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Conduct and Competence Committee

Substantive Hearing

15 - 18 May 2017

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

Name of Registrant Nurse: Sharon Talbot

NMC PIN: 04L0204E

Part(s) of the register: Registered Nurse – Sub Part 1 RNA – Adult – 31 January 2005

Area of Registered Address: England

Type of Case: Misconduct

Panel Members: Eileen Skinner (Chair Lay member)

Terry Shipperley (Registrant member)

Angela Stones (Lay member)

Legal Assessor: Simon Walsh

Panel Secretary: Atanas Angelov

Mrs Talbot: Not present; initially represented in absence by

Rachel Wilson, Counsel.

Nursing and Midwifery Council: Represented by Mr Michael Smalley, counsel,

instructed by NMC Regulatory Legal Team.

Facts proved: 1 (in its entirety) and 4

Facts not proved: 2 and 3

Fitness to practise: Impaired

Sanction: Striking-off order

Interim Order: Suspension order (18 months)

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Details of charge:

That you, a registered nurse:

1. On 25 December 2014:

a. used inappropriate moving and handling techniques to mobilise Client A

on one or more occasions.

b. said to Client A words to the effect of:

i. ‘Come on [Client A], we don’t have time for this’;

ii. ‘No, sit up’;

iii. ‘Put your todger in here’.

c. did not use a towel or other covering to preserve Client A’s dignity when

providing intimate care.

2. On 18 June 2015 said words to the effect of ‘Bud bud ding ding’ in reference to

Client B and her family members.

3. You conduct as set out at 2. above was racially motivated.

4. On an unknown date, said to Client C words to the effect of ‘Have you just had

sex?’.

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

misconduct

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Request for postponement/adjournment of the hearing

At the outset of the hearing Ms Wilson, on Mrs Talbot’s behalf, informed the panel that

although Mrs Talbot’s presence had been expected she was not yet in attendance. Ms

Wilson stated that attempts had been made to contact Mrs Talbot via email, telephone

calls and text message the previous week, but to no avail. She therefore asked for, and

was granted, a short adjournment to attempt to make contact with Mrs Talbot.

Ms Wilson then informed the panel that there had been engagement from Mrs Talbot in

the form of a text message to her instructing solicitors, but she indicated that there was

an absence of sufficient instructions to proceed in Mrs Talbot’s absence. Ms Wilson

submitted that a postponement of the hearing would be appropriate to allow some

additional time for her and the instructing solicitors to liaise with Mrs Talbot and seek

instructions.

Mr Smalley opposed this. He submitted that three witnesses, some of whom required

reasonable adjustments, had attended to give evidence today and that an adjournment

of this hearing would cause inconvenience to these witnesses. Further, Mr Smalley

submitted that the charges relate to events which allegedly occurred in 2014 and 2015

and that therefore there is a strong public interest in the expeditious disposal of this

hearing.

The panel allowed short period of time for Ms Wilson to seek further instructions from

Mrs Talbot after which Ms Wilson informed the panel she had made further contact with

Mrs Talbot. She stated that Mrs Talbot was not available to give evidence today. She

was emotionally distressed by the postponement of the Coroner’s Court Hearing (which

was originally scheduled to start today) regarding the death of a close family member,

although Ms Wilson made it clear that this was background information and not put

forward as a reason why Mrs Talbot was unable to be present. Ms Wilson submitted

that there were a number of contested charges and that it was crucial for her to obtain

proper instructions from Mrs Talbot, which was not possible in her current state of mind.

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Ms Wilson applied for the hearing to be postponed to allow sufficient time in order for

her to liaise with Mrs Talbot and seek further detailed instructions.

In answers to the panel’s questions Ms Wilson accepted that Mrs Talbot was expecting

to be at work this afternoon.

Mr Smalley opposed the application on the same grounds as he submitted earlier.

