Conduct and Competence Committee Substantive Hearing · Page 1 of 31 Conduct and Competence...

of 31

Conduct and Competence Committee

Substantive Hearing

7-10 November 2016

Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ

(7 November 2016)

Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE (8-10 November 2016)

Name of Registrant Nurse: Maryanne Cimbracruz

NMC PIN: 08A3497E

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

Mental Health Nursing – October 2008

Area of Registered Address: England

Panel members: Anne Booth (Chair, Lay member)

Claire Gill (Registrant member)

David Braybrook (Lay member)

Legal Assessor: Michael Levy

Panel Secretary: Neeraj Pruthi

Nursing and Midwifery Council: Represented by Alex Mills, Case Presenter,

instructed by NMC Regulatory Legal Team

Registrant: Ms Cimbracruz was present and represented

by Melanie Spencer, instructed by UNISON

Facts admitted: Charges 1, 1.1, 1.2, 1, 2.1, 2.2, 3, 4, 4.1, 4.2,

4.3, 4.4, 5, 6 and 7

Fitness to practise: Impaired

Sanction: Conditions of Practice Order – 2 years

Interim Order: Interim Conditions of Practice Order – 18

months

of 31

Charges as amended

That you, whilst employed as a Staff Nurse at Upper Halliford Nursing Home between

October 2013 and September July 2015:

1. On either 5 January 2015 or 26 January 2015, in relation to Resident A:

1.1. Caused pain to Resident A’s hand when administering medication;

1.2. Did not escalate Resident A’s complaint that you had caused him pain.

2. On unknown dates:

2.1. Inappropriately touched Resident B’s nose;

2.2. Used an inappropriate technique to administer medication to Resident C,

in that you pinched Resident C’s nose in order to make her open her

mouth.

3. On unknown dates, inappropriately closed the bedroom doors of Resident C

and/or Resident E and/or Resident F;

4. On unknown dates, administered and/or instructed others to administer covert

medication to:

4.1. Resident C;

4.2. Resident G;

4.3. Resident H;

4.4. Resident I.

of 31

5. On an unknown date, instructed Colleague A to record on a bowel chart that

Resident D had had a bowel movement when he had not.

6. On an unknown date, instructed Colleague A not to report that Resident I had

two black eyes.

7. Fed Residents G and/or Resident J and/or Resident I in an inappropriate manner.

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

misconduct.

Amendment to stem of charge

Following its decision on facts, the panel of its own violation amended the date in the

stem of the charge to July 2015. The panel considered that this amendment would

serve to rectify drafting errors by aligning the date in the stem of the charge to the

evidence presented by the NMC. Further, the panel considered that this amendment

would not affect the substance of the case against you or otherwise result in any

unfairness to you.

The stem of the charge therefore reads as follows,

‘That you, whilst employed as a Staff Nurse at Upper Halliford Nursing Home between

October 2013 and September July 2015’

Both Mr Mills, on behalf of the NMC and Ms Spencer, on your behalf agreed to this

proposed amendment.

Background

of 31

The charges arise whilst you were employed by Healthcare Management Solutions (‘the

Company’) based in Upper Halliford Nursing Home, Shepperton (‘the Home’). You

commenced employment at the Home in October 2013 as a Staff Nurse and by October

2014 were promoted to the position of Unit Manager. You were responsible for the daily

monitoring of care staffing levels, administering medication, changing residents’

dressings and generally overseeing the care of residents.

The panel was informed by Ms Spencer that both you and the NMC had agreed the

facts in this case. It was provided with an agreed statement of facts, which were as

follows:

‘Summary

Ms Cimbracruz (the Registrant) commenced employment as a Staff Nurse at Upper

Halliford Nursing Home (the Home) in October 2013. The Home is a 60 -bedded

Nursing Home accommodating elderly residents including residents who are physically

disabled and residents who suffer from dementia. Each resident has access to their own

bedroom as well as having access to the communal lounge and dining rooms within the

Home.

In October 2014 the Registrant was promoted to the position of Unit Manager. As the

Unit Manager, the Registrant was responsible for taking charge of the floor she was

allocated to, allocating duties to staff, administering medication, changing residents’

dressings, overseeing care delivered to residents by the Healthcare Assistants and

generally overseeing the care delivered to residents.

In January 2015 an allegation was made that the Registrant had caused physical harm

to Resident A whilst administering medication. The Registrant was suspended on 3

February 2015 and a referral was made to the police, who subsequently decided to take

no further action. However, a local investigation was conducted by the Home. During

the course of that local investigation, further concerns regarding the Registrant’s

practise came to light which now form the subject of the remaining charges in this case.

of 31

The local investigation resulted in a disciplinary hearing on 23 June 2015, and the

Registrant was dismissed for gross misconduct. Since 31 August 2015 the Registrant

has been employed as a Unit Manager at Cloisters Nursing Home.

Agreed Facts

The facts of the charges referred to above are as follows:


1.1. Caused pain to Resident A’s hand when administering medication;

1.2. Did not escalate Resident A’s complaint that you had caused him pain.

Resident A had been a resident at the Home since October 2013 following a period of

hospitalisation during which he had received chemotherapy treatment for lymphoma

cancer. The care provided to Resident A at the Home included assistance with dressing

and washing due to his inability to mobilise autonomously, catheter care and the

provision of medication. Resident A’s Care Plan (dated 24/1/15) provided that those

providing care to him should, “Always be polite, courteous and professional when

conversing with him / carrying out duties. Explain the procedure before carrying it out.”

