conduct and competence committee substantive hearing 28 ......2017/03/30 · page 1 of 33 conduct...

of 33

Conduct and Competence Committee Substantive Hearing

28 March 2017 – 30 March 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ

Name of Registrant Nurse: Josh Carter Leeming NMC PIN: 12K1113E Part(s) of the register: Registered Mental Health Nurse – Sub part 3 7 January 2013

Area of Registered Address: England Type of Case: Misconduct Panel Members: Stuart Gray (Chair Lay member)

Susan Field (Registrant member)

Diane Meikle (Lay member)

Legal Assessor: William Hoskins Panel Secretary: Keyorra Shrimpton Mr Leeming: Not present or represented Nursing and Midwifery Council: Represented by Daniel Brown, counsel,

instructed by NMC Regulatory Legal Team.

Facts proved: 1(a)(i), 1(a)(ii), 1(a)(iii), 1(b), 1(c), 1(d), 1(e), 1(f), 2(a), 2(b),3(a), 3(b)

Facts not proved: None

Fitness to practise: Impaired Sanction: Striking-off order Interim Order: Interim suspension order – 18 months

of 33

Details of charges (as amended):

That you a registered nurse:

1. On 6 April 2015:

a. Forcibly, and without justification, restrained Service User B by:

i. Sitting on him;

ii. Pushing him against the back of the sofa;

iii. Holding his arms behind him;

b. Pushed your face and nose into Service User B’s face and nose;

c. Slapped and/or pinched Service User B’s cheeks;

d. On one or more occasions, pulled Service User A’s trousers down;

e. Held Service User A’s wrists and used his hands to slap his own face

multiple times;

f. Pinched Service User A’s cheeks;

2. Your actions at charges 1 (a) to (c), were:

a. Contrary to Service User B’s well-being plan;

b. Abusive;

3. Your actions at charges 1 (d) to (f) were:

a. Contrary to Service User A’s well-being plan;

b. Abusive;

of 33

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

misconduct.

of 33

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

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

registered address by recorded delivery and by first class post on 24 February 2017.

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

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

power to proceed in his absence. Mr Brown 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 Leeming

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:

“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 Brown invited the panel to continue in the absence of Mr Leeming on the basis that

he had voluntarily absented himself. Mr Brown told the panel that the recorded delivery

letter was “returned to sender.” He told the panel that such documentation was sent to

of 33

Mr Leeming’s legal representatives at the Royal College of Nursing (RCN), who ceased

to represent Mr Leeming as at 24 February 2017.

Mr Brown guided the panel through email correspondence beginning 18 November

2016 until 17 March 2017 between the RCN and an employee at the NMC, which

included a letter from the RCN written on Mr Leeming’s behalf, as well as a reflective

summary from Mr Leeming.

Mr Brown submitted that the RCN have not been able to obtain instructions as to

whether Mr Leeming is attending today’s hearing. Mr Brown invited the panel to take

into consideration Mr Leeming’s reflective piece, which stated that Mr Leeming no

longer wishes to practise as a nurse, and as such Mr Brown submitted that this may be

why Mr Leeming has not attended today.

In all the circumstances, Mr Brown submitted that Mr Leeming has voluntarily absented

himself from these proceedings. He submitted that the charges date back to 2015, there

is a witness here to give evidence today, and invited the panel to proceed expeditiously

today. Mr Brown submitted that Mr Leeming has not requested an adjournment, and he

invited the panel to consider that an adjournment would not be likely to secure the

attendance of Mr Leeming in the future.

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 and General

Medical Council v Adeogba [2016] EWCA Civ 162.

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

decision, the panel has considered the submissions of Mr Brown, and the advice of the

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

parties.

of 33

It noted that:

• The NMC made efforts to contact Mr Leeming prior to this hearing without

success, as evidenced by a telephone note dated 28 March 2017 made by an

NMC Case Officer;

• The panel noted that Mr Leeming’s representatives at the RCN as at 13 March

2017 were not able to inform the NMC as to Mr Leeming’s attendance at today’s

hearing, as stated in email correspondence. As at 17 March 2017, the RCN

advised the NMC via email correspondence that the RCN no longer represent Mr

Leeming. The panel considered that it had no information regarding Mr

Leeming’s attendance at today’s hearing, and it appears that Mr Leeming has

disengaged with the NMC process;

• There is no reason to suppose that adjourning would secure Mr Leeming’s

attendance at some future date;

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

• One NMC witness has attended today to give live evidence;

• Not proceeding may inconvenience the witness and their employer;

• The charges relate to events that occurred in 2015;

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

The panel is of the view that Mr Leeming has voluntarily absented himself. By not

attending, Mr Leeming 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.

In all the circumstances, the panel has decided that it is fair and proportionate to

proceed in the absence of Mr Leeming. The panel will draw no adverse inference from

Mr Leeming’s absence in its findings of fact.

