nursing and midwifery council fitness to practise ... not conduct and/or record neurological...

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Nursing and Midwifery Council

Fitness to Practise Committee

Substantive Hearing

4 – 12 December 2017 & 12 – 14 March 2018

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

Name of registrant: Mr Gbadebo Olasunkanmi Alabi NMC PIN: 03B0719O Part(s) of the register: RN1, Registered Nurse (sub part 1) Adult (13 February 2003) Area of Registered Address: England Type of Case: Misconduct Panel Members: William Nelson (Chair, Lay member)

Martin Bryceland (Registrant member) Rama Krishnan (Lay member)

Legal Assessor: Nigel Mitchell Panel Secretary: Nour Shaheen (4 – 12 December) Rob James (12 – 13 March) Registrant: Present and represented by Mr Darren Snow

(4-11 December 2017), Dr Mary-Teresa Deignan (12 December 2017) and Claire Robinson (12 – 13 March), of Counsel, instructed by the Royal College of Nursing

Nursing and Midwifery Council: Represented by Mr James Edenborough, Case

Presenter Facts proved: 1.1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.3, 2 (in respect

of 1.2.2, 1.2.3 and 1.2.4) and 3 Facts proved by admission: 4.1, 4.2, 5.1, 5.2, 7.1 and 7.2 Facts not proved: 2 (in respect of 1.2.1) and 6

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Fitness to practise: Impaired Sanction: Striking off order Interim Order: Interim suspension order (18 months)

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Details of charges:

“That you, a Registered nurse:

1. On 26 October 2012;

1.1. Did not have a chaperone present while carrying out an electrocardiograph

("ECG") on Patient A. [proved]

1.2. Said to Patient A;

1.2.1. “You have nice skin” or words to that effect. [proved]

1.2.2. “It was perfect, everything on your body is perfect” or words to that effect.

[proved]

1.2.3. “Your breasts are not too big and not too small” or words to that effect.

[proved]

1.2.4. “What is your bra size” or words to that effect. [proved]

1.3. When removing the electrodes from Patient A’s chest, patted and/or squeezed

her breast. [proved]

2. Your conduct in any or all of charges 1.2.1, 1.2.2, 1.2.3 and 1.2.4, above, was

inappropriate. [proved in respect of 1.2.2, 1.2.3 and 1.2.4]

3. Your conduct in charge 1.3, above, was sexually motivated and/or inappropriate.

[proved]

4. During the night shift on 13/14 August 2015;

4.1. Did not administer warfarin to Patient B after this was prescribed by a doctor.

[proved by admission]

4.2. Did not seek advice from a doctor as to whether Patient B's warfarin should be

administered. [proved by admission]

5. During the night shift on 23/24 October 2015;

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5.1. Did not conduct and/or record neurological observations for Patient C every two

hours. [proved by admission]

5.2. Recorded that you had checked Patient D's Peripherally Inserted Central

Catheter ("PICC") line when you had not. [proved by admission]

6. Your conduct at Charge 5.2 was dishonest in that you sought to give the impression

that you had provided care to Patient D when you knew that you had not. [not

proved]

7. During the night shift on 8/9 November 2015;

7.1. Did not seek assistance from the Emergency Outreach Team for Patient E who

was suffering from sepsis and whose condition was deteriorating. [proved by

admission]

7.2. Did not increase the frequency of Patient E’s observations to one hourly.

[proved by admission]

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

misconduct.”

Background

The charges arose whilst you were employed as a Band 5 Staff Nurse by Bedford

Hospital NHS Trust ("the Trust"). You registered as a Nurse in the UK in 2003 and

commenced your employment with the Trust on 2 February 2004.

At the time of the alleged incidents you were substantively based on Howard Ward, a

stroke unit, but you regularly undertook bank shifts on other wards.

During a night shift on 25/26 October 2012, where you were working on Folwell Ward

which was part of the Accident and Emergency (A&E) department at the Trust, it is

alleged that you performed an electrocardiograph ("ECG") on a female patient, without

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a chaperone present. It was agreed evidence that Patient A had been given 20mg

Buscopan at 23:45 hours on 25 October 2012 and 50mg Tramadol at 02:45 hours on 26

October 2012. It is alleged that during the ECG procedure you made a number of

inappropriate comments to Patient A. Namely, “you have nice skin”, or words to that

effect, “it’s perfect, everything on your body is perfect”, or words to that effect, “your

breasts are not too big and not too small”, or words to that effect, and “what is your bra

size”, or words to that effect. It is further alleged that when removing the electrodes from

Patient A’s chest you inappropriately patted and/or squeezed Patient A’s breast, and

that this was sexually motivated.

It is further alleged that during the night shift on 13/14 August 2015 you did not

administer Warfarin to Patient B after it had been prescribed by a doctor, nor did you

seek advice from a doctor as to whether Patient B’s Warfarin should be administered.

