Nursing and Midwifery Council:

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing April 2018 Resuming Hearing 9 May 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Paul Raymond Thompson 00F0069E Part(s) of the register: RNA, Registered Nurse Adult Nursing (20 October 2003) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mr Thompson: Nursing and Midwifery Council: England Misconduct Paul Morris (Chair, lay member) John McGrath (Registrant member) Sue Davie (Lay member) Adrienne Morgan Vicky Green Present and represented by Penny Maudsley, Counsel (23-27 April 2018) Not present but represented in his absence by Penny Maudsley (9 May 2018) Michael Smalley, Case Presenter (23-27 April 2018) Siobhan Caslin, Case Presenter (9 May 2018) Facts proved: 1.a, 1.b, 1.d, 2.c, 3, 4, 5, 6.a, 6.b, 7, 8 Facts not proved: 1.c, 2.a, 2.b Fitness to practise: Sanction: Interim order: Impaired Striking off order Suspension order 18 months 1

2 Details of charge That you, a registered nurse, whilst working at Arrowe Park Hospital: 1. On or around 22 November 2016 behaved in an inappropriate manner in that you: a. Spoke to Patient 1 aggressively; b. Left Patient 1 s water out of her reach; c. Left an unknown patient s water out of their reach; d. Intimidated Patient In or around November 2016 behaved in an inappropriate manner towards Patient 2 in that you: a. Said to her words to the effect of oh for goodness sake, go to sleep ; b. Shouted at her saying that she had taken medication and/or told her to shut up ; c. Intimidated her. 3. In or around September 2013 said to Colleague A words to the effect of women are only good for cooking and making beds so get to it. 4. In or around September 2013 said to Colleague A that you liked her top as you could see down it. 5. Between September 2013 and December 2014 sent one or more inappropriate message to Colleague A on Facebook. 6. Between September 2013 and November 2014: a. Slapped Colleague A s bottom; b. On one or more occasions tried to hug Colleague A and/or grab her from behind. 2

3 7. In or around November 2014, grabbed Colleague A and kissed her. 8. Your conduct at charges 4 and/or 5 and/or 6 and/or 7 was sexually motivated. AND, in light of the above, your fitness to practise is impaired by reason of your misconduct. 3

4 Background The charges arose whilst you were employed by Wirral University Teaching Hospital NHS Foundation Trust ( the Trust ) as a band 5 Registered Nurse at Arrowe Park Hospital ( the Hospital ). It is alleged that between September 2013 and November 2014, you breached professional boundaries and behaved in an inappropriate manner towards Colleague A, a Care Support Worker. This inappropriate behaviour is alleged to have included making comments which were sexually motivated, behaving in an intimidating manner and inappropriate touching and kissing. In November 2016 the Trust received two complaints from Patient 1 and Patient 2. It is alleged that you spoke in an aggressive manner and intimidated both patients. Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel considered all the oral and documentary evidence adduced in this case together with the submissions made by Mr Smalley, on behalf of the NMC and those made by Ms Maudsley on your behalf. The panel heard and accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the panel is satisfied that it is more likely than not that the incidents occurred as alleged. 4

5 The panel heard oral evidence from three witnesses called on behalf of the NMC and three witnesses called on behalf of you. In addition, the panel heard oral evidence from you. Witnesses called on behalf of the NMC were: Mr 1 Patient 1 s friend; Patient 2 In-patient at Arrowe Park Hospital in November 2016; Colleague A Clinical Nursing Support Worker at Arrowe Park Hospital. Witnesses called on behalf of you were: Colleague B Registered Nurse at Arrowe Park Hospital; Colleague C Care Support Worker at Arrowe Park Hospital; Colleague D Senior Nurse at Arrowe Park Hospital. NMC witness statements were adopted from: Colleague E Matron for Orthopaedic ward at Arrowe Park Hospital; Colleague F Deputy Associate Director of Nursing at the Trust. Your witness statements were adopted from: Colleague G Care Support Worker at Arrowe Park Hospital. The panel first considered the overall credibility and reliability of all of the witnesses it had heard from, including you. 5

