Panel Members: Stuart Gray (Chair, Lay member) Dr. Mooi Standing (Registrant member) Alan Bridge (Lay member)

Transcription

1 Conduct and Competence Committee Substantive Hearing 14 November 22 November 2016 Resumed Hearing 7 10 March 2017 Nursing and Midwifery Council, 2 Stratford Place, London, E20 1EJ Name of Registrant Nurse: NMC PIN: Debra Anne Smith 81Y3540E Part(s) of the register: Registered Nurse Sub Part 1 Adult Nursing January 1985 Area of Registered Address: Type of Case: England Misconduct Panel Members: Stuart Gray (Chair, Lay member) Dr. Mooi Standing (Registrant member) Alan Bridge (Lay member) Legal Assessor: Panel Secretary: Adrienne Morgan Ian Ashford-Thom (18 November 2016 am) Suzanne Palmer (8 March 2017) Vicki Watts Bose Kayode (10 March 2017) Mrs Smith: Not present and not represented (14 22 November 2016) Participated by telephone on 7 March 2017 Nursing and Midwifery Council: Represented by Samantha Jones, Case Presenter, NMC Regulatory Legal Team Facts proved: 1.1, 1.2, 3.1, 3.2, 3.3, 4, 5.1, , 5.4, 5.5, 5.6, and 6 Facts not proved: 2.1, 2.2,7, 8, 9 and 10 Fitness to practise: Sanction: Interim Order: Impaired Caution order - 2 years N/A 1

2 Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Ms Smith was not in attendance and that written notice of this hearing had been sent to Ms Smith s registered address by recorded delivery and by first class post on 12 October Royal Mail Track and Trace documentation confirmed that the notice of hearing was sent to Ms Smith by recorded delivery on that date. 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 Ms Smith s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. The Track and Trace documentation also indicated that the notice was signed for by Smith on 13 October Ms Jones, on behalf of the NMC, 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 Ms Smith has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. Decision on proceeding in the absence of the Registrant: The panel had regard to Rule 21 (2) (b) which states: Where the registrant fails to attend and is not represented at the hearing, the Committee...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... 2

3 Ms Jones referred the panel to Ms Smith s response to Notice of Hearing (NOH) signed by Ms Smith on 26 October 2016, together with a bundle of documents containing correspondence between Ms Smith and the NMC case officer. Ms Jones invited the panel to continue in the absence of Ms Smith on the basis that she had voluntarily absented herself. The panel accepted the advice of the legal assessor in relation to the recent principles set out in the case of Adeogba v GMC [2016] EWCA Civ 162 in relation to proceeding in the absence of a registrant. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is one that should be exercised with the utmost care and caution as referred to in the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5. The panel has decided to proceed in the absence of Ms Smith. 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 of Jones. It has had regard to the overall interests of justice and fairness to all parties. It noted that: Ms Smith stated in the NOH signed on 26 October 2016 that she did not intend to attend the hearing and was content for the matter to proceed in her absence. No application for an adjournment has been made by Ms Smith. There is no reason to suppose that adjourning would secure Ms Smith s attendance at some future date. There are five NMC witnesses in attendance and any further delay may have an adverse effect on the ability of witnesses accurately to recall events; This case is joined with the case of Registrant B who is present, represented and content for the hearing to proceed today; There is a strong public interest in the expeditious disposal of the case. There is some disadvantage to Ms Smith in proceeding in her absence. The evidence upon which the NMC relies has been sent to her at her registered address, she has made some responses to the NMC in relation to the allegations. It was confirmed during 3

