conduct and competence committee · 2016. 7. 7. · ragupathy’s right to attend, be represented...

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Conduct and Competence Committee Substantive Hearing 29 June – 1 July 2016

Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: Mr Suppiah Ragupathy

NMC PIN: 72L0443E

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

Mental Health – 1 January 2001

Area of Registered Address: England

Type of Case: Misconduct

Panel Members: Stephen Barker (Chair – Lay member)

Susan Field (Registrant member)

Carla Hartnell (Registrant member)

Legal Assessor: Nigel Ingram (Day 1 and 2)

John Caudle (Day 3)

Panel Secretary: Melissa Daysh

Mr Ragupathy: Not present or represented.

Nursing and Midwifery Council: Represented by Ms Sunyana Sharma, counsel,

instructed by NMC Regulatory Legal Team.

Facts proved: 1, 2, 4, 5 and 6. Facts not proved: 3 Fitness to practise: Impaired by reason of misconduct Sanction: Striking Off Order Interim Order: Interim Suspension Order – 18 months

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Details of charge (as amended):

That you, on 21 October 2014, whilst employed as a Ward Manager in Child &

Adolescent Mental Health (CAMHS):

1) Pushed Patient A with both hands causing her to fall onto her back on the floor;

2) Used an inappropriate arm hold on Patient A;

3) Attempted to supervise Patient A on your own during a meeting with her

Consultant when she was subject to 2:1 supervision and/or you were unable to

engage in patient restraint;

4) Made no attempts to de-escalate the situation by leaving Patient A when it was

clear to you that that was the appropriate course to take;

5) Threatened to administer an unnecessary injection when de-escalation had not

been attempted;

6) After being suspended, returned to the ward and shouted and swore at colleagues.

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

misconduct.

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

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

registered address by recorded delivery and by first class post on 11 May 2016. Royal

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

Mr Ragupathy’s registered address by recorded delivery on that date.

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

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

Ragupathy’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 signed for on 12 May 2016. Ms Sharma 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 Ragupathy

had been served with notice of this hearing in accordance with the requirements of

Rules 11 and 34. It noted that the rules do not require delivery and that it is the

responsibility of any registrant to maintain an effective and up-to-date registered

address.

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

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

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

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

notwithstanding the absence of the registrant...”

Ms Sharma invited the panel to continue in the absence of Mr Ragupathy on the basis

that he had voluntarily absented himself. Ms Sharma submitted that in this instance,

justice falls in the NMC’s favour. She directed the panel to a letter sent to a Senior

Hearing Manager by Mr Ragupathy in May 2016 in which he states that he does not

wish to attend any hearing [PRIVATE]. Ms Sharma submitted that the NMC has not

received any additional information from Mr Ragupathy since this date to say that he

would be attending today’s proceedings, nor has he requested an adjournment. Ms

Sharma submitted to the panel that there was no reason to believe that an adjournment

would secure his attendance on some future occasion.

Furthermore, Ms Sharma submitted to the panel that as these very serious allegations

date back to 2014, it is in the public interest, as well as Mr Ragupathy’s interest, to hear

these matters expeditiously. She told the panel that it would not be completely

disadvantaged by proceeding in Mr Ragupathy’s absence as information from Mr

Ragupathy in response to the allegations will be made available to the panel during the

proceedings. She advised the panel that the NMC has three witnesses in attendance

today to present live evidence and it would also be in the witness’ interests to proceed

in Mr Ragupathy’s absence.

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”.

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

decision, the panel has considered the submissions of Ms Sharma, and the advice of

the legal assessor. It has had regard to the overall interests of justice and fairness to all

parties. It noted that:

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• Mr Ragupathy has informed the NMC that he does not wish to attend these

proceedings;

• No application for an adjournment has been made by Mr Ragupathy;

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

some future date;

• Three witnesses have attended today to give live evidence and it may be difficult

for them to attend another hearing on another date;

• The allegations are related to an incident in 2014;

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

accurately recall events;

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

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

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

address, he will not be able to challenge this evidence and will not be able to give oral

evidence on his own behalf. The panel however will be assisted by very detailed

responses from Mr Ragupathy in respect of the allegations. 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 Ragupathy’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.

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

proportionate to proceed in the absence of Mr Ragupathy. The charges are of a serious

nature and the expeditious disposal of this case is in both the public interest and Mr

Ragupathy’s interest. The panel will draw no adverse inference from Mr Ragupathy’s

absence in its findings of fact.

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Background: The charges arose while Mr Ragupathy was employed at The Priory Hospital

Roehampton (‘the Hospital’). Mr Ragupathy worked at the Hospital from 10 August 2007

until 17 February 2015 where he was the Ward Manager in Child & Adolescent Mental

Health (CAMHS).

The alleged incident occurred on Tuesday 21 October 2014. Patient A was a 15 year

old service user with mental health conditions. She had been admitted to the Hospital

on 3 October 2014. As a result of her behaviour since that admission, it had been found

necessary to place her on 2:1 supervision.

