Part(s) of the register: Registered Nurse sub part 1 Adult Nursing 3 November 2005

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 26 November 4 December 2017 Nursing and Midwifery Council (NMC), Temple Court 13a Cathedral Road, Cardiff, CF11 9HA Name of Registrant Nurse: Lolita Moniba NMC PIN: 05K0103O Part(s) of the register: Registered Nurse sub part 1 Adult Nursing 3 November 2005 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Representation NMC: Registrant: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: Wales Misconduct John Penhale (Chair, Lay member) Claire Louise Gill (Registrant member) James Hurden (Lay member) Charles Parsley Susan Curnow Represented by Bryony Dongray, counsel, instructed by NMC Regulatory Legal Team Mrs Moniba was not present and not represented 1; 2.1, 2.2, 2.3, 2.4, 2.5, 2.6; 3.1, 3.2; 4 (in relation to 3.1 and 3.2) None Impaired Suspension order 6 months Interim suspension order 18 months 1

2 Details of charges: That you, whilst employed as the Nurse in Charge of the Ty Llew Unit ("the Unit") at Hafan-Y-Coed Care Home, Llanelli, between May 2013 and February 2015: 1. On various dates, displayed inappropriate behaviour towards your colleagues. [Proved] 2. On 16 February 2015, in relation to Resident A: 2.1 Did not conduct a body check on Resident A; [Proved] 2.2 Did not use a hoist to lift Resident A; [Proved] 2.3 Instructed a junior member of staff to inappropriately lift Resident A; [Proved] 2.4 Did not identify Resident A had a fractured femur; [Proved] 2.5 Did not seek medical attention for Resident A; [Proved] 2.6 Did not to give a full handover of Resident A's fall. [Proved] 3. On or after 17 February 2015, retrospectively completed an incident report form in that you: 3.1 Incorrectly dated the incident report form 16 February 2015; [Proved] 3.2 Recorded false information in the form, in that you recorded you had "Checked & examined body parts, skin flap cleaned & dressing applied" when you had not. [Proved] 4. And your actions in charge 3.1 [Proved] and/or charge 3.2 [Proved] were dishonest. And in light of the above, your fitness to practise is impaired by reason of your misconduct 2

3 Decision on service of notice of hearing: Mrs Moniba was not in attendance, nor represented in her absence. The panel was informed that written notice of this hearing had been sent to Mrs Moniba s registered address by recorded delivery and by first class post on 17 August The panel took into account that the notice letter provided details of the allegation, the time, dates and venue of the hearing and, amongst other things, information about Mrs Moniba s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. In addition, the Royal Mail Track and Trace documentation indicated that the notice was received at the registered address on 18 August The printed name was given as Moniba. Ms Dongray submitted the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ): The panel accepted the advice of the legal assessor. In the light of the information available, the panel was satisfied that notice had been served, as advised by the legal assessor, in compliance and accordance with Rules 11 and 34 of the Rules;: 11 (2) The notice of hearing shall be sent to the registrant... (b) in every case, no later than 28 days before the date fixed for the hearing. 3

4 34 (1) Any notice of hearing required to be served upon the registrant shall be delivered by sending it by a postal service or other delivery service in which delivery or receipt is recorded to (a) his/her address in the register Proceeding in the absence: The panel then considered continuing in the absence of Mrs Moniba. The panel heard the submissions made by Ms Dongray on behalf of the Nursing and Midwifery Council (NMC). Ms Dongray informed the panel that Mrs Moniba had informed the NMC via a telephone note dated 13 November 2017 that she would not be in attendance. [PRIVATE] She referred the panel to the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5, and GMC v Adeogba [2016] EWCA Civ 162 and submitted that hearing should proceed as there was no good reason for not doing so. Mrs Moniba was aware of the hearing, and this had been confirmed by telephone. She had not sought an adjournment and there is no indication that she wishes to be represented. The NMC had offered her alternative means of participating such as WebEx, which she had declined. Mrs Moniba indicated that she is content that the hearing proceed in her absence. Ms Dongray reminded the panel of the NMC s duty to protect the public, and of the substantial costs which had been incurred by scheduling this hearing. Furthermore, six witnesses had been warned to attend over the coming days. She submitted that Mrs Moniba had voluntarily absented herself and invited the panel to proceed in her absence. The panel accepted the advice of the legal assessor. 4

5 In deciding whether to proceed in the absence of Mrs Moniba, the panel weighed its responsibilities for public protection and the expeditious disposal of the case with Mrs Moniba s right to a fair hearing. The panel was mindful that this was a discretion that must be exercised with the utmost care and caution as referred to in the case Jones. In reaching this decision, the panel has considered the submissions of the case presenter, and accepted the advice of the legal assessor, which included reference to the recent case of Adeogba. It has had regard to the overall interests of justice and fairness to all parties. The panel was satisfied that Mrs Moniba was aware of today s hearing. The panel had sight of a telephone note dated 13 November 2017, in which Mrs Moniba informed the NMC that she is unable to attend due to her health, and also stated that she feels unable to participate by WebEx. She confirmed that she is happy for the hearing to proceed in her absence and is aware of the sanctions that the panel can impose upon her practice. Mrs Moniba also stated that she has nothing further to place before the panel at this stage. The panel also noted that: No application for an adjournment has been made by Mrs Moniba and there is no reason to suppose that adjourning would secure her attendance in person or by representative at some future date; The panel noted that although Mrs Moniba had indicated that she would not be attending because of her health, there had been no medical evidence provided in support of this; [PRIVATE] The panel further noted that there were two witnesses for the NMC in attendance today, and four more over the next two days. Not proceeding may inconvenience the witnesses, their employers and, for those involved in clinical practice, the patients who need their professional services; The allegations relate to a period between May 2013 and February 2015 and there is a strong public interest in the timely disposal of the case. 5