Shortly after 13:00 on either 5 January or 26 January 2015, the Registrant entered

Resident A’s room to conduct the second medication round. The Registrant was alone

and Resident A remained in bed throughout her visit. Resident A described the

Registrant’s demeanour when she entered his room as being, “Completely normal.”

As the Registrant approached Resident A’s bed, Resident A put out his right hand with

his palm facing upwards so that the Registrant could tip the medication from a plastic

container into his hand. Whilst his hand was outstretched, the Registrant held Resident

A’s hand firmly with her left hand, on the part of his hand between his palm and thumb.

The effect of doing so was that Resident A could not move his hand.

The Registrant then bashed her right hand containing the plastic medication container

into Resident A’s right hand. The Registrant then bent the fingers of Resident A’s right

of 31

hand into a clenched fist, using her right hand to do so which she then closed around

Resident A’s hand. The Registrant then twisted her hand forcing pressure onto Resident

A’s finger joints.

The Registrant did not say anything to Resident A during this incident. The Registrant

then left the room and Resident A did not call for assistance or press the emergency

buzzer.

Resident A was distressed that the Registrant had displayed an act of violence toward

him that was, in his view, both unjustified and unprovoked. Resident A’s fingers were

painful for several months after the incident. Resident A reported the incident the

following day.

On 7 April 2015 the Home Manager conducted an investigatory meeting with Resident

A. At the start of that meeting Resident A stated, “That’s when she hurt me must have

been just after Christmas time” before demonstrating how the Registrant had bent his

hand when she gave him medication. Resident A informed the Home Manager, “That

nurse was horrible to me no call for it.” Resident A went on to state that the Registrant,

“Shoved the pot in my hand – when I said she was hurting me she smiled – I said it was

not funny.” Resident A went on to describe the Registrant as being rough, rude and in

his opinion, should not be, “Let loose near the elderly.”

The Home Manager conducted an investigatory meeting with the Registrant on 7 April

2015. During that meeting the Registrant explained that when she had placed the

medication into Resident A’s hand on the day in question he told her that he disliked the

way that she gave him his medication. The Registrant said that she apologised to

Resident A and that he accepted her apology.

When asked to demonstrate how she had placed the medication into Resident A’s

hand, the Registrant stated that she placed the medication into Resident A’s hand and

closed his fingers gently around the medication. When Resident A told her that she had

hurt his hand, the Registrant said that she apologised and said that she never meant to

hurt him.

of 31

The Home Manager was concerned that the Registrant had made no effort to report this

incident involving Resident A. Such an incident should have been reported to a senior

member of staff as soon as possible so that appropriate action could be taken. On the

26 January 2015 the Registrant had stated to a Care Assistant that Resident A had

been complaining about her giving him medication. The Registrant informed the Care

Assistant that she was aware that Resident A was not happy with her asking him to take

his medication.


2.1. Inappropriate touched Resident B’s nose;

2.2. Used an inappropriate technique to administer medication to Resident C,

in that you pinched Resident C’s nose in order to make her open her

mouth.

During the course of the local investigation in relation to Charge 1, the Home Manager

conducted an investigatory meeting with a Care Worker named Ms 1. During that

meeting, Ms 1 was asked whether she had any concerns regarding the Registrant’s

practise as a nurse.

Ms 1 stated that she considered the Registrant to be a bully and that the Registrant

regularly pinched Resident B’s nose. Although the Registrant appeared to do so in a

playful manner, Ms 1 considered it to be inappropriate and unprofessional behaviour.

Ms 1 did not consider it appropriate to touch a resident’s face unless it was required

when delivering care.

Ms 1 went on to state that on one occasion, when Resident C had refused to take her

medication, she witnessed the Registrant pinching Resident C’s nose so that Resident

C would open her mouth, allowing the Registrant to place medication into her mouth.

Ms 1 was particularly concerned by this incident as she had been taught during her

induction and training at the Home that if a resident refuses to take their medication, you

should not attempt to force them to do so.

of 31

During the course of the investigatory meeting with the Home Manager, the Registrant

stated that she often touched Resident B’s nose in an effort to build rapport with the

residents. The Registrant informed the Home Manager that she considered her actions

to be appropriate as it was done in a playful manner. However, the Home Manager did

not consider this to be appropriate on the basis that staff should not touch residents

unless required to do so when delivering care to them.


and/or Resident E and/or Resident F.

During the course of investigatory meetings with three Care Assistants, namely Ms 1,

Ms 2 and Ms 3, it was reported to the Home Manager that the Registrant closed

residents’ bedroom doors when those residents became agitated.

Ms 2, a Senior Carer, reported that on several occasions she had witnessed the

Registrant closing Resident C’s door. Ms 2 did not recall the specific dates of the

incidents but stated that Resident C had difficulty with communication and would often

shout out when she wanted assistance. When Resident C shouted out, the Registrant

would close Resident C’s door. Ms 2 was unaware if any harm was caused to Resident

C because of the Registrant shutting her door, but assumed that it would be unpleasant

for Resident C to have her bedroom door closed if she could not communicate

effectively.