4 a telephone call with the case officer today at the request of the panel that she will be submitting a further response to the allegations on the second day of the hearing. 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. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Ms Smith. The panel will draw no adverse inference from Ms Smith s absence in its findings of fact. Charges as read: That you, whilst employed by BH Ltd as Manager at Forest Care Centre ( the Home ), Mansfield, between 2 April 2012 and 15 June 2015: 1. Failed to ensure that there was a system in place to re-evaluate whether the following residents with complex needs could be adequately cared for at the Home: 1.1 Resident E who suffered with motor neurone disease 1.2 Resident C who had sexual disinhibition 2. Did not ensure that residents were provided with an adequate standard of care in that: 2.1 You failed to provide a range of activities suitable for residents varying needs and/or ensure that the same was provided 2.2 You failed to provide a suitable environment for residents varying needs and/or ensure that the same was provided 3. Did not ensure that staff at the Home were properly and/or adequately trained in that there was a lack of evidence of training in the following areas; 3.1 Head injuries; 3.2 Dementia 3.3 De-escalation of behaviour 4

5 4. Did not ensure that there were a sufficient number of members of staff at the Home to provide an adequate standard of care; 5. Did not demonstrate that you had carried out a documentation audit and/or ensured that residents documentation was up to date in that: 5.1 You did not ensure that any/or any adequate care plans were put in place for Resident A between January and March You did not ensure that a body map was put in place for Resident A in respect of her fractured clavicle and/or the wound above her eye 5.3 Did not ensure that any/any adequate care plan was put in place for Resident B in respect of his physical wellbeing, psychological wellbeing or activities 5.4 Did not ensure that there was a de-escalation care plan in place for Resident C 5.5 Did not ensure that there was a care plan in place for Resident C in respect of his sexually disinhibited behaviour 5.6 Did not ensure that there was an epilepsy monitoring chart in place for Resident D 6. In approximately January 2015, did not take any/any adequate steps to reevaluate Resident A s care plan to protect her from the risk of assault from Resident C; 7. Did not demonstrate that there was a system of staff supervision in place; 8. Did not ensure that residents were provided with adequate nutrition and hydration in that restrictions had been placed on residents access to food and drink; 9. Inappropriately permitted the use of observation duty at the Home; 10. Did not ensure that a medication audit system was in place at the Home; 5

6 AND in light of the above, your fitness to practice is impaired by reason of your misconduct. Linked Case: This case is linked with another registrant, Registrant B. For this hearing two separate determinations have been produced. Background: The charges relate to events which took place at Forest Care Centre, Southwell Road, Mansfield ( the Home ) between the end of 2014 and March The Home was and is still owned and run by Barchester Healthcare Limited (Barchester) and it was built on part of a site bought, in 2010, from Nottinghamshire Healthcare NHS Trust ( the Trust ). Barchester had entered into an agreement with the Trust to build a 50 bed hospital on the site which would take a number of patients from the Trust. This was a novel collaboration between the private sector and the NHS. The hospital was opened in February The hospital had three units and was intended for patients under 65. Maltby unit was a 15 bed unit on the ground floor originally intended for patients with Huntingdon s Disease. Wilson Unit was also on the ground floor and had originally been intended for a 20 bed working-age dementia unit. Horsefall Unit was a 15 bed unit on the first floor and was intended for patients with alcohol- related brain injury. Registrant A was employed by Barchester from 2 April 2012 to15 June She was first employed as the Hospital Director. When she started work the hospital was being built and she worked on site until it was completed. Registrant B who was a Modern Matron with the Trust was seconded for a period of three years to work at the hospital as Modern Matron. Part of Registrant B s role was to provide an assurance to the Trust that the clinical provision and governance structure was sound. However, there was no strategic plan in place and Registrant s A and B worked to provide policies and processes for the new hospital. 6

