs Guy failed to provide a high standard of practice and care over a

considerable period of time and not only did her actions put several patients at risk of

serious harm, they led to Patient F committing suicide. Ms Brownlee submitted that Mrs

Guy’s standard of practice fell significantly short of what would be proper in the

circumstances, and therefore amounted to misconduct.

With regard to the question of impairment, Ms Brownlee invited the panel to find

impairment on both, public protection and public interest grounds. Ms Brownlee referred

the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and

Midwifery Council (2) Grant [2011] EWHC 927 (Admin) and submitted that Mrs Guy’s

level of insight and remediation would be central to the panel’s determination on

impairment. She submitted that although Mrs Guy had made some admissions to the

charges and expressed regret, they do not equate to insight into her conduct. As such,

there is very little evidence of insight from Mrs Guy.

Ms Brownlee addressed the panel on the issue of remediation and submitted that Mrs

Guy’s fitness to practice remains impaired primarily due to her lack of remediation. She

submitted that by her own account, Mrs Guy has not practised as a registered nurse

since the incidents in question. Therefore there is no evidence of remediation and the

risk of repetition remains.

Ms Brownlee further submitted that the public interest is engaged in this case due to

Mrs Guy’s limited insight, lack of remediation and the consequent risk of harm to the

public. She submitted that an informed member of the public would be concerned if a

finding of no impairment were to be made in the circumstances of this case.

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The panel accepted the advice of the legal assessor which included reference to the

cases of Roylance; Grant; and Cohen v General Medical Council [2008] EWHC 581

(Admin) and the 2008 Code.

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

must determine whether the facts found proved amount to misconduct. Secondly, only if

the facts found proved amount to misconduct, the panel must decide whether, in all the

circumstances, Mrs Guy’s fitness to practise is currently impaired as a result of that

misconduct.

Decision on misconduct:

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

regard to the terms of the 2008 Code.

The panel, in reaching its decision accepted that there was no burden or standard of

proof at this stage and exercised its own professional judgement.

The panel was of the view that Mrs Guy’s conduct did fall significantly short of the

standards expected of a registered nurse, and that her acts and omissions amounted to

breaches of the Code. Specifically:

The Preamble where it states:

The people in your care must be able to trust you with their health and wellbeing

To justify that trust, you must:

• work with others to protect and promote the health and wellbeing of those in your care,

their families and carers, and the wider community

• provide a high standard of practice and care at all times

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• be open and honest, act with integrity and uphold the reputation of your profession.

And paragraphs:

9. You must support people in caring for themselves to improve and maintain their

health.

38. You must have the knowledge and skills for safe and effective practice when

working without direct supervision.

42. You must keep clear and accurate records of the discussions you have, the

assessments you make, the treatment and medicines you give, and how effective these

have been.

43. You must complete records as soon as possible after an event has occurred.

44. You must not tamper with original records in any way.

The panel bore in mind that breaches of the Code do not automatically result in a

finding of misconduct. However, the panel determined that the charges found proved

were sufficiently serious to amount to misconduct, particularly given the fact that the

misconduct involved a catalogue of poor practice, repeated over a prolonged period of

time and involving multiple vulnerable patients. The panel considered that Mrs Guy’s

misconduct placed several patients at risk of significant harm. The panel took into

account the evidence of Ms 1 and Ms 2 that Mrs Guy, who was a Band 6 nurse at the

time, was practising at or about the level of a student nurse. In the panel’s view, Mrs

Guy’s poor record keeping and her failure to provide an adequate mental health nursing

service to her patients fell below the standards expected in the circumstances.

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The panel concluded that Mrs Guy’s actions in respect of the charges found proved,

were serious and fell significantly below the standard required of a registered nurse and

therefore amounted to misconduct.

Decision on impairment: The panel next went on to decide if as a result of this misconduct Mrs Guy’s fitness to

practise is currently impaired.

The panel was mindful of the need to consider not only whether Mrs Guy continues to

present a risk to members of the public, 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 of Mrs Guy’s

case.

The panel had regard to the guidance given in the judgment of Mrs Justice Cox in the

case of Grant. At paragraph 74 of that judgment, she said:

“In determining whether a practitioner’s fitness to practise is impaired by reason

of misconduct, the relevant panel should generally consider not only whether the

practitioner continues to present a risk to members of the public in his or her

current role, but also whether the need to uphold proper professional standards

and public confidence in the profession would be undermined if a finding of

impairment were not made in the particular circumstances.

