Conduct and Competence Committee

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Conduct and Competence Committee Substantive Hearing

31 October 2016 to 4 November 2016 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ

Name of Registrant Nurse: Roy Burgon NMC PIN: 75B0145E

Part(s) of the register: RN3: Registered Nurse – Sub Part 1

Mental Health Nursing (level 1) – 3 April 1978

Area of Registered Address: England

Type of Case: Misconduct

Panel Members: Nicholas Cook (Chair Lay member)

Hildah Jiah (Registrant member)

Thomas Bingham (Lay member)

Legal Assessor: Nigel Pascoe QC

Panel Secretary: Hassan Reese

Lesley Rudd (2 November 2016)

Representation: Mr Burgon was not present and not

represented

Nursing and Midwifery Council: Represented by Connor Kennedy, counsel,

NMC Regulatory Legal Team.

Facts proved: 1, 1.1, 1.2, 1.3, 1.4, 1.5, 1.6

2, 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7

Facts proved by admission: N/A

Facts not proved: N/A Fitness to practise: Impaired

Sanction: Strike-Off

Interim Order: Interim Suspension Order - 18 months

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Details of charge:

“That you, a Registered Nurse:

1. Whilst employed at Norfolk and Norwich NHS Foundation Trust:

1.1. Did not complete and / or update a clinic review for one or more of the following patients

as set out in Schedule 1 below:

1.2. Did not complete and / or record a risk profile for one or more of the following patient as

set out in schedule 2 below:

1.3. Did not complete and / or record you had completed a Care Programme Approach

(CPA) review for one or more of the following patient as set out in schedule 3 below:

1.4. Did not complete and / or update a care plan for one or more of the following patient as


1.5. Did not complete and / or record a Health and Social (H&S) assessment for one or

more of the following patient as set out in schedule 5 below:

1.6. Between November 2006 and August 2013, continued to care for Patient 33

even though they were no longer in your care

2. Whilst employed at Sidegate Lane Nursing Home (“the Home”):

2.1. On or around 1 August 2014, provided misleading information to Colleague A in that

you informed her that there were no restrictions on your practice;

2.2. Between 1 August 2014 and 18 December 2014, did not inform the home that you were

subject to an interim conditions of practice order;

2.3. Your actions at 2.1 and / or 2.2 were dishonest in that you sought to conceal that you

were subject to an interim conditions of practice order;

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2.4. On 16 October 2014, signed for but did not administer Movicol to the following patients:

2.4.1. Patient 37

2.4.2. Patient 38

2.5. On 6 December 2014, administered and / or recorded that you had administered

medication to Patient 34 when it was prescribed to Patient 35, namely:

2.5.1. Co-Amoxiclav;

2.5.2. Glycopyrronium,

2.6. On 7 December 2014, administered and / or recorded that you had administered


2.6.1. Co-Amoxiclav;

2.6.2. Glycopyrronium,

2.7. On 13 December 2014, signed for but did not administer one or more of the following

medications to Patient 36:

2.7.1. Procyclidine

2.7.2. Ferrous Sulfate

2.7.3. Ranitidine

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

Schedule 1

1. Patient 1 since 17 May 2012 2. Patient 2 since 1 June 2010 3. Patient 3 from May 2013 4. Patient 4 since 11 November 1994 5. Patient 5 since 10 November 2010 6. Patient 7 since 24 November 2010 7. Patient 8 since 11 January 2013 8. Patient 9 since 6 October 1999 9. Patient 11 since 8 May 2008 10. Patient 16 11. Patient 17 since 18 January 2013 12. Patient 18 since 15 August 2008 13. Patient 19 since 4 September 2009

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14. Patient 22 since 20 August 2009 15. Patient 25 since 21 January 2013 16. Patient 26 since 1997 17. Patient 27 since May 2009 18. Patient 29 19. Patient 30 since 19 May 2011 20. Patient 31 since 29 July 2004

Schedule 2:

1. Patient 1 since 2 June 2008 2. Patient 2 since 18 December 2008 3. Patient 5 since 16 June 2008 4. Patient 6 since 29 July 2011 5. Patient 7 since 17 November 2009 6. Patient 8 since 16 July 2007 7. Patient 9 since 8 August 2007 8. Patient 10 since 9 March 2009 9. Patient 11 since 14 January 2008 10. Patient 12 since 9 July 2007 11. Patient 15 since 6 December 2012 12. Patient 16 since 20 July 2007 13. Patient 17 since 28 December 2007 14. Patient 18 since 1 May 2008 15. Patient 19 since 8 March 2011 16. Patient 20 since 9 July 2012 17. Patient 21 since 4 January 2010 18. Patient 22 since 20 August 2009 19. Patient 23 since 8 August 2007 20. Patient 24 21. Patient 27 22. Patient 29 23. Patient 30

