Conduct and Competence Committee. Substantive Hearing. 05 May Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ

Transcription

1 Conduct and Competence Committee Substantive Hearing 05 May 2016 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Registrant: NMC PIN: Anthony Hesdon 06C0167E Part of the register: Registered Nurse Sub part 1 Mental Health 17 April 2006 Type of Case: Panel Members: Legal Assessor: Panel Secretary: Conviction James Churchill (Chair/ Lay member) Michael Duque (Registrant member) Thomas Woods (Lay member) John Bassett Richard Webb Representation Nursing and Midwifery Council: Registrant: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim order: Represented by Matthew Kewley, Nursing and Midwifery Council Regulatory Legal Team Did not attend 3 (by admission) 1 and 2 (no case to answer) Impaired Striking-off Order 18 Month Interim Suspension Order Page 1 of 11

2 Decision on notice: The panel considered whether service of the notice of this hearing had been effected in compliance with Rules 11 and 34 of the (Nursing and Midwifery Council) NMC Fitness to Practise Rules 2004 (the Rules). Notice of today s hearing was sent by recorded delivery and first class post to Mr Hesdon s registered address on 29 February 2016 and also to his representatives at the Royal College of Nursing (RCN) on the same date. The panel accepted the advice of the legal assessor. The panel was satisfied that notice of the hearing was duly served in accordance with the Rules and that 28 days notice had been provided. Decision on proceeding in absence: Mr Kewley, on behalf of the NMC, made an application to proceed in the absence of Mr Hesdon. He referred to correspondence from Mr Hesdon s representatives sent to the NMC, from which it is apparent that Mr Hesdon is aware that the hearing is taking place today, and has chosen not to attend. An from a representative at the RCN, sent to the NMC on 05 May 2016, stated as follows: Yes we are aware of today's hearing The Registrant will not be in attendance but please contact me on the number below if the panel has any queries. The panel accepted the advice of the legal assessor. The panel was mindful that there is a clear public interest in dealing with this matter expeditiously, and that no adjournment has been sought by Mr Hesdon. It was made aware that the hearing today will deal with a consensual panel determination (CPD) proposal and that Mr Hesdon had agreed for the panel to consider this in his absence. Page 2 of 11

3 The panel concluded that no useful purpose would be served by an adjournment and that it would be fair, and in the interests of justice and Mr Hesdon, to proceed with the hearing today in his absence. Consensual panel determination: The panel heard from Mr Kewley, on behalf of the NMC, that prior to this hearing a provisional agreement on a consensual panel determination had been reached with regard to this case between the NMC and Mr Hesdon s representatives at the RCN. The agreement, which was put before the panel, sets out Mr Hesdon s admission of charge 3 in this case, which relates to a conviction, and also states that the NMC are offering no evidence on the remaining charges 1 and 2. It is further stated in the agreement that an appropriate sanction in this case would be a striking-off order. The agreement was signed by Mr Hesdon on 28 April The panel has considered the provisional agreement reached by the parties. That provisional agreement reads as follows: The Nursing and Midwifery Council and Anthony Hesdon (PIN 06C0167E) ( the Parties ) agree as follows: Charge 1. Mr Hesdon faces the following charge: That you, whilst employed as a Registered Nurse by Bupa and working at Hillside Nursing Centre in Huyton: 1. On 13 October 2013 in relation to Resident A: a) inappropriately restrained him whilst conveying him to his room and / or b) pushed him on to his bed; 2. On 12 November 2013 inappropriately restrained Resident B by his hands; Page 3 of 11

4 3. On 9 September 2014 at Liverpool and Knowsley Magistrates Court were convicted of assaulting Resident A on 12 November 2013, contrary to S. 39 of the Criminal Justice Act And in light of the above, your fitness to practise is impaired by reason of your misconduct as alleged at charges 1 and 2, and by reason of your conviction at charge 3. Application to Offer No Evidence 2. The NMC will offer no evidence in three circumstances: 2.1. When the particular allegations add nothing to the overall seriousness of the case When there is no longer a realistic prospect of some or all of the factual allegations being proved When there is no longer a realistic prospect of a panel finding that the nurse s or midwife s fitness to practise is currently impaired. 3. The NMC offers no evidence on charges 1 and 2 on the basis that there is no longer a realistic prospect of the factual allegations being found proved and/or the particular allegations add nothing to the overall seriousness of the case particularly in light of the proposed sanction. 4. During the course of the police investigation, the matters alleged at charges 1 and 2 came to light. They were not, however, pursued in the criminal proceedings. The NMC has sought to make contact with the witnesses who support charges 1 and 2. Despite the NMC s attempts to trace the witnesses, they have not been located. As such, the NMC invites the panel to accept that in the absence of evidence from witnesses who can attend a hearing to give sworn evidence, there is no longer a realistic prospect of charges 1 and 2 being found proved. Page 4 of 11