It is alleged that during the night shift on 23/24 October 2015 you did not conduct and/or

record neurological observations for Patient C every two hours. When challenged you

produced your handover sheet showing four hourly observations. It is further alleged

that on the same night shift you recorded that you had checked Patient D’s PICC line

when you had not, as Patient D’s PICC line had been removed the previous day, and by

recording that you had checked the PICC you dishonestly sought to give the impression

that you had provided care to Patient D when you knew you had not.

It is also alleged that on the night shift on 8/9 November 2015, you did not seek

assistance from the Emergency Outreach Team for Patient E who was suffering from

sepsis and whose condition was deteriorating, nor did you increase the frequency to

Patient E’s observations to one hourly as required in the National Early Warning Score

(“NEWS”) policy.

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Decision and reasons on application under Rule 19

Mr Edenborough, on behalf of the NMC, made a request that the evidence of Patient A

be held in private on the basis of the nature of her evidence. The application was made

pursuant to Rule 19 of the Rules.

Mr Snow, on your behalf, submitted that he was neutral on the matter and made no

positive submissions in respect of the application.

The legal assessor reminded the panel that while Rule 19 (1) provides, as a starting

point, that hearings shall be conducted in public, Rule 19 (3) states that the panel may

hold hearings partly or wholly in private if it is satisfied that this is justified by the

interests of any party or by the public interest.

In the light of the nature of Patient A’s evidence, the panel determined to hear the

entirety of Patient A’s evidence in private as it considered that was the only way to

guarantee her anonymity. The panel also decided to hear your evidence in respect of

Patient A in private for the same reason.

Decision and reasons on application under Rule 23

Mr Edenborough made an application to allow Patient A to give evidence with the use of

screens. Mr Edenborough submitted that Patient A is classified as a vulnerable witness

under Rule 23(1)(e) of the Rules and that, therefore, measures may be taken to

facilitate her giving evidence. He further submitted that the NMC had indicated to you

prior to this hearing that it was intended that Patient A would give evidence from behind

screens, and that this was not opposed by you or by Mr Snow.

Mr Snow confirmed that he was in agreement with the use of screens in order to

facilitate the giving of evidence by Patient A.

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The panel accepted the advice of the legal assessor which included a direction not to

draw any adverse inference or hold the use of screens against you.

The panel considered that Patient A was a vulnerable witness under Rule 23(1)(e) of

the Rules and was therefore eligible for special measures under Rule 23(3) of the

Rules, which includes the use of screens. The panel therefore acceded to Mr

Edenborough’s application to allow Patient A to give evidence with the use of screens

as it considered that this would ensure she would give her best evidence.

Decision on the findings on facts and reasons

In reaching its decisions on the facts, the panel considered all the evidence in this case

together with the submissions made by Mr Edenborough, on behalf of the NMC and

those made by Mr Snow on your behalf.

The panel accepted the advice of the legal assessor. He referred the panel to the cases

of Arunkalaivanan v General Medical Council [2014] EWHC 873 (Admin) and Ivey v

Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67, the latter of which outlines

the test in relation to dishonesty: whether, according to the ordinary standards of

reasonable and honest people, what was done by the registrant was dishonest.

The panel bore in mind the test laid down by Lord Hughes in the case of Ivey:

"When dishonesty is in question the fact-finding tribunal must first ascertain

(subjectively) the actual state of the individual's knowledge or belief as to the

facts. The reasonableness or otherwise of his belief is a matter of evidence (often

in practice determinative) going to whether he held the belief, but it is not an

additional requirement that his belief must be reasonable; the question is whether

it is genuinely held. When once his actual state of mind as to knowledge or belief

as to facts is established, the question whether his conduct was honest or

dishonest is to be determined by the fact-finder by applying the (objective)

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standards of ordinary decent people. There is no requirement that the defendant

must appreciate that what he has done is, by those standards, dishonest."

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 is more likely than not that the

incidents occurred as alleged.

The panel heard oral evidence from three witnesses on behalf of the NMC:

Patient A

Mrs 1, Associate Director, at the Trust;

Mr 2, Matron, at the Trust;

The written statements of:

Ms 3, at the time of the allegations Clinical Business Unit Manager, at the Trust;

Mr 4, Band 6 Team Leader, at the Trust;

Ms 5, Ward Manager, at the Trust; and

Ms 6, at the time of the allegations Practice Development Nurse, at the Trust, were

incorporated into the record.

The panel also heard evidence from Professor 1, Consultant Pharmacologist, on your

behalf. It also heard evidence from you under oath.

The panel first considered the overall credibility and reliability of all of the witnesses it

had heard from, including you.

The panel found Patient A to be a confident, clear and credible witness. She bore no

malice towards you and was fair and balanced. Her evidence was compelling and she

did not embellish her account of the incident. Her evidence was largely consistent

throughout and although she accepted that at one stage she had lost track of time, she

gave a reasonable explanation for this. Her overall recollection was clear and it was

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apparent to the panel that when giving her evidence she was remembering the events

in question and not just what she had previously said about them. Patient A agreed that

you had quite a strong accent, but she had no difficulty understanding what you were

saying.

The panel found Mrs 1 to be a credible and reliable witness. She sought to assist the

panel as far as she could, although her evidence was limited to her role in the

investigation.