Schedule 3

1. Patient 1 2. Patient 2 3. Patient 3 from May 2013 4. Patient 5 since 22 December 2010 5. Patient 6 since 4 July 2011 6. Patient 7 7. Patient 8 8. Patient 9 since 29 December 2010 9. Patient 10 since 24 December 2010 10. Patient 11 since 29 December 2010

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11. Patient 12 since 29 December 2010 12. Patient 13 13. Patient 14 14. Patient 15 since 1 April 2011 15. Patient 16 16. Patient 17 since 31 December 2010 17. Patient 18 since 31 December 2010 18. Patient 19 from 4 September 2009 19. Patient 20 since 20 May 2011 20. Patient 21 since 22 February 2011 21. Patient 22

Schedule 4:

1. Patient 9 since 10 July 2012 2. Patient 10 since 17 January 2013 3. Patient 14 4. Patient 15 since 10 May 2013 5. Patient 17 since 21 January 2013 6. Patient 23 7. Patient 24 8. Patient 25 since 21 August 2012 9. Patient 28 since 26 September 2012 10. Patient 29 11. Patient 30 since 11 July 2012 12. Patient 31 since 11 July 2012 13. Patient 32

Schedule 5

1. Patient 2 since 25 June 2010 2. Patient 4 since 16 March 2010 3. Patient 5 since 16 March 2010 4. Patient 6 since 2 September 2011 5. Patient 8 since 3 March 2010 6. Patient 9 since 16 March 2010 7. Patient 10 since 21 July 2009 8. Patient 12 since 1 December 2009 9. Patient 14 10. Patient 16 since 26 November 2009 11. Patient 17 since 20 July 2010 12. Patient 18 since 19 November 2009 13. Patient 22 since 16 March 2010 14. Patient 23 15. Patient 25 since 29 June 2010 16. Patient 27

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17. Patient 29 since 19 April 2012 18. Patient 30 24 September 2010 19. Patient 31 since 17 June 2010

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

attendance and that written notice of this hearing had been sent to Mr Burgon’s

registered address by recorded delivery and by first class post on 1 September 2016.

Royal Mail “Track and Trace” documentation confirmed that the notice of hearing was

sent to Mr Burgon’s registered address by recorded delivery on that date.

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

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

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

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

notice was received by Mr Burgon on 2 September 2016. Mr Kennedy submitted the

NMC had complied with the requirements of Rules 11 and 34 of the Nursing and

Midwifery Council (Fitness to Practise) Rules 2004, as amended (“the Rules”).

The panel accepted the advice of the legal assessor.

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

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

and 34. It noted that the rules do not require delivery and that it is the responsibility of

any registrant to maintain an effective and up-to-date registered address.

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

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

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

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

notwithstanding the absence of the registrant...”

Mr Kennedy invited the panel to continue in the absence of Mr Burgon on the basis that

he had voluntarily absented himself. Mr Kennedy submitted that there had been no

engagement at all by Mr Burgon with the NMC in relation to these proceedings and, as

a consequence, there was no reason to believe that an adjournment would secure his

attendance on some future occasion.

The panel also noted telephone conversations between Mr Burgon and the NMC on 9

September 2016 and 26 October 2016, where Mr Burgon stated that he would not be

attending the hearing.

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

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

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

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

noted the case of R (on the application of Raheem) v Nursing and Midwifery Council

[2010] EWHC 2549 (Admin) and the ruling of Mr Justice Holman that:

“...reference by committees or tribunals such as this, or indeed judges, to

exercising the discretion to proceed in the person's absence "with the utmost

caution" is much more than mere lip service to a phrase used by Lord Bingham

of Cornhill. If it is the law that in this sort of situation a committee or tribunal

should exercise its discretion "with the utmost care and caution", it is extremely

important that the committee or tribunal in question demonstrates by its language

(even though, of course, it need not use those precise words) that it appreciates

that the discretion which it is exercising is one that requires to be exercised with

that degree of care and caution.”

