Conduct and Competence Committee Substantive Hearing€¦ · In this letter, Mr Dunn’s...

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Page 1 of 31 Conduct and Competence Committee Substantive Hearing 27 – 30 June 2016 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Name of Registrant: Mr John Adam Dunn NMC PIN: 08I1466S Part(s) of the register: RN3, Registered Nurse – Sub Part 2 Mental Health (12 September 2011) Area of Registered Address: Scotland Type of Case: Misconduct Panel Members: Brian Yates (Chair / Lay member) Penny Tindle (Registrant member) Nigel Westwood (Lay member) Legal Assessor: Gerard Coll Panel Secretary: Erika Brady Mr Dunn: Not present and not represented Nursing and Midwifery Council: Represented by Yusuf Segovia, counsel, instructed by Nursing and Midwifery Council (NMC) Regulatory Legal Team Facts found proved: Charges 1(a), 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 3 and 4 Facts found not proved: None Fitness to Practise: Impaired Sanction: Striking Off Order Interim Order: Interim Suspension Order (18 months)

Transcript of Conduct and Competence Committee Substantive Hearing€¦ · In this letter, Mr Dunn’s...

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Conduct and Competence Committee Substantive Hearing

27 – 30 June 2016 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH

Name of Registrant: Mr John Adam Dunn

NMC PIN: 08I1466S

Part(s) of the register: RN3, Registered Nurse – Sub Part 2 Mental Health (12 September 2011)

Area of Registered Address: Scotland

Type of Case: Misconduct

Panel Members: Brian Yates (Chair / Lay member) Penny Tindle (Registrant member) Nigel Westwood (Lay member)

Legal Assessor: Gerard Coll

Panel Secretary: Erika Brady

Mr Dunn: Not present and not represented Nursing and Midwifery Council: Represented by Yusuf Segovia, counsel,

instructed by Nursing and Midwifery Council (NMC) Regulatory Legal Team

Facts found proved: Charges 1(a), 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 3

and 4 Facts found not proved: None Fitness to Practise: Impaired Sanction: Striking Off Order Interim Order: Interim Suspension Order (18 months)

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Service of Notice of Hearing

The panel was informed at the start of this hearing that Mr Dunn was not in attendance,

nor was he represented, at this meeting today.

The panel was informed that notice of this hearing was sent to Mr Dunn on 6 May 2016

by recorded delivery and first class post to his address on the register.

In light of the information available, and after accepting the advice of the legal assessor,

the panel was satisfied that notice had been served in compliance with Rules 11 and 34

of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004

(as amended February 2012) (the Rules).

Proceeding in absence

The panel next considered whether to proceed in the absence of Mr Dunn.

The panel considered the submissions made by Mr Segovia on behalf of the NMC. It

took into account the advice of the legal assessor. The panel kept at the forefront of its

thinking the principle that the discretion to proceed in the absence of a registrant is one

which requires the utmost care and caution.

Mr Segovia drew the panel’s attention to a letter dated 24 June 2016 that was before

the panel from Mr Dunn’s representatives. In this letter, Mr Dunn’s representatives say

“Mr Dunn is unable to attend the Conduct and Competence Committee Hearing set

down for 27 June – 1 July 2016. We are not instructed to appear at the hearing on his

behalf.” Mr Segovia submitted that this statement clearly indicated that Mr Dunn was not

requesting an adjournment of this hearing. Mr Segovia submitted that, in light of the

information before the panel, Mr Dunn had voluntarily absented himself. He informed

the panel that there were five witnesses scheduled to attend the hearing, and an

adjournment might impact on their ability to recollect events.

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The panel looked to its previous decision that Mr Dunn had been sent notice of today’s

hearing in accordance with the Rules. The panel also noted the letter from Mr Dunn’s

representatives indicating that neither Mr Dunn nor his representatives would be in

attendance at the hearing taking place today. The panel was therefore satisfied that Mr

Dunn was aware of today’s hearing and concluded that he had chosen voluntarily to

absent himself. The panel had no reason to believe that an adjournment would result in

Mr Dunn’s future attendance. The panel had before it Mr Dunn’s responses to the

charges contained within the letter from his representatives. The panel was aware that

there are witnesses scheduled to attend the hearing and any adjournment could

inconvenience them. Having weighed the interests of Mr Dunn and the public interest,

including an expeditious disposal of this hearing, the panel determined to proceed in Mr

Dunn’s absence.

Charges as read: That you, a registered nurse whilst employed at Stratheden Hospital;

1. On 15/16 January 2014:

a. Verbally abused Patient A as per Schedule 1A

2. On 16/17 January 2014:

a. Verbally abused Patient A as per Schedule 1B

b. Pushed Patient A in the chest

c. Verbally abused Patient B as per Schedule 1C

d. Poked your finger in Patient B’s ear

e. Pushed Patient B on the forehead

f. Made abusive comments about Patient B to your colleagues as per

Schedule 1D and/ or E and/ or F

3. On 08 January 2014 was abusive about Patient C as per Schedule 1G

4. On 8th January 2014 was abusive about Patient D as per Schedule 1H

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And, in light of the above, your fitness to practice is impaired by virtue of your

misconduct.

PRIVATE SCHEDULE 1 A: “That one was for fucking free you pig, don’t kick me again”, or words to that

effect

B: “You don’t fucking hit girls”, or words to that effect

C: “Don’t fucking spit in my face of I will bang you square in the pus", or words to

that effect

D: “That fucking little bastard (B), it’s ridiculous, he’s like an animal”, or words to

that effect

E: “He’s a dirty little bastard”, or words to that effect

F: “I can’t help it, if there’s one thing I can’t stand its some cunt spitting in your

face! I’ll tell you though he won’t fucking do it again”, or words to that effect

G: “He’s a fucking retard” or words to that effect

H: “Oh we’ve got to go and deal with this vegetable now”, or words to that effect

Background A referral was made to the NMC by NHS Fife due to allegations of misconduct made

against Mr Dunn while he was working at Stratheden Hospital in January 2014.