The panel found Mr 2 to be a credible and reliable witness. He sought to assist the

panel as far as he could. He was not a direct eye witness and his evidence was limited

to his role in dealing with the initial complaint made by Patient A.

The panel found Professor 1 to be a credible witness. The panel accepted his evidence

that, in his professional opinion, the side effects of Tramadol and Buscopan, the main

one being sedation, could possibly, in some circumstances, cause confabulation and

create a different version of events as a result of being in a dreamlike state and so

interpreting dreams as reality, “during a state of marginal consciousness”. However, the

panel did not think this was likely in Patient A’s case. The evidence, including the

records made by you, showed that although periodically asleep, Patient A had been

fully awake and alert at the time of the events in question. [PRIVATE]. The panel noted

that Professor 1 stated that the side effects of both Tramadol and Buscopan were more

likely the larger the dose. Patient A’s dosage in relation to both drugs was described as

“standard”.

The panel found your evidence to be less credible in respect of the allegations involving

Patient A. It appeared to the panel that beyond a strenuous denial of the matters

alleged against you, you did not have a clear recollection of the events in question. The

panel accepted that you may have been disadvantaged by the seven week delay in

making clear what was alleged and seeking your explanation, but your evidence did not

show a clear memory of events, rather, just a focus on denying that you did any of the

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things alleged. Your account of the events during your evidence at this hearing was in

parts inconsistent with your earlier interviews and evidence at the disciplinary hearing.

This, at times, led to your evidence being confusing and unreliable. The panel noted

that you showed no malice or ill-will towards Patient A and that it was not your case that

Patient A was lying. The panel also took into account your good character and your

evidence that, at the time, you were a happily married family man and were active in the

church.

At the start of this hearing you admitted the following charges:

“4. During the night shift on 13/14 August 2015;

4.1. Did not administer warfarin to Patient B after this was prescribed by a doctor.

4.2. Did not seek advice from a doctor as to whether Patient B's warfarin should

be administered.

5. During the night shift on 23/24 October 2015;

5.1. Did not conduct and/or record neurological observations for Patient C every

two hours.

5.2. Recorded that you had checked Patient D's Peripherally Inserted Central

Catheter ("PICC") line when you had not.

7. During the night shift on 8/9 November 2015;

7.1. Did not seek assistance from the Emergency Outreach Team for Patient E

who was suffering from sepsis and whose condition was deteriorating.

7.2. Did not increase the frequency of Patient E’s observations to one hourly.”

These were therefore announced as proved by admission.

The panel then went on to consider the remaining charges and sub charges separately

and made the following findings:

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Charge 1:

1. On 26 October 2012;

1.1. Did not have a chaperone present while carrying out an electrocardiograph

("ECG") on Patient A.

1.2. Said to Patient A;

1.2.1. “You have nice skin” or words to that effect.

1.2.2. “It was perfect, everything on your body is perfect” or words to that effect.

1.2.3. “Your breasts are not too big and not too small” or words to that effect.

1.2.4. “What is your bra size” or words to that effect.

1.3. When removing the electrodes from Patient A’s chest, patted and/or squeezed

her breast.

[PRIVATE]

[PRIVATE]

Charge 1.1

This charge is found proved.

[PRIVATE]

[PRIVATE]

[PRIVATE]

[PRIVATE]

The panel accepted the evidence of Patient A on this matter. [PRIVATE].

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[PRIVATE]

[PRIVATE]. The NMC’s case was that you should have had a chaperone present or

shown why one was not necessary. The panel was satisfied, on the balance of

probabilities that, [PRIVATE], you should have had a chaperone present.

It therefore found this charge proved.

Charge 1.2.1


[PRIVATE]

[PRIVATE]

Whilst Professor 1 said that the possible side effects of Tramadol and Buscopan could

in some circumstances cause confabulation the panel did not accept that this occurred

here. [PRIVATE]. The panel accepted the evidence of Patient A on this matter.

[PRIVATE]. The panel was satisfied, on the balance of probabilities, that you while you

were conducting the ECG on Patient A you said to her “you have nice skin” or words to

that effect.


Charge 1.2.2


[PRIVATE]

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[PRIVATE]

The panel took into account the evidence of Professor 1 as to the possible effects of

Tramadol and Buscopan but accepted the evidence of Patient A on this matter for the

same reasons as noted above. [PRIVATE]. The panel was satisfied, on the balance of

probabilities, that in reply to Patient A asking if her ECG was okay you said “It was

perfect, everything on your body is perfect” or words to that effect.


Charge 1.2.3


[PRIVATE]

[PRIVATE]


Tramadol and Buscopan but the panel accepted the evidence of Patient A on this

matter for the same reasons as above. [PRIVATE]. The panel was satisfied, on the

balance of probabilities, that after taking off the leads and electrodes from Patient A’s

body you said to her “your breasts are not too big and not too small” or words to that

effect.


Charge 1.2.4


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[PRIVATE]

[PRIVATE]




probabilities, that after taking off the leads and electrodes from Patient A’s body you

said to her “what is your bra size” or words to that effect.


