Conduct and Competence Committee Substantive Hearing 13, 14, 15 and 17 March 2017 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE

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1 Conduct and Competence Committee Substantive Hearing 13, 14, 15 and 17 March 2017 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mr Gacuma: Nursing and Midwifery Council: Raul L Gacuma 04Y0267O RN1, Registered Nurse (sub part 1) Adult (23 June 2004) England Misconduct and Lack of Competence Jennifer Laing (Chair, Registrant member) Sally Underwood (Registrant member) David Braybrook (Lay member) Richard Ferry-Swainson Atanas Angelov Present and not represented Represented by Tania Murshed, counsel, instructed by NMC Regulatory Legal Team. Facts proved: 1.1, 2.1, 2.2, 2.3, 2.4, 3.2, 4.1 and 4.2 Facts not proved: 1.2 and 3.1 Fitness to practise: Sanction: Interim Order: Impaired Caution order (3 years) None 1

2 Details of charge: That you, while employed as a registered nurse at the Clementine Churchill Hospital between July and October 2015, failed to demonstrate the standards of knowledge, skill and judgment required to practise as a registered nurse in that you: 1. During the time when you were being mentored by registered nurse W: 1.1. On an unknown date, prepared an incorrect dose of medication, namely 500mg of paracetamol instead of 1g, for Patient A On 21 August 2015, were particularly slow when administering medications. 2. During your shift on 24 August 2015 when you were mentored by nurse X: 2.1. Forgot to use gloves for infection control purposes Had to be reminded to check the doctors notes as necessary Misread MAR charts in that you missed 3 medications and had to be corrected to ensure correct medications were given Had to be reminded to check on patients. 3. During your shift on 10 September 2015 when you were being mentored by nurse Y: 3.1. Asked Patient B the indication of their medication 3.2. Prepared 40 mg of Clexane for Patient C, instead of the prescribed 20 mg. That you, a registered nurse working at Clementine Churchill Hospital: 4. Demonstrated racist and/or abusive behaviour towards your colleagues in that: 4.1. On 24 August 2015, when provided with advice from mentor X, responded with words to the effect that white people did not ask him to do that, so why should she? 2

3 4.2. On 10 September 2015, when provided with advice from mentor Y, responded with words to the effect that I told Ali you didn t want to be mentored by a Filipino and I want to be mentored by a good nurse. AND in light of the above, your fitness to practise is impaired by reason of your lack of competence in respect of charges 1 to 3, and misconduct in respect of charge 4. Background The charges arose whilst you were employed as a registered nurse in Epping Ward of the Clementine Churchill Hospital ( the Hospital ) and were supernumerary whilst undergoing induction and training. You were employed at the Hospital from 15 July 2015 until 2 October 2015, when you resigned prior to completing your 90 day probation period. It is alleged that during your employment with the Hospital you were guilty of misconduct and also that you failed to demonstrate the standards of knowledge, skill and judgment required to practise safely as a registered nurse. The allegations relating to your conduct are that: You made racist comments and/or demonstrated abusive behaviour towards two of your mentors, who were of Filipino descent There were also allegations, which related to a number of issues concerning your competencies, specifically: You prepared an incorrect doses of medications On one occasion you were particularly slow when administering medications You did not use gloves for infection control purposes 3

4 You did not check the doctors notes as necessary You misread MAR charts when administering medication You had to be reminded to check on patients You asked a patient the indication of their medication. Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel took into account all the oral and documentary evidence in this case. The panel was mindful of the fact that it was the NMC which brought the charges and that it was for the NMC to prove them on the balance of probabilities. In reaching its decisions on the facts the panel reminded itself that you did not have the benefit of being legally represented. The panel accepted the advice of the legal assessor. The panel heard oral evidence from 4 witnesses called on behalf of the NMC: Mr 1, Manager at the Hospital, Ms 1, Senior Staff Nurse at the Hospital, Ms 2, Senior Staff Nurse at the Hospital and Ms 3, Senior Staff Nurse at the Hospital. The panel also heard evidence from you under oath. The panel found that all NMC witnesses gave a consistent, credible and reliable account of the events. It considered that the witnesses evidence was fair and balanced, they candidly conceded when you were not at fault and also recognised some positive aspects of you work. The panel also heard evidence from you under oath. The panel found that you were not an entirely credible witness. It considered that you were at times evasive, unclear and inconsistent and your evidence was not always convincing. The panel was also mindful that your oral account was, on occasions, significantly different from the written responses you made to the charges. 4