Ms 2 informed the Registrant that she should not close residents’ bedroom doors as

they did not like it, but the Registrant said that she was the Mental Health Nurse and

she could do what she wanted.

Care Assistant Ms 3 informed the Home Manager that on several occasions she had

witnessed the Registrant closing residents’ bedroom doors when they shouted for

assistance. Ms 3 stated that she did not recall the specific dates, but that this happened

during each shift that she worked with the Registrant.

of 31

Ms 3 stated that Resident C had a tendency to cry out for attention because she did not

have the capacity to communicate very well. Resident C made a loud whimpering sound

when she wanted assistance. When Resident C called out for assistance, the Registrant

attended to her room, told her to be quiet and shut her door without establishing why

she was calling out or shouting.

Ms 3 stated that Resident E did not have the capacity to communicate and made a

“Cuckoo” sound when she wanted assistance. When Resident E made that noise, the

Registrant went to her bedroom, told her to be quiet and shut her bedroom door. The

Registrant did not ask Resident E why she was calling out or try to establish if she

needed any assistance. Ms 3 felt that the Registrant was ignoring the residents’ needs

as she did not always attend to them when they called out or asked if they needed

assistance.

Ms 3 stated that on several occasions she informed the Registrant that she did not think

it was appropriate for the Registrant to shut residents’ doors when they called for

assistance. The Registrant informed Ms Liger that she knew that the residents were

asking for assistance, but that they were disturbing others so she closed their doors. Ms

3 stated that the Registrant referred to Residents C and E as the, “Disturbing residents”

because they shouted out.

Care Worker Ms 1 informed the Home Manager that on several occasions she

witnessed the Registrant closing Resident C’s door when Resident C started shouting

or became distressed. Ms 1 considered such conduct inappropriate because Resident

C had a tendency to pull herself off her chair or bed onto the floor when she was

distressed, so the reason for keeping Resident C’s bedroom door open was to ensure

that she could be easily supervised.

Ms 1 also stated that, on a date that she did not recall, she witnessed the Registrant

closing Resident F’s bedroom door. Resident F had a tendency to shout and put himself

from his chair or bed when he became distressed, and as a result was often found on

his bedroom floor due to having pulled himself off his chair. Ms 1 stated that on one

of 31

occasion, when Resident F had been found on the floor outside his bedroom, the

Registrant put Resident F back into his bedroom and closed Resident F’s bedroom door

as opposed to assisting him. Ms 1 was concerned that the Registrant had returned

Resident F to his bedroom without having assessed him thoroughly.

Resident C’s care plan (some of which dated from March and April 2015, thus after the

incidents in question) stated the following:

- “I am sometime very frustrated and cry out a lot to get attention.”

- “High risk of fall due to poor mobility and Alzheimer’s disease which is

accompanied by confusion and disorientation.”

- “Ensure safety is maintained at all times.”

- “I need you to maximise my potential for communication.”

- “To give me extra time to verbalise my thoughts.”

- “On occasions Resident C forgets that she is unable to walk and will try and

stand up, staff to observe.”

- “Resident C requires discreet observation to promote her safety.”

- “Resident C is unable to use call bell.”

- “If Resident C presents as anxious or agitated staff must report this to the RGN

on duty and the following should be considered: Offer her comfort and

reassurance to alleviate potential feelings of distress, loneliness or uncertainty.”

During an investigatory meeting with the Registrant, the Home Manager discussed with

the Registrant the allegations that she had closed the bedroom doors of residents when

they became anxious or started displaying challenging behaviour. The Registrant stated

that Resident C often started screaming and so she closed Resident C’s bedroom door

to prevent disruption to nearby residents. The Registrant stated that she did this until

Resident C calmed down.

The Home Manager did not consider it appropriate to close a resident’s door, even if

they are displaying difficult behaviour, unless it was to maintain a resident’s dignity. The

Home Manager was of the view that it was the Registrant’s responsibility as a registered

nurse to have tried to calm Resident C and to address any concerns that she had,

particularly as she was aware that Resident C was distressed.

of 31


medication to:

4.1. Resident C;

4.2. Resident G;

4.3. Resident H;

4.4. Resident I.

During the course of the investigatory meetings with Ms 2, Ms 1 and Ms 3, it was

reported to the Home Manager that the Registrant had covertly put medication into a

resident’s food bowl to be administered by a Care Assistant in addition to covertly

administering medication herself.

Ms 1 stated that in July 2014, several days after she had started working at the Home,

the Registrant had instructed her to take a bowl of cereal and give it to a resident to eat.

However, Ms 1 thought that the Registrant meant that she should give it to a different

resident and so attempted to do so. That resident refused to eat the cereal and so Ms 1

returned it to the Registrant. The Registrant then confirmed the identity of the resident

for whom the cereal was intended. The Registrant then informed Ms 1 for the first time

that the cereal contained medication. This incident concerned Ms 1, who felt that she

could easily have given the cereal, and thus the medication, to the wrong resident. In

addition, Care Workers were not permitted to administer medication to residents.

