Nursing and Midwifery Council: Fitness to Practise Committee Substantive Hearing 4-6 April 2018

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 4-6 April 2018 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Registrant Nurse NMC PIN David Leonard 90A2940E Part(s) of the Register Registered Nurse Sub Part 1 Mental Health Nursing 1 February 2002 Area of Registered Address Type of Case Panel Members: Legal Assessor: Panel Secretary: Mr Leonard: Nursing and Midwifery Council: Cheshire Misconduct Deborah Jones (Chair, lay member) Mark Gibson (Registrant member) Linda Redford (Lay member) David Clark Siobhán Hamill Not present and not represented in absence Represented by Francis O Toole, Case Presenter. Facts proved: 2, 5, 8 and 9 Facts proved by admission: 1, 3, 4 and 7 Facts not proved: 6 Fitness to practise: Sanction: Interim Order: Impaired Striking off order Interim suspension order (18 months) 1

2 Details of charge: That you, a registered nurse, on 20 May 2016: 1. Assisted Resident A into bed using a hoist without the assistance of a second member of staff. [Admitted] 2. Your actions in Charge 1 caused Resident A to sustain a fractured humerus bone. [Found Proved] 3. Documented in Resident A s notes that you undertook the procedure at Charge 1 with Carer A, when this was not the case. [Admitted] 4. Wrote a signature intended to look like Carer A s signature in Resident A s notes. [Admitted] 5. Failed to undertake a full examination of Resident A s arm after you observed at/or about 21.30hrs that it was swollen and that she was in pain. [Found Proved] 6. Failed to attend to Resident A in a timely manner after it was reported to you by Carer B at or around that Resident A had screamed out in pain. [Found Not Proved] 7. On 23 May 2016 during interview as part of the internal investigation stated that you had been assisted with transferring Resident A to bed by Carer A when you had carried this out alone. [Admitted] 8. Your actions at charges 3 and 4 were dishonest in that you deliberately sought to conceal that you had used a hoist without a second member of staff and / or intended to create the misleading impression that you had been assisted by Carer A. [Found Proved] 9. Your actions at Charge 7 were dishonest in that you intended to create a misleading impression that you had been assisted with transferring Resident A to bed by Carer A when you had carried this out alone. [Found Proved] 2

3 And, for the reasons stated above, your fitness to practise is impaired by reason of your misconduct. 3

4 Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Mr Leonard was not in attendance and that written notice of this hearing had been sent to Mr Leonard s registered address by recorded delivery and by first class post on 2 March 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 Mr Leonard s right to attend, be represented and call evidence, as well as the panel s power to proceed in his absence. Mr O Toole 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 all of the information available, the panel was satisfied that Mr Leonard has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. It noted that the rules do not require delivery and that it is the responsibility of any registrant to maintain an effective and up-to-date registered address. Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Mr Leonard. The panel had regard to Rule 21 (2), which states: (2) Where the registrant fails to attend and is not represented at the hearing, the Committee 4

5 (a) (b) (c) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or may adjourn the hearing and issue directions. Mr O Toole invited the panel to continue in the absence of Mr Leonard on the basis that he had voluntarily absented himself. Mr O Toole submitted that Mr Leonard has engaged throughout the NMC proceedings and has responded to the notice of hearing in relation to these proceedings, in which Mr Leonard stated that he will not be attending today s proceedings, nor will he be represented and does not request a postponement. As a consequence, Mr O Toole submitted that there was no reason to believe that an adjournment would secure his attendance on some future occasion. The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is not absolute and is one that should be exercised with the utmost care and caution. The panel further noted the case of R (on the application of Raheem) v Nursing and Midwifery Council [2010] EWHC 2549 (Admin) and the ruling of Mr Justice Holman that:...reference by committees or tribunals such as this, or indeed judges, to exercising the discretion to proceed in the person's absence "with the utmost caution" is much more than mere lip service to a phrase used by Lord Bingham of Cornhill. If it is the law that in this sort of situation a committee or tribunal should exercise its discretion "with the utmost care and caution", it is extremely 5