The panel who took the advice of the legal assessor at various stages carefully

considered the application. It considered that Mrs Talbot had been given every

opportunity to engage in the hearing and to properly instruct counsel to act on her

behalf. The panel was particularly concerned to learn that Mrs Talbot was to be at work

this afternoon, despite knowing about this hearing for some time and despite expecting,

until recently, to attend a Coroner’s Court hearing today. Also, the panel had regard to

the fact that three witnesses, one of whom was in a wheelchair and supported by a

carer, have attended to give evidence today, others were due to attend tomorrow, and

that adjourning would cause great inconvenience to these witnesses. Further, the panel

was mindful that there is a strong public interest in the expeditious disposal of this

hearing.

Accordingly, the panel decided to reject the application to postpone the hearing.

Mrs Wilson stated that in light of the panel’s decision, her instructions were to withdraw

from the case. which she did.

Decision on Service of Notice of Hearing:

The panel was informed that written notice of this hearing had been sent to Mrs Talbot’s

registered address by recorded delivery and by first class post on 15 March 2017. Royal

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

Mrs Talbot’s registered address by recorded delivery on that date.

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The notice letter provided details of the allegation, the time, dates and venue of the

hearing and, amongst other things, information about Mrs Talbot’s right to attend, be

represented and call evidence, as well as the panel’s power to proceed in her absence.

The “Track and Trace” documentation also indicated that the notice was signed for as

received by Mrs Talbot on 16 March 2017. Mr Smalley 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 Mrs Talbot has

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

and 34.

Decision on proceeding in the absence of the Registrant:

Rule 21 (2) (b) 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...”

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 Mrs Talbot. In reaching this

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

advice of the legal assessor. It has had regard first and foremost to Mrs Talbot’s right to

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a fair hearing and to the overall interests of justice and fairness to both. In support of

proceeding the panel took into account the following factors:

Mrs Talbot was aware of today’s hearing and voluntarily chose to absent herself.

Mrs Talbot had also indicated, through her representative, that she did not intend

to be in attendance for the remainder of these proceedings.

There was no reason to suppose that adjourning would secure Mrs Talbot’s

attendance at some future date;

Three witnesses, one of whom was in a wheelchair and supported by a carer,

have attended today to give live evidence, another is due to attend;

Not proceeding may inconvenience the witnesses and their employer(s);

The charges relate to events that occurred in 2014 and 2015 and further delay

may have an adverse effect on the ability of witnesses accurately to recall

events;

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

As Mrs Talbot is not in attendance she will not be able to challenge the evidence relied

upon by the NMC and will not be able to give evidence on her own behalf. However, in

the panel’s judgment, this can be mitigated. The panel can make allowance for the fact

that the NMC’s evidence will not be tested by cross examination and, of its own volition,

can explore any inconsistencies in the evidence which it identifies. Furthermore, any

disadvantage is the consequence of Mrs Talbot’s decision to absent herself from the

hearing.

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

proportionate to proceed in the absence of Mrs Talbot. The panel will draw no adverse

inference from Mrs Talbot’s absence.

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Background

The charges arose whilst Mrs Talbot was employed as a Training Facilitator and Care

Coordinator by Self Direct Support, a company which provided domiciliary care. Whilst

Mrs Talbot was not employed directly in a nursing capacity, her nursing skills were

utilised whilst conducting training and undertaking client assessments.

The allegations against Mrs Talbot involved making inappropriate comments to and

about clients and their families, providing rushed and/or inappropriate care to clients

and using inappropriate moving and handling techniques to mobilise a client on one or

more occasions.

In July 2015, Self Direct Support started an internal investigation into the incidents and

requested that Mrs Talbot attend an investigation meeting. She did not engage with the

request and instead tendered her resignation.

Decision and Reasons on application pursuant to Rule 31

The panel heard an application made by Mr Smalley under Rule 31 of the Rules to allow

Ms 2 to give evidence via WebEx link. Ms 2 was not present at this hearing due to

childcare commitments and it had previously been agreed between the NMC and Mrs

Talbot’s legal representative that it was appropriate for her to give evidence via WebEx.

Mr Smalley submitted that WebEx link would still allow the panel to assess the

demeanour of the witness and therefore assess her credibility.

The panel heard and accepted the legal assessor’s advice on the issues it should take

into consideration in respect of this application.