6 NMC witnesses The panel was of the view that Mr 1 was a credible and honest witness and assisted the panel to the best of his ability. Mr 1 attended the hearing to represent his friend, Patient 1, who sadly passed away 5 weeks after the alleged incidents took place. The panel acknowledged that while Mr 1 was not a direct witness to the alleged incidents, he gave a balanced view in regard to Patient 1 s experience based on his direct communication with her, and her direct involvement in dictating the complaint to him. The panel found Colleague A to be a compelling and credible witness. The panel was of the view that Colleague A provided the panel with a truthful account of what had occurred and was consistent in her statement, investigatory meeting minutes and during cross examination. The panel found that she provided clear and detailed evidence. Patient 2 presented as a witness who did her best to provide the panel with accurate information. The panel found that her evidence was in the main consistent but at times she was hesitant and vague. The panel found that she was fair and honest, and made concessions when she was unsure as she was undergoing treatment when the allegations arose. Your witnesses The panel found Colleague B to be a confident witness, she had worked alongside you for several years at the Hospital. The panel was of the view that Colleague B assisted the panel to the best of her ability. The panel noted that her evidence was limited because she was not a direct witness to any of the alleged incidents. Colleague C presented as a witness who was clear and confident. The panel noted that there were some inconsistencies in her evidence and that she was being overly supportive of you. 6

7 The panel found Colleague D to be a professional, confident and assertive witness. The panel was of the view that Colleague D provided the panel with a truthful account of what had occurred and was consistent during cross examination. The panel found that she provided clear and balanced evidence; particularly relating to Colleague C. The panel was of the view that while you gave measured evidence, overall, you were not a credible witness. The panel found that there were inconsistencies in your evidence and that there was some disparity between your responses at the local investigation, your written statement, and your oral evidence. Your explanations regarding Colleague A were not credible. Documentary evidence The panel noted the written statements of Colleague E, Colleague F and Colleague G that were agreed and accepted into evidence. The panel has taken these statements into account. Ms Maudsley and Mr Smalley agreed that the sent by Mr 1 in the name of Patient A should be admitted into evidence because she has now passed away. Mr 1 had given clear evidence of how the sent by him had been dictated to him and amended by Patient 1. The panel decided that this was a reliable, contemporaneous account of Patient 1 s complaints. The panel considered what weight would be attached to the Patient Focussed Rounding notes. It was of the view that these records, as they are a record, could not be relied on as a contemporaneous account of what was specifically carried out on the ward or the status of patients at any specific instant of time. Application made pursuant to Rule 19 of the Rules During cross examination reference was made to Patient 1 s health. 7

8 Rule 19 (1) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended, ( the Rules ) provides, as a starting point, that hearings shall be conducted in public, Rule 19 (3) states that the panel may hold hearings partly or wholly in private if it is satisfied that this is justified by the interests of any party or by the public interest. The panel determined that it would hear matters relating to any health conditions in private. The panel was satisfied that maintaining the privacy of matters relating to a patient s health outweighed the public interest in holding these parts of the hearing in public. Application for special measures made pursuant to Rule 23 Mr Smalley, on behalf of the NMC, made an application for special measures in relation to Colleague A. He told the panel that due to the sexual nature of the allegations, Colleague A has indicated that she would be more comfortable giving evidence behind a screen. Mr Smalley submitted that Colleague A is a vulnerable witness and that a screen would enable her to give her evidence. Ms Maudsley, on your behalf, did not oppose this application. The panel heard and accepted the advice of the legal assessor which includes reference to Rule 23(1)(e) and Rule 23(2) of the Rules. In the light of the circumstances the panel decided to allow the application. Finding of facts The panel considered each charge and made the following findings: 8

9 In relation to charges 1 and 2, the panel acknowledged that there was a degree of similarity in the allegations made by Patient 1 and Patient 2. The panel noted Ms Maudsley s suggestion that Patient 1 and Patient 2 had colluded. The panel was of the view that there is no evidence to suggest that Patient 1 and Patient 2 had in fact colluded nor was this suggestion put to Mr 1 or Patient 2 in cross examination. The panel noted that Patient 2 reported some of the alleged incidents prior to Patient 1 s admission. The panel was mindful that there is some overlap in the nature of the allegations related to charges 1 and 2. In reaching its decision in relation to charges 1 and 2, the panel bore in mind that the complaints were made by two different patients, on two separate occasions in November The panel determined that these similarities added weight to the allegations. Charge 1.a: 1. On or around 22 November 2016 behaved in an inappropriate manner in that you: a. Spoke to Patient 1 aggressively; This charge is found proved. In reaching this decision, the panel took into account the oral evidence of Mr 1, his to the CEO s personal assistant, the evidence of Colleague B and your evidence. The panel accepted Mr 1 s oral evidence in which he described Patient 1 amongst other things to be forthright, honest, direct and not easily frightened. The panel considered the verbatim note made by Mr 1 as instructed by Patient 1 at the time of the alleged incidents to be reliable. The panel rejected your view that Patient 1 was not compos mentis and that what she had written was therefore unreliable. There was no medical evidence before the panel to support your argument. 9