Charge 1.3


[PRIVATE]

[PRIVATE]




probabilities, that when removing the electrodes from Patient A’s chest, you patted and

squeezed her breast.


Charge 2:

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2. Your conduct in any or all of charges 1.2.1, 1.2.2, 1.2.3 and 1.2.4, above, was

inappropriate.

This charge is found proved in respect of charges 1.2.2, 1.2.3 and 1.2.4 only.

The panel noted that you conceded that all of the comments alleged would be

inappropriate if found proved.

The panel considered the level of appropriateness of the comments made whilst

bearing in mind the overall context they were made in.

In respect of charge 1.2.1, [PRIVATE] the panel concluded that your comment to

Patient A that she has nice skin was not inappropriate.

[PRIVATE]. The panel was therefore of the view that your conduct in charges 1.2.2,

1.2.3 and 1.2.4 was inappropriate.

It therefore found this charge proved in respect of charges 1.2.2, 1.2.3 and 1.2.4.

Charge 3:

3. Your conduct in charge 1.3, above, was sexually motivated and/or inappropriate.


[PRIVATE].There was no clinical justification for you to pat and squeeze Patient A’s

right breast as you did not have to attach anything to it. [PRIVATE] the panel accepted

her evidence in this respect. Further, the panel acknowledged that an inappropriate

patting and squeezing would not necessarily suggest sexual motivation but the panel

took into account the overall context and situation. In the absence of any reasonable

alternative explanation for your behaviour, in the context of your inappropriate remarks

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about Patient A’s body and breasts, the panel determined that it is more likely than not

that it was sexually motivated. [PRIVATE]. On this basis, the panel was satisfied that

your conduct in charge 1.3 was both sexually motivated and inappropriate.


Charge 6:

6. Your conduct at Charge 5.2 was dishonest in that you sought to give the impression

that you had provided care to Patient D when you knew that you had not.

This charge is found not proved.

You said that it was your usual practice to complete patient records at the patient’s

bedside but that the night shift on 23/24 October 2015 was particularly busy. You said

that on this night you asked a health care assistant to gather all the patient records at

the end of the night and you proceeded to record your observations. You said that you

were not aware that Patient D’s PICC line had been removed the day before and as far

as you were concerned Patient D required care. You said that you did record that you

had checked Patient D’s PICC line when you had not but that you did not do it

dishonestly and that it was just an innocent mistake on your part. You said that you

could not offer an explanation as to why you recorded that you had checked Patient D’s

PICC line when you had not but you may have confused Patient D with another Patient

as you were caring for another patient with a PICC line that night.

The panel noted that it was not contested that the night shift on 23/24 October 2015

was a particularly busy shift. The panel was satisfied that there was no evidence that

you turned your mind to deliberately try to mislead anyone, even though the record you

signed was, in fact, misleading. The panel considered that your actions were lazy and

reckless practice rather than dishonest.

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It therefore found this charge not proved.

Adjournment:

Following the panel’s determination on facts, Dr Deignan reminded the panel that today

is the final day that this case has been set down for hearing. She noted that misconduct

and impairment have yet to be determined and there would then, if necessary, be the

requirement to deal with the issue of sanction. She said that she would require more

time to go over the panel’s findings with you. She noted that it was already after midday

and submitted there was no likelihood whatsoever that the question of misconduct and

impairment could be concluded today. Accordingly, she invited the panel to hear your

evidence on misconduct and impairment at the resuming hearing. Dr Deignan submitted

that, as it was inevitable that this case would not conclude today, given the unusual

circumstances, you would benefit from the time now to reflect on the panel’s findings

and would be in better position to address the panel at the resuming hearing.

Mr Edenborough did not oppose Dr Deignan’s proposal on the basis of fairness to you.

The panel accepted the advice of the legal assessor. In his advice he made reference to

Rule 32(2) (4) of the Rules which states:

32.(1) The Chair of the Practice Committee may, of her own motion, or upon

the application of a party, postpone any hearing of which notice has been given

under these Rules before the hearing begins.

(2) A Practice Committee considering an allegation may, of its own motion or

upon the application of a party, adjourn the proceedings at any stage, provided

that

(a) no injustice is caused to the parties; and

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(b) the decision is made after hearing representations from the parties

(where present) and taking advice from the legal assessor.

(3) …

(4) In considering whether or not to grant a request for postponement or

adjournment, the Chair or Practice Committee shall, amongst other matters, have

regard to

(a) the public interest in the expeditious disposal of the case;

(b) the potential inconvenience caused to a party or any witnesses to be

called by that party; and

(c) fairness to the registrant.

The panel considered the submissions of the parties. The panel took account of the fact

that Mr Snow had been unable to represent you today, and that you have new Counsel.

The panel was of the view that time should be afforded to Dr Deignan in order for her to

present your case thoroughly and fairly, given the panel’s findings. The panel therefore

decided that it would be both unfair and inappropriate for you to give evidence on

misconduct and impairment as this case would not have concluded today in any event.

It therefore decided to adjourn the hearing early.

The parties have provisionally agreed the resuming dates for your hearing as 12–14

March 2018.