It is alleged that on 15/16 January 2014, Mr Dunn verbally abused Patient A. It is further

alleged that on 16/17 January 2014, Mr Dunn verbally and physically abused Patient A.

It is also alleged that on 16/17 January 2014, Mr Dunn verbally and physically abused

Patient B.

Patients A and B were vulnerable patients. Two nursing assistants were present during

the incident Ms 1 and Ms 2.

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There was no reported harm following any of the incidents, although Patient A is

described as being ‘shocked’ and Patient B is described as being ‘agitated’ following the

alleged abuse.

The incident was reported by Ms 1. Both she and Ms 2 gave statements to the Trust

investigator.

The Trust appointed Ms 5, Senior Nurse in Older Adults and Rehabilitation, to

investigate the allegations.

The result of the investigation was that the allegations were upheld and Mr Dunn’s

employment was terminated for gross misconduct.

Decision and Reasons on proceeding in private whilst under Rule 19: Mr Segovia, on behalf of the NMC, made an application to hear elements of the

witnesses’ evidence in private under Rule 19. Rule 19 states that:

19. (1) Subject to paragraphs (2) and (3) below, hearings shall be conducted in

public.

(3) Hearings other than those referred to in paragraph (2) above may be held,

wholly or partly, in private if the Committee is satisfied⎯

(a) having given the parties, and any third party from whom the Committee

considers it appropriate to hear, an opportunity to make representations;

and

(b) having obtained the advice of the legal assessor,

that this is justified (and outweighs any prejudice) by the interests of any party or

of any third party (including a complainant, witness or patient) or by the public

interest.

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Mr Segovia submitted that some of the evidence which was relevant to the case dealt

with health issues, and he submitted that it would not be appropriate to hear these in

public. He submitted that private session need only be entered into for very specific

parts of the evidence, and it would be entirely possible to go in and out of private

session as necessary.

The panel accepted the advice of the legal assessor who advised that hearings shall be

conducted in public, but Rule 19 permits the panel to 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 considered the submissions of Mr Segovia.

The panel is satisfied that any reference to health or sensitive personal matters should

be confined to being heard in private. The panel is satisfied that the interest of the public

does not outweigh the participants’ interests in this matter and decided that it is justified

and fair in the circumstances that the hearing proceed in the public domain but that any

reference to health matters or difficult personal circumstances will be heard in private. Witness Evidence

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

• Ms 1, Nursing Assistant, Bayview Ward, Stratheden Hospital

• Ms 2, Nursing Assistant, Bayview Ward, Stratheden Hospital

• Ms 3, Band 6 Nurse, Bayview Ward, Stratheden Hospital

• Ms 4, Band 5 Staff Nurse, Bayview Ward, Stratheden Hospital

• Ms 5, Band 8a Senior Nurse in Older Adults and Rehabilitation,

Stratheden Hospital

The above named witnesses’ titles refer to their positions at the time of the incident.

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The panel was presented with the NMC exhibit bundle, the witness statements and a

letter from Mr Dunn’s representatives dated 24 June 2016.

The panel considered the oral evidence of the witnesses.

Overall, the panel considered all of the witnesses to be credible and reliable. It first

looked to the evidence of Ms 1 and Ms 2. It noted that Mr Dunn, in his letter dated 24

June 2016 said that Ms 1 and Ms 2 complained about him because he had complained

about them. However, in looking at all of the evidence before it, the panel considered

that this was not the case. The panel could find no evidence that Ms 1 or Ms 2 were

producing their statements out of a vindictive response. The panel noted that both

witnesses provided evidence under oath, and denied a vindictive motive. In addition,

the panel noted that the accounts of Ms 1 and Ms 2 were consistent with the other

witnesses with regard to the recounting of Mr Dunn’s use of bad language and negative

attitude to patients. The panel also took specific instances into account, and noted that

with regard to charge 1(a), Ms 2’s account largely supports Ms 1’s account, except for

the fact that Ms 2 did not hear the words that were said. The panel found Ms 2’s

explanation for why she did not hear the words that were spoken to be a credible

reason. In particular, the panel considered that Ms 1 was reliable and consistent in all of

her accounts. Ms 2 was not always consistent, but only when it came to minor issues.

The panel considered that both witnesses were ordinary members of the public who

were trying to give an honest account. In addition, there was no tendency to embellish

while giving live evidence.

The panel considered Ms 3’s evidence to be straight-forward. She didn’t embellish her

account, but instead provided the facts to the best of her ability. The panel noted that

Ms 3 had challenged Mr Dunn about his language, and it found her to be credible and

reliable. The panel did note that there was an element of Ms 3’s original statement

which was not in her NMC witness statement. However, the panel considered that her

explanation for this omission was plausible. The panel considered Ms 3 to be a credible

and reliable witness

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Ms 4 was very clear if she did not remember something. When asked why she delayed

in reporting the incident, the panel found her explanation to be plausible. When other

concerns were raised, she then escalated her own allegation. There was nothing to

indicate to the panel that Ms 4 was in any way being vindictive towards Mr Dunn.

Finally, the panel looked to the evidence of Ms 5. Ms 5 was the investigator into the

allegations, and therefore she could not provide direct evidence as to the facts of the

charges. The panel found Ms 5 to be credible is so far as her evidence pertained to the

case.

Decision and reasons on facts

The panel found charges 1(a), 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 3 and 4 proved.

The panel carefully considered the evidence put before it including Mr Segovia’s

submissions on behalf of the NMC. The panel took account of the written submissions

made by Mr Dunn in the letter from his representatives dated 24 June 2016.

The panel accepted the advice of the legal assessor. The panel was advised 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 may be found proved if

the panel is satisfied that it is more likely than not that the facts alleged did occur.