10 The panel accepted that, when Patient 1 woke up in the middle of the night and could not remember where she was, you told her not to shout at you when she called for help and that you said you were busy at your desk. Both of these comments were said aggressively to the Patient 1. Colleague B, in her oral evidence, said that on occasion she would have to ask you to lower your voice. In your evidence you accepted that your voice is loud and that this could be perceived to be aggressive. In the light of all of the evidence, the panel concluded that on the balance of probabilities, it is more likely than not that you spoke aggressively to Patient 1. This charge was therefore found proved. Charge 1.b: 1. On or around 22 November 2016 behaved in an inappropriate manner in that you: b. Left Patient 1 s water out of her reach; This charge is found proved. In reaching this decision, the panel took into account the oral evidence of Mr 1, the to the CEO s assistant and your evidence. The panel had regard to Patient 1 s account of the incident and noted that her water was out of her reach. The panel had regard to your oral evidence in which you said that she asked you to put the water on the side of her broken arm. The panel did not accept this as a likely explanation and accepted Patient 1 s written account in which she stated that I can t reach the water where it is. 10

11 The panel therefore preferred the evidence of Patient 1 and found this charge proved. Charge 1.c: 1. On or around 22 November 2016 behaved in an inappropriate manner in that you: c. Left an unknown patient s water out of their reach; This charge is found not proved. The panel determined that there was insufficient evidence in relation to an unknown patient. Accordingly, the panel found this charge not proved. Charge 1.d: 1. On or around 22 November 2016 behaved in an inappropriate manner in that you: d. Intimidated Patient 1. This charge is found proved. In reaching this decision, the panel took into account the evidence of Patient 1 and your evidence. The panel noted Patient 1 s statement in which she stated that after she had made a complaint she felt intimidated. Following a complaint to the CEO you were moved to a different bay. In her statement, Patient 1 said that you stood and glared at her after you have been removed from the bay. 11

12 In your evidence you stated that you had to return to the bay to administer some medication with a colleague. You told the panel that you did not stare at Patient 1 or intend to intimidate her. You provided contradictory evidence in your statement, investigation meeting notes and oral evidence about how many times you entered that bay, your explanation of how Patient 1 could have misinterpreted your looking further down the bay to another patient s bed was not accepted. The panel preferred the evidence of Patient 1 and found this charge proved. Charge 2.a: 2. In or around November 2016 behaved in an inappropriate manner towards Patient 2 in that you: a. Said to her words to the effect of oh for goodness sake, go to sleep ; This charge is found not proved. In reaching this decision, the panel took into account the evidence of Patient 2 and your evidence. The panel had regard to the statement made by Patient 2 to the social worker around the time of the alleged incident and the of 1 December 2016 from the Professional Lead Social Care at the Hospital. It noted that Patient 2 s complaint was a general one that involved 4 members of staff at the hospital. The panel further noted that in the initial statement to the social worker, Patient 2 did not mention the allegation relating to words to the effect of oh for goodness sake, go to sleep. In the light of the above the panel found this charge not proved. 12

13 Charge 2.b: 2. In or around November 2016 behaved in an inappropriate manner towards Patient 2 in that you: b. Shouted at her saying that she had taken medication and/or told her to shut up ; This charge is found not proved. In reaching this decision, the panel took into account the evidence of Patient 2 and your evidence. The panel had regard to Patient 2 s oral evidence and noted that her complaint was a general one relating to 4 members of staff. In her oral evidence, Patient 2 stated that she thought he told her to shut up. The panel was mindful that Patient 2, herself, could not confirm for definite that you told her to shut up. Accordingly, the panel found this charge not proved. Charge 2.c: 2. In or around November 2016 behaved in an inappropriate manner towards Patient 2 in that you: c. Intimidated her. This charge is found proved. In reaching this decision, the panel took into account Patient 2 s evidence that you had intimidated her and your evidence. It accepted that you had shouted loudly at her and 13

14 that you ignored her and that she was intimidated by your manner. The panel also had regard to the evidence of Patient 1 relating to events described in November For the reasons outlined at charge 1.d, the panel found this charge proved on the balance of probabilities. Charge 3: 3. In or around September 2013 said to Colleague A words to the effect of women are only good for cooking and making beds so get to it. This charge is found proved. In reaching this decision, the panel took into account Colleague A s evidence and your evidence. Colleague A stated that after asking what she was required to do you told her to make the beds and words to the effect of women are only good for cooking and making beds so get to it. In your evidence, you stated that you were speaking to a patient who said she was bored and you were having a joke with the patient and told her to make beds. You said that Colleague A misinterpreted what you had said and you deny saying that women are only good for cooking and making beds so get to it to her. Colleague A was adamant that she had not misunderstood what you had said and that you had directed this comment towards her and the panel was of the view that it was supported by the words get to it. The panel preferred Colleague A s evidence and found this charge proved. 14