5 5. Additionally, the Parties have agreed that the appropriate sanction in this case is a striking off order. This is because Mr Hesdon has been convicted of assaulting an elderly vulnerable patient. The Parties agree that this conviction is so serious that only permanent removal from the register will be sufficient to protect the public interest. As such, charges 1 and 2 do not add to the overall seriousness of the case in light of the severity of the conviction. Facts 6. Mr Hesdon qualified as a nurse in He was referred to the Nursing and Midwifery Council on 2 February At the material time Mr Hesdon was employed as a nurse by BUPA. Mr Hesdon was based at the Hillside Nursing Centre in Huyton. 7. On 7 May 2014, Mr Hesdon appeared at Liverpool and Knowsley Magistrates Court. Mr Hesdon pleaded not guilty to assault contrary to section 39 of the Criminal Justice Act Mr Hesdon s trial took place on 9 September He was found guilty and sentenced to a community order. Mr Hesdon was placed under a curfew for 16 weeks and was order to pay a victim surcharge of 60 and prosecution costs. 8. The facts behind the conviction are that Resident A was a 79 year old gentleman living at the Hillside Nursing Centre, owned by BUPA. Resident A suffered from dementia. On 12 November 2013 Resident A was in the lounge area. Resident A had eaten his dinner. A Healthcare Assistant called Danielle McGinn cleared Resident A s plate away. She placed it on a trolley for the plate to be taken to the kitchen. Resident A then said to Ms McGinn that s mine, what are you doing with that. Ms McGinn s evidence was that Resident A became red faced which indicated he was becoming upset. Resident A then picked up two dinner plates. Mr Hesdon became aware of the incident. Ms McGinn s evidence was that Mr Hesdon grabbed Resident A by one wrist and a handful of Resident A s shirt. Ms McGinn s evidence was that Mr Hesdon then forced Resident A up against the wall. Resident A pushed back from the wall and both fell to the floor. Page 5 of 11

6 9. During his police interview, Mr Hesdon denied ever having forced Resident A against a wall. Mr Hesdon stated that he had been assaulted and that the Healthcare Assistant Ms McGinn had been the cause of the incident. The Court rejected Mr Hesdon s evidence and he was found guilty of assaulting Resident A. Impairment 10. Mr Hesdon admits that his fitness to practise is impaired by reason of his conviction. The Parties have had regard to Dame Janet Smith s Fifth Shipman Report and it is agreed that: Mr Hesdon placed Resident A at an unwarranted risk of harm; Mr Hesdon has brought the nursing profession into disrepute; Mr Hesdon has breached a fundamental tenet of the nursing profession; 11. Mr Hesdon accepts that he has departed from the following parts of the Preamble to the Code of Conduct : Make the care of people your first concern; Provide a high standard of practice and care at all times; Act with integrity and uphold the reputation of your profession; You must always act lawfully whether those laws relate to your professional practice or personal life. 12. Mr Hesdon also accepts that he has breached the following provision of the Code: (1) You must treat people as individuals and respect their dignity; (3) You must treat people kindly and considerately; Page 6 of 11

7 12.3. (49) You must adhere to the laws of the country in which you are practising; (61) You must uphold the reputation of your profession at all times. 13. The Parties agree that Mr Hesdon s conviction is very serious because it concerns an assault on a vulnerable patient who suffered from dementia. The assault happened in a clinical setting in the presence of other residents. The public are entitled to expect members of the nursing profession to act with integrity at all times. Mr Hesdon failed to act with integrity on this occasion. It is agreed that facts behind the conviction are such that public confidence in the nursing profession would be seriously undermined without a finding of current impairment. Sanction 14. The Parties agree that the appropriate sanction in this case is a striking off order. In reaching this agreement, the Parties have considered the Indicative Sanctions Guidelines and have kept in mind the principle of proportionality. 15. Before reaching the appropriate sanction, the Parties considered the aggravating and mitigating factors. 16. The aggravating factors are: Resident A was a vulnerable patient; The assault happened in a clinical setting; The assault happened in the presence of other residents; Resident A was placed at a risk of harm as a result of Mr Hesdon s actions. 17. The mitigating factors in this case are: Page 7 of 11