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The panel has decided to proceed in the absence of Mr Burgon. In reaching this

decision, the panel has considered the submissions of the case presenter, and the

advice of the legal assessor. It has had particular regard to the factors set out in the

decision of Jones. It has had regard to the overall interests of justice and fairness to all

parties. It noted that:

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

• Mr Burgon had previously made it clear to the NMC that he would not be

attending the hearing but that he also wishes for his case to be concluded;

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

some future date;

• three witnesses have been asked to give evidence;

• not proceeding may inconvenience the witnesses, their employer(s) and, for

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

services;

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

recall events;

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

There is some disadvantage to Mr Burgon in proceeding in his absence. Although the

evidence upon which the NMC relies will have been sent to him at his registered

address, he has made no response to the allegations. He will not be able to challenge

the evidence relied upon by the NMC and will not be able to give evidence on his own

behalf. However, in the panel’s judgment, this can be mitigated. The panel can make

allowance for the fact that the NMC’s evidence will not be tested by cross-examination

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

identifies. Furthermore, the limited disadvantage is the consequence of Mr Burgon’s

decisions to absent himself from the hearing, waive his rights to attend and/or be

represented and to not provide evidence or make submissions on his own behalf.

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

proportionate to proceed in the absence of Mr Burgon.

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

this case together with the submissions made by Mr Kennedy, on behalf of the NMC

and those made in writing on Mr Burgon’s behalf.

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

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

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

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

incidents occurred as alleged.

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

Background and relevant chronology

Mr Burgon began to work as a CPN in 1992.

On 6 November 2006, patient 33 was discharged from the care of Norfolk and

Suffolk NHS Foundation Trust. It is alleged that Mr Burgon continued to administer

care to this client even though the client was no longer officially in his care.

In November 2011, Mr Burgon began working at Sidegate Lane Nursing Home,

Ipswich on a part-time basis.

On 1 August 2013, whilst employed part-time at Norfolk and Suffolk NHS Foundation

Trust and on annual leave at the time, Mr Burgon’s caseload of 32 clients was

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reviewed by a colleague, a Mr A. This review caused concern. It was alleged that 17

case files did not have medication cards. Nine case files also had insufficient

medical information. Mr Burgon was interviewed by the Trust as part of the

investigations into the concerns regarding his caseload on 15 and 20 January 2014.

On 5 June 2014, an interim suspension order was imposed on the registrant by the

NMC. On 11 June 2014 the registrant emailed the NMC to ask for an early review of

this order. On 9 July 2014, the interim suspension order was replaced with an

interim conditions of practice order. On 1 August 2014, that interim order was varied.

On 12 November 2014, Mr Burgon attended an interim order review hearing where

the conditions of practice order was continued.

Details of referral The NMC received a referral from Norfolk and Suffolk NHS Foundation Trust ("the

Trust") on 9 May 2014. The allegations related to care delivered to 32 patients,

including non-adherence to policies and procedures, a r o u n d risk assessments, CPA

reviews, health and social assessments and poor record keeping linked to these. It is

also alleged that Mr Burgon did not carry out appropriate care for all of the clients for

whom he was responsible. In respect of one client, Mr Burgon a l leged ly continued

to provide care to the client even though she was discharged.

In June 2014, Mr Burgon informed Sidegate Lane Nursing Home that his pin number

had been restricted by the NMC. It is alleged that he also informed his employers

(Sidegate Lane Nursing home) at the time that he could still work as a nurse at the

home as long as he practised in line with the conditions which the NMC had

imposed.

On 25 July 2014, Mr Burgon was dismissed by Norfolk and Suffolk NHS Foundation

Trust for gross misconduct linked to the concerns which had been raised.

On 1 August 2014, Mr Burgon allegedly provided misleading information to a

colleague in Sidegate Lane Nursing Home, that there were no restrictions on his

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practice (which there was, imposed by the NMC in June 2014). Upon returning to

work on 4 August 2014, Mr Burgon’s employers, namely Sidegate Lane Nursing

Home routinely checked the NMC website, to discover that Mr Burgon had an

interim conditions of practice order in place. Mr Burgon’s interim conditions of

practice commenced on 1 August 2014. Mr Burgon was informally cautioned as a

result.

On 12 October 2014 and 16 October 2014, Mr Burgon allegedly signed for Movicol,

stating that he had administered the medication when it was actually still inside the

sachet. On 6 December 2014, Mr Burgon allegedly administered and/or recorded

that he administered medication to the wrong patient. On 6 and 7 December 2014,

Mr Burgon signed for Co-Amoxiclav and Glycopyrronium to a patient which was not

prescribed for him. On 13 December 2014, Mr Burgon allegedly signed for but did

not administer Procyclidine, Ferrous Sulphate and Ranitidine to a patient.

On 18 December 2014, Mr Burgon’s employers informed the NMC that they were

unaware that Mr Burgon was still subject to conditions. They were informed that Mr

Burgon had been subject to interim conditions since July 2014.