15 Charge 4: 4. In or around September 2013 said to Colleague A that you liked her top as you could see down it. This charge is found proved. In reaching this decision, the panel took into account Colleague A s evidence and your evidence. In her evidence, Colleague A said that on one occasion her tunic had been stained and that she needed to change into scrubs. When she got changed into scrubs Colleague A said that you said that you liked it when she wore that top because you could see down it. Colleague A said that she was disgusted with this comment and she taped her top up so you could not see down it. In your evidence, you stated that you did comment on being able to see down her top, but this was in a paternalistic way. You said that you were telling her so she was aware of this and so she would cover up. The panel preferred the evidence of Colleague A and found this charge proved. Charge 5: 5. Between September 2013 and December 2014 sent one or more inappropriate message to Colleague A on Facebook. This charge is found proved. In reaching this decision, the panel took into account Colleague A s evidence and your evidence. 15

16 After hearing evidence from Colleague A and you, it was clear to the panel that you both accepted that you had communicated via Facebook. You became friends on Facebook shortly after Colleague A started work at the Hospital. Colleague A, in the local investigation, her statement and oral evidence was consistent in her account. She told the panel that you sent inappropriate messages to her which included saying that you wanted to give her a bed bath with your tongue. Colleague A also stated that you had messaged her on Facebook saying that you had hurt your balls and that they needed looking after. Colleague A told the panel that she found these messages to be disgusting and that she was embarrassed to go into work. In your oral evidence you stated that it was Colleague A who said that she wanted you to give her a bed bath with your tongue. You denied sending any inappropriate messages to Colleague A and that it was her who was inappropriate towards you. The panel noted that there were inconsistencies in your evidence. The panel was not furnished with evidence of these Facebook messages because you deleted your Facebook account. You told the panel that you were told by the Trust not to speak to any of your colleagues following your suspension. You then went further when questioned stating that you were told by the Trust to delete Facebook. The panel found that additional comment to be unlikely, neither you nor Colleague A kept copies of the messages and once your account had been deleted they were not visible to anyone. The panel noted that Colleague A was visibly surprised with your counter allegation and it found her response to be genuine. The panel preferred the evidence of Colleague A and found this charge proved. Charge 6.a: 16

17 6. Between September 2013 and November 2014: a. Slapped Colleague A s bottom; This charge is found proved. In reaching this decision, the panel took into account Colleague A s evidence and your evidence. In her evidence Colleague A told the panel that you slapped her bum while she was bent over on the ward. You told the panel that this did not happen and said that on one occasion your hand was on a table when Colleague A sat on it. You said that you had not moved your hand because the way she was sitting prevented you from doing so, however, recognising, due to the size difference between you and Colleague A you stated in your evidence, you could have readily removed your hand. You deny slapping colleague A s bottom. The panel preferred the evidence of Colleague A. The panel was of the view that you fabricated this alternative account of events. Accordingly, the panel found this charge proved. Charge 6.b: 6. Between September 2013 and November 2014: b. On one or more occasions tried to hug Colleague A and/or grab her from behind. This charge is found proved. In reaching this decision, the panel took into account of Colleague A s evidence and your evidence. 17

18 Colleague A told the panel that you would always follow her around at work and try to hug her from behind. You denied that you followed her around at work. You acknowledged that on one occasion you hugged her. The panel preferred the evidence of Colleague A. Accordingly, this charge was found proved. Charge 7: 7. In or around November 2014, grabbed Colleague A and kissed her. This charge is found proved. In reaching this decision, the panel took into account Colleague A s evidence and your evidence. Colleague A told the panel that whilst an in-patient on a different ward, she went on to your ward to hand in a sick note in her pyjamas. You grabbed her, hugged her and kissed her on the lips. In your evidence you told the panel that when Colleague A came into the ward she was upset and you tried to comfort her. You told the panel that you did hug her and kissed her on the cheek out of concern for her. The panel preferred the evidence of Colleague A. Accordingly, the panel found this charge proved. Charge 8: 18