Mrs Justice Cox went on to say in Paragraph 76:

I would also add the following observations in this case having heard

submissions, principally from Ms McDonald, as to the helpful and comprehensive

approach to determining this issue formulated by Dame Janet Smith in her Fifth

Report from Shipman, referred to above. At paragraph 25.67 she identified the

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following as an appropriate test for panels considering impairment of a doctor’s

fitness to practise, but in my view the test would be equally applicable to other

practitioners governed by different regulatory schemes.

Do our findings of fact in respect of the doctor’s misconduct, deficient

professional performance, adverse health, conviction, caution or determination

show that his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to

put a patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the

medical profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach

one of the fundamental tenets of the medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act

dishonestly in the future”.

The panel considered that Mrs Guy’s actions had engaged all the questions in Grant.

The panel concluded that Mrs Guy has in the past acted so as to put patients at

unwarranted risk of harm. The panel had regard to the fact that patients and the public

place trust in the nursing profession, and that nurses are expected to act in a way which

justifies that trust. It is fundamental to maintaining that trust that nurses make it a priority

to deliver the best possible care to their patients. The panel considered that these were

fundamental tenets of the profession along with honest and accurate record keeping.

The panel therefore considered that Mrs Guy’s actions, in respect of the charges found

proved breached fundamental tenets of the profession identified above. Mrs Guy’s

actions were also of such a nature as to bring the profession into disrepute and she

acted dishonestly.

The panel next considered the question of current impairment. It bore in mind that it had

to look to the future and consider whether Mrs Guy was liable to act in such a way as to

put patients at unwarranted risk of harm, breach fundamental tenets of the profession,

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bring the profession into disrepute or to act dishonestly. In assessing the risk of

repetition in this case the panel considered the level of insight and remorse

demonstrated by Mrs Guy and whether her misconduct has been or is capable of being

remedied. The panel had regard to Mrs Guy’s written representations and her

responses to the charges.

The panel first considered Mrs Guy’s insight, noting that she made substantial

admissions to the allegations. It noted that Mrs Guy was apologetic and regretful in her

responses to the allegations and expressed some remorse. In her written responses

she stated: “My own caseload suffered as a result. However, I take the blame as I

should have declined the opportunity to act up…

[…]

I’m saddened that my previously unblemished record has been sullied in such a way.

This however does not compare to the horror of knowing that the patients in my care did

not receive the care they should have had”

However, in the panel’s judgement, Mrs Guy appears to blame her colleagues and NHS

Highlands for most of her own clinical shortcomings and fails to take full responsibility

for her own actions. The panel took into account the evidence of Ms 1 and Ms 2 in

relation to Mrs Guy’s insight at the time of the incidents. In her statement Ms 2 stated:

“Tracey lacked insight into her failings and she deflected the issue to other people within

the team.” Ms 1 stated: “It was my observation that Tracey showed no clear insight or

understanding into any of the allegations made against her.” The panel concluded that

Mrs Guy had limited insight into the impact of her conduct on her patients, her

colleagues and the nursing profession as a whole. Therefore, she is yet to demonstrate

sufficient insight on the impact of her misconduct as it relates to the broader

responsibilities that come with being a registered nurse.

In its consideration of whether Mrs Guy has remedied her practice the panel noted Mrs

Guy’s stated intention not to continue working as a registered nurse. The panel also

considered that it has not been provided with any evidence of remediation or training

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and that Mrs Guy has not practised as a registered nurse since the incidents in

question. The panel concluded that, in the absence of such evidence, Mrs Guy’s

misconduct has not been remedied and, consequently, there is a real risk of repetition.

Therefore, the panel concluded that a finding of impairment on the grounds of public

protection is necessary.

The panel bore in mind that its primary function is to protect patients and the wider

public interest which includes maintaining confidence in the nursing profession and

upholding the proper standards and behaviour. In the judgement of the panel,

irrespective of the risk of repetition, public confidence in the profession and the regulator

would be undermined if a finding of impairment was not made in light of the seriousness

of the matters found proved, which included a finding of dishonesty.

Having regard to all of the above, the panel determined that Mrs Guy’s fitness to

practise is currently impaired on both public protection and public interest grounds.

Determination on sanction:

The panel has considered this case carefully and has decided to make a striking-off

order. The effect of this order is that the NMC register will show that Mrs Guy’s name

has been struck-off the register.