The NMC had indicated to Mrs Talbot and her legal representatives that it was intended

that the witness provide live evidence to the panel. Despite knowledge of the nature of

the evidence to be given by this witness, Mrs Talbot made the decision not to attend this

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hearing and her representative, at the time, had accepted for Ms 2 to give evidence via

WebEx link. In these circumstances, the panel came to the view that it would be fair and

relevant to allow Ms 2 to give evidence via WebEx link.

Mr Smalley submitted that the NMC had in possession two further sets of documents

supporting Mrs Talbot’s case. He submitted that in fairness to Mrs Talbot, who was not

represented despite having initially instructed counsel to act on her behalf, the panel

ought to consider the relevance and fairness of these documents. The first set consisted

of a written statement from Mrs Talbot prepared by her solicitors at an earlier stage of

this case along with Mrs Talbot’s recent (14 March 2017) application for Voluntary

Removal from the NMC Register. The NMC did not object to the panel reading these

documents. It was unusual for a panel to see a VR application, but as the panel had

earlier heard that one had been submitted it was important for the panel to know that in

it Mrs Talbot denied all the allegations now made against her and accepted impairment

of her fitness to practise only because she had not used her nursing skills for over 6

years and had no intention of ever doing so again.

The second set consisted of two signed statements attesting to Mrs Talbot’s skills and

qualities. One of the documents also described an allegedly unfair disciplinary process

of another worker at Self Direct Support and seemed to suggest that some members of

staff at the organisation were subjected to a ‘witch hunt’. Mr Smalley submitted that it

would not be fair for these documents to be admitted as their authors had not attended

the proceedings and therefore their credibility could not be tested by way of cross

examination.

The panel heard and accepted the legal assessor’s advice on the issues it should take

into consideration in respect of this application. This included that Rule 31 provides that,

so far as it is ‘fair and relevant,’ a panel may accept evidence in a range of forms and

circumstances, whether or not it is admissible in civil proceedings.

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Having looked at the documents, the panel found that they were relevant as they

provided further detail to the professionalism of Mrs Talbot, which had been called into

question by the NMC.

Further, having had regard to the fact that Mrs Talbot was neither present nor

represented, the panel considered that it would be prejudicial to her not to admit the

documentation into evidence. It considered that there was also a public interest in the

issues being explored, which supported the admission of this evidence into the

proceedings.

In these circumstances the panel decided that it would accept into evidence the

additional documentation, but would give what weight it deemed appropriate to those

documents, when evaluating all the evidence it in the case.

Decision and reasons on application to amend charge

The panel heard a suggestion by the legal assessor to amend the wording of charges

1.b. and 4.

1. The proposed amendment was to insert the words ‘which were inappropriate in

the circumstances’ in both charges so that they read:

On 25 December 2014:

a. …

b. said to Client A words, which were inappropriate in the circumstances, to

the effect of:

i. ‘Come on [Client A], we don’t have time for this’;

ii. ‘No, sit up’;

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iii. ‘Put your todger in here’.

c. …

4. On an unknown date, said to Client C words, which were inappropriate in the

circumstances, to the effect of ‘Have you just had sex?’.

The legal assessor advised that the proposed amendment would provide clarity to the

charges.

Mr Smalley submitted that the charges were sufficiently clear in their current form.

However, he did not object to the proposed amendment as it was neither prejudicial to

Mrs Talbot nor to the NMC.

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 amendments were appropriate. It was satisfied that

no prejudice or injustice would be caused to either party by the proposed amendments

being allowed. It was therefore appropriate to allow the amendments to ensure clarity.

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Decision on the findings on facts and reasons

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 would be proved if the panel were satisfied that it was more likely than not that the

incidents occurred as alleged.

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

documentary evidence in this case. The panel heard oral evidence from 4 witnesses

called on behalf of the NMC:

Client C, client receiving care from Self Direct Support;

Ms 1, Community Support Worker at Self Direct Support;

Ms 2, Administrative Supervisor at Self Direct Support; and

Ms 3 Registered Manager and owner of Self Direct Support.