6 The panel noted that there is some disadvantage to Mrs Moniba in proceeding in her absence. The panel can make allowance for the fact that the NMC s evidence will not be tested by cross examination and can itself explore any inconsistencies in the evidence which it identifies. Furthermore, the limited disadvantage is the consequence of Mrs Moniba s decision to absent herself from the hearing, waive her rights to attend and/or be represented and to submit only limited evidence on her own behalf. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mrs Moniba. The panel will draw no adverse inference from her absence in reaching its findings of fact. Background: The charges arose whilst Mrs Moniba was employed as a Registered Nurse at Ty Llew Unit ( the Unit ) at the Hafan-Y-Coed Care Home, Llanelli ( the Home ), and part of Barchester Healthcare Limited ( Barchester ). She had been employed as a staff nurse since 1 December 2005, and at the time of allegations was the nurse in charge of the Unit when on duty. Her responsibilities, as set out in her job description, included assessing and continuously evaluating the residents physical, psychological and social needs, delivery of care to her allocated residents such as administering medication, conducting handover, liaising with healthcare professionals and recording care delivered to residents. The Home is a general nursing and dementia care home with a total capacity of 106 beds, and is split into three units. Two of the Units are Elderly Mentally Infirm (EMI) dementia units, and the other is a general nursing unit. Ty Llew Unit is a dementia unit and has capacity for 32 residents. It is alleged that on various dates Mrs Moniba displayed inappropriate behaviour towards her colleagues. 6

7 On 16 February 2015, Mrs Moniba was working a twelve hour shift from 08:00 to 20:00, during the latter half of which she was the only registered nurse on duty on the Unit. One of the residents on the Unit, Resident A, suffered a fall at approximately 19:40 and Mrs Moniba was called by the care staff to attend. Mrs Moniba was the nurse in charge on that shift. On 17 February 2015 Resident A was admitted to hospital and following a transfer to a second hospital, a fracture of the neck of the femur was identified. On 20 February 2015 Resident A s wife raised concerns to the Home about the management of her husband s fall. Mrs Moniba was suspended from duty on 23 February 2015 pending an internal investigation into the allegations that she committed a serious failure in her duty as a nurse in relation to Resident A s fall. It is alleged that Mrs Moniba did not check Resident A for injuries and that with the assistance of a carer lifted Resident A onto his chair, without using a hoist. It is further alleged that Mrs Moniba completed an incident form on 17 February 2015 but dated it 16 February Decision on the findings on facts and reasons: In reaching its decisions on the facts, the panel considered all the evidence adduced in this case together, with the submissions made by Ms Dongray, on behalf of the NMC and the witness statement received from Mrs Moniba. The panel accepted the advice of the legal assessor. The panel was mindful 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 was satisfied that it was more likely than not that the incidents occurred as alleged. 7

8 The panel heard oral evidence from six witnesses called on behalf of the NMC. The titles below refer to the individuals positions at the time of the charges. Ms 1 - Operations Manager, Barchester Care Homes. Ms 1 was working as the peripatetic General Manager of the Home at the material time, and had been in that role since July She also conducted the internal investigation into the events of February Mr 2 Care Supervisor and healthcare assistant at the Home. Mr 2 had been working as a carer at the Home since 2007, and since approximately 2013 had been employed as a Care Supervisor. He worked on the Unit from December 2014 and was present on the day shift on 16 February Ms 3 - Healthcare Assistant, at the Home. Ms 3 had been employed as a carer at the Home since 2012 and was working the day shift on 16 February Ms 4 - Agency Nurse. She had been a registered nurse since 1979 and had been working as an agency staff nurse since 2008 within different care homes. Although she had worked at the Home previously, the night shift of 16 February 2015 was the first time she had worked on the Unit. Ms 5 - Registered Nurse, Head of the Unit at the Home. Ms 5 worked as a registered nurse on the General Unit at the Home from 28 February 2014 until she was appointed as Head of the Unit in December Mr 6 - Registered Nurse, Deputy Manager/Clinical Manager, at the Home. Mr 6 was responsible for line managing all nursing and care staff at the Home, managing the standards of care within the Home and deputising to the General Manager. The panel considered the credibility of these witnesses. It found each of them to be broadly reliable and credible. 8