In reaching this decision, the panel has had regard to all the evidence that has been

adduced in this case together with the submissions of Ms Brownlee, on behalf of the

NMC.

The panel heard and accepted the advice of the legal assessor which included

reference to the cases of Raschid and Fatnani v General Medical Council [2007] 1WLR

1460; and Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin).

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The panel has borne in mind that any sanction imposed must be appropriate and

proportionate and, although not intended to be punitive in its effect, may have such

consequences. The panel had careful regard to the Indicative Sanctions Guidance

(“ISG”) published by the NMC. It recognised that the decision on sanction is a matter for

the panel, exercising its own independent judgment.

The panel first considered the aggravating and mitigating factors:

The panel identified the following as aggravating factors in this case:

• Mrs Guy’s misconduct was repeated and occurred over an extended period of

time in two different posts;

• The misconduct related to patients who were particularly vulnerable on account

of their mental health conditions;

• Mrs Guy’s misconduct placed multiple patients at unwarranted risk of harm and

involved dishonesty in a clinical setting;

• Mrs Guy’s limited insight, lack of remediation and the consequent risk of

repetition;

• Mrs Guy sought to deflect blame for her misconduct to other colleagues and her

employers.

The panel identified the following as mitigating factors in this case:

• The difficult and stressful working environment at the time of the incidents

[PRIVATE];

• Mrs Guy made some admissions to the allegations;

• The panel found no evidence of previous regulatory or disciplinary proceedings

against Mrs Guy.

The panel then turned to the question of which sanction, if any, to impose. It considered

each available sanction in turn, starting with the least restrictive sanction and moving

upwards.

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The panel first considered whether to take no action. The panel bore in mind that it had

identified at the impairment stage that there remained a risk of repetition due to Mrs

Guy’s limited insight and lack of remediation. As such, any repetition of her misconduct

would bring with it unwarranted risk of harm to patients. To take no action would

therefore not provide protection to the public and would be inconsistent with the panel’s

findings at the impairment stage. In addition, the panel considered that to take no further

action would be inadequate in marking the seriousness of the misconduct found and

would therefore not be in the public interest of declaring and upholding standards and

maintaining public confidence in the profession.

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

the panel took into account the ISG, which states that a caution order may be

appropriate where ‘the case is at the lower end of the spectrum of impaired fitness to

practise and the panel wishes to mark that the behaviour was unacceptable and must

not happen again.’ The panel considered that Mrs Guy’s impairment was not at the

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

seriousness of the misconduct found along with the panel’s findings on impairment. A

caution order would offer no protection to the public, as it would not restrict Mrs Guy’s

practise. Therefore, the panel decided that it would be neither proportionate nor in the

public interest to impose a caution order.

The panel next considered whether placing conditions of practice on Mrs Guy’s

registration would be a sufficient and appropriate response. The panel was mindful that

any conditions imposed must be proportionate, measurable and workable. It had

particular regard to paragraph 63.4:

63.4 Potential and willingness to respond positively to retraining.

The panel noted that Mrs Guy has stated that she has no intention of returning to

nursing practise and had applied to be voluntarily removed from the register. Therefore,

it concluded that although conditions of practice could be formulated to address some of

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the concerns in Mrs Guy’s case, it would be impracticable to make provisions as to how

the conditions would be monitored. In any event, the panel determined that placing

conditions on Mrs Guy’s registration would not address the attitudinal and behavioural

concerns arising out of her dishonesty. Therefore the panel considered that conditions

of practice would be insufficient to protect the public or mark the seriousness of the

misconduct in this case in order to satisfy the public interest considerations.

The panel then went on to consider whether a suspension order would be an

appropriate sanction. The panel took into account the ISG, in particular:

68 This sanction may be appropriate where the misconduct is not fundamentally

incompatible with continuing to be a registered nurse or midwife in that the

public interest can be satisfied by a less severe outcome than permanent

removal from the register. This is more likely to be the case when some or all

of the following factors are apparent (this list is not exhaustive):

68.1 A single instance of misconduct but where a lesser sanction is not sufficient.

68.2 No evidence of harmful deep-seated personality or attitudinal problems.

68.4 The panel is satisfied that the nurse or midwife has insight and does not pose a

significant risk of repeating behaviour.