At the time of the incident, Patient A was on 2:1 observations. Mr Ragupathy, Patient A

and a consultant were in a meeting room together. During the meeting, Patient A began

to kick the furniture around and attempted to attack the consultant. Patient A was

initially restrained by the two staff members who had been allocated for 2:1 supervision

and had been observing outside. At that point they were assisted by Mr 1 and Mr 2, who

were more experienced in managing volatile situations, and took Patient A back to her

bedroom.

Patient A proceeded to barricade herself in her bedroom and the door came off of the

hinges. Patient A continued to scream that she did not want Mr Ragupathy there. Mr 1

and Mr 2 released their hold of Patient A and she approached Mr Ragupathy. There are

different accounts to describe how Patient A approached Mr Ragupathy but there is a

consensus, including acceptance by Mr Ragupathy, that he pushed Patient A, who fell

to the floor. It was Mr Ragupathy’s case that this was self-defence.

Patient A attempted to get up off the floor but was restrained. It was at this point that it is

further alleged that Mr Ragupathy threatened her with an injection and applied an

inappropriate arm hold.

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Mr 1 reported the incident and as a result, internal investigations were conducted and a

referral to the NMC was made.

Decision and reasons on application to amend charge:

Upon reading the documentary evidence put before it by the NMC, the panel, of their

own volition, raised concerns that Mr Ragupathy may have in fact been undercharged in

relation to the incidents in question. The panel told Ms Sharma that charges relating to

Mr Ragupathy’s inability to use restraint techniques as a result of occupational health

advice at the time of incident, his lack of attempt to de-escalate the situation by

removing himself from the bedroom of Patient A and threatening to administer an

unnecessary injection should be considered by the NMC, in addition to the two already

set out in the schedule of charges. It also invited Ms Sharma, on behalf of the NMC, to

consider a final charge relating to shouting and swearing at colleagues when Mr

Ragupathy returned to the ward after his suspension.

Ms Sharma, for the NMC, took instructions and subsequently made an application to

amend the charges to read as follows:

That you, on 21 October 2014, whilst employed as a Ward Manager in Child &

Adolescent Mental Health (CAMHS):



3) Attempted to supervise Patient A on your own during a meeting with her



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5) Threatened to administer an unnecessary injection when de-escalation had not

been attempted;


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

misconduct.

It was submitted by Ms Sharma that the proposed amendments had been signed off by

an NMC senior lawyer. Mr Ragupathy’s case officer had successfully contacted him by

email to serve the new schedule of charges and Mr Ragupathy made representations in

relation to the four additional charges. This information was put before the panel for its

consideration.

Ms Sharma submitted to the panel that these four additional charges should be added,

as the subject matter of the charges was not new and have been presented to both Mr

Ragupathy and the NMC within documentary evidence prior to the commencement of

these proceedings. She submitted that Mr Ragupathy has responded to charges 1 and

2 through his standard response form and has now responded to the new charges,

namely charges 3 to 6, via email. Mr Ragupathy is aware of these proceedings and has

informed the NMC of his intention to not attend this hearing, or any other hearing in the

future. Ms Sharma submitted that the panel do have information before it in relation to

the new charges to be satisfied that it can amend, and add, charges 3 to 6 to the

schedule without any injustice to any party.

Mr Ragupathy stated in his emails to his NMC case officer, dated 29 June 2016, that he

“[does] not agree with the amended charges”. In this correspondence with the NMC, Mr

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Ragupathy has not opposed the application to amend the charges, rather denied the

allegations.

The panel accepted the advice of the legal assessor that Rule 28 of the Rules states:

28 (1) At any stage before making its findings of fact …

(i) … the Conduct and Competence Committee, may amend

(a) the charge set out in the notice of hearing; or

(b) the facts set out in the charge, on which the allegation is based,

unless, having regard to the merits of the case and the fairness of the

proceedings, the required amendment cannot be made without injustice.

(2) Before making any amendment under paragraph (1), the Committee shall

consider any representations from the parties on this issue.

The panel approached this application on the basis that it was opposed by Mr

Ragupathy. In fact, later during proceedings, a further communication was received by

Mr Ragupathy that confirmed this. It was of the view that such an amendment, as

applied for, was in the interest of justice and in the merits of the case. It acknowledged

that Mr Ragupathy should be aware of the matters, now addressed in charges 3 to 6, as

he has had access to the documentary evidence put before the panel despite not being

present at these proceedings. The panel had regard to Mr Ragupathy’s engagement

with the NMC and acknowledge that he has responded to both the original, and

amended, charges.

The panel took into account that Mr Ragupathy has advised the NMC that he will not be

attending any NMC proceedings in any event and has at no stage throughout his

correspondence with the NMC asked for an adjournment.

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The panel was satisfied that there would be no prejudice to Mr Ragupathy and no

injustice would be caused to either party by the proposed amendment being allowed. It

concluded that the amendment and addition of four new charges to the schedule was in

the merits of this case and in fairness to these proceedings. The panel was mindful of

its duty to protect the public as well as the reputation of the nursing profession, and the

NMC as its regulator. It was therefore appropriate to allow the amendment, as applied

for, to ensure the charges accurately reflect the incident in question.