9 The panel bore in mind that Ms 1 was in a managerial role and conducted the Home s internal investigation into the incidents, but that she was not a registered nurse. She provided detailed information regarding her investigation but was unable to provide a clinical opinion. The panel found her evidence credible and that she tried to assist the panel. The panel found Mr 2 tried to assist the panel, and was straight forward and candid in his responses when questioned. If he could not remember specific details he was honest in saying so. The panel found his evidence to be reliable, credible and consistent. The panel had some reservations about the reliability of some of the details provided by Ms 3. It bore in mind, however, the time that had elapsed between the events that occurred on 16 February In her oral evidence there were some discrepancies compared with the statements Ms 3 provided as part of the internal investigation (21 February 2015, 12 March 2015, 5 and 9 April 2015) and to her written statement provided to the NMC (4 December 2015). However, the panel determined that the differences in her various accounts were not sufficient to undermine her overall credibility. Ms 3 was a witness to Resident A s fall and to the arrival of Mrs Moniba. She appeared nervous when giving oral evidence and she admitted to having a difficult relationship with Mrs Moniba. The panel found that Ms 4 was an experienced nurse and a credible, reliable witness. Although she had not worked on the Unit before, she provided the panel with evidence of the circumstances she found on the Unit when she arrived. She gave a balanced, informed account of what she understood to constitute a full body check. She described the handover provided by Mrs Moniba and that Mrs Moniba had stayed for over an hour following the end of her shift. She considered Mrs Moniba provided a good handover in relation to the thirty residents on the Ward. When asked specifically about Resident A she stated that You cannot hand over what you do not know but, on reflection, she 9

10 considered that Mrs Moniba could have provided more detail. In relation to her written evidence, the panel noted that she had been interviewed by Mr 6 briefly over the telephone on 8 April 2015, but had provided a more detailed account of the events of the night shift on 16 February 2015 in her statement to the NMC dated 6 December 2015 and in her oral evidence. The panel noted that she had a clear memory of Mrs Moniba cleaning and dressing the skin flap on Resident A s arm following the handover, and of Resident A standing and having a light hearted exchange with the health care assistants when receiving personal care later that evening. Ms 5, a registered nurse, provided evidence directed towards the allegations of Mrs Moniba s inappropriate behaviour towards her colleagues, with particular reference to an occasion on 13 April The panel also found her evidence in respect of the usual procedures and practices at the Home, particularly regarding the care of residents who have fallen, was clear and detailed. The panel found that she tried to assist the panel and that her evidence was credible and reliable. The panel found that Mr 6, a registered nurse and experienced manager, was open and straight forward. The panel found him a credible and reliable witness. In reaching its findings, the panel also had careful regard to the witness statement provided by Mrs Moniba dated 23 March 2016, and the notes of the interviews undertaken with her as part of the local investigation. The panel has drawn no adverse inference from the non-attendance of Mrs Moniba in its findings on facts. There were no formal admissions made by Mrs Moniba in relation to the charges. The panel therefore considered each charge in turn and made the following findings: That you, whilst employed as the Nurse in Charge of the Ty Llew Unit ("the Unit") at Hafan-Y-Coed Care Home, Llanelli, between May 2013 and February 2015: 10

11 It is not in dispute that, at the relevant times, Mrs Moniba was employed by Barchester Healthcare Limited as the Nurse in Charge of the Unit. She commenced employment in this role in Charge 1: On various dates, displayed inappropriate behaviour towards your colleagues. This charge is found proved. The panel noted that the charge was unspecific and generally worded. In reaching its decision, the panel took into account the evidence provided by Ms 5, in relation to a single incident, and Mr 6 including his Notes of Supervision Sessions dated 26 November 2013 and 23 April The panel was aware that the notes of both sessions had been signed by both Mr 6 and Mrs Moniba. The panel noted the entries in the notes of the Supervision session on 26 November 2013, that she [Mrs Moniba] felt some care staff don t respect the nursing staff she never raises her voice or speaks to them inappropriately. However, Mr 6 goes on to record that Mrs Moniba Admitted afterwards that sometimes loses her temper / shouts at staff Ms 5 said that she had been informed at the beginning of her shift on 12 April 2014 that Mr 6 had asked Mrs Moniba to work on the General Unit at the Home, because there were no other nurses available for this shift. It was commonplace for nurses to be allocated shifts on different units in the Home. Ms 5 stated in her written evidence that on 13 April 2014, when Mrs Moniba came on duty and walked onto the General Unit that Lolita immediately raised her voice towards me and shouted, I m not putting my pin on the line, I only work on Ty Lliw. I felt threatened by Lolita s behaviour as she can be intimidating. I was shocked that Lolita raised her voice in this manner towards me, given that there were several residents 11