Determination on Interim Order

The panel has considered the submissions made by Mr Edenborough that your current

interim conditions of practice order should be replaced with an interim suspension order

on the grounds that it is necessary for the protection of the public and is otherwise in the

public interest. Mr Edenborough submitted that the current conditions on your practice

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do not address the panel’s findings in respect of Patient A which involve inappropriate

and sexually motivated conduct. Mr Edenborugh submitted, in the first instance that an

interim suspension order should be imposed. In the second instance he invited the

panel to amend the current interim conditions of practice to include conditions which

restrict direct patient contact.

Dr Deignan invited the panel to continue the existing interim conditions of practice. She

submitted that the current interim conditions of practice order was imposed by a panel

who were fully aware of all the allegations against you and that the conditions have

served sufficiently to protect the residents at the home you have been employed at

since November 2016 and the reputation of the nursing profession and the NMC as a

regulator. Dr Deignan drew the panel’s attention to your domestic and financial

circumstances. She further submitted that you have been practicing as a nurse since

1987 and have been on the NMC register since 2003 without any other regulatory

concerns. In respect of varying the current conditions, Dr Deignan submitted that any

condition of direct supervision would have an impact on the home where you are

employed as you would effectively be working supernumerary.

The panel accepted the advice of the legal assessor.

The panel first considered whether an interim order was necessary in this case. The

panel was satisfied that an interim 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 which include findings of inappropriate and sexually motivated conduct

towards a patient and issues in regards to your clinical practice. The panel could not be

satisfied, based on the lack of insight and recognition at this stage as to the findings in

respect of Patient A, that there is no risk of repetition.

The panel then considered whether an interim conditions of practice order would be

sufficient to meet the needs of this case. It carefully considered the current conditions of

practice order to determine whether it could be altered in such a way as to address the

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risks now identified. It concluded however, that it could not devise any conditions which

would adequately address the risk of repetition and satisfy the wider public interest.

Accordingly, the panel decided to amend the current interim conditions of practice order

to an interim suspension order. This will run for the remainder of the period left on the

original order. The panel took full account of the potential hardship this interim order

may cause, but is confident that it is nevertheless proportionate.

That concludes this determination.

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The hearing resumed on 12 March 2018

Submission 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 your fitness to

practise is currently impaired. There is no statutory definition of fitness to practise.

However, the NMC has defined fitness to practise as a registrant’s suitability to remain

on the register unrestricted.

You gave evidence under oath at this stage. You informed the panel of your background

as a Registered Nurse and how you moved to the United Kingdom in 2003 and have

practised here since. You stated that nothing similar to the actions found proved by the

panel had occurred either before or since and that this was the first time that you had

been before the NMC.

[PRIVATE]

You told the panel that you were made subject to an interim conditions of practice order

in 2016 and found employment as a Registered Nurse practising under supervision.

You told the panel that you found difficulty in delegating tasks to Health Care Assistants

due to the conditions of practice that you were working under. Following the decision of

this panel at the fact finding stage and the imposition of an interim suspension order in

December 2017, you told the panel that you took some time to reflect. You then found a

job as a Health Care Assistant with the same employer.

You said that you now understand personal boundaries better and gave an example of

how you had handled the situation using a chaperone and you had taken care to

preserve the patient’s dignity. You accepted that the kind of comments made to Patient

A in charge 1 would have made her feel uncomfortable and distressed and would have

led to a lack of trust for the nurses that cared for her.

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In relation to the matters in charges 4, 5 and 7, to avoid similar situations in the future

you said that you would not go to work when you were suffering a build-up of stress as

a result of personal problems. You said that, if you were at work you would inform your

colleagues for assistance.

You explained that you have taken time to read articles to improve your practice and

that the reading log that you provided to the panel has enabled you to keep up to date.

You also referred the panel to the certificates you provided, some of which were the

outcome of mandatory training and some of which resulted from extra learning.

In his submissions Mr Edenborough invited the panel to take the view that your actions

amount to a breach of the Code: Standards of conduct, performance and ethics for

nurses and midwives 2008 (“the 2008 Code”) (charges 1-3) and the Code: Professional

standards of practice and behaviour for nurses and midwives (2015) (“the 2015 Code”)

(4, 5 and 7).

Mr Edenborough submitted that the panel may find it useful to look at charges 1-3 and

4, 5, and 7 separately when making its decision on misconduct. Mr Edenborough

submitted that your actions in charges 1 – 3 were very serious and fell so far below any

kind of acceptable behaviour that they clearly amounted to misconduct. He submitted

that the matters subject to charges 4, 5 and 7 demonstrated failings in nursing practice

which had put patients at risk of harm and where you did not follow your responsibility of

care for your patients. He reminded the panel that although it had found your incorrect

record of having checked the PICC line not to be dishonest, it had found your actions to

be lazy and reckless. He submitted that all the matters found proved were serious and

amounted to misconduct.

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

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profession and in the NMC as a regulatory body. Mr Edenborough submitted that the

matters found proved go against the fundamental tenets of nursing practice and that

you have not demonstrated an understanding of the wider psychological impact that

your actions would have had on Patient A.