In reaching its decisions on the facts, the panel took into account all the oral and

documentary evidence in this case. The panel heard oral evidence from three witnesses

called on behalf of the NMC: Mr A, Nurse Prescriber for the Trust, Mrs B, Bank Lead

Investigator for the Trust and Mrs C, Home Manager at the Home.

Mr A and Mrs B gave the panel evidence relating to charges 1 to 1.6, whilst Mrs C’s

evidence attested to charges 2 to 2.7.

The Panel found Mr A to be a reliable and credible witness. He gave consistent oral and

written evidence and was fair with his responses. In her oral and written evidence Mrs B

was clear, concise and credible. Mrs C gave clear and concise, and credible evidence

to the panel.

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For charges 1.1 – 1.6 examined, the panel looked at the relevant paragraphs in the

witness statements, the live evidence of each witness, the cross-referencing of original

documents in exhibit 1, and the evidence matrix from exhibit 4 in order to ascertain

whether the NMC was able to prove each specific charge. Exhibit 1 contained patient

records, trust policies and interview notes.

The panel considered each charge and made the following findings:

Charge 1: 1. Whilst employed at Norfolk and Norwich NHS Foundation Trust:

1.1 Did not complete and / or update a clinic review for one or more of the following patients

as set out in Schedule 1 below:

This charge is found proved. In reaching this decision, the panel took into account all of the oral and documentary

evidence, particularly that of Mrs B who stated that upon investigation of the absence of

clinical records from Mr Burgon she discovered no evidence that any of these clinical

reviews had taken place. The panel also carefully considered the clinical evidence

before it, which, it notes, contains no evidence of reviews for the vulnerable mental

health clients concerned. It was the duty of the registrant as care co-ordinator to

oversee the clinical records for each client and to ensure that they were updated. The

absence of these records indicated that these clinic reviews had not taken place.

1.2 Did not complete and / or record a risk profile for one or more of the following patient as


This charge is found proved.

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In reaching this decision, the panel took into account all of the oral and documentary

evidence, particularly that of Ms B who stated that upon investigation of the absence of

clinical records from Mr Burgon she discovered no evidence that any of these risk

profiles had been completed. She stated that according to trust policy, the risk profiles

were required to be reviewed at least once a year or twice a year depending on the

client’s condition. The panel also carefully considered the clinical evidence before it,

which, it notes, contains no evidence of these reviews for these vulnerable mental

health patients.

1.3 Did not complete and / or record you had completed a Care Programme Approach

(CPA) review for one or more of the following patient as set out in schedule 3 below:




clinical records from Mr Burgon she discovered no evidence that any of these CPA’s

had been completed. The panel also carefully considered the clinical evidence before it,

which, it notes, contains no evidence of the CPA’s for these vulnerable mental health

clients. Mrs B stated that these CPA reviews should have been completed at least

annually.

1.4 Did not complete and / or update a care plan for one or more of the following patient as





clinical records from Mr Burgon she discovered no evidence that any of the care plans

had been completed. The panel also carefully considered the clinical evidence before it,

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which, it notes, contains no evidence of completed care plans for these vulnerable

mental health clients.

1.5 Did not complete and / or record a Health and Social (H&S) assessment for one or more

of the following patient as set out in schedule 5 below:

This charge is found proved. In reaching this decision, the panel took into account all of the oral and documentary


clinical records from Mr Burgon she discovered no evidence that any of the Health and

Social Assessments had taken place or been documented. The panel also carefully

considered the clinical evidence before it, which, it notes, contains no evidence of

Health and Social Assessments for these vulnerable mental health clients.

1.6 Between November 2006 and August 2013, continued to care for Patient 33

even though they were no longer in your care

In reaching its decision the panel heard evidence from Mr A and Mrs B and took careful

account of the documentary evidence that has been presented.

In particular it noted the letter from Mr Burgon to an outside body regarding Patient 33,

dated 5 September 2012, which stated that she was known to the Community Mental

Health Team (CMHT) and gives her diagnosis. This letter makes no mention of the fact

that the patient was discharged from the CMHT in 2006.

The panel also noted the epex print out for the patient which indicated she had been

discharged and the evidence provided demonstrated Mr Burgon’s continued contact

with her.


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Charge 2:

2 Whilst employed at Sidegate Lane Nursing Home (“the Home”):

2.1 On or around 1 August 2014, provided misleading information to Colleague A in that you

informed her that there were no restrictions on your practice;


2.2 Between 1 August 2014 and 18 December 2014, did not inform the home that you were

subject to an interim conditions of practice order;


In reaching this decision the panel took account of the evidence that has been

presented both written and documentary. It noted the written and oral evidence of Ms C

who told the panel that Mr Burgon had stated that there were no restrictions on his

practice that would affect his work at the Home. The witness was quite clear about her

discussion with the registrant.