Decision and reasons on application pursuant to Rule 31: Mr Brown, on behalf of the NMC, made an application under Rule 31 of the Rules to

adduce the written statement of Mr 2, and for the panel to rely on this statement as

hearsay evidence.

of 33

Mr Brown submitted that the written statement of Mr 2 explains how the CCTV footage

in this case came into existence. It is apparent from the interviews with Mr Leeming,

that there is no challenge to the authenticity of the CCTV footage. Mr Brown told the

panel that the NMC has a signed declaration from Mr 2 indicating the contents of his

NMC witness statement are true and correct. Mr Brown submitted that it would not be

proportionate to call Mr 2 in all the circumstances.

The panel accepted the legal assessor’s advice who referred the panel to the terms of

Rule 31 which provides that the panel may consider evidence so far as it is fair and

relevant, whether or not it is admissible in civil proceedings. Rule 31 states:

31. (1) Upon receiving the advice of the legal assessor, and subject only to the

requirements of relevance and fairness, a Practice Committee considering an

allegation may admit oral, documentary or other evidence, whether or not such

evidence would be admissible in civil proceedings.

The panel first considered that the statement of Mr 2 was relevant to the charges. The

panel then went on to consider whether it was fair to admit it as evidence. The panel

noted that Mr Leeming did not challenge the content of the CCTV footage. It noted that

Mr Leeming was at all times aware that there were CCTV cameras in the bungalow.

The panel determined that it was fair to admit the hearsay statement of Mr 2 in these

proceedings.

As such, the panel accepted Mr Brown’s application and the panel accepted into

evidence the written hearsay statement of Mr 2.

Decision and reasons on application to amend charge

The panel heard an application made by Mr Brown, on behalf of the NMC, to amend the

wording of charge 1(d). Mr Brown submitted that the change in this charge reflects the

CCTV footage. He submitted that the panel should take into account the fact that this in

of 33

effect, lessens the charge. He submitted there would be no injustice in amending

charge 1(d).

The proposed amendment to charge 1(d) should read as follows:

Charge 1(d) 1. On 6 April 2015:

(d) On one or more occasions, Repeatedly pulled Service User A’s trousers down, on some occasions while he was restrained by a care assistant;

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

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

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

(a) the charge set out in the notice of hearing …

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

proceedings, the required amendment cannot be made without injustice.

The panel was of the view that such an amendment, as applied for, was in the interest

of justice. The panel was satisfied that there would be no prejudice to Mr Leeming

because the amendment if anything, reduces the seriousness of this charge. It was

therefore appropriate to allow the amendment.

of 33

Background: Mr Leeming was employed as a Band 5 Staff Nurse at Lincolnshire Partnership NHS

Foundation Trust from 22 April 2011. The allegations against Mr Leeming occurred on 6

April 2015 during a day shift at one of the Long Leys Bungalows in the Long Leys Court

complex.

In relation to two vulnerable service users, Mr Leeming is alleged to have demonstrated

behaviour which was contrary to their respective care plans, and was abusive. Both

service users were individuals with various complex needs as a result of their mental

health.

Service User A was a 19- year old male at the time of the allegations with autistic

spectrum disorder and dyspraxia, amongst other health issues. He was admitted to the

Trust on 26 January 2015 under the Mental Health Act. Historically, Service User A has

been subject to safeguarding referrals. The information available about Service User A

included information that he had been sexually abusive towards other foster children,

and physically aggressive towards staff and family. The panel noted that Service User

A’s history included threats of rape and also information that he had planned physical

attacks, sourcing objects to use as weapons.

Service User B was 38 at the time of the allegations, and had been diagnosed with a

moderate learning disability and autistic spectrum disorder. He is known to have

demonstrated sexually inappropriate behaviour, and had a history of violence and

aggression towards others, both staff and peers.

The incidents which are the subject of the charges are alleged to have been captured

on CCTV, amounting to less than 20 minutes of total viewing time.

of 33

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

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

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 is satisfied that it was more likely than not that the

incidents occurred as alleged.

The panel heard oral evidence from one witness called on behalf of the NMC:

• Ms 1: At the time of the allegations Ms 1 was employed as a Human Resources

Investigator at Lincolnshire Partnership NHS Foundation Trust (the Trust).

The panel also read the witness statement of the following witness

• Mr 2: At the time of the alleged incidents was employed by the Trust as the

Acting Associate Director for Estates and Facilities.

In reviewing the oral evidence of Ms 1, the panel found that she was credible, reliable

and very knowledgeable about the Trust investigation with Mr Leeming. The panel

considered that Ms 1 had a good recollection of events, and was able to give details of

the interview in response to panel questioning. The panel considered that her evidence

was measured.

Mr Leeming has not attended to give evidence or to be cross examined. The panel has

drawn no adverse inference from his absence.

The panel considered each charge and made the following findings:

of 33

That you a registered nurse:

Charge 1(a)(i)-(iii)

1. On 6 April 2015:

a. Forcibly, and without justification, restrained Service User B by:

i. Sitting on him;

ii. Pushing him against the back of the sofa;

iii. Holding his arms behind him;

When considering these charges, the panel considered the oral evidence of Ms 1, who

was able to identify to the panel each member of staff or service user in the CCTV

footage shown to the panel.