12 present in the foyer whilst the conversation took place. In her oral evidence, Ms 5 confirmed that one of the residents who had witnessed this incident commented: Is she crazy? Ms 5 stated that she felt Mrs Moniba had behaved in unprofessional manner in that it was not appropriate to raise her voice in front of residents. Ms 5 stated in her oral evidence that there were no other occasions when she had observed such behaviour; she was aware that other members of staff had concerns about the way Mrs Moniba spoke to them, but she could not be more specific than that. Mr 6 stated that a staff meeting took place on 23 April 2014, in which all senior staff were present. During the meeting he informed Mrs Moniba of her tasks and that Lolita responded to me in an argumentative manner. Following the meeting, Ms 1 informed Mr 6 that she did not think it was appropriate that Mrs Moniba speak to him in such a way, and that he needed to discuss this with Mrs Moniba. In the notes of the session on 23 April 2014 it is recorded that Despite previous supervisions there remains a recurrent problem with rudeness and abruptness, the latest episode being directed towards a colleague during a staff meeting. Ms 4 also stated that when she arrived on shift at 20:00 on 16 February 2015, that Mrs Moniba appeared abrupt in attitude but gradually this abruptness lessened and her manner became amenable. She also stated that she was aware it had been a long and difficult shift, during the latter half of which Mrs Moniba had been the sole registered nurse on duty, and that Mrs Moniba was very het-up and there was obvious friction between her and the care staff. The panel found that the accounts provided by Ms 4, Ms 5 and Mr 6 indicate that Mrs Moniba could be abrupt, rude and could shout at colleagues. It considered that this could amount to inappropriate behaviour. The panel also had regard to the evidence of Ms 3, who stated that on the 16 February 2015, Mrs Moniba shouted at her and blamed 12

13 her for allowing Resident A to fall. The panel was aware that it appeared that at times there had been a difficult relationship between Mrs Moniba and the care staff. Nevertheless, the panel was satisfied that there was sufficient evidence to suggest that on at least three occasions, Mrs Moniba had displayed inappropriate behaviour towards her colleagues. The panel therefore concluded on the balance of probabilities that charge 1 was found proved. Charge 2: On 16 February 2015, in relation to Resident A: The panel noted that Resident A had fallen on the Unit at approximately 19:40 on the 16 February 2015, towards the end of the day shift. The Unit is on the first floor, and is carpeted throughout, except the lounge/dining area which has a hard floor. Mr 6 said that two registered nurses and six care assistants are allocated to care for residents on a day shift. The panel was aware that on 16 February 2015, the second nurse, who was heavily pregnant, had been unwell and left half way through her shift. Mrs Moniba completed the second half of the shift on her own. The evidence indicates that the shift was busy, and the panel was also aware that one of the residents on the Unit required end of life support. The panel accepted the evidence that Resident A was a tall, frail elderly gentleman. He often tried to walk by himself and, because of his dementia, was unaware that he was no longer capable of doing so. He would often place himself on the floor. Ms 2 stated that when he tried to walk unaided, care staff encouraged him to sit down and that they would never leave him if we see him walking. 13

14 Mr 6 stated in his evidence that Resident A was difficult to look after: he was tall and could be intimidating/challenging but was quite frail and slim. He was often disorientated and was not encouraged to move independently as he was known to fall, but would often slide himself to the floor and move around the Unit in a seated position. It is not disputed that Resident A fell at approximately 19:40 on 16 February The fall was witnessed by Ms 3 who was accompanied by a second healthcare assistant as they entered the lounge/dining area. He was standing at the time they entered the area and it appeared he was trying to reach some sweets. Ms 3 stated that Resident A fell on his side. The other healthcare assistant went to Resident A s assistance, and Ms 3 went to call Mrs Moniba. Ms 3 said that she had to call Lolita a couple of times and she arrived within a couple of minutes. Mrs Moniba then called Mr 2 to assist her. 2.1 Did not conduct a body check on Resident A; This charge is found proved. In reaching its decision, the panel construed a body check as meaning a full body check or examination. It considered the evidence provided by Ms 4, Ms 5 and Mr 6 as to what constituted a full body check when a patient has experienced a fall. It found that a full body check involved a top to toe examination of the patient, including a visual and a manual check, patting down the body, checking for pain, and any shortening or displacement of the limbs. The panel had regard to the evidence provided by Ms 3. It found that Ms 3 had been consistent throughout her evidence that Mrs Moniba had not undertaken a body check of Resident A following his fall on 16 February In her contemporaneous account of 21 February 2015 Ms 3 states No when asked by Ms 1 whether Mrs Moniba checked that Resident A was ok? Ms 3 also states that I told [Mr 2] that [Mrs Moniba] had not examined him. 14

15 Ms 3 was similarly consistent in her statement to the NMC: I said to [Mr 2] that I was concerned Lolita had not examined Resident A and Lolita should have examined Resident A before moving him but she failed to do so. The panel also had regard to the notes of the Investigation meeting between Ms 1 and Mrs Moniba dated 18 March 2015, and the notes of the Notes of the Disciplinary Hearing 17 April The panel found that Mrs Moniba accepted that although she had undertaken a check, it was not a complete body check and/or examination. She states in the Investigation meeting dated 18 March 2015: No I could not assess his condition. I could not touch him as he was very aggressive and was struggling, he was aggressive I asked night staff to assess him and I did not do a thorough investigation until the other Nurse came on duty He is an aggressive man. In her witness statement Mrs Moniba writes: I deny that that I did not conduct a body check, but accept that the body check was incomplete I accept I did not carry out a complete examination, but this was because Resident A was being aggressive. In regard to the issue of Resident A s aggression, the panel noted that Mrs Moniba was the only person who stated that the resident displayed such behaviour at the time. Both Mr 2 and Ms 3 were consistent in their accounts that Resident A was not aggressive following this fall. The panel preferred the evidence of Mr 2 and Ms 3 in regard to this issue. The panel was satisfied that Mrs Moniba did not conduct a full body check/examination on Resident A, and therefore charge 2.1 proved. 2.2 Did not use a hoist to lift Resident A; This charge is found proved. 15