Charges

1. On 15/16 January 2014:

a. Verbally abused Patient A as per Schedule 1A

Schedule A: “That one was for fucking free you pig, don’t kick me again”, or words to that effect

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The panel had regard to the evidence as it relates to this charge. The panel considered

Mr Dunn’s response to the charge in which he said that Ms 2 would have heard

anything he said from where she was standing in the room. However, Ms 2 provided the

panel with an explanation as to why she did not hear what was said, and the panel was

content with that explanation. In reaching its decision on this charge, the panel

considered what amounts to abuse. It found that abuse includes anything that makes an

individual uncomfortable, worried, scared, demeaned, insulted or offended. The panel

considered that, to use bad language and derogatory terms such as “pig” would amount

to abuse. The panel noted in Ms 1’s evidence that Patient A appeared to be shocked.

The panel noted that Patient A was a vulnerable patient with impaired cognitive abilities.

It had regard to its earlier review of the credibility of Ms 1 and Ms 2, who directly

observed the incident in this allegation.

On balance, the panel found that it was more likely than not that Mr Dunn said

something like the words in the charge. The panel considered that, in its own view, its

members would all have felt abused had such language been used towards them. The

tone of the language left the panel in no doubt that the language used by Mr Dunn was

abusive. Further the witnesses to the incident found the behaviour offensive.

The panel found this charge proved.

2. On 16/17 January 2014:

a. Verbally abused Patient A as per Schedule 1B

Schedule B: “You don’t fucking hit girls”, or words to that effect

Both Ms 1 and Ms 2 provided evidence on this allegation. Both of the witnesses

accounts support the use of the words alleged, although the reference to Patient A

having been a policeman was only in Ms 2’s NMC statement. The panel noted that the

charge includes “or words to that effect” and therefore the exact words need not be

found proved, but rather the general meaning of them. The panel noted that Ms 1 has

referred to the same words in all three of her accounts before the panel: the interview

notes of 22 January 2014, the statement of 20 January 2014 and the NMC witness

statement, taken in May 2015. It noted that the earlier two accounts were relatively

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contemporaneous, and therefore more likely to be reliable. The panel noted that Ms 2’s

account of the events varied a little. As an example, it noted Ms 2’s use of the words

“you don’t fucking hit girls” in the NMC witness statement and “Don’t hit women” in the

interview notes on 23 January 2014. However, the panel decided that this was not a

substantial difference, and it considered that Ms 2 was doing her best to remember

what she had heard. The panel also noted that Ms 2’s earlier accounts were

contemporaneous with the event. The panel found that it was more likely than not that

Mr Dunn did say something to the patient, and went on to consider whether this was

verbal abuse. The panel noted that both witnesses say that Patient A was taken aback.

The panel considered that Mr Dunn’s actions were admonishing the patient in a way

that is completely unnecessary – he did not attempt to de-escalate the situation, but

rather patronised the patient. The panel considered that in this case, abuse had taken

place in light of the language used.

The panel found this charge proved.

b. Pushed Patient A in the chest

The panel considered this allegation, and all of the evidence pertaining to it. The panel

had regard to Mr Dunn’s response to this charge, in which he denies pushing the

patient, and says that instead, he put his arms around the patient to prevent him from

striking Ms 1. Mr Dunn did not address the allegation in the interview held on 25 June

2014. The panel also had regard to the NMC statements of Ms 1 and Ms 2. Ms 1 said

that “Although I did not see the patient try to hit me I did see [Mr Dunn] pushing the

patient back”. Ms 2 states “[Mr Dunn] put his right hand on the patient’s chest and

pushed him down quite forcefully”. The panel considered that both statements are clear,

and, on the balance of probabilities, Mr Dunn did push Patient A in the chest. The panel found this charge proved.

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c. Verbally abused Patient B as per Schedule 1C

Schedule C: “Don’t fucking spit in my face of I will bang you square in the

pus", or words to that effect The panel noted that, with regard to this charge, there was some inconsistency with

whether or not Patient B spat at Mr Dunn. However, the panel did not consider that the

specific action of Patient B was relevant in this case. The panel considered that the

words Mr Dunn is alleged to have used were abusive, in that, not only was bad

language used, but a threat was made against the patient. Both Ms 1 and Ms 2 refer to

this incident in their statements, and the panel noted that, while the specific words of the

statements do not match, this adds to the credibility of their testimony. Again, the panel

considered Ms 1 to be consistent in her evidence. While there is variation in the

description of the wording throughout Ms 2’s evidence, the panel considered this to be

normal variation made in Ms 2’s attempt to recall the incident. The panel considered

that, in the balance, it was more likely than not that Mr Dunn did use the words as laid

out in the schedule.

The panel found this charge proved.

d. Poked your finger in Patient B’s ear

The panel had regard to the written statement of Mr Dunn in which he said that Ms 1

would not have been able to see him do this from where she was standing. However,

the panel asked Ms 1 while she was providing oral evidence whether she could see Mr

Dunn’s actions, and she replied that Patient B was a small man, and the way that they

were seated allowed her to see Mr Dunn’s actions. The panel noted that this allegation

was not mentioned in Ms 2’s interview on 23 February 2014. However, it is mentioned in

an account she wrote on 10 February 2014. The panel considered that these accounts

were written close together and were contemporaneous with the incident. The panel

considered that this charge needed to be considered on the balance of probabilities,

weighing the likelihood of someone doing such an action against the likelihood of

someone making the story up. The panel noted that Mr Dunn admitted in the evidence

before the panel that he was in a heightened state of agitation when finishing his shift

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and in anger, he may have acted inappropriately. The panel found, on the balance of

probabilities, it was more likely than not that Mr Dunn did act as alleged. The likelihood

of both Ms 1 and Ms 2 making this up belied the established credibility of their evidence. The panel found this charge proved.

e. Pushed Patient B on the forehead

The panel noted that Mr Dunn denies this allegation. It noted the various descriptions of

what happened – in one account it was a “slap” and in the other account it was a “push”.