In addition to watching the CCTV footage between 08:33AM and 08:40AM on 6 April

2015 during the course of the evidence, the panel, when deliberating, reviewed the

footage on two further occasions so as to be sure of what it showed in relation to each

sub-charge.

The panel considered that the CCTV footage was unequivocal. It showed that on 6 April

2015, Mr Leeming restrained Service User B by sitting on him, pushing him against the

back of the sofa and holding his arms behind him.

When considering whether or not Mr Leeming used force, the panel was satisfied, from

watching the CCTV footage, that Mr Leeming did use force when restraining Service

User B. The panel noted that physical force was evident and there was no indication

that such force was reasonably required or clinically warranted.

The panel noted the Lincolnshire Partnership NHS Foundation Trust interview transcript

with Mr Leeming dated 9 June 2016. In response to a question about whether or not Mr

Leeming recalled an incident with Service User B on the morning of 6 April 2016, Mr

Leeming stated, “There was no incident and I’m quite adamant about that you can say I

of 33

did x, y, and z but I would have sat on his lap in front of his Mother, I’d have sat on

Service User B’s lap in front of my band, my band 7.”

In response to a question as to whether it was appropriate to sit on Service User B’s lap

and push him into the back of the sofa, Mr Leeming replies “Umm, no.”

Asked why did it happen, Mr Leeming replied, “Because we were just messing around.”

The panel determined that on 6 April 2015, Mr Leeming forcibly, and without

justification, restrained Service User B by sitting on him, pushing him against the back

of the sofa and holding his arms behind him.

Accordingly, the panel found charges 1(a)(i)-(iii) PROVED.

Charge 1(b) 1. On 6 April 2015:

(b) Pushed your face and nose into Service User B’s face and nose;

The panel considered the CCTV footage was unequivocal.


with Mr Leeming dated 9 June 2016. In relation to the actions as set out in this charge,

Mr Leeming stated, “…I know at one point I leant forward and our foreheads came

together, that wasn’t an intimidating thing we were just talking.”

The panel considered that the footage clearly showed Mr Leeming intentionally pushing

his face and nose into Service User B’s face and nose.

Accordingly, the panel found this charge PROVED.

Charge 1(c) 1. On 6 April 2015:

of 33

(c) Slapped and/or pinched Service User B’s cheeks;


The panel therefore determined that on 6 April 2015, Mr Leeming slapped and/or

pinched Service User B’s cheeks.


Charge 1(d) 1. On 6 April 2015:

(d) On one or more occasions, pulled Service User A’s trousers down;

The panel considered the CCTV footage, between 11:08 and 11:33 on 6 April 2015, in

relation to Service User A, was unequivocal.


with Mr Leeming dated 9 June 2016. When asked about why Mr Leeming pulled

Resident A’s pants down three times, Mr Leeming responded, “I couldn’t…I

don’t…Because I’m an idiot.” Further, Mr Leeming stated in interview that with regards

to Service User A, he did “make reference to his trousers and for whatever reason, I’ve

got no idea I tugged on them and they came down.”

The panel determined that on one or more occasions, Mr Leeming pulled Service User

A’s trousers down.


Charge 1(e) 1. On 6 April 2015:

(e) Held Service User A’s wrists and used his hands to slap his own face multiple times;

of 33



with Mr Leeming dated 9 June 2016. When describing the incidents that occurred on 6

April 2015, Mr Leeming told the interviewer that he, “held Service User A’s hand, he sort

of did that (rubs side of face) on the footage it looks like we are bashing him. I don’t

remember bashing him, I just remember doing that (rubs side of face) with Service User

A and joking with him saying you need to stop now… and he was laughing and we were

rubbing his face etc.”

The panel also noted that in the same interview, Mr Leeming was asked why he and a

Healthcare Assistant were using Service User A’s own hands to “slap.” In response, Mr

Leeming stated, “I can’t give a reason, I genuinely can’t, I have no excuse or rationale

behind it.”

Mr Leeming was later asked in interview how many times he used Service User A’s

hands to slap the other side of his face. The interviewer stated that it was 19 times, to

which Mr Leeming responded that he had “no idea” how many times it occurred.

The panel therefore determined that on 6 April 2015, Mr Leeming held Service User A’s

wrists and used his hands to slap his own face multiple times.


Charge 1(f) 1. On 6 April 2015:

(f) Pinched Service User A’s cheeks;


The panel noted the Investigatory Meeting notes dated 9 June 2016. The interviewer,

Ms 1, stated, “Following the incident of you and [an HCA] slapping Service User A’s

of 33

face with his hands, you pinch both of Service User A’s cheeks. Why did you pinch his

cheeks?” Mr Leeming stated in response, “I can’t remember. I don’t know, it was

probably because I used to tell him he was…not wind him up, I used to tell him he was

cute, I wanted to put him in my pocket, so it would have been done in an endearing

way.”

In response to further questioning in the same interview, Mr Leeming stated that “no” it

was not appropriate to pinch Service User A’s cheeks.

The panel considered that Mr Leeming has accepted his actions as set out in this

charge.