6 important that the committee or tribunal in question demonstrates by its language (even though, of course, it need not use those precise words) that it appreciates that the discretion which it is exercising is one that requires to be exercised with that degree of care and caution. The panel noted the contents of the notice of hearing completed by Mr Leonard dated 2 March 2018 detailing his response to the charges and further correspondence from Mr Leonard received by the NMC on 29 March The panel has decided to proceed in the absence of Mr Leonard. In reaching this decision, the panel has considered the submissions of the case presenter, and the advice of the legal assessor. It has had particular regard to the factors set out in the decision in R v Jones [2002] UKHL5 and decisions of the Court of Appeal in General Medical Council v Adeogba; General Medical Council v Visvardis [2016] EWCA Civ 162. It has had regard to the overall interests of justice and fairness to all parties. It noted that: Mr Leonard has provided a formal response to the charges to be considered by the panel; Mr Leonard has clearly indicated his position in that he will not be attending and will not be represented in his absence; no application for an adjournment has been made by Mr Leonard; there is no reason to suppose that adjourning would secure his attendance at some future date; one witness has attended today to give live evidence; not proceeding may inconvenience the witness and further delay may have an adverse effect on the ability of the witness to accurately recall events; there is a strong public interest in the expeditious disposal of the case. There is some disadvantage to Mr Leonard in proceeding in his absence. Although the evidence upon which the NMC relies will have been sent to him at his registered 6

7 address, he will not be able to challenge the evidence relied upon by the NMC and will not be able to give evidence on his own behalf. However, in the panel s judgment, this can be mitigated. The panel can make allowance for the fact that the NMC s evidence will not be tested by cross examination and, of its own volition, can explore any inconsistencies in the evidence which it identifies. Furthermore, the limited disadvantage is the consequence of Mr Leonard s decision to absent himself from the hearing and to waive his rights to attend and/or be represented. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mr Leonard. The panel will draw no adverse inference from Mr Leonard s absence in making its findings of fact. 7

8 Background The NMC received a referral on 30 August 2016 from BUPA Care Homes regarding Mr Leonard s fitness to practice. Mr Leonard was employed by BUPA Care Homes at Mount Hall Care Home ( the Home ) in the capacity as a registered nurse and was employed there from 8 May 2015 until he resigned shortly before an internal disciplinary hearing which took place on 7 June Mr Leonard was the Nurse in Charge on night duty at the Home at the time of the allegations. On 20 May 2016, Mr Leonard is alleged to have failed to follow correct moving and handling procedures in line with BUPA policy and the care plan of Resident A. Resident A required the use of a hoist to transfer her to and from bed and this apparatus always required the assistance of two members of staff. Mr Leonard allegedly hoisted Resident A into bed alone without the support of another colleague and sometime later Resident A complained of pain and was found to have a swollen arm which, following referral to hospital, was found to be fractured. Furthermore, it is alleged that Mr Leonard acted dishonestly in his recording of this incident by making an entry in Resident A s medical notes indicating that the undertook the procedure with a colleague, Carer A, when this was not the case. Additionally, it is alleged that Mr Leonard falsified Carer A s signature within the care record to reflect his claim that he was assisted by her whilst moving Resident A. It is further alleged that he maintained, during an internal investigation, that Carer A had assisted him in moving Resident A into bed. It is alleged that Mr Leonard did not undertake a full examination of Resident A s arm at/or about 21:30 hours after it appeared that her arm was swollen and that she was in pain. It is alleged that Carer B alerted Mr Leonard of Resident A s condition at or around 02:25, but Mr Leonard failed to attend to Resident A in a timely manner and only attended to her nearly an hour later. It is alleged that by these inactions on Mr Leonard s 8

9 part, he failed to take appropriate action and in doing so had left the Resident in pain for an extended period of time before calling an ambulance. Mr Leonard has provided responses to the allegations. However he has refuted a number of them. Evidence The panel heard live evidence from the following witness: Carer A, care assistant at the Home at the time of the allegations. Carer A told the panel that on the night in question Resident A was quiet, however, this was not unusual. She also explained that the Home is arranged over two floors: at night two carers are allocated to the top floor and one carer is allocated on the ground floor. On the night in question, she had been allocated to work on the ground floor of the Home. She told the panel that Resident A s room was on the top floor of the Home. Carer A confirmed to the panel that she had not assisted Mr Leonard with caring for Resident A on that shift. She told the panel that she had provided Resident A with her supper drink at the start of her shift before going downstairs to the ground floor. Resident A was seen at this time sitting in her chair and Resident A did not complain of any pain. She was referred to Resident A s daily records, specifically the entry at 21:30 hours, and confirmed to the panel that the signature JB entered into the signature section was not completed by her. She stated that if she had not undertaken a task then she would have not initialled the records. Carer A confirmed that she had never observed nurses signing daily clinical records on behalf of other nurses and stated that should not happen. 9