5 The panel considered each charge and made the following findings: The panel first considered charge During the time when you were being mentored by registered nurse W: 1.1. On an unknown date, prepared an incorrect dose of medication, namely 500mg of paracetamol instead of 1g, for Patient A. This charge is found proved. In reaching its decision the panel had regard to Ms 1 s evidence as well as your own evidence. Ms 1 was clear in her evidence that during the first two weeks that she was mentoring you she identified a number of issues with your medication preparation. Specifically, Ms 1 told the panel that on one occasion you prepared a dose of 500 mg of paracetamol for a patient, instead of the prescribed dose of 1g. She told the panel that she stopped you and asked you to read the order again at which point you realised the mistake and remedied it. The panel also had regard to your written response to the charges, which you adopted in your oral evidence to the panel, and noted that there you claimed to not recall the incident as particularised in charge 1. However, when cross examined you stated that you did remember the incident and that you were aware that Patient A was prescribed 1 gram of paracetamol, but it was out of stock and you were only able to find one tablet of 500mg of paracetamol. The panel has found Ms 1 to be a fair, credible and reliable witness. It had also considered that she was fair to you and had previously stated that she had noticed 5

6 some improvement in the first two week of your mentorship in terms of medication preparation. Conversely, the panel found your accounts to be inconsistent and lacking in credibility. It therefore preferred Ms 1 s evidence over your evidence. Accordingly, the panel found charge 1.1 proved. The panel next considered charge During the time when you were being mentored by registered nurse W: 1.2. On 21 August 2015, were particularly slow when administering medications. This charge is found NOT proved. Insofar as charge 1.2 is concerned you told the panel that as you were working in a supernumerary capacity you needed a go signal from Ms 1 before performing any one individual task. You stated that this detracted you from your normal working pace and that if there was any delay in the administration of the medications it was solely attributable to Ms 1, as when you work alone you are much faster. The panel was mindful that Mr 1 had indicated that a medication round could take up to two hours. It also considered Ms 1 s evidence that the medication round normally takes between minutes and on that particular shift it took approximately one hour. Ms 1 accepted that the delay was partially her fault as she had to ensure that patients were being administered the correct dosage and medication. Having considered all the evidence the panel could not be satisfied that you were particularly slow in administering medication during your shift on 21 August Accordingly, it found charge 1.2 not proved. The panel next considered charge

7 2. During your shift on 24 August 2015 when you were mentored by nurse X: 2.1. Forgot to use gloves for infection control purposes. This charge is found proved. In reaching its decision the panel had regard to Mr 1 s and Ms 3 s evidence as well as your own evidence. The panel was mindful that this charge stems from an dated 26 August 2015 in which Ms 3 informed Mr 1 that you have to be reminded to observe infection control. Subsequently, in her witness statement and her oral evidence to the panel Ms 3 clarified that these concerns related to you forgetting to use gloves when preparing IV medications. In your oral account to the panel you stated that you always use gloves when preparing IV medications and that on that particular occasion you were cleaning up in the treatment room, which you described as being topsy turvy. It was your view that Ms 3 misinterpreted your actions and must have thought that you were preparing the medication. This suggestion was firmly denied by Ms 3. The panel also had regard to your written response to the charges of 12 February 2017 and noted that you refer to doing medications with Ms 3, but made no reference to cleaning up in the treatment room. In light of the inconsistencies in your account and the very clear evidence of Ms 3, the panel preferred her evidence over yours. Accordingly, it found charge 2.1 proved. The panel next considered charge