Accordingly, the panel found this charge PROVED. Charge 2(a) 2. Your actions at charges 1 (a) to (c), were:

a. Contrary to Service User B’s well-being plan;

The panel had sight of Service User B’s detailed care plan, which was exhibited by Ms

1.

Under the heading, “What we want to achieve is:” it stated, “To promote and maintain a

safe therapeutic environment at all time for Service User B, peers, staff and visitors to

the unit. Under the heading, “How will we achieve this?” it stated, “Staff to familiarise

themselves with Service User B’s triggers and ancedent (sic) behaviours that may lead

to aggression.”

The panel noted that Service User B’s assessment/review had stated that Service User

B, “has been attempting to engage staff in play fighting, which puts him and others at

risk.” The same document stated that “Service User B is to be firmly advised that play

fighting is not allowed and puts him and staff at risk.”

The panel noted that Service User B’s comprehensive Wellbeing Plan was drawn up to

reflect the complexity of Service User B’s history, behaviours, aggression and risk

of 33

assessment. The panel noted that this comprehensive plan is in place to protect staff as

well as protect Service User B. The panel considered that Service User B was not in a

position to decide what was acceptable, and needed to be directed by the staff who

were caring for him.

As such, Mr Leemings’ actions, by forcibly and without justification restraining Service

User B by sitting on him, pushing him against the back of the sofa, holding his arms

behind him, pushing his face into Service User A’s face and nose and slapping/pinching

Service User B’s cheeks, were all actions contrary to his care plan.

The panel had sight of the Disciplinary Hearing Minutes dated 28 July 2016, where Mr

Leeming stated, “I am aware that in relation to his care plan, that wasn’t followed 1 iota

but equally I wasn’t then aggravating any situation to have caused an incident from in

relation to my actions.” The panel considered that Mr Leeming therefore accepts that he

did not follow Service User B’s care plan. Indeed, his actions may well have increased

the risk, both to Service User B and staff. Mr Leeming acknowledged when interviewed

that his actions were an “unorthodox” way of doing things.

The panel determined that Mr Leemings actions at charges 1(a)-(c) were contrary to

Service User B’s care plan.


Charge 2(b) 2. Your actions at charges 1 (a) to (c), were:

b. Abusive;

The panel considered that Service User B was a vulnerable adult. Mr Leeming has not

sought to suggest that Service User B was in need of restraint at the time. Mr Leeming,

as the nurse in charge of the shift on 6 April 2015, was in a position of trust and

authority. He abused his position. Service User B was not in a position to challenge Mr

Leeming’s actions. Those actions were not clinically justified and showed a lack of

respect for a vulnerable adult. They were liable to humiliate Service User B.

of 33

The panel had sight of the minutes of the Disciplinary Hearing for Josh Leeming dated

28 July 2016, where Mr Leeming stated, “I can’t give logical reasoning behind what you

have seen all I can say is that I have engaged in the process as much as I have been

asked and I have been consistent with what I have said. I did have good interpersonal

relations with both Service User B and Service User A and I accept that my actions

were inappropriate …I accept my actions were inappropriate and wrong and I put my

hands up to that.” During the course of the Trust’s investigation, Mr Leeming

emphasised that his actions were not motivated by malice, and were, in his view, a way

of establishing a good relationship with Service User B. Whether that was so or not, the

panel was satisfied that, looked at objectively, his actions were abusive and insensitive

in that they abused the position of trust which Mr Leeming held, were liable to humiliate

Service User B, and undermine and diminish his dignity.

The panel was satisfied that Mr Leeming’s actions at charges 1(a)-(c) were abusive.

Accordingly, the panel found this charge PROVED. Charge 3(a) 3. Your actions at charges 1 (d) to (f) were:

a. Contrary to Service User A’s well-being plan;

The panel had sight of Service User A’s detailed care plan, which was exhibited by Ms

1.

The panel noted that historically, Service User A has been subject to safeguarding

referrals. The information available about Service User A included information that he

had been sexually abusive towards other foster children, and physically aggressive

towards staff and family. The panel noted that Service User A’s history included threats

of rape and also information that he had planned physical attacks, sourcing objects to

use as weapons.

of 33

The panel had sight of Service User A’s comprehensive Wellbeing Plan, drawn up to

reflect the complexity of Service User A’s history, behaviours, aggression and risk

assessment. The panel noted that this comprehensive plan is in place to protect staff,

protect Service User A and respond to his care needs.

In Service User A’s Wellbeing Plan under the heading “What we want to achieve is:” it

stated, “To ensure that Service User A’s right (sic) are adhered to at all times.” It also

stated an aim as “To provide and promote and safe therapeutic environment for Service

User A, his peers, staff and visitors, at all times… Staff to ensure that aware of Service

User A pre-cursors and triggers for his behaviours.”

The panel noted the Disciplinary Hearing Minutes dated 28 July 2016. The interviewer

asked, “In Service User A’s Wellbeing Plan it says staff to reinforce boundaries and

rules regarding appropriate behaviour, what would be inappropriate behaviour for

Service User A?” In response, Mr Leeming stated, “Appropriate interaction with peers,

staff. Inappropriate would be how I interacted with [Service User A] and anything similar

to that.”