Mrs C stated that she later discovered that Mr Burgon was in fact subject to an interim

conditions of practice order which required him to work under supervision. It further

came to light that Mr Burgon had originally also been suspended from practice following

other concerns being raised.

2.3 Your actions at 2.1 and / or 2.2 were dishonest in that you sought to conceal that you

were subject to an interim conditions of practice order;


In reaching this decision, the panel took into account all of the information at 2.2 and 2.3

above and also noted that Mr Burgon attended some his interim orders hearings at the

NMC and had asked for an early review. At the review hearing on 9 July 2014, the

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registrant was made subject to an interim conditions of practice order. Mr Burgon

attended further reviews on 1 August 2014 and 12 November 2014. After the review on

1 August 2014, when conditions had been varied, he informed Mrs C from the hearing

centre that his restrictions were lifted when they in fact were not. On 12 November

2014, a review hearing confirmed these restrictions of practise. Mr Burgon had attended

all of his 3 hearings and was aware of the outcomes. He knew that the varied conditions

were still in place on 12 November 2014 but once again he did not inform Mrs C. Also,

four letters from the NMC were sent to Mr Burgon informing him of his interim

suspension and interim conditions of practice order. The panel took the view that Mr

Burgon must have been aware of the restrictions on his practice but was not open and

honest with the Home about them. In this regard the panel considered his conduct to be

plainly dishonest and repeated. It amounted to a deliberate deception in that the

registrant had the opportunity to inform his employers of the precise restrictions on his

practice and chose not to do so.

2.4 On 16 October 2014, signed for but did not administer Movicol to the following patients:

2.4.1 Patient 37

2.4.2 Patient 38


In reaching this decision, the panel took into account of the oral and documentary

evidence of Mrs C. Mrs C took the panel through the MAR charts of the two patients

which show Mr Burgon’s signature against the Movicol.

Mrs C told the panel that as boxes of Movicol were received at the Home, they were

marked with the dates upon which they were to be administered to the patients. Mrs C

stated that the sachets dated 16 October for Patients 37 and 38 were left in the drugs

trolley despite the associated MAR charts being signed as administered.

In those circumstances the panel found charge 2.4 to be proved.

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2.5 On 6 December 2014, administered and / or recorded that you had administered


2.5.1 Co-Amoxiclav;

2.5.2 Glycopyrronium,


2.6 On 7 December 2014, administered and / or recorded that you had administered


2.6.1 Co-Amoxiclav;

2.6.2 Glycopyrronium,

This charge is found proved. In reaching this decision, the panel took into account the evidence given by Mrs C. Mrs

C took the panel through the MAR chart of Patient 34. It noted that Co-Amoxiclav and

Glycopyrronium were administered to Patient 34, however, they were not prescribed to

that patient.

Mrs C also told the panel that the medication boxes were clearly marked with the name

of Patient 35. Mrs C mentioned that there were patient photographs on the MAR charts.

Mr Burgon signed the MAR Chart for Patient 34 but Mrs C stated that he did not perform

the basic check of comparing the name of the prescribed medication to the identification

bracelet of the patient.

2.7 On 13 December 2014, signed for but did not administer one or more of the following

medications to Patient 36:

2.7.1 Procyclidine

2.7.2 Ferrous Sulfate

2.7.3 Ranitidine


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evidence of Ms C. Ms C took the panel through the MAR chart of the patient which

shows Mr Burgon’s signature against the 13 December 2014 administration of the

medications Procyclidine, Ferrous Sulfate and Ranitidine.

Mrs C told the panel that none of the above medication was administered. She stated

that following a regular drugs trolley audit the doses above were found to be still on the

trolley despite Mr Burgon’s assertion that they were administered.

Decision on misconduct and impairment:

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

whether the facts found proved amount to misconduct and, if so, whether Mr Burgon’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 Kennedy on behalf of the NMC 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”.

Mr Kennedy invited the panel to take the view that Mr Burgon’s actions amount to a

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

midwives 2008 (“the Code”). He referred the panel to what he submitted were the

relevant breaches of the NMC Code. He submitted that Mr Burgon’s actions clearly

amounted to misconduct.