The panel found that all the witnesses gave consistent, credible and reliable accounts of

the events they witnessed. It considered that the witnesses sought to be helpful to the

panel and that their evidence was clear, fair and balanced.

The panel considered each charge and made the following findings:

The panel first considered charge 1.a.

That you, a registered nurse: 1. On 25 December 2014

a. used inappropriate moving and handling techniques to mobilise Client A on one

or more occasions.

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This charge is found proved.

In reaching this decision, the panel took into account the evidence in this case including

Ms 1’s oral evidence and Mrs Talbot’s written response to the charge.

The panel had regard to Client A’s care plan and risk assessment, and noted that they

clearly articulated that the correct procedure for mobilising Client A was to allow him the

opportunity to stand on his own and, if he was unable to do so, then suggested that he

use his stand aid.

The panel also had regard to Ms 1’s evidence who stated that during the evening shift

on 25 December 2014, Mrs Talbot did not give Client A the opportunity to stand up on

his own or use his stand aid, as prescribed in his care plan, and instead on multiple

occasions proceeded to put both her hands under Client A’s armpits to lift and move

him. Ms 1 stated that this was not an appropriate technique as it involved a risk of harm

for both Client A and Mrs Talbot. She was also very clear that at no point did Mrs Talbot

enquire whether Client A needed assistance or allow him an opportunity to stand up on

his own. Ms 1 told the panel that, because it was Christmas night, Mrs Talbot said that

she wanted to get everything done quickly and go home to her family.

The panel also had regard to the fact that in her evidence to the panel Ms 3 stated that

Mrs Talbot had admitted to her that she had lifted Client A in the described manner

because Client A had been tired and frail and she was worried that he would fall if not

supported. The panel heard from Ms 3 that in her role as a trainer Mrs Talbot must have

been aware of what were appropriate and inappropriate lifting and handling techniques.

The panel then considered the written representations on Mrs Talbot’s behalf in which

she said that she encouraged Client A to do some leg exercises and then asked and

waited for Client A to stand on his own. She also said that Client A had used his walking

frame to manoeuvre himself.

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The panel found both Ms 1 and Ms 3 to be fair, credible and reliable witnesses who had

given clear and consistent evidence, and therefore had no reason to doubt their

account. The panel therefore decided to prefer Ms 1 and Ms 3’s evidence over Mrs

Talbot’s written representations and concluded that it was more likely than not that Mrs

Talbot had indeed used inappropriate moving techniques to mobilise Client A.

Accordingly, the panel found charge 1 a. proved.

The panel next considered charge 1.b.

1.b. said to Client A words, which were inappropriate in the cricumstances, to the effect

of:

i. ‘Come on [Client A], we don’t have time for this’;

ii. ‘No, sit up’;

iii. ‘Put your todger in here’.

This charge is found proved in its entirety.

In reaching this decision, the panel took into account Ms 1’s oral evidence as well as

Mrs Talbot’s written response to the charge.

Ms 1 was very definite that whilst attempting to move Client A onto the stair lift and

immediately before lifting him she said words to the effect of ‘Come on [Client A] we

don’t have time for this’ in an abrupt tone. Ms 1 also told the panel that when Client A

was placed on his bed, he began to lose his balance and started to lean towards his

right, to which Mrs Talbot responded by pulling him by the arms back into a straight

seated position and telling him to ‘sit up’, once again in an abrupt tone. Ms 1 further told

the panel that while providing intimate care to Client A, Mrs Talbot gave him a urinal

bottle and told him to ‘put your todger in here’ in the same abrupt tone. Ms 1 described

the care that Mrs Talbot provided to Client A as ‘rushed’ and ‘unprofessional’.

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In her written representations, Mrs Talbot denied the allegations and maintained that

she provided Client A with his urinal with no comments about ‘todger’

The panel preferred Ms 1’s evidence over Mrs Talbot’s written representations.

The panel found that the comments as particularised in charges 1.b.i. and 1.b.ii. to be

inappropriate in all the circumstances. Whilst, there was nothing wrong with Mrs Talbot

telling Client A just to ‘sit up’ or to ‘come on’, the panel considered that it was their

context and Mrs Talbot’s abrupt tone that made the statements inappropriate. In relation

to charge 1.b.iii the panel considered that any use of the word ‘todger,’ in providing

personal care, to be inappropriate in any circumstances.