However, the outcome which is consistent in all accounts, including that of Mr Dunn, is

that Ms 1, Mr Dunn and Patient B ended up falling over onto Patient B’s bed. The panel

noted Ms 2 said that she did not see any marks on Patient B’s forehead and Ms 1 said

that she did not notice any marks on Patient B’s forehead. The panel considered that,

on the balance of probabilities, it was more likely than not that Mr Dunn pushed Patient

B by putting his hand on Patient B’s forehead. The panel had found Ms 1 and Ms 2 to

be credible witnesses and had no reason to doubt their account of this incident.

The panel found this charge proved.

f. Made abusive comments about Patient B to your colleagues as per

Schedule 1D and/ or E and/ or F

Schedule D: “That fucking little bastard (B), it’s ridiculous, he’s like an

animal”, or words to that effect Schedule E: “He’s a well old dirty little bastard”, or words to that effect Schedule F: “I can’t help it, if there’s one thing I can’t stand its some cunt

spitting in your face! I’ll tell you though he won’t fucking do it again”, or words to that effect

The panel noted that Mr Dunn agrees that he expressed frustration with his colleagues

following the shift. The panel also noted that Ms 3 said she had never found Mr Dunn to

behave in that way. The panel noted that Patient B was a challenging patient, and Mr

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Dunn himself admitted in his interview on 10 February 2014 that he was unhappy when

finishing his shift. The panel therefore considered that Mr Dunn has accepted that he

was agitated following the shift. It had regard to the charge, and to the statements in the

schedule to which it refers. In this schedule, the panel can consider whether Mr Dunn

said a number of different things, or words to that effect. The panel noted the evidence

of Ms 3 and her reasons for some changes that were apparent in her NMC witness

statement. The panel considered that she was careful in composing her statement. The

panel considered Ms 3 to be a very credible witness who did not embellish but instead

responded in a measured way. The panel had asked Ms 3 about the culture of language

on the ward and she admitted that while some bad language may be used, she would

not condone it on the ward, and the staff room was just off the ward. The panel

considered that, on the balance of probabilities, and in light of all three of the witness

accounts being contemporaneous, it was more likely than not that Mr Dunn made all of

the statements he is alleged to have made.

The panel found this charge proved.

3. On 08 January 2014 was abusive about Patient C as per Schedule 1G

Schedule G: “He’s a fucking retard” or words to that effect

The panel noted that Mr Dunn has said he would never call someone a “retard” because

he was called that in school and hated it. However, the panel had also found throughout

the evidence that Mr Dunn had a propensity to use bad language in his common

speech. Ms 4 was very clear in her evidence that the word “retard” was used by Mr

Dunn, although she conceded that she cannot remember the exact words he used

around it. The panel noted that Ms 4 had delayed reporting this incident, but considered

her reasons for doing so were plausible. She said she was new in the role and was

scared to report it. The panel preferred Ms 4’s evidence over Mr Dunn’s evidence in this

case, and considered that, in light of the information before it, it was more likely than not

that Mr Dunn referred to Patient C as a “retard” and that it was abusive. The panel found this charge proved.

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4. On 8th January 2014 was abusive about Patient D as per Schedule 1H

Schedule H: “Oh we’ve got to go and deal with this vegetable now”, or words to that effect

The panel accepted the evidence of Ms 4 on this allegation. The panel considered that

the use of the word “vegetable” was demeaning and abusive. She said that she was

horrified by what he had said and she did not know what to do or say. The panel

considered all of the evidence, and the use of bad language that Mr Dunn appears to

have used regularly. The panel noted that Ms 4 had delayed reporting this incident, but

considered her reasons for doing so were plausible. She said she was new in the role

and was scared to report it. The panel deemed it understandable that she would raise

the allegation when other issues were also coming to light. Ms 4 was clear that Mr

Dunn used the word “vegetable”, although she admitted to being uncertain of the words

around it. The panel found that, in light of all of the evidence, it was more likely than not

that Mr Dunn referred to Patient D as a “vegetable”.

The panel found this charge proved.

Decision on the application to admit additional documentation Before proceeding to the next stage, Mr Segovia made an application to place an

additional piece of evidence before the panel. He informed the panel that he wished to

put two further pieces of information before it, one which describes in more detail the

context and profile of the patients in this case, and the other which addressed

information brought up in the letter from Mr Dunn’s representative dated 24 June 2016.

He submitted that the information was relevant to the panel’s decision, and that fairness

to Mr Dunn was not undermined as both he and his representatives had sight of the

document and had referred to it in their written submission contained in the letter.

The panel accepted the advice of the legal assessor.

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Rule 31 states the following:

31.—(1) 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 (in the appropriate Court in that part of the United

Kingdom in which the hearing takes place).

The panel understood that it could accept additional documentation throughout the

hearing. However, it also had regard to the matters of relevance and fairness. Mr Dunn

is not present at this hearing, and while he was clearly aware of the document to which

Mr Segovia refers, he would not have been aware of the intention to place these before

the panel for its consideration. The panel was not satisfied from the submissions of Mr

Segovia that the document in question was relevant to the panel’s considerations at this

stage of the hearing.

For these reasons, the panel rejected Mr Segovia’s application to admit additional

documentation at this stage.

Reasons and decision on Misconduct and Impairment:

Having found the facts proved, the panel moved on to consider whether the facts found

proved amount to misconduct and, if so, whether Mr Dunn’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.

Mr Segovia submitted that this was a two-stage process and that there was no standard

definition of misconduct. He 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.