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He then moved on to the issue of impairment, and addressed the panel on the need to

have regard to protecting the public and the wider public interest. This included the

need to declare and maintain proper standards and maintain public confidence in the

profession and in the NMC as a regulatory body. Mr Kennedy referred the panel to the

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

Council (2) Grant [2011] EWHC 927 (Admin).

Mr Kennedy submitted that this was a prolonged case of misconduct which lasted a

number of years involving vulnerable patients, some of whom suffered from

schizophrenia and were suicidal. He submitted that Mr Burgon put those patients at a

risk of harm. In relation to insight, Mr Kennedy submitted that Mr Burgon had

demonstrated a lack of insight, in not accepting responsibility for his actions. Mr

Kennedy also made reference to the words of Mr Burgon who said “It’s only Movicol”

when discussing whether or not he administered this medication to Patients 37 and 38,

which he had not. Mr Kennedy submitted that Mr Burgon has furthermore demonstrated

a lack of recognition of his actions and a lack of remorse. Mr Kennedy referred to a

previous decision of an NMC panel to impose restrictions on Mr Burgon’s practice,

which he subsequently ignored. Mr Kennedy submitted that there had been no evidence

provided by Mr Burgon to show any signs of current or future remediation.

On dishonesty, Mr Kennedy submitted that Mr Burgon had been trusted by previous

NMC panels to be open and honest with his employers, and inform them of his

restrictions. Mr Kennedy submitted that Mr Burgon lied when confronted about this

issue and that this was very serious.

The panel has accepted the advice of the legal assessor

Decision on misconduct

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

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

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

circumstances, Mr Burgon’s fitness to practise is currently impaired as a result of that

misconduct.

Having considered all matters, the panel concluded that, on the facts found proved, Mr

Burgon breached the following fundamental tenets of the profession as set out in the

preamble of the Code:

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

wellbeing. To justify that trust, you must:

• 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.

The panel was of the view that Mr Burgon’s actions did fall significantly short of the

standards expected of a registered nurse. It found that Mr Burgon’s actions amounted to

a breach of the Provisions of the Code. Specifically:

4 You must act as an advocate for those in your care, helping them to access relevant

health and social care, information and support.

5 You must respect people’s right to confidentiality.

21 You must keep your colleagues informed when you are sharing the care of others.

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

safety of those in your care.

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28 You must make a referral to another practitioner when it is in the best interests of someone in your care. 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.

51 You must inform any employers you work for if your fitness to practise is called into question. 61 You must uphold the reputation of your profession at all times. The panel decided that it was in no doubt that Mr Burgon’s actions amounted to serious

misconduct. Mr Burgon’s actions would be regarded as deplorable by fellow nurses

involving service users who were not reviewed for long periods, including one who had

not been reviewed since 1997. The panel also considered that Mr Burgon’s gave

medication to wrong patients and that there was a serious element of dishonesty in this

case also.

Decision on impairment

The panel next went on to decide if, as a result of this misconduct, Mr Burgon’s fitness

to practise is currently impaired.

Mr Kennedy in addressing the issue of impairment addressed the panel on the need to

have regard to protecting the public and the wider public interest. He submitted that Mr

Burgon has not shown any remorse or an understanding of the risk he posed to

patients. Mr Kennedy referred the panel to the cases of Council for Healthcare

Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927

(Admin).

In its consideration of the issue of impairment the panel had regard to this judgement,

particularly paragraph 76:

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Do our findings of fact in respect of (the nurses) misconduct,

deficient professional performance, adverse health,conviction,

caution or determination show that his/her fitness to practise is

impaired in the sense that s/he:

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

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

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

medical profession into disrepute; and/or

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

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

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

dishonestly in the future.

The panel concluded that Mr Burgon’s actions engaged all 4 limbs.

The panel considered that there has been a lack of documentation provided by Mr

Burgon. The panel did however consider the information which it had before it, all of

which showed little insight expressed by Mr Burgon. The panel referred to the evidence

given by 2 of the witnesses, both of whom stated that Mr Burgon did not take

responsibility for actions, and to Mr Burgon, who stated to Mrs C in an internal interview

that there had been “a witch-hunt” against him by his previous employer. The panel did

note a positive comment from one of the witnesses that the registrant was a good nurse

and considered that a written note from Mr Burgon stating that there had been no other

complaints from patients against him. The panel was of the view however that this could

not in any way negate the seriousness of Mr Burgon’s actions in this case.

With regard to future risk the panel considered the questions posed in Cohen v General

Medical Council [2008] EWHC 581, namely whether Mr Burgon’s conduct is easily

remedied, whether it has been remedied and whether it is highly unlikely to be repeated.