8 2.2. Had to be reminded to check the doctors notes as necessary. This charge is found proved. In reaching its decision, the panel took into account Ms 3 s evidence and your own evidence. In her dated 26 August 2015 Ms 3 informed Mr 1 that you needed to be reminded to check the doctor s notes for the day to be sure that [you didn t] miss anything. Ms 3 maintained that this was in fact the case in her oral evidence and added that you accepted at the time that you had not read the notes. She said that once she had raised this with you, you did then read the notes. You strongly objected to the charge and stated that you had read all the doctors notes at the start of the shift. The panel found Ms 3 to be very clear in her evidence and had no reason to doubt her account. The panel therefore decided to prefer Ms 3 s evidence over yours. Accordingly, it found charge 2.2 proved. The panel next considered charge Misread MAR charts in that you missed 3 medications and had to be corrected to ensure correct medications were given. This charge is found proved. In her dated 26 August 2015 Ms 3 informed Mr 1 that you in giving medications, [are] careful in reading the prescription but missed 3 of them initially. In your oral evidence you denied having omitted to prepare any medications and 8

9 instead stated that the relevant medications were not in stock. The panel noted that this was not something you had mentioned in your earlier written response where you stated that you could not recall missing three medications. You further stated that in any event as you were working in a supernumerary capacity you were not entitled to prepare or administer medications. Your assertion that the relevant medication was not in stock was firmly denied by Ms 3, who told the panel that when corrected, you went back to the medication tray and prepared the medications that you had initially omitted. She further stated that as an experienced nurse who has been on the UK register since 2004 you were entitled to prepare and administer oral medications when being mentored, provided you were being supervised by your mentor at the time. Once again the panel preferred Ms 3 s clear and consistent evidence over yours, which was less than clear and also inconsistent. Accordingly, it found charge 2.3 proved. The panel next considered charge Had to be reminded to check on patients. This charge is found proved. Ms 3 told the panel that patients had to be checked on at least every two hours and the observations of these checks had to be recorded on a safe rounds checklist. Ms 3 also stated that she had to remind you to check on the patients on a number of occasions. Mr 1 stressed the importance of the two hour checking arrangement. You told the panel that you had only started work there in full-time capacity three weeks prior to that shift and that you were not made aware of this particular protocol. Further, you stated that as you were working in supernumerary capacity you were not allowed to 9

10 go inside the patients rooms without your mentor. However, the panel had regard to your written response to the charges and noted that there you claimed to have carried out regular checks on your patients. For the same reasons as referred to in the other charges involving Ms 3 the panel preferred her evidence over your evidence. Accordingly, it found charge 2.4 proved. The panel next considered charge During your shift on 10 September 2015 when you were being mentored by nurse Y: 3.1. Asked Patient B the indication of their medication This charge is found NOT proved. Ms 2 told the panel that during your shift on 10 September 2015 you asked a patient what their prescribed medicine was used for and why they needed it. She stated that this was unprofessional as a registered nurse you had a duty to know what the medication is and why that particular patient needed it. You strongly denied this allegation. You told the panel that while reading Patient B s drug chart you noticed that there was no signature next to their prescribed medication for 18:00 hours (anticoagulant), indicating that the day staff had omitted to administer it. You then asked Patient B whether they had taken their 18:00 hours medicine, which Patient B confirmed. You stated that Ms 3 misinterpreted this conversation between yourself and Patient B and got the false impression that you were asking for the indication of the medication. The panel noted that in Ms 2 s dated 11 September 2015, she also made reference to the 18:00 hours medication that had not been signed for. The panel noted that on this occasion your written response was consistent with your oral evidence. In 10