The panel considered that Mrs Guy’s misconduct had placed patients at significant risk

of harm. It bore in mind its findings that there is a high risk of the misconduct being

repeated due to Mrs Guy’s limited insight and lack of remediation which would place

patients at unwarranted risk of significant harm. The panel determined that Mrs Guy’s

misconduct, as highlighted by the facts found proved was a significant departure from

the standards expected of a registered nurse. The misconduct related to multiple

patients who were particularly vulnerable on account of their mental health conditions.

This was aggravated by the fact that the misconduct was repeated and occurred over

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an extended period of time and Mrs Guy made no attempts to remediate but she sought

to deflect blame on to others.

The panel therefore determined that the serious breaches of the fundamental tenets of

the profession evidenced by Mrs Guy’s misconduct are fundamentally incompatible with

her remaining on the register. In this particular case, the panel determined that a

suspension order would not be a sufficient, appropriate or proportionate sanction to

protect the public or satisfy the public interest considerations of this case. In the panel’s

judgement, public confidence in the profession and the NMC as a regulator would be

undermined in such circumstances by the imposition of a suspension order.

Finally, in looking at a striking-off order, the panel took note of the following paragraphs

of the ISG:

71.1 Is striking-off the only sanction which will be sufficient to protect

the public interest?

71.2 Is the seriousness of the case incompatible with ongoing

registration?

71.3 Can public confidence in the professions and the NMC be

sustained if the nurse or midwife is not removed from the

register?

72 This sanction is likely to be appropriate when the behaviour is

fundamentally incompatible with being a registered professional,

which may involve any of the following …

72.1 Serious departure from the relevant professional standards

as set out in key standards, guidance and advice …

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The panel also had particular regard to paragraph 72.2, which states:

“Doing harm to others or behaving in such a way that could foreseeably result in harm

to others, particularly patients or other people the nurse or midwife comes into contact

with in a professional capacity, either deliberately, recklessly, negligently or through

incompetence, particularly where there is a continuing risk to patients...”

72.6 Dishonesty, especially where persistent or covered up

72.7 Persistent lack of insight into seriousness of actions or consequences.

The panel determined that Mrs Guy’s conduct in respect of the charges found proved

were significant departures from the standards expected of a registered nurse, and are

fundamentally incompatible with her remaining on the register. The panel was of the

view that the findings in this particular case related to significant failings particularly in

respect of Mrs Guy’s failure to provide adequate care to her vulnerable patients. The

misconduct which included a finding of dishonesty in a clinical setting was so serious

that to allow Mrs Guy to continue practising as a nurse would undermine public

confidence in the profession and in the NMC as a regulatory body.

Balancing all of these factors and after taking into account all of the evidence before it

during this case, the panel determined that the only appropriate and proportionate

sanction is that of a striking-off order. It is the only order sufficient to protect the public

and meet the public interest in declaring and upholding the proper standards in the

nursing profession and to meet the public interest in maintaining public confidence in

the nursing profession and the NMC as its regulator.

Accordingly, the panel directs that Mrs Guy’s name be removed from the Register.

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Determination on Interim Order: Ms Brownlee, on behalf of the NMC, submitted that an interim suspension order should

be imposed on the basis of protection of the public and otherwise in the public interest.

She submitted that the interim suspension order, which would take immediate effect,

should be for a period of 18 months to cover the possibility of an appeal being lodged by

Mrs Guy in the 28 day appeal period.

The panel heard and accepted the advice of the legal assessor.

The panel had regard to the circumstances of the case and the reasons set out in its

decision for imposing a striking off order.

The panel decided to make an interim suspension order for a period of 18 months.

The panel had particular regard to its earlier finding that there remained a risk of

repetition of the significant failings identified in Mrs Guy’s clinical practice. It also bore in

mind the seriousness of the matters which it has found proved and concluded that in

light of its earlier decisions on impairment and sanction, that an interim order was

necessary for the protection of the public and otherwise in the public interest. For the

reasons already set out in detail in the decision on sanction, the panel considered that

workable interim conditions of practice could not be formulated which would be

adequate to address the concerns in this case so as to protect the public pending any

appeal. The panel therefore concluded that it is necessary for Mrs Guy’s registration to

be subject to an interim suspension order on the grounds of public protection and in the

public interest. To do otherwise would be inconsistent 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.

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If no appeal is made, then the interim order will be replaced by a striking off order 28

days after Mrs Guy is sent the decision of this hearing in writing.

That concludes this determination.