Senior Carer, Ms 2, stated that on several occasions she had witnessed the Registrant

crumbling residents’ medication into their food. Ms 2 stated that she witnessed the

Registrant give medication in food to Residents C, G and H.

On one occasion Ms 2 witnessed the Registrant put medication for Resident G into a

bowl of cereal and ask Care Assistant Ms 1 to feed Resident G the cereal. However, Ms

1 took the bowl of cereal to Resident H who refused to eat it. Ms 1 informed the

Registrant that Resident H had not eaten her cereal. The Registrant responded by

stating that she had told Ms 1 to give the cereal to Resident G, not resident H. Ms 2

of 31

then informed the Registrant that she was not allowed to ask the carers to administer

medications as it was not their responsibility.

Care Assistant, Ms 3, stated that during shifts she had worked with the Registrant she

witnessed the Registrant put residents’ medication in their porridge or cereal and feed it

to them rather than administering the medication orally. Ms 3 stated that the Registrant

opened medication capsules for Resident G and Resident I and put them in their

porridge. Ms 3 had not witnessed other nurses administering medication in that way, but

did not speak with the Registrant about it, as the Registrant was the nurse in charge

and Ms 3 believed that the Registrant was able to administer medication in that way

because she was clinically trained.

During the investigatory meeting with the Registrant, the Home Manager asked the

Registrant to explain the procedure for administering covert medication to residents.

The Registrant explained that if she was required to administer medication to a resident

covertly, she would discuss this with the resident’s family and GP, as well as liaising

with pharmacy about it. When asked if she had ever put a resident’s medication into a

bowl of cereal to be administered covertly, the Registrant confirmed that she had done

so in respect of Resident B, as that was authorised within Resident B’s care plan and by

Resident B’s GP. The Home Manager subsequently reviewed Resident B’s care plan,

which confirmed that Resident B could receive medication covertly. Consequently, the

Registrant had authority to administer Resident B’s medication covertly.

In relation to Resident C, Resident G, Resident H and Resident I, there is no evidence

that administering medication covertly had been agreed with the resident, the GP or the

pharmacy service.



On an unknown date the Registrant asked a Care Worker, Colleague A, to input dates

into Resident D’s bowel chart to signify that Resident D’s bowels had opened. However,

in reality, Resident D had not been to the toilet for a period of between two and three

of 31

weeks at that stage. Colleague A refused to make the entries on Resident D’s bowel

chart. The Registrant then inputted these dates herself to show that Resident D had

opened his bowels when he had not.

When asked about this incident during the investigatory meeting, the Registrant denied

having ever instructed staff at the Home to make entries in the residents’ nursing

documentation when care had not been provided to the resident.


two black eyes.

On an unknown date around Christmas 2014 a Care Worker, Colleague A, discovered

that Resident I had suffered two black eyes as a result of a fall. Colleague A discussed

this incident with the Registrant, who informed Colleague A that the incident need not

be reported. However, Colleague A was concerned that Resident I needed to be taken

to hospital as soon as possible given that she may have suffered a serious head injury

and, therefore, reported the incident to members of management.

Any bruising to a resident should be recorded contemporaneously in the resident’s daily

records and reported to the Manager, as well as an incident report form and body map

document being completed. When asked about this incident during the investigatory

meeting with the Home Manager, the Registrant stated that she did not recall such an

incident.

7. Fed Resident G and/or Resident J and/or Resident I in an inappropriate manner.

During an investigatory meeting with the Home Manager, a Care Assistant, Ms 3,

expressed her concern at the way in which the Registrant fed residents. Ms 3 stated

that when feeding the residents hot food, the Registrant did not wait for it to cool down

and did not give them a break in between mouthfuls. Ms 3 felt that the Registrant was

forcing food down the residents’ throats and was worried that they could choke.

of 31

Resident J had difficulty swallowing. It usually tool Ms 3 approximately 12 minutes to

feed Resident J her porridge and Resident J liked to have a rest in between spoonfuls

so that she could digest her food and swallow it properly. On several occasions Ms 3

witnessed the Registrant feed Resident J hot porridge in approximately seven minutes.

Resident J coughed and had tears in her eyes whilst the Registrant fed her. Ms 3 was

worried because she felt that Resident J was finding it difficult to swallow her food and it

looked to her as though Resident J was almost choking.

Ms 3 went on to state that when the Registrant fed Resident G and Resident I, she did

so very quickly and without giving them breaks to digest their food. Resident G,

Resident J and Resident I did not have the mental capacity to communicate and so

would not have been able to tell the Registrant if they were uncomfortable when she

was feeding them or if they wanted a break. Ms 3 felt that the Registrant should have

been aware from the residents’ reactions, such as Resident J having tears in her eyes

whilst being fed, that she was feeding them too quickly. Ms 3 felt that the Registrant was

not respecting the residents’ preferences to ensure that they were comfortable, and that

she was trying to complete her duties very quickly without considering the residents’’

feeling.

Resident G’s care plan expressly referred to the need to, “To also allow her time to

swallow food.”