Furthemore, Mr Leeming was asked whether he thought Service User A’s dignity was

“protected” in relation to the pulling down of Service User A’s trousers. Mr Leeming

responded “No.” Mr Leeming, when interviewed, acknowledged that his actions were an

“unorthodox” way of doing things. His actions may well have increased the risk, both to

Service User A and staff.

The panel considered that Mr Leeming’s actions at charges 1 (d) to (f) were contrary to

Service User A’s Wellbeing Plan.


Charge 3(b) 3. Your actions at charges 1 (d) to (f) were:

b. Abusive;

of 33

The panel considered that Service User A was a vulnerable adult. Mr Leeming has not

sought to suggest that Service User A was in need of restraint at the time Mr Leeming,

as the nurse in charge of the shift on 6 April 2015, was in a position of trust and

authority and abused his position. The panel considered that Service User A was not in

a position to challenge Mr Leeming’s actions. The panel determined that Mr Leeming’s

actions at charge 1(d) to (f) were not clinically justified and showed a lack of respect for

a vulnerable adult. They were liable to humiliate Service User A. Mr Leeming has not

sought to suggest that Service User A was in need of restraint at the time

The panel noted the minutes of the Disciplinary Hearing for Josh Leeming dated 28 July

2016, where Mr Leeming stated, “I can’t give logical reasoning behind what you have

seen all I can say is that I have engaged in the process as much as I have been asked

and I have been consistent with what I have said. I did have good interpersonal

relations with both Service User B and Service User A and I accept that my actions

were inappropriate …I accept my actions were inappropriate and wrong and I put my

hands up to that.”

In respect of Service User A also, the panel finds that Mr Leeming’s actions when

considered objectively, were not clinically warranted and were liable to humiliate a

vulnerable adult, and to undermine and diminish the dignity of Service User A.

The panel was satisfied that Mr Leeming’s actions at charges 1(d) to (f) were abusive.


of 33

Submissions on misconduct and impairment:

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

whether the facts found proved amounted to misconduct and, if so, whether Mr

Leeming’s fitness to practise is currently impaired.

The panel carefully considered the submissions made by Mr Brown, on behalf of the

NMC, as well as all the documentation before it.

Mr Brown submitted that Mr Leeming’s actions are serious, and members of the nursing

profession would consider Mr Leeming’s actions deplorable. Mr Brown, on behalf of the

NMC, invited the panel to take the view that Mr Leeming’s actions amounted to

breaches of The Code: Professional Standards of Practice and Behaviour for Nurses

and Midwives 2015 (“the Code”), in particular paragraphs 1.1, 3.4, 20.5, 20.6 and 20.8.

Mr Brown drew attention to the panel’s finding that Mr Leeming’s actions were abusive,

and invited the panel to find misconduct in this case.

Mr Brown then moved on to the issue of impairment. He submitted that the first three

limbs of the test identified in the case of CHRE v NMC & Grant [2011] EWHC 927

(Admin) (Grant) were engaged in Mr Leeming’s case.

Mr Brown submitted that Mr Leeming had engaged with the internal investigation, and

had expressed some remorse, albeit that there had not been a completely full and frank

explanation for Mr Leeming’s actions. Mr Brown submitted that due to the lack of

insight, there is a risk of repetition. Mr Brown submitted that a finding of impairment is

required on the grounds of public protection and also to mark the wider public interest in

this matter.

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

The panel adopted a two-stage process in its consideration. Firstly, it must determine

whether the facts found proved amounted to misconduct and secondly, if the facts found

of 33

proved amount to misconduct, it must then decide whether, in all the circumstances, Mr

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

Panel’s decision on misconduct: The panel, in reaching its decisions regarding misconduct, had regard to public

protection and the wider public interest. This included the declaring and upholding of

proper standards of behaviour and public confidence in the profession and the NMC as

its regulator. The panel accepted that there was no burden or standard of proof at this

stage and exercised its own professional judgement.

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

regard to the terms of the Code, relevant to the period covered in the charges.

The panel considered that Mr Leeming’s actions breached the following parts of the

Code:

“Prioritise people You put the interests of people using or needing nursing or midwifery services first. You

make their care and safety your main concern and make sure that their dignity is

preserved and their needs are recognised, assessed and responded to. You make sure

that those receiving care are treated with respect, that their rights are upheld and that

any discriminatory attitudes and behaviours towards those receiving care are

challenged.

1 Treat people as individuals and uphold their dignity

To achieve this, you must:

1.1 treat people with kindness, respect and compassion

1.2 make sure you deliver the fundamentals of care effectively

3 Make sure that people’s physical, social and psychological needs are assessed and responded to

of 33

To achieve this, you must:

3.4 act as an advocate for the vulnerable, challenging poor practice and discriminatory

attitudes and behaviour relating to their care.

Promote professionalism and trust You uphold the reputation of your profession at all times. You should display a personal

commitment to the standards of practice and behaviour set out in the Code. You should

be a model of integrity and leadership for others to aspire to. This should lead to trust

and confidence in the profession from patients, people receiving care, other healthcare

professionals and the public.