10 The panel also had regard to the written statements of Carer B, Carer C and Ms 1, General Manager at Birch Court Care Home and the various exhibits provided by them. The panel was also provided with written documentation submitted by or on behalf of Mr Leonard. This comprised written reflection which was undated but was received by the NMC at the end of August or beginning of September 2017; a letter received on 19 October 2017; and a further letter received on 29 March The panel was aware that the August/September 2017 reflection was prepared when Mr Leonard was negotiating, with the assistance of the Royal College of Nursing, the possibility of voluntary removal. The panel noted that the position with regard to his response to the charges adopted by Mr Leonard at that time was different in some respects from the position he subsequently confirmed. The panel recognised that the earlier document was prepared for a specific purpose and did not draw any adverse inferences from Mr Leonard s apparent change in position or the fact that at the time he was exploring alternative means of resolving his case. Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel took into account all the oral and documentary evidence in this case, together with the submissions made by Mr O Toole, on behalf of the NMC and the written submissions made by Mr Leonard. The panel heard and accepted the advice of the legal assessor, which included reference to the case of Ivey v Genting Casinos Ltd [2017] UKSC 67. 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 was satisfied that it was more likely than not that the incidents occurred as alleged. The panel has drawn no adverse inference from the nonattendance of Mr Leonard. 10

11 The panel first considered the overall credibility and reliability of Carer A. The panel considered Carer A to be an open and honest witness. It considered that although it was clear that Carer A was nervous, she provided clear and consistent evidence and was firm on what she had done and had not done on that shift. The panel had no reason to doubt the veracity of her evidence. At the outset of this hearing, it was announced that Mr Leonard formally admitted the following charges on the response to the notice of hearing form, namely charges 1, 3, 4 and 7. The panel had regard to Rule 24 (5) and was mindful of the admissions made by Mr Leonard and carefully considered his position. The panel considered his admissions to be unequivocal and consistent with the evidence adduced before it. Therefore, the panel found charges 1, 3, 4 and 7 proved on the basis of the admissions. The panel considered the remaining charges. The panel applied the test for dishonesty, to the relevant charges, set out in the case of Ivey. The panel must first ascertain the actual state of the individual s knowledge or belief as to the facts. Once this has been established, the question of whether the conduct was honest or dishonest is to be determined by applying the standards of ordinary decent people. The panel went on to make the following findings: Charge 2: 2. Your actions in Charge 1 caused Resident A to sustain a fractured humerus bone. This charge is found proved. 11

12 In reaching this decision, the panel took into account of the oral and documentary evidence adduced in this case and in particular the oral evidence of Carer A. The panel heard evidence from Carer A who confirmed that upon commencing her shift she went into Resident A s room to give her a drink of Horlicks and noticed that she was in her chair, which she claimed was unusual as Resident A was usually in her bed. She confirmed to the panel that Resident A did not complain of any pain at this point. She was not asked at any stage by Mr Leonard to assist with the transferring of Resident A into her bed. The panel considered this account to be consistent with the evidence provided by Carer A in her NMC witness statement dated 23 February 2017 and the Bupa statement dated 22 May The panel took account of the written statement of Carer B, who was also on the same shift on 20 May She stated: I wrote in the daily notes that Resident [A] buzzed her buzzer at around 8.55pm and asked to be taken to bed. I told her that I needed another member of staff to help me do this as I couldn t put her to bed on my own. I don t remember if Resident [A] said anything about being in pain at that time, I don t think she did, If she did I would have documented it in the notes as it would be something that should have been noted and recorded and escalated to the nurse in charge. The panel had sight of Resident A s daily records document for the shift and particularly noted the entry made at 21:30 hours. The panel noted the admission made by Mr Leonard, in relation to charge 1, in that he had falsely entered Carer A s initials into the 12

13 records to indicate that Carer A had assisted him with transferring Resident A into bed, despite having done this on his own. The panel further noted the entry at that time made by Mr Leonard detailed pain in left arm. Appears swollen. Pain relief given. The panel noted the evidence of Carer B who stated that she had checked on Resident A at around 22:20 and stated: I asked her if she was comfortable and she said she was. She was lying awkwardly though, she didn t look comfortable. I checked on Resident [A] again during the night, at 2:35am. I changed her pad with her consent. She screamed out in pain. I tried to be as gentle as I could. She was wearing her dressing gown still. I escalated to the registrant and told him that Resident [A] was in pain. He said he would check on her. The panel considered that there was no evidence before it to suggest that Resident A had sustained the injury or had complained of pain in her arm prior to 21:30 hours. The panel noted that Resident A had appeared to have had a good day and was seen by both Carer A and B to be sat up in her chair, despite usually being in bed. It noted that the first time that the swelling and pain in Resident A s arm was recorded was in the entry made by Mr Leonard at 21:30 hours after Mr Leonard had moved Resident A into her bed. Therefore, the panel determined that, on the balance of probabilities, the injury to Resident A s arm was sustained when Mr Leonard had performed the hoist transfer on his own. Accordingly, this charge is found proved. 13