Ms Robinson, on your behalf, submitted that the decision of whether your actions

amount to misconduct is a matter for the panel. With regard to current impairment, she

submitted that you have demonstrated insight in your reflective essay. Further, Ms

Robinson submitted that you have completed further reading and research on

professional boundaries and that it is clear that your insight has improved.

Ms Robinson referred to the fact that you made admissions in relation to most of the

allegations from 2015 and, in this regard, have demonstrated insight and an acceptance

of what went wrong. Ms Robinson referred the panel to the courses that you have

undertaken since your referral to the NMC and also the references that you have

provided. Ms Robinson referred to the fact you had not been referred to the NMC prior

to these incidents. With regard to risk of repetition she submitted that “actions speak

louder than words” in this regard and that since you have been working under

conditions there has been no repetition.

With regard to the public interest in the case, Ms Robinson submitted that the incidents

referred to in charges 1-3 relate to events in 2012, there have been no allegations

since, and the panel should take this into account when making its decision. Further,

she referred the panel to the fact that, with regard to charges, 4, 5 and 7, there has

been no repetition.

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

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

Council (No 2) [2000] 1 A.C. 311 and Yeong v GMC [2009] EWHC 1923 (Admin).

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

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

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

circumstances, your fitness to practise is currently impaired as a result of that

misconduct.

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Decision on misconduct

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

regard to the terms of the 2008 Code (in relation to charges 1-3) and the 2015 Code (in

relation to charges 4,5 and 7). In its findings in the facts the panel made it clear that the

comments charged at 1.2.1 were not inappropriate. Therefore they do not amount to

misconduct and have not been further considered.

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

independent judgement.

The panel determined that as charges 1-3 were of a wholly different nature to charges

4, 5 and 7, it would be appropriate to assess the two groups of charges separately.

It first looked at any possible breaches of the 2008 Code in relation to charges 1-3. The

panel was of the view that your actions did fall far short of the standards expected of a

registered nurse, and that your actions amounted to breaches of the Code. Specifically

from the preamble:

• make the care of people your first concern, treating them as individuals and respecting

their dignity

• provide a high standard of practice and care at all times

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

And from the numbered standards:

1. You must treat people as individuals and respect their dignity.

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

20. You must establish and actively maintain clear sexual boundaries at all times with

people in your care, their families and carers.

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

In looking at charges 4, 5 and 7, the panel had regard to the 2015 Code. It determined

that the following breaches were demonstrated in your failings:

1 Treat people as individuals and uphold their dignity

To achieve this, you must:

1.2 make sure you deliver the fundamentals of care effectively

1.4 make sure that any treatment, assistance or care for which you are responsible is

delivered without undue delay…

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

responded to


3.1 pay special attention to promoting wellbeing, preventing ill health and meeting the

changing health and care needs of people during all life stages

8 Work cooperatively


8.1 respect the skills, expertise and contributions of your colleagues, referring matters to

them when appropriate

8.3 keep colleagues informed when you are sharing the care of individuals with other

healthcare professionals and staff

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10 Keep clear and accurate records relevant to your practice

This includes but is not limited to patient records. It includes all records that are relevant

to your scope of practice.


10.1 complete all records at the time or as soon as possible after an event, recording if

the notes are written some time after the event

10.3 complete all records accurately and without any falsification, taking immediate and

appropriate action if you become aware that someone has not kept to these

requirements

13 Recognise and work within the limits of your competence


13.1 accurately assess signs of normal or worsening physical and mental health in the

person receiving care

13.2 make a timely and appropriate referral to another practitioner when it is in the best

interests of the individual needing any action, care or treatment

20 Uphold the reputation of your profession at all times


20.1 keep to and uphold the standards and values set out in the Code

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, with regard to charges 1-3,

your actions in relation to Patient A were completely the opposite of the way that a

Registered Nurse should behave. Your failure to have a chaperone, or to offer one,

when you knew you should have done so, and your subsequent inappropriate remarks

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about Patient A’s body were deplorable. You followed this by touching her breast and

this was sexually motivated. The panel determined this behaviour to be completely

unacceptable.

With regard to charges 4, 5 and 7 the panel was of the view that your actions put the

patients in your care at great risk and breached Trust protocol especially in relation to

Patient E whose condition was deteriorating.

The panel found that your actions did fall seriously short of the conduct and standards

expected of a nurse and amounted to misconduct.

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Decision on impairment

The panel next went on to decide if as a result of this misconduct your fitness to practise

is currently impaired.

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

to be professional and to maintain professional boundaries. Patients and their families

must be able to trust nurses with their lives and the lives of their loved ones. To justify

that trust, nurses must be honest and open and act with integrity. They must make sure

that their conduct at all times justifies both their patients’ and the public’s trust in the

profession. In this regard the panel considered the judgement of Mrs Justice Cox in the

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

Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74

she said:

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

reason of misconduct, the relevant panel should generally consider not

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

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

proper professional standards and public confidence in the profession

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

particular circumstances.