Ms 3 approached the Registrant and informed her that she felt that the Registrant fed

the residents too quickly and that they were uncomfortable with it. However, the

Registrant was dismissive of her and said that the residents were fine. As the Registrant

was the nurse in charge, Ms 3 felt that she could not argue with her.

When asked by the Home Manager whether she considered that she ever fed residents

too quickly, perhaps when the Home was understaffed or particularly busy, the

Registrant replied that she did not’.

Decision on the findings on facts and reasons

of 31

At the outset of this hearing, Ms Spencer informed the panel that you admit all of the

above charges, namely charges 1, 1.1, 1.2, 2, 2.1, 2.2, 3, 4, 4.1, 4.2, 4.3, 4.4, 5, 6 and

7.

Accordingly, the panel found the above charges proved by way of admission.

Determination on misconduct and impairment

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

whether the facts found proved amounted to misconduct and if so whether your fitness

to practise is currently impaired. The NMC has defined fitness to practise as a

registrant’s suitability to remain on the register unrestricted.

You gave oral evidence to the panel.

Mr Mills on behalf of the NMC referred the panel to various sections of The Code:

Standards of conduct, performance and ethics for nurses and midwives 2008 (“the

Code”). He highlighted specific paragraphs in the Code that, in his assertion, had been

breached by your failings. He submitted that these breaches of the Code were serious

enough to amount to misconduct.

Mr Mills referred the panel to the case of Roylance v General Medical Council (No 2)

[2000] 1 A.C. 311, in which it was stated that,

“Misconduct is a word of general effect, involving some act or omission which falls short

of what would be proper in the circumstances. The standard of propriety may often be

found by reference to the rules and standards ordinarily required to be followed by a

medical practitioner in the particular circumstances”.

In relation to the matter of impairment, Mr Mills referred to the case of CHRE v NMC

and Grant [2011] EWHC 927 (Admin) and the matters to be considered in deciding

whether your fitness to practise is currently impaired.

Ms Spencer on your behalf adopted a neutral stance.

of 31

The panel heard and accepted the advice of the legal assessor who referred to

judgements in the cases of: Roylance v General Medical Council (No 2) [2000] 1 A.C.

311, Cohen v General Medical Council [2008] EWHC 581 (Admin) and CHRE v NMC

and Grant [2011] EWHC 927 (Admin).

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

proof at this stage and exercised its own judgement.

In reaching its determination, the panel took account of all the evidence presented,

together with Mr Mills’ and Ms Spencer’s submissions.

Decision on whether the facts found proved amount to misconduct:

The panel began by considering whether each charge individually amounted to

misconduct.


1.1 Caused pain to Resident A’s hand when administering medication;

1.2 Did not escalate Resident A’s complaint that you had caused him pain.

You accepted you caused pain to Resident A and that you were aware of this at the

time. When questioned by your employer about this incident following Resident A’s

complaint, you initially denied causing pain. You also sought to minimise your

responsibility both at the investigation stage and during your disciplinary hearing by

suggesting Resident A had mental health problems despite your knowledge that he had

been assessed as fully competent.

You had cared for Resident A for over 1 year without previous complaint. In his

complaint he described you as,

‘rough, rude and in his opinion should not be let loose near the elderly’.

of 31

The panel concluded your actions fell below the standard expected of a registered

nurse and thus determined that your actions amounted to misconduct.

You admitted in oral evidence that at the time of administering medication to Resident A

you knew you had caused him pain and you failed to escalate this.


2.1 Inappropriately touched Resident B’s nose;

The panel regarded this as misconduct. You did not seek consent from Resident B and

you also gave contradictory evidence as to the manner of touching. Touching Resident

B’s nose was not part of her care plan and was an invasion of her personal space and

her dignity.

2.2 Used an inappropriate technique to administer medication to Resident C, in that

you pinched Resident C’s nose in order to make her open her mouth.

In oral evidence you told the panel that Resident C often spat out her medication. The

panel took the view that in doing so Resident C was refusing to take her medication and

that accordingly, you should have followed the proper procedure by consulting other

colleagues, her GP and her family as Resident C was clearly withholding her consent.

Instead you took matters into your hands and your action in pinching her nose so that

she opened her mouth could be regarded as an assault and in any event failed to

respect Resident C’s dignity and wishes and was inappropriate.


and/or Resident E and/or Resident F;

These three residents suffer from dementia and have communication difficulties. You

told the panel that you closed their bedroom doors when the residents were ‘playing up’

by exhibiting challenging behaviour. You closed the doors to give them time to calm

down and to prevent them disturbing other residents. In doing this you isolated

of 31

vulnerable elderly residents. In your oral evidence you agreed that you would have

probably caused them to be in fear. Your actions were in total disregard of Resident C’s

care plan, in particular this resident was deemed to be at a high risk of falls and it was

noted in her care plan that she should be observed at all time. You sought to minimize

your action by saying either you yourself or your care assistants would carry out hourly

checks. The panel regard this as totally insufficient as you agreed that these residents

would be at a greater risk of harm as they were in an agitated state.

You were at the time an experienced mental health nurse, having worked in this and

similar environment for seven years. Additionally, in May 2014 you had undertaken

training in dementia care and the management of challenging behaviour. Your care was

not focused on the needs of these residents when you closed their bedroom doors. You

did not carry out a thorough assessment as to why they were distressed or agitated.