23

The panel referred to the 31 service users in this case, who were very vulnerable, and

included a sexual offender, and potentially suicidal service users. The panel noted the

potential harm which could have been caused due to Mr Burgon’s failure to conduct the

necessary reviews and risk assessments. It is essential to keep up-to-date records as

the risk posed by patients is dynamic. The panel further reminded itself of Mr Burgon

administering wrong medication to patients. The panel considered that the nursing

home patients were put at risk, as the management was not allowed to supervise Mr

Burgon correctly due to his failure to inform his employers of the restrictions placed

upon his practice. With no evidence provided by Mr Burgon to show signs of remorse,

insight or remediation, the panel concluded that Mr Burgon is liable both now and in the

future to bring the profession into disrepute.

The panel also considered Mr Burgon’s dishonesty in this case. The panel’s view was

that dishonesty is not easily remediable. Further the panel had no evidence to suggest

that Mr Burgon had taken any steps to remedy the conduct which gave rise to the

charges. Similarly, the panel had not received any evidence of remorse, admission,

apology or insight from him. The panel noted that the dishonesty was very deliberate

and repeated, and that it could only make a decision based on the evidence which it

had. The panel considered Mr Burgon’s lack of engagement and his previous non-

compliance with previous sanctions which the NMC had imposed. The panel concluded

that Mr Burgon’s dishonesty had not been remediated and he is liable to act dishonestly

in the future.

In these circumstances, the panel cannot be satisfied that conduct of this nature would

not be repeated. It has therefore concluded that Mr Burgon’s fitness to practise is

currently impaired by reason of his misconduct. In this context, the panel has

determined that such a finding is necessary for the protection of the public and is also in

the public interest in order to maintain confidence in the profession and to declare and

uphold proper standards of conduct and of behaviour.

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Determination on sanction:

Having determined that Mr Burgon’s fitness to practise is currently impaired, the panel

considered what sanction, if any, should be imposed on his registration.

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

before it. The panel accepted the advice of the legal assessor. The panel has borne in

mind that any sanction imposed must be appropriate and proportionate, weighing the

interest of the patients and public with the registrant’s interests and taking into account

the mitigating and aggravating factors in the case. Although not intended to be punitive

in its effect, it may have such consequences. It has had regard to the NMC’s Indicative

Sanctions Guidance (“ISG”). It recognised that the decision on sanction is a matter for

the panel, exercising its own independent judgement.

Mr Kennedy submitted that determining the appropriate sanction is a matter for the

panel’s professional judgment. He referred the panel to the ISG and reminded the panel

of its function which is to protect the public and the wider public interest.

The panel found the following aggravating and mitigating factors to be relevant:

The aggravating factors are as follows:

• Vulnerable patients were exposed to a risk of serious harm for a period of over

10 years.

• Mr Burgon’s dishonesty was calculated and persistent.

• Mr Burgon’s dishonesty frustrated the NMC regulatory process.

• There is evidence of poor attitudinal issues.

The mitigating factors are as follows:

• Bar the matters charged, there had been no other findings regarding Mr Burgon’s

fitness to practise.

• There is some limited evidence that Mr Burgon was a good nurse.

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The panel considered all the available sanctions in ascending order.

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

inappropriate in view of the seriousness of the misconduct and the continuing risk to

patients and the public interest. It would be neither appropriate nor sufficient to take no

further action. Misconduct of this nature requires a sanction.

In considering whether a caution order would be an appropriate sanction, the panel took

into account the ISG, which states that a caution order may be appropriate where ‘the

case is at the lower end of the spectrum of impaired fitness to practise and the panel

wishes to mark that the behaviour was unacceptable and must not happen again.’ The

panel found that Mr Burgon’s misconduct was not at the lower end of the spectrum. His

acts of omission were serious and the reported issues would not be addressed should

Mr Burgon have been given a caution order. The panel is also concerned about the risk

of repetition and the consequential potential of harm to the public. The panel decided

that it would be neither appropriate nor sufficient as a sanction.

The panel then considered a conditions of practice order. The panel however reminded

itself that Mr Burgon had previously failed to comply with conditions which had been

imposed upon him. Mr Burgon has also not provided any information to demonstrate his

understanding of what happened, its impact on the service users, his place of work and

on the reputation of the profession. He has also not provided any information to show

that he has not remediated nor has he demonstrated any steps to show how he would

prevent such incidents from recurring. There is also no information before the panel

about Mr Burgon’s current employment. The panel decided that it does not have any

information to reassure it that Mr Burgon would comply with any conditions imposed.