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Mr Segovia reminded the panel that, in order to make a finding of misconduct, it has to

be serious. He drew the panel’s attention to its findings on facts, and that the panel had

found that all allegations of abuse had been found proved. He submitted that it is

unacceptable to abuse patients, and Mr Dunn should have known that as common

sense. Mr Segovia submitted that Mr Dunn’s actions as found proved fell significantly

below the standards expected of a registered nurse. Mr Segovia emphasised the

vulnerability of the patients who were in the advanced stages of dementia. He submitted

that both the patients and their relatives had an expectation that they would get the care

they needed and be treated appropriately with compassion and understanding. In his

submissions, Mr Dunn’s failure to do this was another reason that he fell below the

standards to be expected of a registered nurse. Further, he submitted that any member

of the public would agree. Mr Segovia submitted that, as a registered nurse, he was

expected to set an example for those he worked with. In relation to the allegations

around care provided to Patient A and Patient B, Mr Dunn was accompanied by care

assistants, and Mr Segovia submitted that Mr Dunn provided a very poor example to

those colleagues. Mr Segovia also submitted that the possible perception of these

failings would undoubtedly raise concerns with relatives as to how their family members

are being cared for.

Mr Segovia submitted that the Preamble to The code: Standards of conduct,

performance and ethics for nurses and midwives 2008 (“The code”) was relevant in this

case, and invited the panel to consider the entirety of the preamble as engaged in this

case.

Mr Segovia further submitted that paragraphs 1, 3 and 61 of The code were also

relevant in this case. In light of what he said was a very serious case, Mr Segovia

invited the panel to make a finding of misconduct.

With regard to impairment, Mr Segovia reminded the panel that Mr Dunn denies the

facts of the allegations, as was his right. Mr Segovia drew the panel’s attention to the

following section of Ms 1’s NMC statement: “[Mr Dunn] and I then went to the kitchen to

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get a drink. Whilst we were doing so [Mr Dunn] told me that if [Ms 2] reported him for

what he had done he would deny it.” Mr Segovia submitted that this was disturbing.

Mr Segovia referred the panel to various paragrpahs in the case of Council for

Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011]

EWHC 927 (Admin) including paragraphs 70 and 74. He also guided the panel to

paragraph 76 and submitted that the following criteria set out by Dame Janet Smith in

the Fifth Shipman Report and adopted in the case of Grant in that paragraph were

relevant:

“Do our findings of fact in respect of the [doctor's] misconduct… 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. . . .”

Mr Segovia first dealt with whether or not the above criteria had been engaged in the

past. He submitted that patients had been put at risk of harm in the past. He

acknowledged Mr Dunn’s assertion in the letter dated 24 June 2016 that “At no time

was any patient harmed.” However, Mr Segovia submitted that, the panel having found

that abuse had taken place as laid out in the charges, it was clear that Mr Dunn, as a

registered nurse, had put patients at risk. Mr Segovia submitted that it had been

acknowledged by both parties that the patients, who suffered from dementia, were

challenging to care for, but that Mr Dunn’s actions, in the past, put both colleagues and

patients at risk of harm. With regard to bringing the profession into disrepute, Mr

Segovia submitted that not every finding on facts necessarily means that the reputation

of the profession would be undermined. However, in this case, he submitted that Mr

Dunn’s actions did have the potential to impact on the reputation of the profession. He

submitted that Mr Dunn’s actions would put doubt in the minds of the public that his

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behaviour was acceptable and that vulnerable patients were subject to abuse. He

therefore submitted that Mr Dunn’s actions had an impact on the public’s perception of

the profession and their confidence in it. Finally, with regard to breaching the

fundamental tenets of the profession, Mr Segovia submitted that, if the panel was with

him with regard to the elements of the preamble which he submitted are engaged in this

case, this criterion had also been met in the context of the past.

With regard to whether the above criteria had been engaged in terms of the future, Mr

Segovia submitted that Mr Dunn has not provided the potential the panel with any

information that would reassure it that he is incapable of repeating the actions found

proved. In the letter dated 24 June 2016, Mr Dunn “denies the factual allegations.”

However, the panel has found the facts of the case proved and not only was bad

language used, but he threatened to hit a highly vulnerable patient Mr Segovia

submitted that the panel had no reassurance that Mr Dunn would not follow this threat

through in the future and this would be concerning for the public. Mr Segovia referred

the panel to the statement of Ms 1 where Mr Dunn allegedly said that he would deny

any accusation. Mr Segovia also referred the panel to Mr Dunn’s comments that the

witnesses had vindictive motivations. Mr Segovia submitted that this goes to Mr Dunn’s

insight. He submitted that there was a risk of repetition of past behaviours and therefore

a risk to patients in the future. Mr Segovia submitted that if that is accepted by the

panel, the criteria of bringing the profession into disrepute and breaching fundamental

tenets of the profession follows.

With regard to remediation and insight, Mr Segovia submitted that it was difficult to

remediate behavioural and attitudinal matters and he posed the question as to whether

Mr Dunn could address these matters if he does not see his actions as wrong. Mr

Segovia submitted that there is nothing before the panel to indicate he would ever act

differently. He submitted that there is no information before the panel which would

enable it to conclude that Mr Dunn would even be willing, were it possible, to remediate.

Mr Segovia submitted that Mr Dunn has shown no evidence of insight and he referred

the panel to paragraph 116 of Grant:

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“. . . In circumstances where the Committee had no evidence before them of the

Registrant’s recent performance in a clinical setting, her failure clearly and

unambiguously to acknowledge her failings was a matter of serious concern.”

Finally, Mr Segovia submitted that whether in the past or in the future, the three criteria

laid out by Dame Janet Smith in the case of Grant were engaged in this case. He

therefore submitted that this was a case of serious misconduct and a finding of

impairment could be made on those grounds.

Decision on Misconduct:

The panel accepted the advice of the legal assessor.

The panel took account of the submissions of Mr Segovia on behalf of the NMC and it

had regard to Mr Dunn’s letter of 24 June 2016..

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

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

facts found proved amounted to misconduct could the panel decide whether, in all the

circumstances, your fitness to practise is currently impaired as a result of that

misconduct.

The panel, in reaching its decision, had regard to the public interest and accepted that

there was no burden or standard of proof at this stage and exercised its own

professional judgement. The panel appreciated that not every breach of The code and

not every falling short of what would be proper in the circumstances constitutes

misconduct so serious as to raise the issue of fitness to practise.