You deprived these residents of their liberty and when questioned during your

disciplinary proceedings you accepted that if a nurse acted in this manner it could be

regarded as ‘inhumane’.


medication to:

4.1 Resident C;

4.2 Resident G;

4.3 Resident H;

4.4 Resident I.

You accepted in oral evidence you knew the correct procedure for the administration of

covert medication and indeed had properly followed this in relation to two other

residents. Despite this knowledge you failed to follow proper protocol and did not

consult colleagues, the resident’s GP or family members with regards to Resident C, G,

H and I. There was a significant risk of harm of over or under medication. You totally

of 31

disregarded these residents’ right to refuse medication. Again, in your words you ‘took

matters into your own hands’.

In directing a junior care assistant to feed a resident with porridge containing covert

medication you failed a) to inform her the porridge contained medication b) to ensure

she gave the porridge to the correct resident and c) that the medication was consumed.

You accepted that this junior care assistant was not trained or permitted to administer

medication.



During your oral evidence you accepted your actions could have constituted falsification

of records. In the panel’s view it is wholly unacceptable to instruct junior colleagues to

record information they have neither undertaken nor observed.


two black eyes.

This was contrary to safeguarding guidance and ignored Resident I’s care plan

which noted her deteriorating mobility and the need for observation to ensure her

safety. As the registered nurse on duty you had the responsibility to ensure that

Resident I’s injuries were reported and checked so that she could receive

appropriate care and treatment.

7. Fed Residents G and/or Resident J and/or Resident I in an inappropriate manner.

All these residents were extremely vulnerable and unable to communicate their wishes.

You fed them hot food at an unusual speed to the extent that one resident was seen by

you and others to have tears in her eyes and having difficulty swallowing. The panel

considered this to be an abuse of trust and cruel. The fact that you were aware that you

were causing distress is an aggravating factor.

of 31

The panel found that each charge taken individually and cumulatively did amount to

misconduct.

The panel was of the view that your conduct set out in the charges found proved

constituted serious departures from the following standards of The Code: Standards of

conduct, performance and ethics for nurses and midwives 2008 (‘the Code’):

Preamble

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

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

As a professional, you are personally accountable for actions and omissions in your

practice, and must always be able to justify your decisions.

1: You must treat people as individuals and respect their dignity;

3: You must treat people kindly and considerately;

8: You must listen to the people in your care and respond to their concerns and

preferences;

11: You must make arrangements to meet people’s language and communication

needs.

of 31

12: You must share with people, in a way they can understand, the information they

want or need to know about their health.

13: You must ensure that you gain consent before you begin any treatment or care;

14: You must respect and support people’s rights to accept or decline treatment and

care;

15: You must uphold people’s rights to be fully involved in decisions about their care;

22: You must work with colleagues to monitor the quality of your work and maintain the

safety of those in your care;

24: You must work cooperatively within teams and respect the skills, expertise and

contributions of your colleagues;

29: You must establish that anyone you delegate to is able to carry out your

instructions;

30: You must confirm that the outcome of any delegated task meets required standards;

33: You must inform someone in authority if you experience problems that prevent you

working within this code or other nationally agreed standards;

35: You must deliver care based on the best available evidence or best practice;

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;

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

of 31

The panel had in mind the case of CHRE v (1) NMC (2) Grant [2011] EWHC 927

(Admin) and the judgment of this case which cites Dame Janet Smith’s Fifth Report

from Shipman. The panel considered the issue of your current impairment in the terms

set out by Dame Janet Smith, specifically the questions of whether she:

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 […] 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 […] profession; […]

d) [N/A].

The panel considered that a, b and c are engaged in this case.

You have admitted all the charges. The panel acknowledged that you have expressed

remorse and regret for your actions. To your credit, you state that you have learned

from your past misconduct and you now do things differently in accordance with the

Code and best practice. You are currently working in a supportive environment and are

described by your current employer as ‘a hardworking and reliable staff member’.

In answering questions from the panel, it felt your insight is developing, however the

panel were concerned that you refer to your misconduct as ‘mistakes’ and do not

appear to have recognised the severity of your departure from acceptable practice. It is

clear to the panel that at the time you were fully aware of the standards required.

However you chose to take matters into your own hands. Your reflection is limited as to

the impact your misconduct had on both residents and your junior colleagues. You

stated at the time that you were working in a pressurised environment without support

and the Home was understaffed. Your misconduct affected 10 residents and occurred

over a period of 20 months. The panel believe there is a real risk of repetition despite

your assertion that you have learnt from your failings. By using the word ‘mistakes’, the

panel do not believe you have fully accepted responsibility nor have you shown full

insight.

of 31

Further, the panel was satisfied that the public interest in this case and the need to

uphold proper professional standards and public confidence in the profession would be

undermined if a finding of impairment were not made.

For these reasons, the panel determined that your fitness to practise is currently

impaired by reason of your misconduct.

Determination on Sanction

The panel has considered this case very carefully and has decided to make a conditions

of practice order for 2 years. The effect of this order is that your name on the NMC

register will show that you are subject to a conditions of practice order and anyone who

enquires about your registration will be informed of this order.