Evidence adduced:

Opening the case for the NMC, Ms Sharma took the panel through the charges and

identified the evidence that would assist the panel with its determination on facts. The

panel read and considered all the written evidence put before it.

The panel also heard oral evidence and read statements from the following witnesses

who had been employed by the Trust:

- Mr 1, who was employed as an Activities Coordinator at The Priory Hospital

Roehampton. He was also the Hospital Lead for Prevention and Management of

Violence and Aggression.

- Mr 2, who was employed as a mental health nurse on the adolescent ward at

The Priory Hospital Roehampton.

- Ms 3, who was employed as the Deputy Hospital Director at The Priory Hospital

Roehampton.

The above titles refer to the individuals’ positions at the time of the charges.

The panel also had regard to Mr Ragupathy’s correspondence with the NMC, namely

his representations on all allegations before the panel.

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

this case together with the submissions made by Ms Sharma, on behalf of the NMC and

the written representations made by Mr Ragupathy.


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 Ragupathy.

The panel found Mr 1 to be a professional and balanced witness. He had a good

recollection of the events and his oral evidence supported his written statements. The

panel was of the view that he answered questions honestly and he was just and fair to

Mr Ragupathy. His in-depth knowledge of the management of violence and aggression

was helpful to the panel and it acknowledged that he had a good understanding of the

Hospital’s policies and their interpretation in practice.

While Mr 2’s recollection of the incident lacked the detail of Mr 1’s, the panel

acknowledged that Mr 2’s focus during the incident was connecting with Patient A to de-

escalate the situation, rather than the global aspect of the situation. The panel found Mr

2 to be measured in his answers and considered his evidence to be credible and

reliable.

The panel found Ms 3 to be a clear and reliable witness. Although her evidence was

limited, it was credible. The panel acknowledged that Ms 3 indicated that Mr Ragupathy

was a well-liked and respected nurse.

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The panel considered each charge and made the following findings:

Charge 1:


This charge is found proved.

In reaching this decision, the panel took into account the live evidence of Mr 1. He

physically demonstrated to the panel how Mr Ragupathy pushed Patient A with both

hands. He described him as using significant force behind his push. Mr 1 told the panel

that he was initially “shocked and froze” when he witnessed how forcefully Mr

Ragupathy pushed Patient A to the floor. He also told the panel that Patient A fell

straight to the floor on her back as a result of the push, contradicting Mr Ragupathy’s

written representations in which he indicates that when “she [Patient A] stumbled back

her leg caught on the edge of the chair causing her to fall down”. Mr 2 confirmed that

Patient A was sitting on her bed when she lunged towards Mr Ragupathy. He told the

panel that Patient A fell straight onto her back, onto the floor, when Mr Ragupathy

pushed her. Mr 2 told the panel there was no furniture near to Patient A that she could

have tripped over to cause her to fall to the floor.

It is Mr Ragupathy’s case that when he entered Patient A’s room to offer her

reassurance about needing 2:1 observation, Patient A was pacing around shouting.

When she saw Mr Ragupathy, it is his account that Patient A turned her aggression

towards him and lunged towards him. He instinctively pushed Patient A away to protect

himself and acknowledges in his written representations that “he had no opportunity to

calculate reasonable force” as Patient A lunged towards him. He indicated that the push

was not malicious in nature however acknowledges that he did in fact push Patient A.

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The panel was of the view that Mr Ragupathy should not have been present in Patient

A’s bedroom at the time he pushed her to the floor. Mr Ragupathy had been told on

several occasions before this point that he should remove himself from the situation as

he was making Patient A more agitated and volatile. However, Mr Ragupathy felt he

could provide Patient A with “reassurance and hope”. The panel determined that Mr

Ragupathy had three options available to him when he was presented with the situation;

he could have backed away from Patient A, he could have raised his hands to ward off

Patient A’s advances or lastly, push her away. He chose to push Patient A with

substantial force. The panel concluded that this action was inappropriate and caused

the situation to escalate.

The panel therefore found charge 1 proved.

Charge 2:



In reaching this decision, the panel took into account the evidence of Mr 1, who

indicated the following in his witness statement:

“Patient A lunged at him, he [Mr Ragupathy] had put his knee behind her bicep, both

hands on her forearm and he was pushing forward with his knee, pushing down on her

forearm. Patient A was screaming in pain and said “please, get off, you are going to

break my arm”.

Mr 2 demonstrated for the panel how Patient A’s arm was being held at an angle from

the body which was not a biomechanically natural position for the arm to be placed in.

Mr 1, a PMVA (Prevention and Management of Disturbed/Violent Behaviour) trainer,

confirmed that the arm hold Mr Ragupathy placed Patient A in was not an accepted

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technique. Mr 2 told the panel that the arm hold was dangerous. He confirmed this in his

witness statement where he stated the following:

“It was clear that Patient A’s left arm was uncomfortable and in a dangerous position.