11 addition, the panel did not think it was entirely clear what was being alleged in this charge. In all the circumstances the panel was not satisfied, on the balance of probabilities, that the NMC had proved this charge. Accordingly, it found charge 3.1 not proved. The panel next considered charge During your shift on 10 September 2015 when you were being mentored by nurse Y: 3.2. Prepared 40 mg of Clexane for Patient C, instead of the prescribed 20 mg. This charge is found proved. Ms 2 told the panel that during your shift on 10 September 2015 you prepared an incorrect dose of a medication to a patient, specifically you prepared 40 mg of Clexane when the patient had only been prescribed 20 mg. You told the panel that you were aware that Patient C was prescribed 20 mg of Clexane, but having searched in the medicine trolley as well as in the medicine cupboard you realised that it was out of stock. You stated that you then took a 40mg pre-filled syringe of Clexane, showed it to Ms 2 and explained that this was the only stock of Clexane in the treatment room. However, you denied having prepared the 40 mg Clexane dose. You told the panel that as soon as you showed the 40 mg Clexane to Ms 2 she went to the nurses station and reported the alleged error to Mr 1 via . Ms 2 disagreed with your account and stated that there was no shortage of 20 mg Clexane syringes that day. Having carefully considered all the evidence the panel decided to favour Ms 2 s account over yours. It found her to be a clear and compelling witness and had no reasons to 11

12 doubt her clear assertion that there was no shortage of stock. Accordingly, it found charge 3.2 proved. The panel next considered charge 4.1. That you, a registered nurse working at Clementine Churchill Hospital: 4. Demonstrated racist and/or abusive behaviour towards your colleagues in that: 4.1. On 24 August 2015, when provided with advice from mentor X, responded with words to the effect that white people did not ask him to do that, so why should she? This charge is found proved. In reaching its decision the panel had regard to Ms 2 s evidence as well as to your evidence. Ms 2 told the panel that towards the end of the shift of 24 August 2015, while the two of you were completing documentation together she noticed that you had not put your name below your signature, as per the acting manager s instructions. Ms 2 stated that when she advised you to write your name on the documents you got absolutely furious, stood up and started shouting that you were not required to do so and that other nurses have not been doing so either. Ms 2 stated that you then told her that you were British and that white people didn t tell him to do that, so why should she. You admitted that you became irritated and claimed that Ms 2 had dumped a pile of paper in front of you and asked you to write your name on them, when you knew other nurses had not been required to print their names. However, you were adamant in your evidence to the panel that you never made any statements to Ms 2 to the effect that white people did not ask you to do that so why should she and that she must have misunderstood you. Further, you denied repeating that you were British, but instead insisted that you told Ms 2 that you had adopted the British system of nursing and did not want to perform what you referred to as overseas practices. Insofar as shouting at 12

13 her you accepted that you had raised your voice slightly, but stated that this did not amount to shouting. You further stated that you raised your voice at a later stage, when you were dealing with a patient who was deaf. You told the panel that at that point Ms 2 happened to walk past you, your eyes met, and she misinterpreted your loud voice as shouting at her. The panel did not consider this explanation to be plausible and noted that it did not appear in your written response. By contrast, the panel considered Ms 2 s evidence to be clear, consistent and credible. The panel was mindful that both you and Ms 2 are of Filipino descent. It therefore considered whether you are capable of being racist towards people of your own ethnic group. The panel noted that the Oxford dictionary defines the word racism as: Prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one's own race is superior. However, it considered that a person is capable of displaying racist attitudes towards members of their own ethnic group, including themselves, through internalized racism. This can include the belief in ethnic stereotyping relating to their own group, for example by considering that those of Filipino descent are somehow inferior to those who are white and of British descent. Having taken account of the fact that you are also of Filipino descent, the panel concluded that the comments that you made to Ms 2 that white people didn t tell you to do that, so why should she were racist. Further, it found that by shouting at her you also displayed abusive behaviour towards her. Accordingly, the panel found charge 4.1 proved. The panel next considered charge 4.2. That you, a registered nurse working at Clementine Churchill Hospital: 4. Demonstrated racist and/or abusive behaviour towards your colleagues in that:. 13