Having determined that your fitness to practise is impaired, the panel considered what

sanction, if any, it should impose in your case. In reaching its decision on sanction, the

panel has heard submissions from Mr Mills and Ms Spencer and considered all the

evidence that has been placed before it.

Mr Mills, on behalf of the NMC, made no specific submissions with regard to the level of

sanction, however he directed the panel to the NMC Indicative Sanctions Guidance

(ISG) and sought to identify the mitigating features in this case.

Ms Spencer addressed the panel on all sanctions. She informed the panel that you are

willing to comply with any conditions imposed on your practice.

Ms Spencer submitted that imposing a suspension order or striking off order would be

disproportionate. In particular she submitted that imposing a suspension order would

limit your ability to remediate your misconduct and a striking-off order would deprive the

public of a nurse who has made a valuable contribution to the profession both before

and after these events.

of 31

Ms Spencer informed the panel of your ongoing health condition and also outlined your

personal and financial circumstances. In addition, she submitted that your health

condition may prevent you from obtaining other forms of employment. She submitted

that imposing a suspension order would cause you financial hardship.

The legal assessor reminded the panel that the purpose of sanctions is to protect

patients and the wider public interest by maintaining public confidence in the profession

and declaring and upholding proper standards of conduct and behaviour. He reiterated

the need for the panel to act proportionately and to consider sanctions in ascending

order of severity, starting with the option of taking no action and only proceeding to a

more restrictive sanction if the lesser sanction was insufficient. He referred the panel to

the NMC’s Indicative Sanctions Guidance (“ISG”).

The panel considered the sanctions available to it under Article 29 of the Nursing and

Midwifery Council Order 2001. The panel can take one of the following actions in

ascending order: it can take no action; make a caution order for one to five years; make

a conditions of practice order for no more than three years; make a suspension order for

a maximum of one year; or it can make a striking off order. The panel has borne in mind

that the purpose of a sanction is not to be punitive, although it recognises that it may

have a punitive effect.

The panel has been mindful of the principles of fairness, reasonableness and

proportionality, weighing the interests of patients and the public with your own interests.

The public interest includes the protection of patients, the maintenance of public

confidence in the profession and declaring and upholding proper standards of conduct

and behaviour. The panel has also taken account of the current NMC publication

Indicative Sanctions Guidance (“ISG”).

The panel has taken into account all the mitigating and aggravating factors in your case.

Aggravating features

You abused the trust that had been placed in you.

You were the nurse in charge and you caused pain and distress to residents who

relied on you for care and you did not respond to their needs.

of 31

You disregarded the contents of the residents’ care plans.

You were aware of best practice and the NMC requirements of the Code of

practice.

You did not admit the charges in the first instance

Your were dismissive when colleagues approached you expressing their

concerns.

Mitigating factors

You fully engaged and admitted all the charges at the commencement of these

proceedings.

No previous regulatory findings

No repetition in current employment.

In September and October 2015 you completed e-learning courses involving

safeguarding and aspects of care.

You have provided positive testimonials and references.

Your positive assertion in your reflective piece that ‘At work I always seek my

colleagues’ advice and make joint decisions with the service user’s best interests

in mind.’

You have shown some insight.

The panel considered all the available sanctions in ascending order, considering the

least restrictive first.

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

manifestly insufficient given the seriousness of your misconduct and the risk of

repetition identified at the impairment stage.

The panel noted paragraph 58 of the Indicative Sanctions Guidance which states that:

“panels will usually need to take action to secure patient safety, to secure public trust

and confidence in the profession, or to declare and uphold proper standards of conduct

and behaviour.” The panel determined that to take no action would not be in the wider

public interest, nor would it protect the public.

of 31

In considering a caution order, the panel took into account the Indicative Sanctions

Guidance, which states that a caution order may be appropriate where “the case is at

the lower end of the spectrum of impaired fitness to practise and the panel wishes to

mark that the behaviour was unacceptable and must not happen again.” Given the

seriousness of the misconduct found proved, the panel did not consider this case to be

at the lower end of the spectrum. Further, the panel considered that imposing a caution

order would not provide you with the opportunity to address the deficiencies in your

practice nor would it protect the public or satisfy the public interest.

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

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

factors set out in paragraphs 63 to 65 of the ISG which indicate when such an order

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

protect patients/residents in your care and satisfy the public interest.

Based on the evidence before it, the panel considered that there is now no evidence of

deep seated harmful attitudinal problems nor evidence of general incompetence. The

panel considered that there were identifiable areas of your practice in need of

assessment and/or retraining. Given your willingness to undertake further relevant

training and your developing insight throughout these proceedings, it considered that

the failings in your practice could be adequately addressed by imposing suitable

conditions on your practice. Imposing conditions of practice would give you an

opportunity to address the concerns identified and also time to develop further insight

into your failings.

The panel next considered whether the seriousness of your case required your

temporary removal from the register, bearing in mind the public interest and the severity

of your misconduct. The panel was of the view that a suspension order would allow you

time to reflect further upon your failings but not allow you the opportunity to demonstrate

your improving practice. The panel gave you credit for attending and fully engaging in

these proceedings. In light of your developing insight, it concluded that the public could

be adequately protected by the imposition of a conditions of practice order. It is also

of 31

satisfied that by ensuring an ongoing assessment of your practice this would satisfy the

public interest and maintain confidence in the profession and the NMC as its regulator.