16 In reaching its decision the panel considered that this charge presented a straightforward issue. It concluded that all the evidence indicated that a hoist had not been used to lift Resident A. Mr 2 and Ms 3 provided evidence that Mrs Moniba and Mr 2 lifted Resident A by each putting an arm around Resident A s back and supporting his elbows to lift him into the armchair. Ms 3 states in the meeting of 21 February 2015 that [Mr 2] and Lolita picked him up off the floor. They didn t use the hoist. They helped him stand and Resident A helped to [sic]. The panel noted that Mrs Moniba also accepts that she had not used a hoist to lift Resident A, stating that, I did not think to use a hoist to move him in the meeting on 18 March 2015, and that I then instructed [Mr 2] to help me lift Resident A back into the armchair, which we did. I accept that I did not use a hoist despite this being in Resident A s care plan. The reason for this was that Resident A would get aggressive when being put in the hoist and so we never used the hoist for Resident A. The evidence of Mr 2, Ms 3 and Mrs Moniba was that Resident A was regularly lifted and moved without using a hoist. The panel did not have sight of Resident A s care plan, but had regard to Resident A s Moving & Handling Risk Assessment dated 28 September Mr 6 had stated that this is a four page document although each page is separate. The fourth page of the document is entitled Safe System of Work and indicates that when moving Resident A, a hoist is to be used; this page is undated and the panel was not satisfied that it related directly to the first page of that assessment. The panel could place no reliance on the document. However, the panel took account of the evidence provided by Ms 5 and Mr 6, who stated that a hoist should always be used when a resident has experienced a fall. This was the safest method of moving a resident when it could not be determined whether a resident had sustained an injury. 16

17 The panel concluded that a hoist had not been used to lift Resident A following his fall on 16 February 2015 and therefore found charge 2.2 proved. 2.3 Instructed a junior member of staff to inappropriately lift Resident A; This charge is found proved. The panel determined that there were two elements to this charge; one that Mrs Moniba instructed a junior member of staff to lift Resident A, and secondly that that instruction was inappropriate. In reaching this decision, the panel took into account of the evidence provided by Ms 3, including the information provided in the notes of the Meeting of 21 February 2015 in which she states: Lolita called [Mr 2] into the room and she told him, help me get him up, he is alright. This is consistent with her oral evidence and witness statement in which she states: Lolita asked [Mr 2] to help her lift Resident A up and sit him back into the armchair. Mr 2 stated that I asked if Resident A was OK, Lolita informed me that he had fallen but was OK and asked me to help get him up. I assumed that Lolita had conducted general observations on Resident A before my arrival in order to assess if Resident A was in any pain, or had caused any harm to himself. Mrs Moniba said in her witness statement: I then instructed Mr 2 to help me lift Resident A into the armchair, which we did. The panel found that Mrs Moniba had asked Mr 2 to help her lift Resident A from the floor onto an armchair and that the request by a nurse in charge to a care assistant amounted to an instruction. 17

18 The panel then considered whether that instruction had been appropriate. The panel noted that the evidence was that following a fall, a resident should be hoisted rather than lifted. When questioned by the panel, Ms 4 had stated that a hoist should always be used if a resident is immobile and that Resident A, having experienced a fall, should have been moved using a hoist, unless or until it had been ascertained that he had not sustained injury. The panel noted that Mr 2 stated he could not remember Resident A being moved or lifted using a hoist prior to this date. However, Mr 2 also stated that he assumed that Mrs Moniba had conducted a set of observations on Resident A before he entered the room. He would not have agreed to lift Resident A had he known Resident A had not been properly examined. The panel determined that Mrs Moniba s failure to conduct a proper examination following the fall made her decision to instruct care staff to perform a manual lift inappropriate. The panel also had regard to the evidence provided by Mrs Moniba. It noted that in the Investigation Meeting of 18 March 2015 Mrs Moniba stated that I didn t think of hoisting him, we have not used a hoist for a long time, I just wanted him to go into the chair. It also had regard to the notes of the Disciplinary Hearing on 17 April 2015: I didn t hoist him because he falls a lot and I never hoisted him before when he fell, just helped him up. It s hard to put a sling under him when he s aggressive. He is strong and he could move so I didn t use a hoist. I admit not hoisting him but there was no need. He was aggressive. The panel had regard to the evidence of Ms 5 who stated that If a resident has fallen a full hoist should be used if they can t get themselves up, if a resident is feisty this should not affect the care provided. The panel found that Resident A had been lifted inappropriately in those circumstances. Mrs Moniba should have used a hoist to move Resident A who had sustained a fall, and when she had not, or had not been able to, undertake a full examination to ensure 18