Patient A looked uncomfortable so Mr 1 told Rags [Mr Ragupathy] to disengage from

the hold and Mr 1 took over”.

In his written representations, Mr Ragupathy acknowledged that when he secured

Patient A’s arm, after she lunged at him for a second time, he was unaware of what arm

hold he had used. He described the situation as extremely volatile and potentially

dangerous and he secured her arm to “minimise risk of injury”. Mr Ragupathy indicated

that he felt he needed to “defend himself”.

The panel heard evidence that Mr Ragupathy had received training in PMVA. However,

at the time of these matters he was not permitted to engage in physical restraint due to

occupational health advice. The panel acknowledged that while Mr 2 reported Patient A

had a “grey coloured” bruise on her arm, it was unable to ascribe the injury directly to

this incident. The panel was aware that Patient A also had to be restrained on the days

prior to this incident.

The panel accepted the evidence of Mr 1 and Mr 2 rather than the account of Mr

Ragupathy. It concluded that Mr Ragupathy did use an inappropriate arm hold on

Patient A in an attempt to restrain her.


Charge 3: 3) Attempted to supervise Patient A on your own during a meeting with her



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This charge is found NOT proved.

The panel had regard to the evidence of Ms 3. She explained that the decision on how

close 2:1 supervision has to be is a “grey area”. There is no strict guidance as to

whether it should be line of sight or within arm’s length and requirements can change

with patient need and circumstances. The panel read evidence from the consultant,

namely Dr 4, who stated the following:

“… Patient A came out into the corridor and demanded to see Rags [Mr Ragupathy] and

me [Dr 4] by herself without the 2:1, and we agreed we would if she stopped shouting,

and then saw her in the meeting room (which is small) as she calmed, with her escorts

waiting outside”.

The panel concluded that Dr 4, in his professional opinion, decided that it would be

reasonable for Mr Ragupathy, Patient A and himself to meet in this environment. It was

of the view that neither Dr 4, nor Mr Ragupathy, thought about the possible implications

of the situation in that Mr Ragupathy was not able to restrain patients and that Dr 4 was

not trained in restraining patients. This was as the meeting took place at short notice

and it was managed as best as possible in the circumstances. It determined that it was

neither Mr Ragupathy’s or Dr 4’s intention to put Patient A or themselves in a dangerous

situation.

The panel acknowledges that Mr Ragupathy did in fact attempt to supervise Patient A

during a meeting with Dr 4 when she was the subject of 2:1 supervision and also while

he was unable to engage in patient restraint. However, the panel concluded that in the

circumstances in which the meeting was arranged, Mr Ragupathy’s actions could not

amount to misconduct as the 2:1 supervision team nurses were just outside the door

and could see into the room.

The panel therefore found charge 3 not proved.

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Charge 4:




The panel had regard to the evidence of Mr 1, in which he told the panel that he asked

Mr Ragupathy six times, with increasing volume and vigour, to remove himself from the

situation with Patient A. Despite being aware of the PMVA de-escalation policy, which

indicates that a staff member should remove one’s self from a situation if they are the

focus or trigger of the conflict, Mr Ragupathy indicates in his written representations that

he chose to remain in Patient A’s bedroom until the situation was under control. It was

his intention to pacify Patient A and calm her down following the abrupt end of her

meeting with Dr 4.

The panel had regard to Dr 4’s statement, where he indicates that he removed himself

from the meeting room when he realised that he was a trigger to Patient A’s behaviour

during the meeting. Furthermore, a health care assistant, Ms 5, also states in the

internal disciplinary interview notes that she left Patient A’s bedroom once she, namely

Patient A, shouted at her to leave.

The panel determined that Mr Ragupathy made no attempt to remove himself from the

situation in Patient A’s bedroom on 21 October 2014, therefore causing Patient A’s

behaviour to escalate. Despite Patient A shouting at Mr Ragupathy to leave the

bedroom, and Mr 1’s efforts to remove him from the situation, Mr Ragupathy chose to

remain in the bedroom, which did not de-escalate the behaviour of Patient A. Instead, it

exacerbated the situation. The panel concluded that the appropriate course of action

would have been for Mr Ragupathy to remove himself from Patient A’s bedroom, as

repeatedly requested, and he knew that.

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Charge 5: 5) Threatened to administer an unnecessary injection when de-escalation had not

been attempted;


When considering this charge, the panel had regard to the evidence of Mr 1 and Mr 2,

and the untested written evidence of Ms 5, all of whom have differing recollections of Mr

Ragupathy’s alleged threat to administer Patient A with an injection during the incident.

It was Mr 1’s evidence that Mr Ragupathy clearly threatened Patient A with an injection

when she would not calm down. Mr 2 told the panel that he did not hear Mr Ragupathy

threaten Patient A with an injection. Ms 5 indicated in her internal disciplinary interview

that “I remember when the injection was suggested. Rags [Mr Ragupathy] said no”.