The panel also noted that no attempt had been made to express any remorse about the

serious dishonesty involved. The panel therefore determined that workable and

measureable conditions of practice could not be formulated which would be sufficient to

protect patients or the public interest.

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The panel then considered a suspension order and addressed the following factors

within the Indicative Sanctions Guidance (ISG). The panel determined that there had

been a clear breach of fundamental tenets of the profession and noted further the

guidance concerning;

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

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

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

significant risk of repeating behaviour.

The registrant could not be said to satisfy the above guidance.

The panel considered imposing a suspension order which would afford Mr Burgon the

opportunity to reflect upon his actions. The panel however also considered that this was

a very serious case involving vulnerable service users who had been exposed to a risk

of serious harm for over 10 years. The panel noted Mr Burgon’s incorrect administering

of medication to patients which could have had an adverse effect upon the service

users who were in his care, for which he has shown no insight or remorse. The panel

took into consideration Mr Burgon’s repeated dishonesty. The panel considered that the

charges found proved did not constitute a single incident, but rather a pattern of

persistent behaviour. The panel noted that Mr Burgon subsequently lied about the

interim conditions of practice order and hid the lie from his employers. Mr Burgon

therefore frustrated the NMC regulatory process, which is designed to regulate the

profession. The panel also considered that it was not Mr Burgon who informed his

employer about the interim conditions imposed upon his practise but was found out after

a routine check of pin numbers after he had worked 64 shifts at the home in breach of

his conditions.

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The panel considered that Mr Burgon’s dishonesty and misconduct were very serious,

and not fundamentally compatible with him remaining on the register. The panel again

noted the ISG specifically:

72.1.1 The code: Standards of conduct, performance and ethics for nurses and midwives. 72.3 Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients. 72.6 Dishonesty, especially where persistent or covered up. 72.7 Persistent lack of insight into seriousness of actions or consequences.

The panel concluded that Mr Burgon had departed so significantly from the standards

required of a registered nurse, that a temporary removal would not be a sufficient

sanction. He had breached the professional tenets which were of fundamental

importance to practice as a registered nurse. The panel determined that a suspension

order would not be appropriate, proportionate and sufficient to protect the public and to

address the public interest.

The panel applied the principle of proportionality, balancing Mr Burgon’s interests with

the public interest and concluded that the only proportionate sanction in this case is a

striking-off order. Given the nature and gravity of the case, the panel found that Mr

Burgon’s conduct is fundamentally incompatible with continued registration.

Furthermore, the need to protect the public and to uphold public confidence in the

profession could not be achieved if Mr Burgon’s name were to remain on the register.

The panel determined to make a striking-off order. Mr Burgon’s name will be removed

from the NMC register. Mr Burgon may not apply for restoration until five years after the

date that this decision takes effect.

This decision will be confirmed to Mr Burgon in writing.

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The order will take effect 28 days from the date when notice of it is deemed to have

been served upon Mr Burgon. Mr Burgon has the right to appeal this decision.

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Decision and reasons on interim order: The panel considered whether to impose an interim order to cover the appeal period of

28 days or, if an appeal is lodged, the time necessary to cover that appeal.

Mr Kennedy, on behalf of the NMC, applied for an interim suspension order of 18

months to cover the appeal period of 28 days and the resolution of any appeal. He

submitted that an interim suspension order for 18 months is necessary for the protection

of the public and is otherwise in the public interest.

The panel accepted the advice of the legal assessor. He reminded the panel that it can

make an interim order only if it was satisfied that such an order is necessary for the

protection of the public, is in the public interest or in the registrant’s own interests.

Having regard to its findings on impairment and its reasons for directing a striking-off

order, the panel was satisfied that it is necessary to impose an interim suspension order

for the protection of members of the public and is otherwise in the public interest. Such

an order is for 18 months to cover the period of any appeal.

The panel was therefore satisfied that the imposition of an interim suspension order is

proportionate in the circumstances of this case and that any other order would be

inconsistent with its decision to strike Mr Burgon’s name off the NMC register. The

panel therefore directed that Mr Burgon’s registration be suspended forthwith, for a

period of 18 months. Accordingly, Mr Burgon’s registration will be suspended from

today.

The substantive decision removing Mr Burgon’s name from the register will take effect

28 days from the date when notice of that decision is deemed to have been served

upon him. If, in the interim, Mr Burgon exercises his right of appeal, this interim order

suspending his registration will continue to have effect until that appeal is determined.

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This decision will be confirmed to Mr Burgon in writing.

This concludes these proceedings.

Conduct and Competence Committee

Documents

Transcript of Conduct and Competence Committee