20 Uphold the reputation of your profession at all times To achieve this, you must:

20.3 be aware at all times of how your behaviour can affect and influence the behaviour

of other people

20.5 treat people in a way that does not take advantage of their vulnerability or cause

them upset or distress

20.6 stay objective and have clear professional boundaries at all times with people in

your care (including those who have been in your care in the past), their families and

carers”

The panel took into account that breaches of the Code do not automatically result in a

finding of misconduct.

The panel considered whether the acts and omissions in relation to the charges found

proved fell seriously short of what is proper in all the circumstances, thereby amounting

to misconduct.

As to charge 1, the panel considered that Mr Leeming’s actions did not treat Service

Users A and B with dignity or respect, was humiliating for both service users and was

unwarranted. In particular, Mr Leeming’s actions took place whilst at least one other

Healthcare assistant was present in the bungalow, and as such, Mr Leeming failed to

of 33

set a good example as the nurse in charge. Further, Mr Leeming failed to act as an

advocate for the vulnerable, failed to challenge the poor practice of an HCA in his

presence and both Mr Leeming and the HCA engaged in abusive behaviour, and

demonstrated discriminatory attitudes and behaviour relating to Service User A and B’s

care. The panel considered that Mr Leeming’s actions were not clinically warranted, and

Mr Leeming applied physical force without a full explanation as to why he had behaved

in that way.

As to charges 2 and 3, the panel considered that Mr Leeming completely disregarded

the Wellbeing Plans of Service User A and B. The panel considered that Mr Leeming

took advantage of the both service users’ vulnerability. This was because he decided,

without any clinical justification, to disregard the care plans, and in so doing, put himself,

the service users and other staff at risk of harm.

The panel has found that Mr Leeming’s actions were abusive and insensitive in that

they abused the position of trust which Mr Leeming held, were liable to humiliate

Service Users A and B, and undermine and diminish their dignity. The panel noted that

it was documented in Service User A’s Wellbeing Plan that he complained about the

treatment he had received from staff on the following day, namely 7 April 2015. He

stated he disliked it when staff had teasingly pulled down his trousers on two occasions,

and he requested staff ask for this not to be done again.

The panel noted that when the CCTV was played back to Mr Leeming during the Trust

interview on 9 June 2016, Mr Leeming himself was shocked to see the way in which he

had behaved. The panel considered that any members of the nursing profession and

indeed of the public, would consider that Mr Leeming’s conduct as a registered nurse

was deplorable.

The panel therefore considered that Mr Leeming’s actions fell significantly short of the

standards expected of a registered nurse, and amounted to misconduct.

Panel’s decision on impairment:

of 33

The panel next went on to consider whether Mr Leeming’s fitness to practise is currently

impaired by reason of his misconduct.

In considering the issue of impairment, the panel had regard to all the relevant

information available to it, including the written submissions provided by Mr Leeming,

together with the submissions made by Mr Brown on behalf of the NMC.

The panel took account of the guidance given by Dame Janet Smith in her Fifth

Shipman Report, cited with approval by Mrs Justice Cox in the case of CHRE v NMC &

Grant EWHC (Grant) and whether Mr Leeming had in the past and/or was liable in the

future to act in such a way as to:

• Put a patient or residents at unwarranted risk of harm; and/or

• Bring the nursing profession into disrepute; and/or;

• Breach one of the fundamental tenets of the profession.

The panel considered that Mr Leeming’s disregard of the relevant care plans did place

patients at unwarranted risk of harm. The panel considered Mr Leeming’s actions, were of a nature and seriousness which did bring the nursing profession into disrepute.

Further, Mr Leeming has breached fundamental tenets of the nursing profession,

including the need to provide a high standard of practice and care at all times.

In reaching its decision, the panel also considered the case of Cohen and, in particular,

the three matters which are described as being ‘highly relevant’ to the determination of

the question of current impairment, namely:

1. Whether the conduct that led to the charge(s) is remediable?

2. Whether it has been remedied?

3. Whether it is highly unlikely to be repeated?

In relation to all the charges found proved, the panel considered that whilst the

misconduct was serious, it is in principle, remediable.

of 33

However, the panel had no information about any attempts by Mr Leeming to remedy

his past failings. The panel had no evidence of any training undertaken by Mr Leeming.

In fact, the panel had little information about Mr Leeming’s current circumstances.

However, the panel noted that in a letter from Mr Leeming’s past legal representatives

at the RCN dated 17 November 2016 (the letter), it stated “since these incidents, Mr

Leeming has not worked clinically. He has found a job outside of nursing and does not,

at present, have any intention of returning to a nursing role.”

In the absence of evidence of remediation, the panel determined that Mr Leeming’s

conduct was highly likely to be repeated, and therefore Mr Leeming is liable in the future

to put patients at unwarranted risk of harm, damage the reputation of the nursing

profession, and breach fundamental tenets of the nursing profession.

The panel then went on to consider whether Mr Leeming has displayed insight or

remorse.