Accordingly, it found charge 1.b proved in its entirety.

The panel next considered charge 1.c.

1.c. did not use a towel or other covering to preserve Client A’s dignity when providing

intimate care

This charge is found proved.

In reaching this decision, the panel had regard to Client A’s Care plan, Ms 1’s oral

evidence as well as Mrs Talbot’s written response to the charge.

It noted that Client A’s care plan clearly prescribed that during intimate care a towel

must be used to maintain his dignity at all times.

Ms 1 told the panel that the personal care that Mrs Talbot provided to Client A was

‘rushed and unprofessional’. She stated that Mrs Talbot did not cover Client A with a

towel nor did she make any other efforts to ensure that his dignity was preserved.

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In her written representations Mrs Talbot denied the charge and maintained that she

always covered Client A during personal care.

The panel preferred Ms 1’s evidence over Mrs Talbot’s written representations.

Accordingly, it found charge 1.c. proved.

The panel next considered charge 2.

2. On 18 June 2015 said words to the effect of ‘Bud bud ding ding’ in reference to

Client B and her family members.

This charge is found NOT proved.

In reaching this decision, the panel had regard to Ms 2 and Ms 3’s evidence as well as

Mrs Talbot’s written response to the charge.

The panel heard corroborated evidence that Mrs Talbot, who appeared tired and

agitated at the relevant time, had received an email from Client B’s family member,

which she tried to forward to Ms 4, but instead accidentally sent it back as a response to

the family member.

Ms 2 told the panel that when Mrs Talbot realised what she had done she became

agitated and made the following comment in relation to the family members: ‘bud bud

ding ding’. Ms 2 also stated that she considered this to be a derogatory comment to

Client B and her family, who were of Bangladeshi descent.

In her written response to the charge Mrs Talbot firmly denied the charge and was

adamant that she only refers to clients by name and never by anything derogatory. She

said she was exhausted on that shift and it was loud in the office, she was muttering at

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what she had to do help her focus, and Ms 2 might have misheard or misunderstood

her.

Having carefully considered all the evidence the panel was satisfied on the balance of

probabilities that Mrs Talbot had made the comment as alleged in charge 2 but could

find no sufficient evidence to show that it was made in reference to Client B or her

family members.

Accordingly, the panel found charge 2 not proved.

The panel next considered charge 3.

3. You conduct as set out at 2. above was racially motivated.

This charge is found NOT proved.

The panel considered that charge 3 was contingent upon finding of fact in respect of

charge 2. Accordingly, and in light of its findings in charge 2, the panel also found

charge 3 not proved.

The panel next considered charge 4.

4. On an unknown date, said to Client C words, which were inappropriate in the

circumstances, to the effect of ‘Have you just had sex?’

This charge is found proved.

In reaching this decision, the panel took into account Client C’s evidence as well as Mrs

Talbot’s written response to the charge.

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Client C told the panel that after having provided intimate care to her, Mrs Talbot had

asked if she had just had sex. Client C told the panel that her initial reaction was to

laugh it off, but she found the comment inappropriate and felt very embarrassed

afterwards.

Ms 3 told the panel that she had written to Mrs Talbot regarding the incident, but Client

C had not been identified in the letter. However, she stated that Mrs Talbot

subsequently her by telephone and stated that Client C must be lying about the sexually

inappropriate comment. The panel considered that Mrs Talbot would not have known

who Ms 3 had referred to in the letter unless she had made the alleged comment to

Client C.

In her response Mrs Talbot firmly denied the charge and maintained that at no stage did

she ask Client C anything to do with sex or any sexual relationships that Client C was

in.

The panel had found Client C to be a credible and reliable witness who had given clear

and consistent evidence. It had no reason to doubt Client C’s account and therefore it

preferred Client C’s evidence to Mrs Talbot’s version of events as outlined in her written

representations. The words used had no relevance at all to the Care being provided to

Client C and were clearly inappropriate in the circumstances.