14 4.2. On 10 September 2015, when provided with advice from mentor Y, responded with words to the effect that I told Ali you didn t want to be mentored by a Filipino and I want to be mentored by a good nurse. The panel found this charge proved. Ms 2 told the panel that during the shift on 10 September 2015, after she advised you to use sterile gauze instead of cotton balls to wipe Patient C s skin before administering his prescribed dose of Clexane intravenously, you became really angry. She stated that you told her that you had told Mr 1 that you did not want to be mentored by a Filipino and that you wanted to be mentored by a good nurse. You conceded you told Ms 2 that did not want to be mentored by another Filipino again and that you that you wanted to be mentored by a good nurse. You stated that the reason for that is that you have adopted the British system of nursing and Filipino nurses were mentoring you using the overseas system, which you found frustrating and confusing. The panel was satisfied that you stated to Ms 2 words to the effect that you did not want to be mentored by a Filipino nurse and want to be mentored by a good nurse, the very clear inference being that Filipino nurses were not good nurses, or at the very least not as good as non-filipino nurses. Having established that a person is capable of displaying racist attitudes towards members of their own ethnic group, the panel was satisfied that your comments as particularised in charge 4.2 were racist because you were making a judgment on your own race about their capability and directing it at Ms 2. Ms 2 said that when you were shouting at her you made her feel unsafe. The panel was in no doubt that such behaviour was also abusive. Accordingly, it found charge 4.2 proved. 14

15 Submissions on misconduct, lack of competence 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/or lack of competence and, if so, whether your fitness to practise is currently impaired. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. You stated that you accept the panel s findings of facts. [PRIVATE]. You also stated that since the incidents you have worked as a Healthcare Assistant at Tower Bridge Home HC One ( the Home) from August 2016 to February You stated that whilst working at the Home you provided holistic care to residents which included bathing, feeding, emotional support and assisting them with walking. You also told the panel that there you had worked with nurses of Filipino descent without any issues. You told the panel that when preparing medications in the future you will carefully read the MAR chart and ensure you give the correct dosage of the correct medication to the correct patients and inform the nurse in charge if any of the medications are not in stock. You stated that you will observe infection control processes and will always use gloves in the preparation of medication when required by policy. You also assured the panel that in the future the first thing you will do when arriving for a shift will be to check the doctors notes. You told the panel that if you start work at a hospital you will familiarise yourself with its policies with respect to patient observations and will make sure you fully comply with them. Further, you assured the panel that if you were to work with people of Filipino descent in the future, and if at any time you become frustrated, you will be better in controlling your emotions, strive to be a good team player and only communicate with them in a respectful and professional manner. 15

16 Ms Murshed submitted that this was a complicated case with a particular background that the panel should take into account. She said you were an experienced nurse with an unblemished career spanning thirty years, the last thirteen of which had been in the UK. Ms Murshed said that this included working without incident as an agency nurse for nine years, some of which were at this very same hospital and often on the same ward as the current incidents occurred in. She added that the competence errors were very basic and may have been the result of your being nervous when being watched. She highlighted the fact that you started in this role as someone who had been doing a similar job unsupervised for many years without incident and you expressed surprise at then having to be monitored to such a level as part of this hospital s mentoring program for newly appointed staff. Ms Murshed stated that, in fairness to you, the panel should also consider the cultural context in which the incidents particularised in the charges took place. She stated that the circumstances in this case are rather unusual as although you were found to have demonstrated racist behaviour towards your colleagues who were of Filipino descent, you and your family are also of Filipino descent and you regularly socialise with others from the Filipino community. In her submissions Ms Murshed submitted that your actions as particularised in charges 1, 2 and 3 were basic failures and amounted to breaches of The Code Professional standards of practice and behaviour for nurses and midwives ( the Code ). She submitted that it was a matter for the panel to decide whether or not the facts found proved show that your competence between July and October 2015 fell below the standard expected of a supernumerary nurse. Ms Murshed further invited the panel to take the view that your actions as particularised in charges 4.1 and 4.2 amount to a breach of the Code. She then directed the panel to specific paragraphs and identified where, in the NMC s view, your actions could amount to misconduct. 16