Mrs Justice Cox went on to say in Paragraph 76:

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

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

comprehensive approach to determining this issue formulated by

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

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

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

view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

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

deficient professional performance, adverse health, conviction,

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

impaired in the sense that s/he:

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

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

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

medical profession into disrepute; and/or

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

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

d. …

The panel finds that your actions in charges 1-3 not only brought the profession into

disrepute but also caused harm to Patient A. Patient A told the panel that your actions

caused her shock and fear. The panel further determined that charges 4, 5 and 7 put

patients in your care at a risk of harm and therefore also brought the profession into

disrepute. Your actions in all these matters cumulatively and singularly breached

fundamental tenets of the nursing profession.

[PRIVATE]. The panel acknowledged that you have done considerable reading and

some further training to improve your practice. In relation to the 2012 matters, you have

increased your knowledge and understanding of personal boundaries and you have

developed some insight into your behaviour. Whilst you provided some reflections of the

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impact of such behaviour on patients you did not specifically appreciate the potential

impact of your actions on Patient A. Moreover, the panel noted and accepted your

evidence that even in 2012, your understanding of personal boundary issues was more

than sufficient for you to know that your conduct was thoroughly improper. The panel

acknowledged that the matters subject of charges 1-3 are an isolated incident and there

have been no other allegations of this nature against you. However, due to the nature

of this gross departure from acceptable standards of behaviour, the panel could not be

assured that there is no risk of repetition.

The panel considered whether your coping strategies would be sufficient to prevent a

recurrence of the matters in charges 4, 5 and 7 should similar stresses occur in your life

again. The panel determined that your plans to deal with outside pressures are not

realistic in that simply excluding yourself from working during times of stress is not

sustainable for you or any future employer. The panel also felt you did not have any

alternative strategies to manage stress.

The panel took account of the report completed by your current manager dated 30

November 2017. It noted the concern with regard to “Safe Management and

administration of medicines” especially the comments that:

“Ola has shown he is aware of the processes however there is still room for

improvement and maintaining continuity.”

Also in relation to “Record-Keeping”:

“Ola initially showed good skills in record keeping and needs to maintain this.”

In regards to “Responsive”:

“Ola needs to maintain continuity of good and prompt patient care as this has not

always been the case.”

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In regards to “Caring”:

“Ola requires to demonstrate and or maintain good team building and delegation

skills in this area. Requires to communicate effectively as [he] had initially done.

The panel was of the view that it was concerning that, even when working under indirect

supervision you had failed to keep your practice to a high standard. It considered that

that there are issues with regard to consistency in your practice. The Panel determined

that this suggested that there remains a risk of repetition.

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

public protection.

The panel bore in mind that the overarching objectives of the NMC are to protect,

promote and maintain the health safety and well-being of the public and patients, and to

uphold/protect the wider public interest, which includes promoting and maintaining

public confidence in the nursing and midwifery professions and upholding the proper

professional standards for members of those professions. The panel determined that, in

this case, a finding of impairment on public interest grounds was required. Your actions,

in charges 1-3 were thoroughly deplorable and wholly unacceptable behaviour for a

Registered Nurse. The panel considered that, while it is difficult to assess the risk of

repetition of these actions, a failure to find current impairment would clearly undermine

confidence in the nursing profession and would fail to declare and uphold proper

standards of behaviour. Further, the panel also considered that a finding of impairment

on the grounds of public interest is also necessary in relation to charges 4, 5 and 7 as

public confidence in the nursing profession and the NMC as its regulator would be

undermined if such a finding were not made.

Having regard to all of the above, the panel was satisfied that your fitness to practise is

currently impaired.

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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 you off the register. The effect of this order is

that the NMC register will show that you have been struck-off the register.

Mr Edenborough referred the panel to pertinent parts of its findings on misconduct and

impairment. He told the panel that the NMC had advised you in advance of the

resuming hearing that its “sanction bid” was that of a 12 month suspension to a striking

off order.

Mr Edenborough reminded the panel that it had already determined that it cannot be

assured that there is no risk of repetition and pointed out the shock and fear suffered by

Patient A.

Ms Robinson submitted that the panel must consider all of the sanctions available to it

and reminded it that its decision must not be punitive and must balance the public

interest with that of the registrant. She submitted that charges 4, 5 and 7 are remediable

and that the stressors that were identified in relation to these charges can be worked

on, be it with supervision or training.

With regard to charges 1-3 Ms Robinson submitted that, while sexual misconduct has

been found, this does not automatically mean that the panel must make a striking off

order. Ms Robinson submitted that this was a single incident, there was no pattern of

misconduct, and that there is no evidence of deep seated personality or attitudinal

problems. She asked the panel to consider that your sexual misconduct was at the

lower end of such cases. Further, she submitted that the incident occurred over five

years ago, there has been no complaint of a similar nature either before or since and

that throughout that period you have remained working in the healthcare sector. She

submitted that the panel should also have regard to the fact that your manager is aware

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of these proceedings and has been willing to allow you to provide care as a nurse and

subsequently as a Health Care Assistant.

[PRIVATE] and that you have had no previous referrals to the NMC. She submitted that

a striking off order would be disproportionate and would act against the public interest

by precluding your return to practice.