19 8. Your conduct at charges 4 and/or 5 and/or 6 and/or 7 was sexually motivated. This charge is found proved. In reaching this decision, the panel took into account Colleague A s evidence and your evidence. You said that Colleague A was flirtatious with you and that she made you feel uncomfortable. In your evidence you stated that Colleague A asked you to go on a night out with her. You said that you replied by saying that this would be like going on a night out with her dad. You said that Colleague A replied by saying that she could do things to you that she could not do to her dad. In your evidence you told the panel that Colleague A made a lewd comment towards you. You said that Colleague A was putting something in the kitchen bin and accidentally caught you in the genitals. You said that she responded by saying, don t worry, I would have put it in my mouth and soothed it for you. Further, in your oral evidence, you stated that you feel that these allegations were fuelled by you declining to be a guarantor for Colleague A and her boyfriend. You then changed this to say it was a male friend who had recently come out as gay. Colleague A was genuinely very surprised at your counter allegations and stated that she did not have a boyfriend when you were working together. In any event, she said that she would have asked her parents or family if she needed a guarantor for a loan. The panel believed that you fabricated these events and explanations to try to create a scenario where Colleague A was the protagonist. 19

20 In your evidence you deny that your behaviour towards Colleague A was sexually motivated. You said that she was a young girl who is 22 years younger than you and who you had no interest in sexually. The panel preferred Colleague A s evidence and found this charge proved. Submission on misconduct and impairment Having announced its finding on all the facts, the panel then moved on to consider, whether the facts found proved amount to misconduct and, if so, whether your fitness to practise is currently impaired. There is no statutory definition of fitness to practise. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel heard evidence from you under oath. The panel also had regard to a new bundle of documents provided by you which included the following: Reflective piece; Curriculum vitae; Reflective accounts; [PRIVATE] Confirmation of training courses in professional boundaries; Professional boundaries certificates of training; Testimonials, character references and patient feedback. In your evidence you said that you whole heartedly apologise to Patient 1 s family and Mr 1. You also said that you whole heartedly apologise to Patient 2 and her family for any distress that you caused. You stated that you have already apologised to Colleague A through the Trust and offer your apologies again. 20

21 You said that the charges found proved have tarnished the reputation of the profession, for which you said you are truly sorry. You admitted that you have not maintained the professional standards expected within the nursing profession. You told the panel that you have completed a professional boundaries training course. You said that you have learnt that professional relationships should be kept that way and that you do not socialise with any of your current colleagues. You told the panel that you have attended a communication course in April 2018 to help you to speak quietly and in a softer tone. [PRIVATE] You told the panel that you are currently working as a Nursing Assistant in a Nursing Home. The Nursing Home has around 65 residents and you described your responsibilities as a Nursing Assistant. During cross examination, Mr Smalley asked you whether you believe the facts found proved amounted to serious professional misconduct, to which you replied yes. Mr Smalley invited the panel to consider the charges found proved individually find that there has been misconduct of a serious nature. He referred the panel to the case of Roylance v General Medical Council (no. 2) [2000] 1 AC 311 which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. Mr Smalley invited the panel to take the view that your actions amount to serious breaches of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 (the 2008 Code) in respect of charges 3-8 and the Code: Professional standards of practice for nurses and midwives 2015 (the 2015 Code) in respect of charges 1 and 2. He directed the panel to specific paragraphs and identified where, in the NMC s view, your actions amounted to misconduct. Mr Smalley submitted that, in relation to Charges 3-8, you failed to adhere to the 2008 Code and the requirements of 21

22 paragraphs 1, 3, 27, 48. Mr Smalley submitted that, in relation to Charges 1 and 2, you failed to adhere to the 2015 Code and the requirements of paragraphs 1, 1.1, 1.2, 20.1, 20.2, 20.3, 24.1 and He outlined how your actions breached the relevant parts of the Code. Mr Smalley submitted that you failed to provide a high standard of practice and care and not only did your actions put patients at risk of harm, your actions caused distress to Patient 1, Patient 2 and to Colleague A. Mr Smalley submitted that your standard of practice fell significantly short of what would be proper in the circumstances, and therefore amounted to serious professional misconduct. Mr Smalley further submitted that you yourself have accepted that the facts found proved do amount to serious professional misconduct. With regard to the question of impairment, Mr Smalley invited the panel to find impairment on both public protection and public interest grounds. Mr Smalley referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) and submitted that your level of insight and remediation would be central to the panel s determination on impairment. He submitted that you denied all of the charges and have only demonstrated some insight. Mr Smalley addressed the panel on the issue of remediation and submitted that your fitness to practice remains impaired primarily due to your lack of remediation. He submitted that the misconduct in this case is largely attitudinal which is difficult to remediate. In the absence of full insight, Mr Smalley submitted that the risk of repetition remains. Mr Smalley further submitted that the public interest is engaged in this case due to your limited insight, lack of remediation and the consequent risk of harm to the public. He submitted that an informed member of the public would be concerned if a finding of no impairment were to be made in the circumstances of this case. 22