14 Charge 5: 5. Failed to undertake a full examination of Resident A s arm after you observed at/or about 21.30hrs that it was swollen and that she was in pain. This charge is found proved. In reaching this decision, the panel took into account the documentary evidence before it including Resident A s daily records and the internal minutes of the investigatory meetings. The panel had sight of Resident A s daily notes record from the shift in question. It had particular regard to the entry made at 21:30 hours: Res [A] was assisted to bed using hoist and full sling. C/o pain in left arm. Appears swollen. Pain relief given. It further noted the entry made in Resident A s daily record by Mr Leonard later that shift at 03:30, which stated: Checked on Res [A] again to see if more comfortable. Still c/o pain in left arm. Allowed me to remove dressing gown and arm very floppy. I suspect that humerous is [broken] so 999 called. The panel noted Mr Leonard s explanation of this incident, which he provided during the internal investigation undertaken on 23 May 2016, Mr Leonard stated that after he had moved Resident A to bed Resident A would not allow him to take off her dressing down and that [he] could not see as she had her dressing gown on. However, during the internal disciplinary hearing that took place on 7 June 2016, Mr Leonard stated that he assessed Resident A s arm at 21:30 by folding her dressing gown sleeve up just above 14

15 her wrist and was therefore able to see that her arm was swollen. The panel considered Mr Leonard s version of events to be implausible. The panel considered that it was clear from the entry in Resident A s daily notes that Mr Leonard was aware at 21:30 hours that Resident A s arm was swollen and that she was experiencing pain, and that he subsequently administered pain relief for this pain. The panel therefore considered that, as an experienced nurse and having been made aware by Resident A that she was in pain and there appeared to be swelling, he should have undertaken a full examination of her arm following this. However, this examination was only undertaken a number of hours later, namely at 03:30. Therefore the panel considered, on the balance of probabilities, Mr Leonard failed to undertake a full examination of Resident A s arm after he observed at/or about 21:30 hours that it was swollen and she was in pain. Accordingly, this charge is found proved. Charge 6: 6. Failed to attend to Resident A in a timely manner after it was reported to you by Carer B at or around that Resident A had screamed out in pain. This charge is found NOT proved. The panel took account of all the relevant documentary evidence in this case, including the NMC witness statements and the internal investigatory meeting minutes. The panel noted the NMC witness statement of Carer B dated 9 March 2017, in which she stated in relation to this charge: 15

16 I checked on Resident [A] again during the night, at 2:35am. I changed her pad with her consent. She screamed out in pain. I tried to be as gentle as I could. She was wearing her dressing gown still. I escalated to the registrant and told him that Resident [A] was in pain. He said he would check on her. The panel further noted Carer B s Bupa interview dated 23 May 2016, in which she stated: I told DL that Res [A] was complaining of pain in her leg and her arm but I can t be sure what time this was. Yes, I told DL but I forgot to document that I had told him. The panel had regard to the minutes of Mr Leonard s Bupa witness interview that took place on 23 May 2016, in which he stated that [Carer B] did not tell me that Res [A] was uncomfortable. The panel considered all of the evidence and determined that although Mr Leonard may have been aware that Resident A s arm was swollen and she was experiencing pain at 21:30 hours, there was no evidence before it as to the time at which Carer B had escalated this concern. The panel therefore could not determine when Mr Leonard had been alerted by Carer B that Resident A had screamed out in pain. Therefore, there was no proper basis for a finding that Mr Leonard had failed to attend Resident A in a timely manner. Accordingly, this charge is found not proved. 16