In reaching its 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 Sanctions Guidance (“SG”) 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 following to be aggravating factors with regard to charges 1-3:

Your misconduct demonstrated a breach of trust and abuse of power;

Patient A suffered emotional harm from your misconduct;

You were an experienced nurse at the time of the incident and well knew that

your conduct was in breach of proper standards;

The touching of Patient A’s breast, as charged at 1.3, was deliberate, without her

consent, was sexually motivated and was without any clinical justification;

Your insight into the impact of your misconduct on Patient A and on the

reputation of the profession is far from complete;

The panel could not be assured that there is no risk of repetition.

The panel considered the following to be aggravating factors with regard to charges 4, 5

and 7:

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Your actions amounted to a series of significant failures over several months in

basic patient care which put patients at risk of harm;

The failure in relation to the matter at 5.2 was found to be the result of lazy and

reckless behaviour;

The most recent reference from your manager in relation to your practice

expresses reservations about your ability to practise safely and consistently even

whilst you were being indirectly supervised;

There is a real risk of repetition in relation to the failings identified.

The panel considered the following to be mitigating factors:

You have developed some insight into your actions, albeit limited;

You have undertaken some relevant reading and training;

No other regulatory concerns have arisen during a long nursing career;

The matters the subject of charges 1-3 were an isolated incident and there have

been no allegations of a similar nature either before or in more than 5 years

since;

The matters in charges 4, 5 and 7 occurred during a time of significant personal

stress;

The panel has seen several up to date and positive testimonials from nursing

colleagues;

You made admissions to charges 4, 5 and 7.

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 not

protect the public and would meet in the public interest to take no further action.

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

the panel took into account the SG, 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

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not happen again.’ The panel considered that your misconduct was not at the lower end

of the spectrum and that a caution order would be inappropriate in view of the

seriousness of the case. The panel decided that it would not protect the public and

would not meet the public interest to take no further action.

The panel next considered whether placing conditions of practice on your 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 SG and in particular that a conditions of practice order would be appropriate where

some or all of the following are apparent:

no evidence of harmful deep-seated personality or attitudinal problems

identifiable areas of the nurse or midwife’s practice in need of assessment and/or

retraining

no evidence of general incompetence

potential and willingness to respond positively to retraining

patients will not be put in danger either directly or indirectly as a result of

conditional registration

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

it is possible to formulate conditions and to make provision as to how conditions

will be monitored

However, the panel is of the view that there are no practical or workable conditions that

could be formulated, given the nature of the charges 1 – 3 in this case. It was of the

view that although the failings found in charges 4, 5 and 7 were potentially remediable,

the case as a whole is so serious that a conditions of practice order would neither

adequately protect the public nor address the public interest in the case.

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

appropriate sanction. The SG indicates that the key considerations in relation to a

suspension order are whether the seriousness of the case requires temporary removal

from the register and whether a period of suspension will be sufficient to protect patients

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and the public interest. It notes that a suspension order may be appropriate where the

misconduct is not fundamentally incompatible with continuing to be a Registered Nurse

in that the public interest can be satisfied by a less severe outcome than permanent

removal from the register.

Your misconduct in respect of charges 1-3, as highlighted by the aggravating features

identified above, was a gross departure from the standards expected of a Registered

Nurse. The panel considered that, in that regard, your breaches of the fundamental

tenets of the profession were so serious that your misconduct is fundamentally

incompatible with you remaining on the register.

Accordingly, it is the panel’s view that a suspension order is not an appropriate or

proportionate sanction because it will not be sufficient to protect patients or to address

the wider public interest by maintaining confidence in the nursing profession or

upholding proper standards.

In its consideration of a striking-off order, the panel took note of the provisions in the SG

which identified the key considerations as:

Can public confidence in the profession and the NMC be maintained if the nurse

is not removed from the register?

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

interest?

Is the seriousness of the case incompatible with ongoing registration?

The SG goes on to say that a striking off order is likely to be appropriate when the

behaviour is incompatible with being a registered professional, which may involve the

following factors:

A serious departure from the relevant professional standards as set out in key

standards, guidance and advice.

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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 comes into contact

with in a professional capacity. Harm is relevant to this question whether it was

caused deliberately, recklessly, negligently or through incompetence, particularly

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

emotional and financial harm. The seriousness of the harm should always be

considered.

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

in relation to vulnerable patients.

Any serious misconduct of a sexual nature.

It is the panel’s view that each of the above factors is relevant to your misconduct and

that each of the key considerations means that the only sanction which is sufficient and

appropriate in your case is that of a striking off order. The panel recognises the punitive

effect this sanction will have on you but considers that this is necessary to meet the

public interest and that a striking off order is therefore proportionate.

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Determination on Interim Order

The panel has considered the submissions made by Mr Edenborough 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 took account of the submissions made

by Ms Robinson that given the panel’s findings there were no real observations to be

made.

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 you are sent the decision of this hearing in writing.

That concludes this determination.

nursing and midwifery council fitness to practise ... not conduct and/or record neurological...

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