The panel also had regard to the PMVA policy which lists other mechanisms which

should have been implemented before Mr Ragupathy threatened to use an injection to

calm Patient A down. It also took cognisance of Mr Ragupathy’s account of the incident

in which he states “I did not threaten to administer an injection. As far as I was aware

the injection was already being drawn up on Dr 4’s request and I told Dr 4 when I came

out of the room that the injection was not necessary but that we would offer oral

medication”.

The panel was of the view that again, Mr Ragupathy should not have been present at

the time the injection was allegedly threatened to Patient A. He should have removed

himself from the situation prior to this point. However, the panel determined that Mr

Ragupathy, after having been lunged at by Patient A for a second time, threatened an

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injection in the heat of the moment, when he was struggling with her on the floor of her

bedroom. It had regard to Mr 1 and Mr 2’s evidence that the administration of an

injection at this point of the situation was “not the right time” and “would have been

inappropriate”. The panel determined that it was more than likely that Mr Ragupathy did

threaten Patient A with the administration of an injection, however when asked again

when he left the bedroom, he then stated that it was not necessary. The panel

concluded that Mr Ragupathy did not follow the PMVA policy by implementing other

mechanisms to de-escalate the situation with Patient A and as a result, his threat to

administer an injection was unnecessary, provocative and inappropriate.

The panel therefore found charge 5 proved. Charge 6:



During live evidence from Mr 1 and Ms 3, the panel heard that after Mr Ragupathy was

suspended on 22 October 2014 by Ms 3, he returned to the Ward despite being told by

Ms 3 that he was not to. Ms 3 told the panel that she unfortunately has substantial

experience in suspending staff from the Hospital and it is common practice that she

would advise the suspended staff member to leave the Hospital immediately, without

returning to the Ward, and that this is what she told Mr Ragupathy on this occasion.

While Ms 3 was not present on the Ward when Mr Ragupathy was in the office, it was

reported to her by several staff that Mr Ragupathy had returned to the Ward, disclosed

why he was being suspended and engaged in “unregulated ranting” about the incident.

Ms 3 indicated that Mr Ragupathy was to return a work phone used for community

referrals however he kept this phone in his possession until this came to light at a later

stage. She was not aware of the content of his ranting or whether it included swearing.

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Mr 1 also told the panel that Mr Ragupathy returned to the Ward, despite being advised

not to. Mr 1 said that Mr Ragupathy told the staff in the office that he had been

suspended and began shouting and swearing.

Mr Ragupathy indicates in his written submissions that he was not told to not return to

the Ward following his meeting with Ms 3. He had to return to the Ward to return the

work phone so other staff could respond to any new referrals. Mr Ragupathy also states

that Ms 3 came to the door at the office on the Ward, asking to speak with Patient A. Ms

3 strongly denied this in her live evidence. She told the panel that Mr Ragupathy was a

good nurse and there was no need for her to escort him out of the Hospital, nor have

reason to believe that she needed to attend the Ward as Mr Ragupathy had indicated

that he would leave the Hospital on his own accord.

The panel had regard of Ms 3’s evidence, and were satisfied that her recollection of the

incident was clear. It also noted her experience in the suspension of staff members from

the Hospital and the line she takes with such situations. Taking into account the

evidence before it, the panel determined that Mr Ragupathy did return to the ward after

being suspended by Ms 3, when advised not to, and despite being told not to discuss

the details of the incident and his suspension with his colleagues, he engaged in an

animated discussion with them. It concluded that during this discussion, it was likely that

Mr Ragupathy did shout and swear at colleagues on the Ward.

The panel therefore found charge 6 proved. Determination 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

Ragupathy’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.

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In her submissions, Ms Sharma invited the panel to take the view that Mr Ragupathy’s

actions amount to a breach of The Code: Standards of conduct, performance and ethics

for nurses and midwives 2008 (“the Code”). She then directed the panel to specific

paragraphs and identified where, in the NMC’s view, Mr Ragupathy’s actions amounted

to misconduct.

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

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.

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

care.

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

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the safety of those in your care.

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

contributions of your colleagues.

26 You must consult and take advice from colleagues when appropriate.

32 You must act without delay if you believe that you, a colleague or anyone else

may be putting someone at risk.

39 You must recognise and work within the limits of your competence.

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

Ms Sharma referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311

which defines misconduct as a word of general effect, involving some act or omission

which falls short of what would be proper in the circumstances.

She submitted that Mr Ragupathy’s conduct amounted to numerous failings relating to

the care and safety of a patient, using an inappropriate restraint and failing to reduce

the risk in a volatile situation by absenting himself. Furthermore, he threatened to give

Patient A an unnecessary injection. Ms Sharma submitted that Mr Ragupathy’s actions

towards a vulnerable 15 year old female patient were serious and that he had

significantly breached the fundamental tenets of the profession. She submitted that his

actions amounted to misconduct.

She 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. Ms Sharma referred the panel to the

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

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

Ms Sharma submitted that Mr Ragupathy’s actions had put a patient at unwarranted risk

of harm, brought the nursing profession into disrepute and therefore had breached the

fundamental tenets of the profession.