17 Charge 8: 8. Your actions at charges 3 and 4 were dishonest in that you deliberately sought to conceal that you had used a hoist without a second member of staff and / or intended to create the misleading impression that you had been assisted by Carer A. This charge is found proved. In reaching this decision, the panel took account of the documentary evidence in this case and the admissions that Mr Leonard has made. The panel noted the response to the notice of hearing form completed by Mr Leonard dated 2 March 2018, in which he made admissions to charges 3 and 4, namely, that he had in fact documented in Resident A s notes that he undertook the procedure in charge 1 with Carer A, when he knew this was not the case and subsequently wrote a signature intended to look like Carer A s signature in Resident A s note. The panel considered whether Mr Leonard had knowledge that it was requirement to have two members of staff to use the hoist when moving residents. The panel had regard to the minutes of the disciplinary meeting that took place on 7 June 2016 in which it was clarified that Mr Leonard s training was up to date specifically in People Moving and Handling with Risk Assessment and Safeguarding Residents and he also confirmed that he did not feel he needed further support or training in this area. The panel also noted that Mr Leonard had been a registered nurse since 1993 and had been employed within the Home for approximately a year. In such circumstances, the panel considered that it was more likely than not that Mr Leonard was aware of the Home policies in relation to people moving and the use of the hoist. The panel also had regard to Mr Leonard s admission that he had falsified Resident A s records to give the impression that he was assisted by Carer A. On the basis of this 17

18 evidence, the panel considered that by Mr Leonard inputting Carer A s signature into Resident A s daily records, he knew what he had done was incorrect. The panel considered that such conduct, in these circumstances, would be regarded as dishonest according to the standards of ordinary decent people. The panel found that Mr Leonard s actions at charges 3 and 4 were dishonest in that he deliberately sought to conceal that he had used a hoist without a second member of staff and intended to create the misleading impression that he had been assisted by Carer A. Therefore, this charge is found proved. Charge 9: 9. Your actions at Charge 7 were dishonest in that you intended to create a misleading impression that you had been assisted with transferring Resident A to bed by Carer A when you had carried this out alone. This charge is found proved. In reaching its decision, the panel had regard to the oral evidence of Carer A, Mr Leonard s admissions, written representations and the minutes of the internal investigatory interviews. The panel noted that Mr Leonard had made an admission to charge 7, namely, on 23 May 2016 during an interview as part of the internal investigation stated that he had been assisted with transferring Resident A to bed by Carer A when he had carried this out alone. 18

19 The panel accepted the oral evidence of Carer A. Carer A confirmed that she did not assist Mr Leonard with moving Resident A via the hoist, she had been working on the ground floor at the time of the incident and assured the panel that she did not sign her initials in Resident A s daily record. The panel found Carer A to be open and honest throughout her evidence and that her evidence was consistent with the statements she had provided. Further, the panel had sight of the investigatory meeting minutes that took place on 23 May 2016 in which Mr Leonard stated that: I went to see her and Res [A] allowed C/A [Carer A] and myself to hoist her into bed. The panel also had sight of a subsequent investigatory meeting that took place on 25 May 2016, in which Mr Leonard again stated: Yes, C/A [Carer A] helped me put Res [A] into the hoist. I put her signature on the daily notes. [Carer A] helped me put Res [A] into the hoist. She did not stay for all of the procedure I hoisted her and put her into bed. The panel had previously determined that Mr Leonard had the knowledge and experience to know that this procedure must only be undertaken with two members of staff present to ensure the safety of the resident. Further, it determined that Mr Leonard had deliberately attempted to mislead his line manager during two internal investigatory meetings, before making admissions, to create the impression that he was assisted by Carer A in putting Resident A to bed. Therefore, he had sought to create a misleading impression that he had been assisted with transferring Resident A to bed by Carer A, when he knew that he had undertaken this alone. 19

20 The panel considered that such conduct, in these circumstances, would be regarded as dishonest according to the standards of ordinary decent people. Accordingly, this charge is found 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 Mr Leonard s 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. Mr O Toole referred the panel to the case of Roylance v GMC (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. In his submissions Mr O Toole invited the panel to take the view that Mr Leonard s actions amount to multiple and serious breaches of The Code: Standards of conduct, performance and ethics for nurses and midwives 2015 ( the Code ). He then directed the panel to the specific paragraphs and identified where, in the NMC s view, Mr Leonard s actions amounted to misconduct. Mr O Toole submitted that honesty and integrity are the bedrock of nursing practice and that Mr Leonard failed to uphold this by acting dishonestly. Mr Leonard was an experienced nurse who had chosen to move a vulnerable resident contrary to her care plan and the internal Home policy. Given Mr Leonard s experience in the profession and at the Home, he would have been aware of these plans and policies. Despite this, Mr Leonard chose to act as he did knowing the risks to which he was exposing Resident A. He submitted that Mr Leonard falsified clinical records to make it appear that he had 20