17 Ms Murshed 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. The panel has accepted the advice of the legal assessor which included reference to a number of relevant judgments including Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). The panel adopted a three-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved in charges one to three amount to a lack of competence. Secondly, the panel must decide whether the facts found proved in charge 4 amount to misconduct. Thirdly, only if the facts found proved amount to misconduct and/or lack of competence, the panel must decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of that misconduct and/or lack of competence. Decision on lack of competence The panel heard and accepted the advice of the legal assessor. When determining whether the facts found proved amount to a lack of competence the panel had regard to the terms of the Code. The panel, in reaching its decision, has had regard to the public interest and accepts that there is no burden or standard of proof at this stage and exercised its own professional judgement. The panel was informed that the definition of lack of competence, as taken from the NMC Reporting lack of competence: A guide for employers and managers, is: 17

18 A lack of knowledge, skill or judgment of such a nature that the registrant is unfit to practise safely and effectively in any field in which the registrant claims to be qualified or seeks to practise. The panel has taken into account the following paragraphs of the Code: 8. Work cooperatively To achieve this, you must: 8.5 Work with colleagues to preserve the safety of those receiving care In considering whether the facts found proved amount to a lack of competence, the panel concluded that you breached the aforementioned paragraphs of the Code, which is the standard by which every registered nurse is measured. The panel bore in mind, when reaching its decision, that you should be judged by the standards reasonably to be expected of a supernumerary nurse newly appointed to your role at the Hospital and undergoing the required monitoring period. The panel considered that, whilst your failures were basic errors they took place in an isolated period during a mentorship programme. It considered that the three shifts on which the lapses, as particularised in charges 1.1, 2 and 3.2 occurred, they were not a fair sample of your work when balanced against your otherwise long and unblemished career, which included a period of nine years of work at the Hospital without any concerns relating to your competence having been raised. The panel took into account the fact that you were apprehensive at being mentored having not been mentored before in your previous employment settings. The panel also took into account that you did not fully appreciate the need or purpose of being mentored as a newly appointed nurse at that hospital. In addition the panel took into account what both you and the NMC s witnesses said about the cultural issues involved with an older, more experienced man being mentored by younger, less experienced 18

19 women from the same ethnic background. Taking all these matters into consideration the panel concluded that these errors were lapses in what was an otherwise long and blemish-free career, a significant amount of which had been at this very same hospital. The panel inferred from the fact that the hospital continued to employ your services on an ongoing basis through your agency, for such a long time and then went on to appoint you to a full-time post, that they were content with your abilities, skills and knowledge as a nurse. In all the circumstances, the panel determined that your performance during those three shifts did not demonstrate a lack of competence. 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 your actions did fall significantly short of the standards expected of a registered nurse, and that your actions amounted to breaches of the Code. Specifically: 20. Uphold the reputation of your profession at all times To achieve this, you must: Treat people in a way that does not take advantage of their vulnerability or cause them upset or distress 19

20 20.7. Make sure you do not express your personal beliefs (including political, religious or moral beliefs) to people in an inappropriate way The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. However, the panel was mindful that by virtue of your actions as particularised in charges 4.1 and 4.2 you made your colleagues feel intimidated and unsafe. The panel was of the view that, regardless of the cultural context, demonstrating racist and abusive behaviour towards your colleagues in your workplace is unacceptable and would be considered deplorable by other members of the profession. Accordingly, the panel decided that your failures as particularised in charges 4.1 and 4.2, both when viewed individually and collectively, were sufficiently serious to amount to misconduct. 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. 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: 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 20

21 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.. b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. d.. The panel found that your misconduct engaged b) of the above test. It considered that by virtue of your racist and abusive behaviour you caused distress to your colleagues and brought the profession into disrepute. During your oral evidence to the panel you said that you would not behave in this way again and that you would be a good team-player, even if the same situation arose again. You also said you would control your emotions and keep calm. You added that in your role as an HCA last year you had worked alongside Filipino nurses without incident. The panel was provided with a reference from the nurse in charge where you worked as an HCA. She said, He worked well along with other staff and within the team. He is hard working and always aims to provide excellent nursing care, always polite to the patients and staff at all times. He is [a] reliable and friendly team player. He rendered a high standard of care at all times. Mr Raul has a good moral character. 21