23 Ms Maudsley, on your behalf, reminded the panel that not all breaches of the Code amount to misconduct. She submitted that you have been working since 2003 as a qualified nurse and there were no complaints prior to or after these allegations arose. Ms Maudsley told the panel that this had been a salutary lesson to you and the risk of repletion is low and you had developed some insight. You are now more mindful of your proximity, personal space, inappropriate banter and social media. You have good insight going forward and offered genuine and sincere apologies. The panel has accepted the advice of the legal assessor which included reference to a number of judgments which are relevant, these included: Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, Nandi v GMC [2004] EWHC 2317 (Admin), and GMC v Meadow [2007] QB 462 (Admin); Schodlock v GMC [2015] EWCA Civ 769 and Grant. The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of that misconduct. Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of the 2008 Code in relation to charges 3-8 and the 2015 Code in relation to charges 1 and 2. The panel, in reaching its decision accepted that there was no burden or standard of proof at this stage and exercised its own professional judgement. 23

24 The panel was of the view that your conduct did fall significantly short of the standards expected of a registered nurse, and that your acts and omissions in relation to charges 3-8 amounted to breaches of the 2008 Code. Specifically: The Preamble where it states: The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must: be open and honest, act with integrity and uphold the reputation of your profession. And paragraphs: 1. You must treat people as individuals and respect their dignity. 3. You must treat people kindly and considerately 27. You must treat your colleagues fairly and without discrimination. 48. You must demonstrate a personal and professional commitment to equality and diversity. The panel was also of the view that your conduct did fall significantly short of the standards expected of a registered nurse, and that your acts and omissions in relation to charges 1 and 2 amounted to breaches of the 2015 Code. Specifically: 1 Treat people as individuals and uphold their dignity 1.1 treat people with kindness, respect and compassion 24

25 1.2 make sure you deliver the fundamentals of care effectively 20 Uphold the reputation of your profession at all times 20.1 keep to and uphold the standards and values set out in the Code 20.2 act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment 20.3 be aware at all times of how your behaviour can affect and influence the behaviour of other people 24 Respond to any complaints made against you professionally 24.1 never allow someone s complaint to affect the care that is provided to them, and 24.2 use all complaints as a form of feedback and an opportunity for reflection and learning to improve practice. The panel considered each charge separately. It concluded that each of the charges 1, 2,4, 5, 6, 7 and 8, individually amounted to misconduct. The panel found your actions deplorable in intimidating Patient 1, who was an elderly and vulnerable patient. Similarly your actions in intimidating Patient 2 were deplorable. The panel did not consider that the conduct found in charge 3 was sufficiently serious to amount to misconduct. Charges 4, 5, 6 and 7 were sexually motivated. As a 40 year old man you frightened and intimated an 18 year old woman. You physically touched her against her will. You sent messages to her which she regarded as disgusting. The panel concluded that your behaviour fell significantly below the standard required of a registered nurse and therefore amounted to misconduct. 25

26 Decision on impairment The panel next went on to decide if as a result of this misconduct your fitness to practise is currently impaired. The panel was mindful of the need to consider not only whether you continue to present a risk to members of the public, 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 of your case. The panel had regard to the guidance given in the judgment of Mrs Justice Cox in the case of Grant. At paragraph 74 of that judgment, she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes. 26

27 Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d.. The panel considered that your actions had engaged the above questions in Grant. The panel concluded that you have in the past acted so as to put patients at unwarranted risk of harm. The panel had regard to the fact that patients and the public place trust in the nursing profession, and that nurses are expected to act in a way which justifies that trust. It is fundamental to maintaining the trust that nurses make it a priority to deliver the best possible care to their patients and treat colleagues with dignity and respect. The panel considered that these were fundamental tenets of the profession. The panel therefore considered that your actions, in respect of the charges found proved breached fundamental tenets of the profession identified above. Your actions were also of such a nature as to bring the profession into disrepute. The panel next considered the question of current impairment. It bore in mind that it had to look to the future and consider whether you were liable to act in such a way as to put patients at unwarranted risk of harm, breach fundamental tenets of the profession, bring the profession into disrepute or to act dishonestly. In assessing the risk of repetition in this case the panel considered the level of insight and remorse demonstrated by you and whether your misconduct has been or is capable of being remedied. The panel had regard to your reflective statement and your oral evidence. 27