21 been assisted by Carer A. He further submitted that, when an investigation was launched into establishing the facts in this case, Mr Leonard continued to mislead his employer. Mr O Toole submitted that, by his actions, Mr Leonard s conduct fell far below the standards expected of a registered nurse. Mr O Toole submitted that Mr Leonard s actions amounted to serious misconduct. Mr O Toole then moved on to the issue of impairment, and addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards, and to maintain public confidence in the profession and in the NMC as a regulatory body. Mr O Toole referred the panel to the cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). He submitted that limbs a, b, c and d of Dame Janet Smith s test set out in the Fifth Report from Shipman were engaged by Mr Leonard s actions; he had put a patient at unwarranted risk of harm; he had brought the profession into disrepute; he had breached fundamental tenets of the profession; and he had acted dishonestly. In relation to whether Mr Leonard was liable to repeat such conduct in the future, Mr O Toole submitted that Mr Leonard had provided the panel with a reflective piece and another detailed letter in relation to the events in question but these pieces lacked any real insight into his conduct. Mr Leonard had made a number of admissions but has continued to refute others, especially in relation to his dishonesty. Mr O Toole submitted that Mr Leonard is not currently working and has failed to provide evidence that he has taken steps to address the deficiencies in his practice. On that basis, Mr O Toole invited the panel to make a finding of current impairment on both public protection and public interest grounds. The panel accepted the advice of the legal assessor. 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, and 21

22 only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, Mr Leonard s 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 Code: Professional standards of practice and behaviour for nurses and midwives (2015). The panel, in reaching its decision, had regard to the public interest and accepted that there was no burden or standard of proof at this stage and exercised its own professional judgement. The panel was of the view that Mr Leonard s actions did fall significantly short of the standards expected of a registered nurse, and that his actions amounted to a breach of the Code. Specifically: 1.1. Treat people with kindness, respect and compassion 1.2. Make sure you deliver the fundamentals of care effectively 1.4.Make sure that any treatment, assistance or care for which you are responsible is delivered without undue delay 2.1 Work in partnership with people to make sure you deliver care effectively 8.5.Work with colleagues to preserve the safety of those receiving care Complete all records accurately and without any falsification, taking immediate and appropriate action if you become aware that someone has not kept to these requirements 22

23 13.1 Accurately assess signs of normal or worsening physical and mental health in the person receiving care 13.2 Make timely and appropriately referral to another practitioner when it is in the best interests of the individual needing any action, care or treatment Act immediately to put right the situation if someone has suffered actual harm for any reason or an incident has happened which had the potential for harm Explain fully and promptly what has happened, including the likely effects, and apologise to the person affected and, where appropriate, their advocate, family or carers, and Document all these events formally and take further action (escalate) if appropriate so they can be dealt with quickly 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 The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. However, the panel was of the view that, as an experienced nurse, Mr Leonard should have followed both Resident A s care plan and the internal Home policy in relation to the manual transfer of Resident A, who was a vulnerable patient. He was aware that it was incorrect to transfer Resident A without the assistance of another member of staff. Mr Leonard then falsified Resident A s records to create the impression that he had been assisted by Carer A, and in doing so he was dishonest and his actions implicated a junior member of staff. Mr Leonard continued to be dishonest over a sustained period of time following the incident. The panel found that Mr Leonard s 23

24 actions did fall seriously short of the conduct and standards expected of a nurse and amounted to misconduct. 24

25 Decision on impairment The panel next went on to decide if, as a result of this misconduct, Mr Leonard s fitness to practise is currently impaired. Nurses occupy a position of privilege and trust in society and are expected at all times to act in a professional manner. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard, the panel considered the judgement of Mrs Justice Cox in the case of Grant where, in paragraph 74, she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but in my 25

26 view the test would be equally applicable to other practitioners governed by different regulatory schemes. Do our findings of fact in respect of the [doctor] s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel considered that all four limbs of Dame Janet Smith s test were engaged by Mr Leonard s past actions. By acting contrary to Resident A s care plan and the internal Home policy, Mr Leonard caused Resident A to sustain an injury. Mr Leonard behaved dishonestly by falsely entering Carer A s signature into Resident A s daily record to create the impression that he did not conduct the transfer of Resident A alone. He then persisted in this dishonesty by lying to the person conducting the internal investigation. The panel recognised that honesty is a fundamental tenet of the profession, which Mr Leonard had breached. The panel considered that Mr Leonard s conduct brought the nursing profession into disrepute. 26