22 Although you told the panel that you would learn to control your emotions better and that this behaviour would not happen again, the panel considered that you had not yet demonstrated sufficient insight into your behaviour and the impact that it had on your colleagues and those patients who were within earshot at the time. The panel recognised the uniqueness of this situation and the fact that there have been no such incidents before or since. However, the panel considered that you have yet to properly reflect on your behaviour, although with proper reflection you could develop sufficient insight. Consequently, the panel determined that there remains a risk that you might behave in this way again and that therefore your fitness to practise is currently impaired. 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 considered that confidence in the profession would be undermined if, having regard to the nature of your misconduct, a finding of impairment were not to be made. Having regard to all of the above, the panel is satisfied that your fitness to practise is currently impaired. 22

23 Determination on sanction: The panel considered this case very carefully and decided to make a Caution Order for a period of three years. The effect of this order is that your name on the NMC register will show that you are subject to a caution order and anyone who enquires about your registration will be informed of this order. 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 found the following to be an aggravating factor: 1. By virtue of your racist and abusive behaviour you caused distress to your colleagues and made them feel intimidated and unsafe. The panel found the following to be mitigating factors: 1. At the time of the incidents there were personal stress and difficulties in your home life. 2. The misconduct found proved stems from an isolated period in your otherwise long and unblemished career. 3. You have no disciplinary findings recorded against you by the NMC. 23

24 4. There was no patient harm and you are not considered to be a risk to the public or patients. 5. You have demonstrated some developing insight into your behaviour. 6. You have provided a very positive and up to date reference from your last employer. 7. You have fully engaged with your regulator in these proceedings. 8. By way of personal mitigation you have suffered serious financial hardship and personal difficulties as a result of the interim suspension order. The panel considered each of the sanctions in ascending order. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the Indicative Sanctions Guidance, 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 was of the view that, whilst displaying racist and abusive behaviour is usually not at the lower end of the spectrum of impaired fitness to practise, given that you and your family are also of Filipino descent and that you regularly socialise with others from the Filipino community, your behaviour was at the lower end of the spectrum of seriousness of racism. The panel earlier referred to this as internalised racism, which demonstrated that you consider British people to be superior to yourself, as well as other Filipinos. The panel considered this self-deprecation meant that the racism was less serious than it otherwise might be. 24

25 The panel noted that you have shown developing insight into your conduct and have given assurances that in the future you will strive to be a good team player, treat your colleagues in a respectful and professional manner and control your emotions. You have engaged with the NMC since referral. The panel has been told that there have been no concerns regarding your attitude either before or since these incidents. The panel considered whether it would be proportionate to impose the next more restrictive sanction i.e. a conditions of practice order or a suspension order. It had regard to the case of Kamberova v Nursing and Midwifery Council [2016] EWHC 2955 (Admin), which indicated that a panel should take into account the effect of interim orders or restrictions on a registrant s practice when assessing the proportionality of a sanction. This panel was mindful that you had already been the subject of fitness to practice proceedings for the past 16 months and have been subject to an interim suspension order since 18 December The panel was of the view that there are no practical or workable conditions that could be formulated, given the nature of the charges. Your clinical practice and competence were not found to be a concern by this panel and your misconduct is not something that can be addressed through retraining. The panel concluded that no useful purpose would be served by a conditions of practice order. Such an order is not necessary to protect the public and it would not assist your return to nursing practice. The panel further considered that a suspension order would be disproportionate because of the nature of the misconduct of this case and the fact that you have already been suspended for 15 months. The panel has decided that a caution order would satisfy the public interest in this case. For the next 3 years your employer or any prospective employer will be on notice that your fitness to practise had been found to be impaired and that your practice is subject 25

26 to a restriction. Having considered the general principles above and looking at the totality of the findings on the evidence, the panel has determined that to impose a caution order for a period of 3 years would be the appropriate and proportionate response. It would mark not only the importance of maintaining public confidence in the profession, but also send the public and the profession a clear message about the standards required of a Registered Nurse. It will also make it clear to you that this sort of behaviour is totally unacceptable and must not be repeated. This decision will be confirmed to you in writing. That concludes this determination. 26

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