28 The panel first considered your insight, noting that in your oral evidence and reflective statement you apologise for your conduct. In the panel s judgement, you appear to blame physical factors for the misconduct, rather than accepting full responsibility for your actions. The panel was of the view that you have demonstrated some insight into charges 1 and 2 but do not address your conduct in relation to Colleague A. The panel noted that you failed to demonstrate insight into your actions towards Colleague A and attribute the conduct to your stature and how you gesticulate, rather than addressing the core attitudinal concerns and the identified sexual motivation. During cross examination you were asked to expand on the concept of power imbalance in the workplace. You were unable to give any satisfactory answers or provide any meaningful insight and understanding into this particularly in relation to Colleague A. In its consideration of whether you have remedied your practice the panel noted the training course that you have attended. The panel concluded that, these training courses have not fully addressed the concerns, and your misconduct has not been remedied. Consequently, there is a real risk of repetition. Therefore, the panel concluded that a finding of impairment on the grounds of public protection is necessary. The panel bore in mind that its primary function is to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding the proper standards and behaviour. In the judgement of the panel, irrespective of the risk of repetition, public confidence in the profession and the regulator would be undermined if a finding of impairment was not made in light of the seriousness of the matters found proved. Having regard to all of the above, the panel determined that your fitness to practise is currently impaired on both public protection and public interest grounds. 28

29 9 May 2018 (Day 6) Due to insufficient time this hearing went part heard on 27 April The sanction stage was considered by the panel when the hearing resumed on 9 May Mr Thompson was not in attendance on this date but he was represented by Ms Maudsley in his absence. The panel has not drawn any inference from Mr Thompson s nonattendance at the hearing today. Determination on sanction The panel has considered this case carefully and has decided to make a striking-off order. The effect of this order is that the NMC register will show that Mr Thompson s name has been struck-off the register. In reaching this decision, the panel has had regard to all the evidence in this case including the character references and testimonials submitted by Mr Thompson, the evidence of training courses [PRIVATE] that he has attended, the evidence submitted by the NMC and the submissions made by Ms Caslin, on behalf of the NMC and the submissions made by Ms Maudsley, on behalf of Mr Thompson. The panel heard and accepted the advice of the legal assessor which included reference to the NMC Sanction Guidance (SG). 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 SG published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgment. The panel first considered the aggravating and mitigating factors. The panel identified the following as aggravating factors in this case: 29

30 Mr Thompson s misconduct towards Patient 1 and Patient 2 who were particularly vulnerable; Mr Thompson s misconduct caused emotional distress to Patient 1, Patient 2 and to Colleague A; Mr Thompson s actions in relation to Colleague A were sexually motivated and persisted and escalated over a significant period of time; The sexual misconduct involved a very young and inexperienced female colleague; Mr Thompson s limited insight (particularly relating to his position of power), lack of remediation and the consequent risk of repetition; Mr Thompson sought to deflect blame for his sexual misconduct to Colleague A; Mr Thompson gave inconsistent accounts and had embellished his oral evidence after hearing witness evidence. He had also fabricated events related to Colleague A; Mr Thompson has demonstrated attitudinal issues with patients and a colleague. The panel identified the following as mitigating factors in this case: Mr Thompson s reflective account; The panel was not presented with any evidence of previous or subsequent investigations relating to Mr Thompson s conduct; Testimonials both written and given during oral evidence by registered nurses who have worked with Mr Thompson. The panel considered whether the sexual misconduct found proved is serious. In establishing the seriousness of the sexual misconduct, the panel had regard to the NMC SG, which states the following: The misconduct will be particularly serious where there is an abuse of the special position of trust which the nurse or midwife holds, or where the nurse or 30

31 midwife is required to register as a sex offender. Although the level of risk [to patients] will need to be given careful consideration, sexual misconduct seriously undermines public trust in the professions The panel accepted that there has neither been a criminal charge nor has there been an entry made on the Sex Offenders Register against Mr Thompson. Nevertheless, the panel was of the view that given the particular circumstances of this case, the sexual misconduct was not at the lower end. The panel was mindful of the age gap between Mr Thompson, who was 40 and Colleague A, who was 18 at the time of the incidents. The panel considered that it was not just the age gap that caused concern in this case, but the abuse of trust and power involving a very young colleague at the beginning of her career. The panel was also of the view that the seriousness of this misconduct was heightened by Mr Thompson s persistent verbal and physical conduct towards Colleague A despite her remonstrations. Mr Thompson s behaviour caused emotional distress to Colleague A which was still visible five years later when she was giving her evidence at this hearing. Mr Thompson demonstrated a lack of understanding into the concept of power imbalance and of that which existed between him and Colleague A. The panel therefore concluded that the sexual misconduct in this case was serious. The panel then turned to the question of which sanction, if any, to impose. It considered each available sanction in turn, starting with the least restrictive sanction and moving upwards. The panel first considered whether to take no action. The panel bore in mind that it had identified at the impairment stage that there remained a risk of repetition due to Mr Thompson s limited insight and lack of remediation. As such, any repetition of his misconduct had the potential to bring with it unwarranted risk of harm to patients and colleagues. To take no action would therefore not provide protection to the public and would be inconsistent with the panel s findings at the impairment stage. In addition, the panel considered that to take no further action would be wholly inadequate given the seriousness of the misconduct found and would therefore not declare, uphold or maintain standards, or maintain the public s confidence in the profession. 31