The panel had regard to the case law that it had been referred to by Mr Segovia and the

legal assessor. In particular, the panel looked to the case of Grant and took into account

the guidance provided by Cox J including that it should not lose sight of the need to

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protect the public and the need to declare and uphold proper standards of conduct and

behaviour so as to maintain public confidence in the profession.

The panel considered whether, by acting inappropriately, Mr Dunn had breached

fundamental tenets of the profession and brought the profession into disrepute. The

panel looked to The code and considered the following aspects of the preamble were

relevant in this case:

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

• 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

• . . . 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 you must always be able to justify your decisions.

The panel considered the following paragraphs of The code were also relevant:

1 You must treat people as individuals and respect their dignity

3 You must treat people kindly and considerately

61 You must uphold the reputation of your profession at all times

When considering misconduct, the panel first looked at the charges individually. It

looked to charge 1(a). The panel noted that Patient A was a vulnerable patient, and it

considered Mr Dunn’s actions amounted to abuse and were both disrespectful and

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serious. It noted that Ms 1 said that Patient A was scared and shocked. Further, the

panel considered that there was a certain degree of menace in this charge, whereby Mr

Dunn threatened Patient A with consequences. The panel had regard to its findings on

fact, and that it found that abuse had taken place. In addition, the panel considered that

Mr Dunn had set a bad example to the nursing assistants who witnessed his actions.

The panel found that misconduct had occurred in this charge.

With regard to charge 2(a) the panel noted the evidence that Ms 1 and Ms 2 put forward

that Patient A was taken aback. Again, the panel considered that Mr Dunn’s use of bad

language was abusive and he admonished Patient A rather than dealing with the

situation appropriately and de-escalating. While the panel acknowledged that Patient A

was challenging and may have been trying to hit Ms 1, requiring some form of

intervention, the panel found that it was not appropriate to demean Patient A. The panel

considered that Mr Dunn did not appropriately manage the situation, and his actions

amounted to misconduct.

With regard to charge 2(b) the panel noted that Ms 1 did not see Patient A’s action as

her back was turned. Ms 2 did see it and said that “The patient lifted his right arm and

tried to hot [Ms 1], but did not manage to make contact. [Mr Dunn] then put his right

hand on the patient’s chest and pushed him down quite forcefully. . .” The panel

considered that, in isolation, this charge might not amount to misconduct. While policies

may have existed to indicate that this was not an appropriate way to deal with patients,

they were not before the panel, and it seemed clear that some intervention was

required. Ms 1 mentioned that she would push on a patient’s stomach to indicate she

wanted him to sit, and so the panel noted that contact with the torso might be

appropriate in some circumstances. The panel did note that Mr Dunn stopped Patient A

from lashing out, and it noted that Patient A was a challenging patient with lots of

handling issues. In and of itself, the panel concluded that this charge did not reach the

threshold of misconduct.

With regard to charge 2(c) the panel considered that abuse had taken place in this

case. In addition, it noted that Mr Dunn made a threat towards Patient B and that this

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threat was both overt and direct. The panel considered that this was totally

inappropriate and that this charge amounted to misconduct.

With regard to charge 2(d), the panel considered that Mr Dunn had physically assaulted

Patient B. It did not appear that there was any reason for Mr Dunn to act as he did other

than to annoy the patient. Mr Dunn’s actions caused more distress to the patient who

was already clearly agitated. Ms 1 and Ms 2 witness the incident and were not

comfortable with how Mr Dunn acted. The panel considered that Mr Dunn had not

provided a good example for Ms 1 and Ms 2 and had provoked Patient B who was

already in distress. Aside from the fact that what he did was unpleasant, the panel

considered that Mr Dunn’s actions were wholly inappropriate, and amounted to

misconduct.

With regard to charge 2(e), the panel noted the evidence that Ms 1 and Ms 2 provided

in that they saw no marks on Patient B’s forehead following Mr Dunn’s action. However,

he pushed Patient B forcefully enough that the patient, Ms 1 and Mr Dunn all fell onto

Patient B’s bed. The panel concluded that just because Mr Dunn’s actions did not result

in a mark, did not mean that it was appropriate to push someone on the head. The

panel could not imagine an occasion where this action would be deemed an appropriate

way to handle a patient. The panel noted that Ms 1 described Patient B as angry

following Mr Dunn’s action and he was agitated for some time afterwards. The panel

concluded that Mr Dunn’s actions in this charge escalated the situation and while

pushing a patient on the torso may be appropriate in a difficult physical situation, it

would never be appropriate to push a patient on the forehead. The panel found that this

charge amounted to misconduct.

With regard to charge 2(f), the panel considered that talking about patients in a closed

room behind their back could potentially lead to the establishment of a bad culture. To

do this was neither appropriate nor professional. Mr Dunn clearly set a bad example in

this instance. In addition, the witnesses’ evidence with regard to this charge is that they

were made very uncomfortable by what Mr Dunn said. Ms 3 said in her oral evidence

that while bad language may be used, she herself would not condone its use on the

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ward. The panel concluded that Mr Dunn’s actions in this regard did amount to

misconduct.

With regard to charge 3, the panel noted that Ms 4 was a new nurse and Mr Dunn’s

actions did not provide a good example for her to follow. Ms 4 was very clear on Mr

Dunn’s use of the word “retard”. The panel considered that this was abusive and that

the term was both discriminatory and demeaning. Further, Ms 4 said in her NMC

statement that Mr Dunn’s tone of voice was loud and angry. Ms 1 also said that she did

not want to confront Mr Dunn as she had seen him act aggressively towards another

staff member, which the panel considered supported the reasons these witnesses had

for being hesitant to step forward about Mr Dunn’s actions. The panel considered that

Mr Dunn’s actions in this case amounted to misconduct.