27 The panel then considered whether Mr Leonard was liable to act in such a way in the future. In doing so, the panel followed the approach set out in Cohen v GMC [2008] EWHC 581 and asked itself whether the misconduct was easily remediable, whether it had in fact been remedied and whether it was highly unlikely to be repeated. The panel considered that whilst Mr Leonard s conduct was capable of remediation, there was no evidence that Mr Leonard had taken any steps to address the deficiencies identified in his practice and no up to date references or testimonials from Mr Leonard s recent employers as either a nurse or as a carer. Although Mr Leonard had made admissions to some of the charges in this case and had compiled a reflective account, the panel determined that he had not demonstrated full insight into his misconduct and the reasons why it had occurred. The panel noted that, in his reflective account, Mr Leonard had demonstrated genuine remorse for his actions and had accepted that he had made errors. The panel particularly noted that Mr Leonard accepted that his actions were serious and deserved punishment. However, the panel considered that there was no reflection on what Mr Leonard had learnt from this experience, how this will improve his future practice, and the impact his actions had on Carer A whom he had implicated by his dishonesty. Mr Leonard s denial of charges 8 and 9 reflects his lack of insight into the nature and the impact of his conduct. The panel acknowledged that during the time of the incidents in question, Mr Leonard had been experiencing health concerns. However, the panel had not been provided with up to date medical information on this or evidence of whether his illness impacted on his practice at that time. The panel was mindful of the fact that, as an autonomous professional, Mr Leonard was responsible for his actions and behaviour. On this basis, the panel is of the view that as Mr Leonard has only demonstrated limited insight into his actions, and in the absence of any evidence of remediation there was nothing before the panel to satisfy it that Mr Leonard was highly unlikely to repeat these actions in the future. Given that the risk of repetition remained, the panel therefore decided that a finding of impairment is necessary on the grounds of public protection. 27

28 The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to protect the wider public interest, which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. The panel considered that members of the public would expect a nurse, particularly someone with Mr Leonard s experience, to behave honestly and act with integrity. Mr Leonard failed to do so, and he clearly brought the profession into disrepute. The panel determined that, in this case, a finding of impairment on public interest grounds was required. Having regard to all of the above, the panel concluded that Mr Leonard s fitness to practise is currently impaired. Determination on sanction The panel has considered this case very carefully and has decided to make a strikingoff order. It directs the registrar to strike Mr Leonard off the register. The effect of this order is that the NMC register will show that Mr Leonard has been struck off the register. In reaching its decision on sanction, the panel has considered all of the evidence before it, and the submissions from Mr O Toole, on behalf of the NMC, and the written material provided by Mr Leonard. The panel accepted the advice of the legal assessor and took into account the provisions of the NMC s Sanctions Guidance. The panel has taken into account that the purpose of a sanction is not to be punitive, although it may have that effect. It is intended to protect patients and the wider public interest. The wider public interest includes maintaining public confidence in the profession and the NMC and declaring and upholding proper standards of conduct and 28

29 behaviour. The decision on sanction is a matter for the panel in exercising its own independent judgment. The panel considered the following to be aggravating factors: Resident A was a vulnerable patient who sustained physical harm from Mr Leonard s actions; Mr Leonard is an experienced nurse and acted in breach of Resident A s care plan and the internal Home policy; Mr Leonard s dishonesty included falsifying Resident A s records, thereby implicating a junior colleague, and misleading management during internal investigations. The panel considered the following to be mitigating factors: Mr Leonard has been a registered nurse for nearly 30 years and has had a previously unblemished career; Mr Leonard s dishonesty related to one incident; Mr Leonard has provided some evidence of insight and remorse in his written submissions; Although he did not attend the hearing, Mr Leonard has engaged fully with the NMC throughout the proceedings. The panel had regard to the Sanction Guidance on dishonesty in assessing the nature of the dishonesty in this case. It particularly considered the following as relevant in this case: The nature of the dishonest conduct must be carefully assessed. Not all dishonesty is equally serious. Generally, the forms of dishonesty which are most likely to call into question whether a nurse or midwife should be allowed to remain on the register will involve: 29

30 deliberate dishonesty to conceal clinical issues, particularly those causing harm to patients Dishonest conduct will generally be less serious in cases of: one-off incidents opportunistic or spontaneous conduct no direct personal gain The panel considered that although Mr Leonard s dishonesty originated from a single incident, namely the care he provided to Resident A during his shift on 20 May 2016, his dishonesty was perpetuated by his responses and denial throughout the internal investigations at the Home. For these reasons, the panel considered that Mr Leonard s dishonesty fell towards the higher end of the spectrum of seriousness. The panel went on to consider what sanction, if any, it should impose in this case. The panel noted Mr Leonard s written responses where he indicated the inevitability of being struck off the register. However, the panel wanted to stress its complete independence from the NMC and any decision the NMC may have made at an earlier stage in these proceedings. The panel s decision is based on its own independent assessment, without any prejudgements. The panel first considered whether to take no action. Mr Leonard s initial actions caused harm to a vulnerable patient which he then sought to conceal by falsifying Resident A s daily records. The panel considered that the injury caused to Resident A and the 30