19 Resident A s wellbeing. It concluded that on the balance of probabilities, Mrs Moniba had instructed a junior member of staff to inappropriately lift Resident A without using a hoist and therefore found charge 2.3 proved. 2.4 Did not identify Resident A had a fractured femur; This charge is found proved. In reaching its decision the panel considered that, in order for this charge to be made out, it would have to be satisfied, firstly, that Resident A had suffered a fracture of the femur, and secondly, that Mrs Moniba had failed to identify that that was the case. It concluded that all the evidence indicated that Mrs Moniba had not identified that Resident A had a fractured femur. The panel noted that Ms 3 had stated that Resident A fell to the floor and had shouted my hip, my hip. She also stated that she had informed Mrs Moniba that he had experienced a nasty fall and had really hurt his hip. Mrs Moniba denies that Ms 3 said this to her at the time. The panel took account of Mr 2 s evidence that he sat with Resident A in the lounge area following the incident until his shift finished at 20:00. He stated that Resident A seemed as though he was in pain. His face was scrunched up and he kept touching his hip. He also said he assumed Ms 3 had informed Mrs Moniba that Resident A was in pain and that Lolita would attend to Resident A for further checks. Mr 2 did not ask Mrs Moniba to attend to Resident A. The panel also took account of the evidence that at the end of the shift, and following the handover Mrs Moniba gave to Ms 4, Mrs Moniba attended Resident A to dress the skin flap on Resident A s arm. This was observed by Ms 4. Ms 4 also stated that later on that night she clearly remembers when Resident A was receiving personal care, he 19

20 was laughing with the healthcare assistants and standing upright with the aid of a zimmer frame. The panel accepted the evidence of Ms 4 and Ms 5, both registered nurses that it could be difficult to detect an undisplaced fracture of the femur even when a full body check had been undertaken. The panel also noted that in addition to Ms 4 s observation of Resident A when he was receiving personal care she had made an entry in the Progress & Evaluation Record: Resident A was able to move both legs and stand with assistance no shortening or external rotation of the legs [observed]. Ms 5 stated that only an x-ray would confirm whether a fracture had been sustained. The panel had regard to the evidence provided in the Disciplinary Hearing on 17 April 2015 in which she stated she would have sent Resident A to A&E if she felt Resident A had been in pain. She also stated that When staff escorted him to hospital [ The Prince Phillip Hospital ] they said the doctor could not tell if the fracture was new or old so he was sent to Glangwili Hospital for another x-ray. In his oral evidence Mr 6 confirmed there was no medical evidence available to support or disprove that statement. The panel was also aware that Ms 4 administered painkillers to Resident A that night, and that he slept soundly. She confirmed that a care assistant informed her the next morning that Resident A was experiencing some pain. The panel noted that Ms 1 and Mr 6 conducted a walk around on the morning of 17 February Mr 6 confirmed that there was no evidence at the time of any shortening or displacement of Resident A lower limbs. The panel noted an entry written at 13:50 by Mrs Moniba in Resident A s Progress and Evaluation Record dated 17 February 2015, that Resident A was referred to Prince Phillip Hospital A&E in a wheelchair. In her witness statement Mrs Moniba accepts that she did not identify that Resident A had a fracture femur and neither did anyone else. 20

21 The panel concluded that, in all likelihood, Resident A had suffered a fracture of the femur at some point, more likely than not in the fall on 16 February Further, it was clear that Mrs Moniba had not identified the fracture. The panel therefore found charge 2.4 proved. 2.5 Did not seek medical attention for Resident A; This charge is found proved. The panel bore in mind that this related to the 16 February It also noted that that Resident A appeared to have fallen at approximately 20 minutes before the end of Mrs Moniba s scheduled shift, but that following the handover to Ms 4 and attending to the wound on Resident A s arm, she did not leave the Unit until around an hour after her shift had ended. In reaching its decision, however, the panel noted that Mrs Moniba had not sought medical attention for Resident A before leaving the Unit that evening. The panel noted that Mrs Moniba accepts that she did not seek medical attention immediately after the incident as there appeared to be no need. There is no evidence that the information provided by Mr 2, that Resident A was in pain and that kept touching his hip during the time he sat with him in the lounge until the end of his shift at 20:00 was given to Mrs Moniba. Mrs Moniba cleaned and dressed the wound he sustained on his right arm and was observed by Ms 4, another registered nurse. Neither make any mention that Resident A was experiencing pain in his hip or leg. Ms 4 states clearly that she observed him later that evening standing with the support of a zimmer frame and laughing. She further acknowledged that Mrs Moniba had informed her of the fall sustained by Resident A during the handover. 21

22 When in turn, Ms 4 gave the handover to Mrs Moniba at beginning of the shift on 17 February 2015, she informed Mrs Moniba that Resident A was in pain and that she felt it was necessary to contact a GP during their shift, so that a GP could attend to review Resident A. However, there was no evidence before the panel that Mrs Moniba had sought medical attention for Resident A on 16 February The panel therefore found charge 2.5 proved. 2.6 Did not to give a full handover of Resident A's fall. This charge is found proved. In reaching its decision, the panel took into account the evidence provided by Ms 4 in her witness statement dated 6 December 2015 and qualified in her oral evidence. In her witness statement Ms 4 stated, that she would expect that, following a fall, that she would expect to be provided with information such as the time of the fall, the specific checks and observations that [Mrs Moniba] had conducted, including if the resident was in pain or had any sores and to inform me if an accident form had been completed. In her oral evidence Ms 4 detailed the handover she received from Mrs Moniba with respect to Resident A, and when questioned, stated that looking back, it was not sufficiently detailed. She said Mrs Moniba had informed her that Resident A had damaged his arm and that she had checked he could move his arm and hands freely. Ms 4 said that Mrs Moniba had not mentioned how or when he fell, if he had hit his head, whether Resident A had reported any pain, or whether there had been any other abrasions, or shortening of the limbs. Mrs Moniba did not provide any information as the 22