Finally, with regard to charge 4, the panel considered that the grounds as laid out in its

consideration of charge 3 also applied in this case. Ms 4 was a new nurse and Mr

Dunn’s actions did not provide a good example for her to follow. Ms 4 was very clear on

Mr Dunn’s use of the word “vegetable”. The panel considered that this was abusive and

that the term was both discriminatory and demeaning. The panel considered that Mr

Dunn’s actions in this case amounted to misconduct.

Having looked at them individually, the panel concluded that all of the charges except

for charge 2(b) amounted to misconduct.

Decision on Impairment:

The panel next went on to decide if, as a result of the findings of misconduct, Mr Dunn’s

fitness to practise is currently impaired by reason of that misconduct.

The panel had regard to the judgement of Mrs Justice Cox in the case of Grant. In

paragraph 74 she said:

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

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

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

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

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

impairment were not made in the particular circumstances.”

The panel considered Mr Dunn’s letter of 24 June 2016 and his assertion that no

patients had been harmed. However, the panel was aware that it needed to consider,

not only actual harm, but the potential for harm as well. The panel agreed with the

submissions of Mr Segovia. Although the behaviour described in the charges is in

theory remediable, the panel did not consider Mr Dunn has provided it with any

evidence of insight which would make remediation likely in this case. The panel

considered that Mr Dunn’s behaviour suggests someone who is not in control of himself.

The panel noted that these were challenging patients, and that the circumstances were

difficult. However, it was not appropriate for Mr Dunn to act in the way that he did.

The panel noted that it had nothing before it to indicate there was any reflection or

insight from Mr Dunn. Instead, he denies all of the allegations and deflects blame onto

others, saying that the motivations of the witnesses were vindictive. Without any

indication of developed insight or any attempts at remediation, the panel could not be

satisfied that Mr Dunn would not repeat the misconduct. While the panel noted that the

letter of 24 June 2016 indicates that Mr Dunn has not been before his regulator

previously, it did have sight of information in the documentation before it that Mr Dunn

had had an altercation with another staff member. While the behaviours was potentially

remediable with significant insight, in this case, this was not evidence.

The panel went on to consider whether or not the public interest would require a finding

of impairment. 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 declaring and upholding the proper standards and behaviour.

The panel has an important role to play in the protection of the public. The panel noted

that public sensitivity was very high with regard to elderly patients and patients with

dementia where there is the potential for abuse. The panel considered that a finding of

current impairment was necessary to protect the wider public interest and to uphold

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confidence in the profession. It considered that public confidence in the profession

would be undermined if a finding of impairment were not made. The panel has

determined for the above reasons, that Mr Dunn fitness to practise is currently impaired.

Decision on sanction and reasons

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

placed before it in this case.

Mr Segovia made no submission as to which particular sanction would be appropriate.

He referred the panel to the Indicative Sanctions Guidance (ISG) and reminded the

panel that it should approach the sanctions in ascending order of severity. He submitted

that being on the register is not a right, but rather that it is a privilege that is gained by

three things: qualification; registration; and conduct and competence. Mr Segovia

submitted that Mr Dunn’s actions were abusive and violated the trust of the public.

The panel accepted the advice of the legal assessor.

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

proportionate. The purpose of any sanction is not intended to be punitive even though it

may have that effect. The panel recognised that the decision on sanction is a matter for

the panel exercising its own independent judgement.

The panel had careful regard to the ISG. In making its decision, the panel bore in mind

the need to protect the public as well as the wider public interest. This includes

maintaining public confidence in the profession and in the NMC as the regulator, and

declaring and upholding proper standards of conduct and behaviour. The panel has

applied the principle of proportionality, weighing the interests of the public with Mr

Dunn’s interests, and has taken into account the mitigating and aggravating factors in

this case.

The panel found the following mitigating factors in this case:

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• There is no evidence of any previous formal disciplinary proceedings by

Mr Dunn’s employers, nor any other regulatory proceedings

• Mr Dunn asserts that he was going through a difficult time in his private life

at the time of the incidents which impacted his [PRIVATE] health

• Mr Dunn has engaged with the process prior to the commencement of this

hearing.

The panel found the following aggravating factors in this case:

• Mr Dunn was an experienced nurse within the discipline of mental health

which should have equipped him to deal appropriately with such

challenging behaviour as presented by dementia patients

• These were vulnerable patients

• Mr Dunn lacks insight and remorse into his actions and the consequences

of his actions on the patients, his colleagues and the wider profession

• Mr Dunn has denied everything throughout the entirety of the proceedings

• The misconduct was witnessed by junior colleagues, with Mr Dunn

presenting a bad example and potentially promoting a negative culture in

the workplace.

Having considered the mitigating and aggravating factors relevant in this case, the

panel went on to look at the sanctions available to it, in order of increasing severity.

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

inappropriate in view of the seriousness of the charges found proved and its findings

with regard to Mr Dunn’s current impairment. The panel noted the risk Mr Dunn has

posed to patients in the past. Further, the panel had identified a residual risk of actual

harm to patients in the future. To impose no sanction would allow Mr Dunn to practise

as a registered nurse without restriction, and the panel considered that this would be

wholly inappropriate. Further, taking no action would neither be proportionate nor in the

public interest.

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The panel next considered whether to impose a caution order but concluded that this

would be inappropriate in light of the seriousness of Mr Dunn’s misconduct. The panel

was firmly of the opinion that Mr Dunn’s misconduct was not at the “lower end of the

spectrum” and therefore the panel determined that a caution order would not be

sufficient to protect the public or the reputation of the profession. The panel concluded

that the public trust and confidence in the nursing profession and its regulator would be

seriously undermined if such an order were made.

The panel next considered whether placing conditions of practice on Mr Dunn’s

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

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

noted the factors set out in paragraphs 62 to 64 of the ISG which indicate when such an

order may be appropriate. Specifically, it looked at whether conditions would be

sufficient to protect patients and the public interest.