8 17.1. Mr Hesdon has no previous regulatory findings on his registration; Mr Hesdon had no previous criminal convictions; Mr Hesdon accepted at an early stage that his fitness to practise is impaired by reason of his conviction. 18. The Parties first considered taking no further action or imposing a caution order. The Parties are in full agreement that neither of the options would adequately mark the seriousness of the conviction and as such, the public interest in this case would not be met. 19. The Parties next considered a conditions of practice order. However, the Parties are in agreement that there are no specific areas of Mr Hesdon s practice that would require retraining. The Parties also agree that the nature of the conviction is so serious that a conditions of practice order would not meet the public interest. 20. The Parties considered whether a period of temporary removal from the register would adequately mark Mr Hesdon s conduct. The Parties kept in mind that this was an assault upon a vulnerable resident. Resident A was entitled to expect that his home would be a safe environment. Resident A was placed at a risk of harm through Mr Hesdon s actions. Mr Hesdon has not shown any insight into his conviction or remorse for his actions. Mr Hesdon has no intention of engaging in the regulatory process or in the nursing profession in the future. Accordingly, the Parties agree that a suspension order would not be sufficient to mark the seriousness of the conviction and the grave extent to which Mr Hesdon departed from the standards to which he is expected to adhere as a member of the nursing profession. 21. The Parties agree that the only appropriate sanction in this case is a striking off order. Mr Hesdon acted in a way which runs contrary to the values of the nursing profession. The facts behind the conviction are deplorable. The Parties agree that a striking off order will ensure that public confidence in the nursing profession is maintained. Page 8 of 11

9 Interim order 22. The Parties agree that for the reasons set out in this agreement, an interim suspension order for a period of 18 months is necessary for the protection of the public and is otherwise in the public interest. The parties understand that this provisional agreement cannot bind a panel, and that the final decision on findings impairment and sanction is a matter for the panel. The parties understand that, in the event that a panel does not agree with this provisional agreement, the admissions to the charges set out at section 1 above, and the agreed statement of facts set out at section 2 above, may be placed before a differently constituted panel that is determining the allegation, provided that it would be relevant and fair to do so. Decision on the proposed CPD: The panel accepted the advice of the legal assessor. No evidence was offered in relation to charge 1 and 2 and the panel therefore did not consider those charges. The panel noted the efforts made by the NMC to adduce direct, as opposed to hearsay, evidence in relation to charges 1 and 2 which have been unsuccessful. The panel accepted there was no case to answer in relation to those charges. The panel found charge 3 proved by way of Mr Hesdon s admission and conviction for assault. Mr Hesdon has admitted charge 3 and that his fitness to practise is currently impaired. In every case, however, fitness to practise is a matter of judgement for the panel. The panel determined that the facts found proved by way of admission constituted breaches of the 2008 NMC Code: Standards of conduct, performance and ethics for nurses and midwives, as set out in the CPD. The panel was satisfied that Mr Hesdon s actions fell far below the standards expected of a registered nurse. Page 9 of 11

10 The panel took into account the statement in the CPD that Mr Hesdon has not shown any remorse for his actions and that he has no intention of engaging in the regulatory process or in the nursing profession in the future. The panel was in agreement with the CPD in that the facts behind the conviction are such that public confidence in the nursing profession would be seriously undermined if a finding of impairment were not made. Accordingly, and for the reasons set out in the proposed CPD, the panel found that Mr Hesdon s fitness to practise is currently impaired by reason of his conviction. The panel accepted the aggravating and mitigating factors set out in the proposed CPD. The panel proceeded to consider sanction and had in mind the Indicative Sanctions Guidance (NMC, May 2012). It was in agreement with the reasons set out in the CPD that anything less than the removal of Mr Hesdon s name from the register would be inappropriate in this case. Prior to considering the proposed sanction of a striking-off order, the panel considered whether a suspension order was appropriate in this case. The panel considered whether a suspension order could protect the public whilst allowing Mr Hesdon the opportunity to reflect on his actions. However the panel was mindful of the evidence of deep seated attitudinal issues in this case and the lack of remorse and insight Mr Hesdon has demonstrated which was referred to at paragraph 20 of the CPD. The panel reminded itself that Mr Hesdon s actions demonstrated a serious departure from the standards to be expected of a registered nurse. The panel agree, as stated at paragraph 21 of the CPD, that the facts behind the conviction are deplorable. In all the circumstances, the panel has concluded that Mr Hesdon s conviction is fundamentally incompatible with his continuing to be a registered nurse. Having determined that a sanction is necessary, and having excluded all the lesser sanctions as insufficient, the panel concluded that the only proportionate and appropriate sanction, sufficient to protect the public and maintain confidence in the profession, is a striking-off order. Page 10 of 11

11 In considering a striking-off order the panel took note of the following paragraph of the Indicative Sanctions Guidance: 74.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register? 75 This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional, which may involve any of the following (this list is not exhaustive): 75.1 Serious departure from the relevant professional standards as set out in key standards, guidance and advice including (but not limited to): The code: Standards of conduct, performance and ethics for nurses and midwives The panel is of the view that to allow Mr Hesdon to remain on the NMC register would undermine public confidence in the profession and in the NMC as a regulatory body. Therefore the panel directs the registrar to strike Mr Hesdon s name off the register. The effect of this order is that Mr Hesdon s name will be removed from the nursing register and he will not be able to apply for restoration until five years after the date that this order comes into effect. The panel also agreed to the proposed imposition of an 18 month interim suspension order to cover any appeal period in that it is necessary for the protection of the public and otherwise in the public interest. That concludes this hearing. Page 11 of 11