Accordingly, the panel found charge 4 proved.

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Submissions 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 Mrs Talbot’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.

In his submissions Mr Smalley invited the panel to take the view that Mrs Talbot’s

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

for nurses and midwives 2008 (the Code). He then directed the panel to specific

paragraphs and identified where, in the NMC’s view, Mrs Talbot’s actions amounted to

misconduct.

Mr Smalley 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.

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

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

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

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

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

Council (2) Grant [2011] EWHC 927 (Admin). Mr Smalley provided the panel with a

copy of the determination of the Conduct and Competence Committee dated 25 March

2014, which found that Mrs Talbot’s fitness to practise was impaired by reason of

various acts deemed to amount to misconduct and imposed a 5 year caution order on

her regulation.

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

the following cases: Nandi v GMC [2004] EWHC 2317 (Admin), Mallon v GMC [2007]

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CSIH 17, Meadow v GMC [2007] QB 462, Cohen v GMC [2008] EWHC 581 (Admin),

CHRE v (1) NMC (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. Second, only if

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

circumstances, Mrs Talbot’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.

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 that Mrs Talbot’s actions did fall short of the standards

expected of a registered nurse, and that her actions amounted to breaches of the Code.

Specifically:

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.

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

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

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 by using inappropriate handling

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techniques on a number of occasions at different locations in Client A’s home, to

mobilise him, Mrs Talbot placed him at a risk of physical harm. Further, the panel found

that by making inappropriate comments in an abrupt tone to Client A and by failing to

use a towel or other covering when providing Client A with intimate care so as to

preserve his dignity, Mrs Talbot caused him undue emotional distress. The panel also

had direct evidence that the inappropriate comment that Mrs Talbot had made to Client

C had made her feel embarrassed and distressed.

In all the circumstances, the panel concluded that Mrs Talbot’s behaviour and actions

fell seriously short of the standards reasonably expected of a registered nurse and were

sufficiently serious to amount to misconduct.

Decision on impairment

The panel next went on to decide if as a result of this misconduct Mrs Talbot’s fitness to

practise is currently impaired.

The panel kept at the forefront of its mind its duty to protect the public, maintain

confidence in the profession and uphold proper standards of conduct and behaviour.

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

to be professional. Patients and their families must be able to trust nurses with their

lives and the lives of their loved ones. Nurses 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:

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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 commended the following as the appropriate test for panels:

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

deficient professional performance, adverse health, conviction,

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

impaired in the sense that s/he:

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

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

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

medical profession into disrepute; and/or

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

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

The panel found all of the above to be engaged.

The panel found that by virtue of her actions as particularised in the charges Mrs Talbot

placed Client A at a risk of physical harm. It also considered that her inappropriate

comments to Client A and Client C caused them emotional distress. The panel

considered that this, coupled with her failure to preserve Client A’s dignity when

providing intimate care, breached the fundamental tenets of the profession and brought

the profession into disrepute.

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The panel noted that on 25 March 2014 Mrs Talbot had been given a caution order for a

period of 5 years for breaching fundamental tenets of the profession and bringing the

profession into disrepute. It was therefore concerned that Mrs Talbot was continuing to

demonstrate attitudinal issues and considered that it would be very difficult for her to

remediate the misconduct. In any event, the panel had no evidence before it of any

insight or remediation. The panel determined that there was a real risk that Mrs Talbot

would, in the future, repeat the behaviour, which led to the previous and current findings

of misconduct.

Accordingly, it found that a finding of current impairment is necessary on public

protection grounds.

The panel also bore in mind the necessity to protect the wider public interest, which

includes maintaining confidence in the nursing profession and its regulator and

upholding proper standards of conduct and behaviour.

Having regard to the principles set out in Grant, the panel had no doubt that confidence

in the profession would be undermined if, having regard to the nature of Mrs Talbot’s

misconduct and the fact that she had received a five year caution order nine months

previously, a finding of impairment were not to be made. The panel was concerned that

Mrs Talbot’s misconduct in this case was similar to that which had resulted in her being

given a caution order.