The panel considered that Mr Dunn’s failings are, in principle, potentially remediable.

However, Mr Dunn’s ongoing lack of insight and remorse, his denial of the allegations,

and his comments that the witnesses were bringing these issues forward out of

vindictive motivations were indicative to the panel that Mr Dunn has an entrenched

attitudinal problem. The panel could not be confident that Mr Dunn would be willing to

comply with any conditions which could be imposed on his practice. The panel

concluded that it could not formulate workable conditions which would maintain the

public’s trust and confidence in the profession and in the NMC as a regulator. The panel

therefore decided that a conditions of practice order would be insufficient to protect the

public and the wider public interest.

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

appropriate sanction. It considered whether a period of suspension would be sufficient

to protect patients and the public interest.

Given the panel’s view that Mr Dunn’s failings are, in principle, potentially remediable, a

period of suspension might afford him time to remediate his failings while protecting the

public. However, Mr Dunn’s lack of insight and remorse, as well as his apparent

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attitudinal issues, was of serious concern to the panel. In the circumstances of this

case, the panel was not confident that a period of suspension would adequately protect

the public in the long term.

The panel noted that these incidents took place over a single month, and there is

nothing before it to indicate that Mr Dunn’s failings have been repeated, nor that he has

been before his regulator at any time other than this hearing. However, the panel

considered that Mr Dunn’s failings involved vulnerable patients and were witnessed by

junior colleagues. Mr Dunn has shown no insight into the seriousness of his actions and

the impact of those actions on his patients, his colleagues and the profession. The

panel took the view that Mr Dunn’s misconduct represented a very serious departure

from the relevant professional standards as set out in The code. The panel reminded

itself that in finding impairment, it formed the view that Mr Dunn had no apparent insight

into his failings, and instead denied all of the allegations. The panel looked again to Ms

1’s statement where she describes a conversation with Mr Dunn in which he indicated

he would deny anything that was raised following the incident with Patient A. The panel

was very concerned by this. Further, in the absence of any evidence of remediation, the

panel considered that there is a significant risk of repetition of Mr Dunn’s misconduct in

the future. Having regard to the nature and seriousness of the misconduct in this case,

the panel therefore determined that a suspension was not a sufficient sanction in these

circumstances.

As a result, the panel found that the only appropriate sanction in this case is a striking-

off order. In satisfying itself that a striking-off order was the appropriate sanction, it

looked to the following key considerations in the ISG:

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

interest?

70.2 Is the seriousness of the case incompatible with ongoing registration (see

paragraph 66 above for the factors to take into account when considering

seriousness)?

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70.3 Can public confidence in the professions and the NMC be sustained if the

nurse or midwife is not removed from the register?

The panel also looked to paragraphs in the ISG as they relate to a striking-off order:

71 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 (this list is not exhaustive):

71.1 Serious departure from the relevant professional standards as

set out in key standards, guidance and advice . . .

71.2 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. Harm may include physical, emotional and financial

harm. The panel will need to consider the seriousness of the harm

in coming to its decision

71.3 Abuse of position, abuse of trust, or violation of the rights of

patients, particularly in relation to vulnerable patients

71.7 Persistent lack of insight into seriousness of actions or

consequences

The panel looked to its decisions on facts and on impairment. It had regard to the letter

dated 24 June 2016 from Mr Dunn’s representatives. The panel could find no indication

in this document that Mr Dunn was willing or able to remediate his failings. There was

nothing before the panel to satisfy it that Mr Dunn would be safe to practice in the

future. The panel considered that Mr Dunn’s behaviour towards vulnerable patients was

appalling. Abuse of these patients had taken place, and while Mr Dunn’s

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representatives say in the letter of 24 June 2016 that no patients were harmed, the

panel considered that harm had taken place, particularly emotional harm. The panel

noted that the patients were challenging, but considered that, as an experienced

registered nurse, Mr Dunn should have removed himself from practice and availed

himself of support mechanisms which were in place if he felt he could not cope.

Mr Dunn’s behaviour was particularly egregious in light of the vulnerability of the

patients and the panel considered that the public interest was fully engaged in this case.

The panel concluded that Mr Dunn’s actions represented a fundamental departure from

the relevant standards as set out in The code, and that public confidence in the nursing

profession and in the NMC as its regulator would be undermined were the panel not to

impose a striking-off order.

The panel therefore considered that the only appropriate sanction in the specific

circumstances of this case was a striking-off order.

The panel was aware that a striking-off order could impact on Mr Dunn negatively in

terms of financial, personal and professional hardship, although the panel had no

information on these matters. However, taking full account of the important principle of

proportionality, the panel was of the view that the interests of the public outweigh Mr

Dunn’s interests in this regard.

The panel found that the seriousness of the misconduct, the potential risk to patients

and the negative impact on the reputation of the profession indicates that Mr Dunn’s

misconduct is fundamentally incompatible with his remaining on the register.

The panel, therefore, determined that a striking-off order should be made and directs

the Registrar to strike Mr Dunn’s name from the Register. Mr Dunn may apply for

restoration five years after the date that this decision takes effect.

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Decision on Interim Order and reasons

The panel went on to consider an interim order.

Mr Segovia submitted that an 18 month interim suspension order is necessary to protect

the public and is otherwise in the public interest. He submitted that a period of 18

months is appropriate in order to cover the appeal period. He submitted that this interim

order would be commensurate with the panel’s earlier findings.

The panel has accepted the advice of the legal assessor.

The panel was satisfied that an interim suspension order is necessary for the protection

of the public and is otherwise in the public interest. In reaching its decision to impose an

interim order, the panel has had regard to the seriousness of the facts found proved and

the reasons set out in its decision for the substantive order.

The period of this interim order is for 18 months to allow for the possibility of an appeal

to be made and determined.

If no appeal is made then the interim order will be replaced by the substantive striking-

off order 28 days after Mr Dunn is served the decision of this hearing in writing.

That concludes this case.