She invited the panel to consider Mr Ragupathy’s representations, identifying that while

Mr Ragupathy made admissions to charges 1 and 2, these admissions were limited and

he sought to justify his behaviour, choosing to defend his serious actions. She

submitted that Mr Ragupathy has not demonstrated any insight or remorse for his

actions, merely seeking to explain that he acted instinctively to a volatile situation.

She reminded the panel that within the ongoing situation with Patient A, there were

three incidents of violent behaviour, these being; Patient A kicking Mr Ragupathy, Mr

Ragupathy pushing Patient A causing her to fall to the floor and placing Patient A in an

inappropriate arm hold. Ms Sharma submitted that Mr Ragupathy should not have been

present at the time of the incidents, as his continued presence was so obviously a

trigger. She told the panel that Mr Ragupathy has a lack of understanding of the

situation and the risk he presented to himself, Patient A and his colleagues by not

removing himself. He heightened the situation by threatening Patient A with an

unnecessary injection and later remonstrated with colleagues by shouting and swearing.

Ms Sharma submitted that Mr Ragupathy has not provided any evidence of remediation,

even though he has made it clear that he is no longer working as a registered nurse,

has no intention of returning to the profession and has let his registration expire. In the

two years since the incident, there has been no evidence of change, progression or

improvement to Mr Ragupathy’s practice.

23

Ms Sharma submitted that Mr Ragupathy remains at risk of placing patients at

unwarranted risk of harm and a finding of impairment should be made to protect the

public and in the wider public interest.

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

number of judgments which are relevant, these included: Roylance v General Medical

Council (No 2) [2000] 1 A.C. 311 and Council for Healthcare Regulatory Excellence v

(1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin).

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

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

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

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

that misconduct.

Decision on misconduct:

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

regard to the terms of The Code: Standards of conduct, performance and ethics for

nurses and midwives 2008.

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

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

professional judgement.

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

standards expected of a registered nurse, and that his actions amounted to a breach of

the Code. Specifically:

Preamble:

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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

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.

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.

26 You must consult and take advice from colleagues when appropriate.

32 You must act without delay if you believe that you, a colleague or anyone else

may be putting someone at risk.

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

25

The panel appreciated that breaches of the Code do not automatically result in a finding

of misconduct. However, the panel was of the view that Mr Ragupathy engaged in

actions of a serious nature which involved a vulnerable 15 year old female patient

suffering from a serious mental health condition. He compromised the safety of himself,

Patient A and his colleagues by not removing himself from the situation once it became

clear that he was the trigger for Patient A’s behaviour and despite being asked to leave

her bedroom numerous times by Mr 1, failed to do so. Mr Ragupathy’s continued

presence exacerbated Patient A’s behaviour and the situation.

Mr Ragupathy’s actions led to Patient A kicking him. He pushed Patient A causing her

to fall onto her back on the floor and then used excessive restraint in the form of an

inappropriate, untrained arm hold. This restraint made Patient A scream in pain,

causing her behaviour to escalate. He subsequently threatened Patient A with an

unnecessary injection.

The panel was of the view that Mr Ragupathy’s actions may have substantially

undermined Patient A’s trust in nurses and the therapeutic bond necessary for effective

treatment of patients. It determined that Mr Ragupathy, being a senior, experienced

Ward Manager, should have been a role model for his colleagues. However even after

being suspended, Mr Ragupathy returned to the Ward and engaged in “unregulated

ranting” which included swearing. He was in charge of the team on the Ward and was

highly regarded. He should have led his team by setting a positive example.

The panel found that Mr Ragupathy’s actions did fall seriously short of the conduct and

standards expected of a nurse.

The panel therefore found Mr Ragupathy’s actions amount to misconduct.

Decision on impairment:

26

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

fitness to practise is currently impaired.

Nurses occupy a position of privilege and trust in society and are expected at all times

to be professional. They must make sure that their conduct at all times justifies both

their patients’ and the public’s trust in the profession. In this regard the panel considered

the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory

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

reaching its decision, in paragraph 74 she said:

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

reason of misconduct, the relevant panel should generally consider not

only whether the practitioner continues to present a risk to members of the

public in his or her current role, but also whether the need to uphold

proper professional standards and public confidence in the profession

would be undermined if a finding of impairment were not made in the

particular circumstances.

Mrs Justice Cox went on to say in Paragraph 76:

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

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

comprehensive approach to determining this issue formulated by

Dame Janet Smith in her Fifth Report from Shipman, referred to above.

At paragraph 25.67 she identified the following as an appropriate test for

panels considering impairment of a doctor’s fitness to practise, but in my

view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

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

deficient professional performance, adverse health, conviction,

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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. …

The panel was satisfied that all of the above three limbs of the test identified by Dame

Janet Smith were engaged. It determined that Mr Ragupathy’s actions placed Patient A

in unwarranted risk of harm, have brought the profession into disrepute and breached

fundamental tenets of the profession.

The panel accepted that Mr Ragupathy’s actions related to a single incident in a long,

unblemished career. Furthermore both Ms 3, during oral evidence, and Dr 4, in his

written statement, spoke well of Mr Ragupathy’s practice as a nurse. However, he

would have known that it was inappropriate to engage with Patient A the way that he

did.