Having regard to the principles set out in Grant the panel had no doubt that confidence

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

case.

Having regard to all of the above, the panel was satisfied that Mrs Talbot’s fitness to

practise is currently impaired on the grounds of public protection and public interest.

23

Determination on sanction:

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

off order. It directs the registrar to strike Mrs Talbot off the register.

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

adduced in this case. The panel accepted the advice of the legal assessor. 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 considered the aggravating and mitigating factors in this case. It could not

identify any mitigating factors in this case.

The panel found the following to be aggravating factors:

1. This misconduct had occurred whilst Mrs Talbot was subject to a 5 year caution

order for similar behaviour.

2. By virtue of her misconduct Mrs Talbot had placed Client A at significant risk of

physical harm and had caused emotional distress to Client A and Client C.

3. The panel has identified a pattern of misconduct over a period of time.

Save for the fact that there was no actual physical harm to patients, the panel could find

no mitigating factors.

24

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.

The panel considered each of the sanctions in ascending order.

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 Mrs Talbot’s misconduct was not at the lower end of

the spectrum. Further, it was mindful that the misconduct had taken place whilst Mrs

Talbot was subject to a 5 year caution order for similar behaviour. In all the

circumstances, the panel concluded that it would be neither appropriate nor in the public

interest to impose a caution order.

The panel next considered whether placing conditions of practice on Mrs Talbot’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:

64.8 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 its findings in this case. The misconduct identified

involved attitudinal issues and was not something that could be addressed through

retraining. Further, as will be explained in greater detail later, the panel was aware that

Mrs Talbot does not intend to return to nursing practice and therefore could not be

satisfied that she would be able or willing to comply with a conditions of practice order.

25

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

appropriate sanction. Paragraph 68 of the ISG indicates that a suspension order would

be appropriate where (but not limited to):

68 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):

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.

In the panel’s view none of the factors set out above can be said to apply in Mrs

Talbot’s case. On the contrary, Mrs Talbot had demonstrated a propensity to behave

inappropriately towards clients and colleagues, and the panel has identified a pattern of

misconduct over a period of time. Further, Mrs Talbot’s behaviour which led to the

finding of misconduct in this case was similar to that which had resulted in her being

given a caution order some 9 months earlier.

26

The panel was also mindful that in her application to the NMC for voluntary removal

from the register dated 14 March 2017 Mrs Talbot had stated:

“I do not have the inclination to apply for a nursing job let alone go back on a nursing

refresher course. I have not renewed my pin IN 2017 as I do not fit the revalidation

process. I DO NOT EVER WANT TO NURSE AGAIN I AM HAPPY WITH MY

DECISION.”

The panel was therefore satisfied that a period of suspension would serve no useful

purpose.

Finally, in looking at 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?

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 …

72.1 Serious departure from the relevant professional standards

as set out in key standards, guidance and advice …

27

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 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.

The panel considered that whilst Mrs Talbot’s actions represented significant departures

from the standards expected of a registered nurse, they were not of themselves

sufficiently serious to be incompatible with her remaining on the register and thus to

warrant a striking-off order.

However, when considered in the light of her previous misconduct and caution order it

demonstrated attitudinal issues which the panel considered to be fundamentally

incompatible with her remaining on the register. It was of the view that to allow Mrs

Talbot to return to nursing practice would undermine public confidence in the nursing

profession and in the NMC as its regulatory body.

Balancing all of these factors and after 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 Mrs Talbot’s actions in placing Client A at unwarranted risk of physical harm,

causing emotional distress to Client A and Client C and bringing the profession into

disrepute by adversely affecting the public’s view of how a registered nurse should

conduct herself, the panel has concluded that nothing short of a striking-off order would

be sufficient in this case.

28

The panel considered that this order was necessary to protect the public, maintain

public confidence in the profession, and to send to the public and the profession a clear

message about the standards of conduct and behaviour required of a registered nurse.

Determination on Interim Order

The panel has considered the submissions made by Mr Smalley that an interim order

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 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 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 striking-off order 28

days after Mrs Talbot is sent the decision of this hearing in writing.

That concludes this determination.