The panel noted the letter from the RCN dated 17 November 2016 which stated, “Mr

Leeming does not, and has at no point, ever disputed the facts of the incidents in

question. He does accept that, looking back, his actions were inappropriate and accepts

responsibility for this. He did not, however, appreciate how inappropriate his actions

were at the time. Had he done so, Mr Leeming would not have acted in the way he

did….Mr Leeming cannot specifically recall the reasons for his actions towards Service

User B, but believed that it would have been part of a joke-like interaction. Mr Leeming

denies ever intentionally abusing the Service Users or acting in a way that was contrary

to their best interests. Neither of the staff members present at the time perceived the

interaction to be abusive.”

The panel noted Mr Leeming’s reflective piece, which stated, “Having questioned so

many times how did I end up in this situation through watching 15 seconds of CCTV

footage I was able to understand. It was awful. I had attempted to appeal throughout

this process to my inner strength and knowing that I am not a bad person and have

never harmed or intentional (sic) shamed anyone previously but that footage confirmed

my deepest saddest thoughts that I was a bad person...I had let [Service User A] down,

of 33

myself, my profession, colleagues, Trust and further afield his parents whom trusted me

and other patients I worked with.”

The panel considered that as such, Mr Leeming has displayed some insight into his

behaviour over time, and has expressed some remorse for his actions on 6 April 2015.

However, the panel noted that there was no reference in Mr Leeming’s reflective piece

to the importance of following a care plan, particularly when providing care to service

users A and B, both of whom had complex needs and were potentially volatile. During

the course of the Trust’s investigation it was clear that Mr Leeming believed that there

was a place for what he considered to be his “unorthodox” form of interaction with a

complete disregard for both service users’ Wellbeing Plans. His belief in this respect

was seriously misplaced given the violent and aggressive behaviours and complex

needs of Service Users A and B. His conduct was such as to risk provoking a violent

and aggressive reaction from both Service User A and Service User B and placed them,

his colleagues, and himself at risk of harm. In the panel’s view, he has not

acknowledged this in his reflective piece and his insight can therefore only be said to be

very limited.

The panel therefore considers that there is a risk of repetition and a significant lack of

remediation. Mr Leeming’s fitness to practise is currently impaired on the grounds of

public protection.

The panel concluded that a finding of impairment was also necessary in order to satisfy

the wider public interest because the public would be very concerned about Mr

Leeming’s actions, as captured on the CCTV footage.

of 33

Determination on sanction: Having determined that Mr Leeming’s fitness to practise is impaired, the panel has

considered what sanction, if any, it should impose. In reaching its decision, the panel

has considered all the evidence provided, together with Mr Brown’s oral submissions

and the documentary material submitted by Mr Leeming.

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

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

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

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

the panel, exercising its own independent judgement.

The panel found the following aggravating features in relation to Mr Leeming:

- Mr Leeming’s actions were abusive and insensitive and undermined the dignity and

respect of Service User A and Service User B;

- Mr Leeming abused his position of trust;

- Mr Leeming used his position to embarrass and humiliate vulnerable service users

with complex mental health and clinical needs;

- Mr Leeming disregarded the comprehensive care plans that had been prepared in

respect of each service user and applied his own “unorthodox” approach;

- Mr Leeming put himself, others and the service users at risk of harm;

- Mr Leeming compromised his position as an advocate for the service users.

The panel identified the following mitigating features in relation to Mr Leeming:

-Mr Leeming has shown some evidence of remorse and insight as evidenced in his

reflective piece attached to the letter from the RCN dated 17 November 2016;

- Mr Leeming did engage with the Trust’s internal process;

- Mr Brown, on behalf of the NMC, told the panel there had been no other referrals;

-Mr Leeming has previously engaged with the NMC in relation to this case.

of 33

The panel first considered whether to take no action. The panel concluded that due to

the seriousness of the misconduct, the breaches of the Code and the risk of repetition, it

would not be appropriate to take no action. To do so, would fail to protect the public and

would not be in the public interest.

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

the panel took into account the ISG, which states:

“60. A caution order is the least restrictive sanction that can be applied in a case

where a panel has concluded that a nurse or midwife’s fitness to practise is impaired. It

does not restrict the nurse or midwife’s ability to practise, but is recorded on the

Register and published on the NMC’s website.”

The panel noted 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 Mr Leeming’s misconduct was not at the lower end of the spectrum and that a

caution order would be inappropriate given the seriousness of the misconduct, the risk

of repetition identified, and the lack of insight Mr Leeming has displayed. As such, the

panel determined that such an order would not satisfy the public protection issues or the

wider public interest in this case.

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

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

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

took into account the ISG, in particular:

“63.1 Will imposing conditions be sufficient to protect patients and the public interest?

64 This sanction may be appropriate when some or all of the following factors are apparent (this list is not exhaustive):

64.1 No evidence of harmful deep-seated personality or attitudinal problems

64.2 Identifiable areas of nurse or midwife’s practice in need of assessment and/or retraining

of 33

64.3 No evidence of general incompetence

64.4 Potential and willingness to respond positively to retraining

…

64.7 The conditions will protect patients during the period they are in force

64.8 It is possible to formulate conditions and to make provision as to how conditions will be monitored”

The panel considered that there is evidence of harmful deep-seated personality or

attitudinal problems on Mr Leeming’s part. Mr Leeming had a complete disregard for the

Wellbeing Plans, as illustrated in his behaviours exhibited in the CCTV footage.