23 specific checks and observations she had conducted. She confirmed, however, that Mrs Moniba had asked her to keep an eye on him. Ms 4 confirmed that this was her first time on the Unit. She also told the panel that Mrs Moniba had stayed over an hour after the shift had officially ended, and that it can often be difficult to ensure that all documents are completed as there are often distractions, and other patients take priority. In the note of her telephone interview of 8 April 2015 Ms 4 provided as part of the internal investigation dated 8 April 2015 she stated: Lolita said she had not documented it but would do it in the morning. Mrs Moniba stated in her witness statement that as Ms 4 was an agency nurse and it was her first time on the Unit, the handover took about an hour. She spent 30 minutes discussing the residents of whom the panel noted there would have been around 30, including Resident A, and one resident on end of life care. She then provided a tour of the clinical room and fire procedures. Then they both returned to Resident A to tend to his skin flap. Mrs Moniba also stated that she tried examining Resident A again, but he was agitated and struggling and she therefore suggested that Ms 4 keep an eye on him. The panel determined that Mrs Moniba s failure to conduct a full body check (found proved at 2.1) meant that she did not possess sufficient clinical information to provide a comprehensive picture of Resident A s condition during the handover to Ms 4. The panel accept there would have been some discussion about the fall when Mrs Moniba was dressing the wound sustained in the fall with Ms 4 present. It also noted that in Ms 4 s entry detailing the care she had provided to Resident A during the night shift, she had difficulty identify the location of the pain. Also as indicated above, Mrs Moniba states that she was unable to conduct a full examination on two occasions both at the time of the fall and when dressing the wound on his arm due to his agitated state. Nevertheless the panel concluded that because Mrs Moniba had not conducted a full 23

24 examination, she could not have been in a position to give a full handover in relation to Resident A s fall. The panel therefore found, on the balance of probabilities and in the circumstances that the handover which Mrs Moniba gave Ms 4 in respect of Resident A s fall, was less than full handover, and therefore it found charge 2.6 proved. Charge 3. On or after 17 February 2015, retrospectively completed an incident report form in that you: The panel had sight of the Incident and Accident Report Form ( the Incident Form ) dated 16 February The form is in two parts, Part A and Part B. Part A is information about the accident/ incident, and Part B is called Managers Accident / Incident Investigation. Part A is divided into seven sections, and includes a body map. Part A, section 5 is signed by Mrs Moniba as both the person completing the form, and the nurse in charge at the time of the incident/accident. The date given on both entries is 16 February Page 3 of the form is called Body map, the right arm is marked and an entry: Skin flap R outer elbow and signed by Mrs Moniba and dated 16 February There is an entry under Section 3 of the form: dressing applied, pain killers given by night Nurse. The panel also had sight of the Progress & Evaluation Records and noted the untimed entry on 16 February 2015 made by Ms 3, which documents the fall and states: [Resident A] fell before we could get to him, he fell on his L, hip we called the nurse on duty and reported it to her she helped pick him up with [Mr 2] and put him in his chair. This is followed by an entry on 17 February 2015 at 06:20, made by Ms 4 which refers to the fall, and the care which she provided overnight. There is a further entry at 07:15 again by Ms 4, referring to the pain in R groin area Analgesia given. This is followed 24

25 by an entry timed 09:00 apparently made by Mrs Moniba referencing the fall, and a further entry made by her at 13: Incorrectly dated the incident report form 16 February 2015; This charge is found proved. The panel had regard to the incident form and noted that it had been signed and dated 16 February 2015 by Mrs Moniba. The panel found there was no provision within the incident form where a person using the form was directed specifically to enter the date that they were completing the form. The evidence provided by Ms 5 and Mr 6 was that the signed and dated the entries in Section 5 indicated when the form had been completed. The panel heard the oral evidence of Ms 1 who said the date and time of the form s completion should be entered below the body map on page 3. The panel preferred the evidence of Ms 5 and Mr 6 as they were clinicians who were experienced at completing the form; Ms 1 was in a managerial/non-clinical role. Ms Dongray submitted that the panel should accept the evidence of Ms 4 that [Mrs Moniba] said she had not had time to document Resident A s fall, but that she intended to do so during her next shift and that the documentation she referred to was the Accident and Incident Form. Ms 4 stated in her oral evidence that she did not have sight of the Incident Form. Furthermore, there is evidence in the document that post-dates Mrs Moniba finishing her shift on 16 February 2015: pain killers given by night Nurse. In the notes of the Disciplinary Hearing on 17 April 2015, which were confirmed as an accurate record by Mr 6, Mrs Moniba states that I filled it in on 17th. I came into work in the morning and filled it in. Staff told me that he d been in pain overnight. I [Interviewer: It is also alleged that you falsified documentation].i did the second 25