The panel acknowledged Mr Ragupathy’s admissions to his actions as set out in

charges 1 and 2, however determined that these admissions were limited in that they

attempted to justify his serious actions rather than admit the totality of his misconduct.

Regarding insight, the panel considered that Mr Ragupathy has shown little, to no,

insight into the incidents with Patient A. In his written representations to the NMC, he

has made no reflection on how his actions placed himself, Patient A and his colleagues

at risk of harm. He has also not acknowledged how his actions may have impacted on

Patient A, his colleagues and the public.

28

The panel concluded that actions of this serious nature, left un-remediated, do pose a

risk to patients and the public in the future. The risk of Mr Ragupathy repeating such

actions in the future remains highly likely.

The panel therefore decided that a finding of impairment is necessary on the grounds of

both public protection and in the wider public interest.

Having regard to all of the above, the panel was satisfied that Mr Ragupathy’s fitness to

practise is currently impaired.

Determination on sanction: The panel has considered this case very carefully and has decided to make a striking-

off order.

Ms Sharma, on behalf of the NMC, reminded the panel that it is to exercise its own

professional judgement when determining which is the most appropriate, necessary and

proportionate sanction to impose in Mr Ragupathy’s case. She went on to remind the

panel that it found five of the six allegations proved, as well as findings of misconduct

and impairment. Ms Sharma invited the panel to consider the NMC’s Indicative

Sanctions Guidance (‘ISG’) (updated January 2016) and outlined the aggravating and

mitigating factors in Mr Ragupathy’s case. She submitted that protection of patients and

the public, and the wider public interest, should be at the forefront of the panel’s mind

when imposing the appropriate sanction in this case.

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

adduced in this case.


29

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

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

consequences. It was aware that the public interest is paramount in this case.

The panel had careful regard to the ISG published by the NMC. It recognised that the

decision on sanction is a matter for the panel, exercising its own independent

judgement.

The panel found the following aggravating features:

• Although Mr Ragupathy’s actions were a single incident, it was for a prolonged

period.

• Patient A was a highly vulnerable female patient, 15 years of age and was

diagnosed with significant mental health issues.

• Mr Ragupathy forcefully pushed Patient A causing her to fall onto her back on the

floor. He then restrained her in an inappropriate arm hold, which was not PMVA

approved, causing Patient A severe pain.

• By not removing himself from the situation, Mr Ragupathy’s actions exacerbated

an already volatile situation and caused the incident to continue for far longer

than it needed to.

• Mr Ragupathy was a highly regarded nurse in a senior position within the Ward.

He should have been a role model for colleagues.

• Mr Ragupathy’s actions placed himself, Patient A and his colleagues at risk of

harm.

• Mr Ragupathy’s misconduct may have undermined Patient A’s trust in nurses.

• Mr Ragupathy has shown no insight or evidence of reflection on this incident.

• He has shown a lack of remorse and regret for the incident and has not

apologised for his actions.

The panel identified the following mitigating features:

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• Mr Ragupathy’s unblemished nursing career, over a long period of time.

• Although no testimonials or references were before the panel, Mr 2 and Ms 3 in

their oral evidence described Mr Ragupathy as a good nurse who was highly

regarded and respected. Dr 4 in his written statement also spoke of Mr

Ragupathy in high regard.

• Mr 1 wrestled with the decision to make the complaint to Ms 3 about Mr

Ragupathy’s actions because of Mr Ragupathy’s high regard.

• Mr Ragupathy’s actions seem to have been out of character.

• Mr Ragupathy has effectively retired from the nursing profession.

• He has engaged with these proceedings by making written representations,

albeit he has not attended.

• Mr Ragupathy did make partial admissions to charges 1 and 2 at the outset of

these proceedings; however these sought to justify his actions, not admit to

them.

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

inappropriate in view of the seriousness of the case. The panel decided that it would be

neither proportionate nor in the public interest to take no further action.

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

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

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

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

not happen again.’ The panel considered that although Mr Ragupathy’s misconduct was

isolated, his actions were very serious and not at the lower end of the spectrum. He

prolonged the incident by remaining in the presence of Patient A despite being told by

colleagues to leave her bedroom on numerous occasions. It determined that a caution

order would be inappropriate in view of the seriousness of the case and would not

resolve public protection issues, or meet the public interest.

31

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

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

any conditions imposed must be proportionate, measurable and workable. The panel

took into account the ISG, in particular:

63.8 It is possible to formulate conditions and to make provision as to how

conditions will be monitored.

The panel is of the view that there are no practical or workable conditions that could be

formulated, given the nature of the charges in this case. While it may be possible to

retrain some aspects of Mr Ragupathy’s actions, the panel are aware that Mr

Ragupathy has retired from nursing and has no future plans to return to the profession.

He has also failed to demonstrate any remediation since the incident.

The panel concluded that the placing of conditions on Mr Ragupathy’s registration

would not adequately address the seriousness of this case and would not protect the

public, nor be in the wider public interest.