The conditions of practice order is imposed for a period of 2 years. The panel decided

that this is a sufficient period to mark the seriousness of your failings and to enable you

to continue to demonstrate that you can practise safely as a registered nurse. Further,

this period would also provide you with a sufficient period to demonstrate compliance

with the conditions of practice order and to further build on your developing insight.

As such it has determined that the following conditions are proportionate and

appropriate:

1. At any time that you are employed or otherwise providing nursing services, you

must place yourself and remain under the supervision of a workplace line

manager, mentor or supervisor nominated by your employer, such supervision to

consist of working at all times on the same shift as, but not necessarily under the

direct observation of, a registered nurse who is physically present in or on the

same ward, unit, floor or home that you are working in or on.

2. You must work with your line manager, mentor or supervisor (or their nominated

deputy) to create a personal development plan designed to address the concerns

about the following areas of your practice:

- Dementia care;

- Capacity and consent;

- Safeguarding;

- Managing challenging behaviour;

- Communication with residents, your work colleagues and other professionals and

residents’ family members;

- Teamwork;

- Accountability.

3. You must undertake a recognised face-to-face dementia care course/training

programme which addresses the following areas:

of 31

- Managing challenging behaviour;

- Safeguarding;

- Capacity and consent;

- Communication.

4. You must maintain a reflective practice profile detailing how you have put the

above training into practice. This must be signed by your mentor or line manager

and contain their comments.

5. You must provide a copy of this reflective practice profile to the NMC every 6

months.

6. You must meet with your line manager, mentor or supervisor (or their nominated

deputy) at least every month to discuss the standard of your performance and

your progress towards achieving the aims set out in your personal development

plan.

7. You must forward to the NMC a copy of your personal development plan within

28 days of the date on which these conditions become effective or the date on

which you take up an appointment, whichever is sooner.

8. You must send a report from your line manager, mentor or supervisor (or their

nominated deputy) setting out the standard of your performance and your

progress towards achieving the aims set out in your personal development plan

to the NMC every 6 months.

9. You must allow the NMC to exchange, as necessary, information about the

standard of your performance and your progress towards achieving the aims set

out in your personal development plan with your line manager, mentor or

supervisor (or their nominated deputy) and any other person who is or will be

of 31

involved in your retraining and supervision with any employer, prospective

employer, and at any educational establishment.

10. You must tell the NMC within 14 days of any nursing appointment (whether paid

or unpaid) you accept within the UK or elsewhere, and provide the NMC with

contact details of your employer.

11. You must tell the NMC of any professional investigation started against you and

any professional disciplinary proceedings taken against you within 14 days of you

receiving notice of them.

12. You must within 14 days of accepting any post or employment requiring

registration with the NMC, or any course of study connected with nursing or

midwifery, provide the NMC with the name/contact details of the individual or

organisation offering the post, employment or course of study.

13. You must immediately inform the following parties that you are subject to a

conditions of practice order under the NMC’s fitness to practise procedures, and

disclose the conditions listed at (1) to (12) above, to them:

a) Any organisation or person employing, contracting with, or using you to

undertake nursing work;

b) Any nursing agency you are registered with or apply to be registered with (at

the time of application);

c) Any nursing prospective employer (at the time of application); and

d) Any educational establishment at which you are undertaking a course of

study connected with nursing or midwifery, or any such establishment to

which you apply to take such a course (at the time of application).

of 31

This conditions of practice order will be reviewed by a panel of the Conduct and

Competence Committee shortly before its expiry.

At the review hearing the panel may revoke the order, it may confirm the order, or it may

replace the order with another order.

Determination on Interim Order

Mr Mills invited the panel to impose an interim conditions of practice order for a period

of 18 months on the grounds that it is necessary for the public protection.

Ms Spencer opposed Mr Mills’ application for an interim conditions of practice order.

She reminded the panel that you have worked one year following the incident without

concern. She further stated that due to staffing levels and a forthcoming regulatory

inspection at the Home, the employer should be provided with an opportunity to review

the conditions of practice order and put in place the necessary steps in order to ensure

that they fulfil their obligations as outlined in the conditions of practice order.

The panel accepted the advice of the legal assessor.

Whilst the panel took account of Ms Spencer’s submissions, it considered that its

primary objective was to protect the public and satisfy the public interest. The panel was

therefore satisfied that an interim conditions of practice order in the same terms as the

substantive order is necessary for the protection of the public and is otherwise in the

public interest. The panel had regard to the seriousness of the facts found proved and

the reasons set out in its decision for the substantive order in reaching the decision to

impose an interim order. To do otherwise would be incompatible with its earlier findings.

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

made and determined.

If no appeal is lodged, then the interim order will be replaced by the substantive order

28 days after you are sent the decision of this hearing in writing.

of 31

That concludes this determination.

Conduct and Competence Committee Substantive Hearing · Page 1 of 31 Conduct and Competence...

Documents

Transcript of Conduct and Competence Committee Substantive Hearing · Page 1 of 31 Conduct and Competence...