26 thing. Ms Dongray invited the panel to consider that if Mrs Moniba had completed the form on 17 February 2015, then the form is incorrectly dated. Mrs Moniba says in her witness statement that she completed the incident form on 16 February 2015 and stated In the incident report form I stated Checked and examined body part, skin flap cleaned and dated the form. The next morning I checked the form and noted I had not mentioned that I applied a dressing and added this before submitting the form. At the time I thought the recording was sufficient as [Ms 4] was aware of the situation and had assured me she would keep an eye on things. At no point did I admit filling in the incident report form on 17 February The panel noted that in addition to adding the information about applying a dressing, Mrs Moniba had also included the note that pain killers had been given by the night nurse, and she would only have been aware of this when she attended work on the 17 February Therefore, although it is possible that Mrs Moniba started the form on 16 February 2015, because of her own evidence and the information contained within the form, she must have completed it on 17 February There is nothing to indicate that any additional information was added later than 16 February The panel noted that Mrs Moniba herself accepts that she made additions to the form on the morning of the 17 February 2015.The panel had regard to the notes of the meeting on 18 March 2015, when Mrs Moniba states: I completed the form after he fell, before I finished my shift. She has also accepted that she made additions to the form on the morning of the 17 February 2015, and it would appear that this was done early on the shift that day. Mrs Moniba had been consistent in her account of filling in the Incident Form during the Home s investigatory meetings and in her evidence given to the NMC. 26

27 The panel had regard to the comments she made during the Disciplinary Hearing on 17 April 2015, some two months later; No I filled it in on the 17 th. I came into work in the morning and filled it in. Staff told me he had been in pain overnight. I remembered the next day to do the form. that s my evidence that I filled it on 17th. In addition, on 17 February 2015 at approximately 09:00 Mrs Moniba had documented in Resident A s Progression & Evaluation Records: Accident form done and informed his wife in the morning. Furthermore, the evidence of Ms 4 and Mr 6 was that there was no evidence so far as it were concerned that the incident had been completed on 16 February The panel concluded that Mrs Moniba had completed the Incident form on 17 February 2015 and not 16 February 2015, and therefore incorrectly dated the Incident form. The panel therefore found charge 3.1 proved. 3.2 Recorded false information in the form, in that you recorded you had "Checked & examined body parts, skin flap cleaned & dressing applied" when you had not. This charge is found proved. In reaching this decision, the panel took into account the evidence provided by Ms 4 and Mr 6 in relation to this charge, with particular regard to the interpretation of examined in the context of undertaking a body check. The panel considered that the use of the phrase checked and examined body parts conveys the impression of a more thorough or extensive examination of the whole body than a simple visual assessment. 27

28 According to Ms 3, Mrs Moniba had not examined Resident A before calling Mr 2. Mr 2 stated that he did not see her conduct any observations or examination of Resident A whilst he was attending to him. Mrs Moniba says in her witness statement: I deny that I did not conduct a body check, but accept that the body check was incomplete. She also refers to the difficulty of examining Resident A because of his aggressive and agitated state. On that basis, the panel concluded that the entry checked and examined body parts was inaccurate and therefore found charge 3.2 proved. Charge 4. And your actions in charge 3.1 and/or charge 3.2 were dishonest. This charge is found proved in relation to charge 3.1 and charge 3.2. Ms Dongray submitted that Mrs Moniba must have known she was being dishonest when she submitted the Incident Form dated 16 February 2015, having at the very least, made an amendment to the form on the 17 February 2015, if not completed it in full on that day. She further submitted that entering an incorrect date onto an incident form is clearly dishonest by the standards of ordinary, decent people. In relation to charge 3.2, Ms Dongray submitted that Mrs Moniba had been dishonest because she was aware that she had not undertaken a complete check of Resident A and her entry that she had Checked & examined body parts implied that a specific standard of care had been provided when it had not. She submitted that entering inaccurate information into an Incident Form is clearly dishonest by standards of ordinary decent people/nurses. 28

29 In relation to the charge of dishonesty, Mrs Moniba states in her witness statement that she does not accept that her behaviour was dishonest. She states that she completed the form on the 16 February 2015, and checked the form the next morning before submitting the form. She further states that she believes what she put on the form was the truth. She also states that she thought the recording sufficient as Ms 4 was aware of the situation and would keep an eye on things and that she was wrong to think that and should have made a fuller note in reference to not carrying out a complete examination, because Resident A was being aggressive. In reaching its decision panel had regard to the legal authorities to which it was referred namely the cases of: Ivey v Genting Casinos Ltd [2017] UKSC 67, Barlow Clowes v Eurotrust International Ltd [2006] 1 WLR 1476 and Kirschner v GDC [2015] EWHC 1377 (Admin). 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) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest." When determining the alleged dishonesty in relation to charge 3.1, the panel considered whether it was Mrs Moniba s intention to mislead people into thinking that she had filled out and completed the form on the 16 February 2015, when she admitted that she completed the form on the 17 February The panel noted that Mrs Moniba had told Ms 4 that she would complete the documentation when she returned to work the 29