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

appropriate sanction. Paragraph 67 of the ISG indicates that a suspension order would

be appropriate where (but not limited to):

67 This sanction may be appropriate where the misconduct is not

fundamentally incompatible with continuing to be a registered nurse or

midwife in that the public interest can be satisfied by a less severe

outcome than permanent removal from the register. This is more likely to

be the case when some or all of the following factors are apparent (this list

is not exhaustive):

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

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

67.3 No evidence of repetition of behaviour since the incident.

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

significant risk of repeating behaviour.

Although a suspension order would protect patients and the public and restrict Mr

Ragupathy’s practise for its duration, the panel could not be satisfied that Mr Ragupathy

would not repeat this behaviour in the future, if a similar situation were to arise. The

panel is not satisfied that he has any insight into the significant impact his actions had

on Patient A and his colleagues. Furthermore, his actions caused considerable distress

to a vulnerable 15 year old patient. Mr Ragupathy’s conduct, as highlighted by the facts

found proved, was a significant departure from the standards expected of a registered

nurse. The panel noted that the serious breach of the fundamental tenets of the

profession evidenced by Mr Ragupathy’s actions is fundamentally incompatible with his

remaining on the register.

Balancing all of these factors, the panel has determined that a suspension order would

not be an appropriate or proportionate sanction.

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

of the ISG:

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

interest?

70.2 Is the seriousness of the case incompatible with ongoing registration?

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

nurse or midwife is not removed from the register?

33

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

fundamentally incompatible with being a registered professional, which may

involve any of the following…

71.1 Serious departure from the relevant professional standards as set out in key

standards, guidance and advice …

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

result in harm to others, particularly patients or other people the nurse or

midwife comes into contact with in a professional capacity, either

deliberately, recklessly, negligently or through incompetence, particularly

where there is a continuing risk to patients. Harm may include physical,

emotional and financial harm. The panel will need to consider the

seriousness of the harm in coming to its decision.

71.3 Abuse of position, abuse of trust, or violation of the rights of patients, particularly in

relation to vulnerable patients

71.4 …

71.5 Any violent conduct, whether towards members of the public or patients, where the

conduct is such that the public interest can only be satisfied by removal

71.6 …

71.7 Persistent lack of insight into seriousness of actions or consequences

Mr Ragupathy’s actions were significant departures from the standards expected of a

registered nurse, and are fundamentally incompatible with his remaining on the register.

The panel was of the view that the findings in this particular case demonstrate that Mr

34

Ragupathy’s actions were serious and to allow him to continue practising would

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

The panel determined that although this was a single incident, Mr Ragupathy’s actions

placed himself, Patient A and his colleagues’ safety at risk and caused serious distress

to Patient A. He has shown no remorse or regret for his actions, simply attempting to

justify his behaviour and misconduct as self-defence. Mr Ragupathy has shown a

serious, continuous lack of insight into the incident and poses a high risk of repetition if

allowed to return to nursing in the future. His actions have not been remediated in any

way and he has not shown any concern, nor care, for the impact his actions may have

had on Patient A and his colleagues. The panel was of the view that Mr Ragupathy has

not shown an understanding of the totality of his misconduct.

Balancing all of these factors, taking into account all the evidence before it during this

case, the panel determined that the appropriate and proportionate sanction is that of a

striking-off order. Having regard to the matters it identified, in particular the effect of Mr

Ragupathy’s actions in bringing the profession into disrepute by adversely affecting the

public’s view of how a registered nurse should conduct himself, the panel has

concluded that nothing short of this would be sufficient in this case. The panel had

regard to the importance of protecting the public from such serious behaviour and

misconduct.

The panel considered that this order was necessary to mark the importance of

maintaining public confidence in the profession, and to send to the public and the

profession a clear message about the standard of behaviour required of a registered

nurse.

It directs the registrar to strike Mr Ragupathy off the register. The effect of this order is

that the NMC register will show that Mr Ragupathy has been struck off the register.

35

Determination on Interim Order Pursuant to Article 29(1) of the Nursing and Midwifery Order 2001, this panel’s decision

will not come into effect until after the 28 day appeal period, which commences from the

date that notice of the striking-off order has been served. Article 31 of the Nursing and

Midwifery Order 2001 outlines the criteria for the imposition of an interim order. The

panel may only make an interim order if it is satisfied that it is necessary for the

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

interests. The panel may make an interim order for a maximum of 18 months.

The panel has considered the application made by Ms Sharma that an interim

suspension for a period of 18 months should be made on the grounds that it is

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


The panel was satisfied that an interim suspension 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 cover any potential appeal, but if at the end

of a period of 28 days, Mr Ragupathy has not lodged an appeal the interim order will

lapse and be replaced by the substantive order. On the other hand, if Mr Ragupathy

does lodge an appeal, the interim order will continue to run until the appeal is concluded

or withdrawn.

This will be confirmed in writing.

That concludes this determination.

conduct and competence committee · 2016. 7. 7. · ragupathy’s right to attend, be represented...

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