31 dishonesty could cause significant damage to confidence in the nursing profession. Therefore, the panel considered that to take no action would be inappropriate, as such an outcome would not protect the public and it would not satisfy the wider public interest. Next, in considering a caution order the panel had regard to the Sanctions Guidance which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that Mr Leonard s misconduct was not at the lower end of the spectrum and that a caution order would be insufficient to mark the seriousness of his dishonest conduct. It took into account that Mr Leonard was an experienced nurse, and he had a responsibility to follow and abide by both Resident A s care plan and internal Home policies. Therefore, given the serious nature of this case, the panel decided that imposing a caution order would not protect the public and it would not satisfy the wider public interest. The panel considered whether it would be proportionate to impose a more restrictive sanction. It determined that conditions of practice would be inappropriate as there are no practical or workable conditions that could be formulated, given the nature of the misconduct in this case. There are no widespread clinical concerns regarding Mr Leonard s nursing practise. The panel was of the view that dishonesty was not something which could be addressed through retraining or enhanced supervision at this time. The panel concluded that imposing a conditions of practice order would not adequately address the seriousness of this case and would not protect the public. The panel then went on to consider whether a suspension order would be an appropriate and proportionate sanction. The Sanctions Guidance indicates that a suspension order may be appropriate where some of the following factors are apparent: a single instance of misconduct but where a lesser sanction is not sufficient no evidence of harmful deep-seated personality or attitudinal problems 31

32 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 Whilst, as previously determined, the panel considered that the charges in this case formed part of one overall incident, there were repeated instances of dishonesty following the initial misconduct and therefore it could not be said that this case concerned a single instance of misconduct. The panel acknowledged that there was no evidence before these events of any attitudinal problems on Mr Leonard s part and there had been no evidence of repetition since the incident. However, Mr Leonard has not demonstrated full insight or understanding into his misconduct, or the implications his actions had on others. He has not provided any explanation for his actions. Furthermore, Mr Leonard did not provide any positive testimonials or references to the panel, apart from one brief reference that was written for a different purpose. On this basis, the panel considered that Mr Leonard does pose a significant risk of repeating his behaviour. In these circumstances the panel considered that a period of suspension would be insufficient to protect the public and to satisfy the wider public interest in this case. As such it determined that this sanction would not be appropriate and proportionate. The panel next considered whether to impose a striking-off order. The panel had regard to the Sanctions Guidance which states that this sanction would be appropriate where the behaviour is fundamentally incompatible with being a registered professional, which may involve any of the following factors: A serious departure from the relevant professional standards as set out in key standards, guidance and advice. Doing harm to others or behaving in such a way that could foreseeably result in harm to others 32

33 ... Dishonesty, especially where persistent or covered up Persistent lack of insight into seriousness of actions or consequences. The panel considered that Mr Leonard s actions did involve a serious departure from the professional standards expected of a registered nurse. Mr Leonard chose to transfer Resident A on his own knowing this was contrary to both Resident A s care plan and the internal Home policy on handling and moving residents. Having caused injury to Resident A, Mr Leonard sought to conceal the error in his actions by falsifying Resident A s records thereby implicating a junior member of staff, and subsequently maintained his dishonesty throughout two internal investigatory meetings. By doing so, Mr Leonard caused physical and emotional harm to Resident A, who was left in pain for a number of hours. Mr Leonard has persistently failed to demonstrate full insight and understanding of the serious nature of his actions and dishonest conduct, and the implications his actions had on those around him. In these circumstances the panel determined that Mr Leonard s actions were fundamentally incompatible with his remaining on the register. Mr Leonard s actions were so serious that to allow him to continue practising would undermine the public confidence in the nursing profession and in the NMC as a regulator. Balancing all of these factors and after taking into account all the evidence before it, the panel determined that the only appropriate and proportionate sanction is that of a striking-off order. Having regard to the matters it identified, in particular the effect of Mr Leonard s actions had on Resident A and in bringing the profession into disrepute by adversely affecting the public s view of how a registered nurse should conduct himself, the panel concluded that nothing short of this would be sufficient in this case. The panel considered that this order was necessary to protect the public, mark the importance of maintaining public confidence in the profession and to send to the public 33