32 Next, in considering whether a caution order would be appropriate, the panel took into account the SG, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel was clear that Mr Thompson s impairment was not at the lower end of the spectrum and that a caution order would be manifestly inappropriate in view of the seriousness of the misconduct found and also in view of the panel s finding on impairment. A caution order would offer no protection to the public, as it would not restrict Mr Thompson s practise. Neither would it maintain public confidence in the profession or in the regulator. Therefore, the panel decided that it would be neither proportionate nor in the public interest to impose a caution order. The panel next considered whether placing conditions of practice on Mr Thompson s registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. It had regard to the SG and the following factors: Conditions may be appropriate when some or all of the following factors are apparent (this list is not exhaustive): no evidence of harmful deep-seated personality or attitudinal problems identifiable areas of the nurse or midwife s practice in need of assessment and/or retraining patients will not be put in danger either directly or indirectly as a result of conditional registration the conditions will protect patients during the period they are in force it is possible to formulate conditions and to make provision as to how conditions will be monitored. 32

33 The panel was of the view that Mr Thompson s misconduct demonstrated a harmful deep-seated attitudinal problem arising from his treatment of patients and a colleague, and the subsequent inconsistencies in his evidence. The panel noted that this is not a case where there are identifiable deficiencies in Mr Thompson s clinical practice. Therefore, it concluded that it would be wholly impracticable to impose a conditions of practice order in view of the serious misconduct. The panel was also clear that placing condition of practice Mr Thompson s registration would not address either the seriousness of this misconduct, or the attitudinal and behavioural concerns arising from it. Therefore the panel considered that conditions of practice would be wholly insufficient to protect the public or mark the seriousness of the misconduct in this case. The panel then went on to consider whether a suspension order would be an appropriate sanction. The panel took into account the SG, in particular: This sanction may be appropriate where the misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register. This is more likely to be the case when some or all of the following factors are apparent (this list is not exhaustive): a single instance of misconduct but where a lesser sanction is not sufficient no evidence of harmful deep-seated personality or attitudinal problems no evidence of repetition of behaviour since the incident the Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour. The panel determined that Mr Thompson s conduct in respect of the charges found proved were significant departures from the standards expected of a registered nurse, and are fundamentally incompatible with him remaining on the register. The panel was of the view that significant failings, particularly in respect of Mr Thompson s sexual misconduct and attempts to deceive the panel in his assertions that it was Colleague A who made sexual advances towards him, made it quite incompatible for him to remain 33

34 on the register. Mr Thompson s persistent lack of insight into his behaviour was also a factor that the panel considered. Mr Thompson misconduct and sexual misconduct in a clinical setting were so serious that to allow him to continue practising as a nurse would undermine public confidence in the profession and in the NMC as a regulatory body. The panel had regard to the NMC SG: In all cases of serious sexual misconduct, it will be often be the case that the only proportionate sanction will be a striking-off order. Decisions to impose sanctions other than a striking-off order, will need to be particularly carefully explained, so that the reasons can be understood by those who have not heard all of the evidence in the case. The panel determined that Mr Thompson s behaviour involved the following factors: A serious departure from the relevant professional standards as set out in key standards, guidance and advice. Doing harm to others, including emotional harm, or behaving in such a way that could foreseeably result in harm to others, particularly patients or other people the nurse or midwife comes into contact with in a professional capacity Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients. Any serious misconduct of a sexual nature. Any violent conduct, whether towards members of the public or patients, where the conduct is such that the public interest can only be satisfied by removal... Persistent lack of insight into seriousness of actions or consequences. Balancing all of the factors and after taking into account all of the evidence before it during this case, the panel determined that the only appropriate and proportionate sanction is that of a striking-off order. It is the only order sufficient to protect the public 34