The panel concluded that it would not be possible to formulate conditions and to make

provision as to how conditions will be monitored. Mr Leeming had not engaged recently

with the NMC and the failings identified were attitudinal, rather than matters of clinical

competence. Mr Leeming had decided that he would adopt his own approach to service

users A and B, without any regard to the Wellbeing Plans and the risks identified in

those plans. The panel determined that a conditions of practice order would not be a

suitable sanction to prevent abuse of patients and the behavioural issues demonstrated

by Mr Leeming.

Further, the panel considered that a conditions of practice order would not be

enforceable or realistic considering that Mr Leeming has stated, through a letter

submitted on his behalf by the RCN dated 17 November 2016, that since these

incidents he has not worked clinically, and that he “does not, at present, have any

intention of returning to a nursing role.” The panel determined that in the absence of

evidence of any remediation and the risk of repetition, a conditions of practice order

would not mark the public interest, nor would it satisfy the public protection grounds.

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

appropriate sanction. Paragraphs 66-68 of the ISG indicates that key considerations in

respect of a suspension order are as follows:

“66.1 Does the seriousness of the case require temporary removal from the register?

of 33

66.2 Will a period of suspension be sufficient to protect patients and the public interest? … 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.

68.3 No evidence of repetition of behaviour since the incident.

68.4 The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour.”

The panel noted that Mr Leeming’s misconduct was serious and his behaviour had

brought the reputation of the profession into disrepute and breached fundamental tenets

of the profession. The panel concluded that Mr Leeming had taken a “cavalier”

approach to the care of both service users, and that his attitude and approach was

inconsistent with fundamental tenets of the nursing profession. He had exhibited deep-

seated personality and attitudinal problems through his behaviour in undermining the

respect and dignity of two vulnerable adults and humiliating them in the process.

The panel was satisfied that due to the seriousness of the misconduct, a suspension

period is insufficient to protect the public and satisfy the public interest in maintaining

public confidence in the profession and the NMC as the regulator.

The panel then went on to consider a striking off order. The panel took note of the

following paragraphs of the ISG:

“71.1 Is striking-off the only sanction which will be sufficient to protect the public interest?

71.2 Is the seriousness of the case incompatible with ongoing registration (see paragraph 66 above for the factors to take into account when considering seriousness)?

71.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register? 72 This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional, which may involve any of the following (this list is not exhaustive): 72.2 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

of 33

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

72.3 Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients … 72.7 Persistent lack of insight into seriousness of actions or consequences In the panel’s judgment these paragraphs of the ISG are all engaged.

The panel considered that Mr Leeming’s actions and omissions were very serious

departures from the standards expected of a registered nurse and that such serious

breaches of the Code, rules, standards and fundamental tenets of the profession were

incompatible with him remaining on the register. Mr Leeming has abused his position of

trust, demonstrated a substantial lack of insight into his actions, and his misconduct

involved the abuse of vulnerable service users which humiliated them and diminished

their dignity and respect which was completely unwarranted. Through his actions he

placed the service users, members of staff and himself at risk of harm. The panel

considered that there was a significant risk of repetition.

The panel was of the view that to allow Mr Leeming to continue practising as a nurse

would undermine public confidence in the profession and in the NMC as a regulatory

body. This order will mark the importance of maintaining public confidence in the

profession, and will send to the public and the profession a clear message about the

standard of behaviour required of a registered nurse.

Balancing all of these factors and having taken into account all the evidence put before

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

striking-off order. This is the only sanction that will adequately protect the public and

satisfy the public interest.

The panel has determined to make a striking-off order in this case and directs the

Registrar to strike Mr Leeming’s name off the register.

Mr Leeming will be informed of this decision in writing and will have 28 days from the

date when written notice of the result of this hearing is deemed to have been served

of 33

upon him in which to exercise his right of appeal. Unless he exercises his right of

appeal, the direction imposing the striking off order will take effect 28 days from when

written notice of the decision is served upon him.

of 33

Decision on interim order and reasons: The panel has considered the submission made by Mr Brown, on behalf of the NMC,

that an interim suspension order 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 accepted the advice of the legal assessor.

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

public and was otherwise in the public interest. In reaching the decision to impose an

interim order, the panel had regard to the reasons set out in its decision for the

substantive order. The panel decided to impose an interim suspension order for the

same reasons as it imposed the substantive order. To do otherwise would be

incompatible with its earlier findings. The panel did not consider that an interim

conditions of practice order was appropriate in this case for the same reasons as given

in the determination on sanction.

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

an appeal to be made and determined. If no appeal is made then the interim order will

be replaced by the substantive order 28 days after Mr Leeming is sent the decision of

this hearing in writing.

That concludes this determination.

This decision will be confirmed to Mr Leeming in writing.

Decision on the findings on facts and reasons:

conduct and competence committee substantive hearing 28 ......2017/03/30 · page 1 of 33 conduct...

Documents