7 Barchester had hoped to care at any one time for a number of patients from the Trust but this did not happen. The first two patients arrived at the beginning of March 2013 from outside Nottinghamshire and both were working-age dementia patients. They were admitted to the Wilson Unit. By the second half of 2014 there were only about six patients in the hospital. Around September 2014 because of the small number of patients and the financial pressure to fill beds, Barchester decided to re-register 20 of the beds in the hospital in the Wilson Unit as care home beds and these became the Forest Care Centre. Registrant A was appointed by Barchester as Home Manager of the Care Home, while also remaining as Hospital Director. She was the Registered Manager of the Home with the Care Quality Commission (CQC). It had been decided by Barchester that the Home would fit into the portfolio of services by providing care for residents with challenging behaviour which would include working age residents. At the time of its creation as a care home there was no business model in place for the Home, no blue print as to how it should be run, no refurbishment of the unit to reflect its re-designation that that of a care home. With the exception of the Home Manager, there was no designation of dedicated staff to the care home. There was a lack of physical separation between Wilson Unit and the remainder of the Hospital in that only a door separated the units. Staff worked across both units and staff who worked in the Home believed that they were still working in the hospital. Staff were unaware of the differences in procedures and policies between the Home and the hospital. Although there were patients with complex needs in the Home, the hospital dealt with patients with even more complex conditions and if there was an emergency in the hospital the staff would have to leave the Home and go to the hospital.to assist with the emergency. Whilst Registrant A remained as the Hospital Director she was also designated as the Home Manager and registered with the CQC as such. Registrant B remained at the hospital on secondment as the Modern Matron and was not employed by Barchester in a post in the Home. She did not claim to have expertise in care homes and her

8 contract with the Trust was for a matron in a hospital setting. Despite this Registrant B was often the most senior clinician on site and would offer advice, support and guidance in the Home to those working there. Following an incident in February 2015 a safeguarding referral was made in relation to a resident at the Home relating to injuries sustained at the Home. He had been admitted to Kingsmill Hospital.Sutton-in-Ashfield. Due to the injuries Newark and Sherwood Clinical Commissioning Group (CCG) and Mansfield and Ashford CCG were also told. On 27 February 2015 Ms 2 of the CCG visited the home and met Registrant B who was the most senior person on site as Registrant A was away. As a result of Ms 2 s significant concerns it was decided that any further health-funded placements would be suspended from 27 February 2015 and support staff were provided by the CCG to the Home as an emergency measure to ensure resident s safety. Ms 2 visited the Home again on 2 March 2015 with Ms 1 from Nottinghamshire County Council and met Ms 5 who was at the time Barchester s Acting Divisional Director for the North for general and complex care homes. She gave Ms 5 a list of concerns in relation to inadequate staffing levels, no dementia training in place, inappropriate placement of residents, limited access to food for residents, lack of activities for residents, lack of detail in care records and a lack of leadership in the home. Ms 2 told the CQC of what she had found and they visited the Home on 3 March On 23 March 2015 the CQC served a Warning Notice on Barchester setting out its failures and warning that it intended to assess and monitor the quality of service provision in the Home. Registrant A was suspended on her return from holiday on 4 March and resigned on 15 March Registrant B s secondment to Barchester was brought to an end on 4 March 2015 Evidence adduced: In opening the case for the NMC, Ms Jones took the panel through the charges and identified the evidence that would assist the panel with its determination on facts. The panel read and considered all the written evidence put before it. 8

9 The panel also heard oral evidence and read statements from the following NMC witnesses: Ms 1 - Ms 1 was employed by Nottinghamshire County Council (NCC) as a Marketing Development Officer and was the lead for all the Care Homes in North Nottinghamshire. Ms 1 managed a team who monitored and audited care homes. Ms 1 carried out a joint visit to the Home with Ms 2 on 2 March The inspection was to follow up on a previous safeguarding investigation that was carried out by the Clinical Commissioning Group ( CCG ) and NCC. The panel considered Ms 1 to be a fair witness and that the evidence she gave was reliable and credible. Ms 1 did her best to assist the panel and gave her evidence to the best of her recollection. Although overall Ms 1 s recollection of events was balanced there were one or two areas where she was less certain and not supported by other evidence. The panel concluded that where her evidence was relied upon she was a credible witness. Ms 2 - Ms 2 was employed as the Care Homes Quality and Safety Manager for Newark and Sherwood Clinical Commissioning Group (CCG) and Mansfield and Ashfield CCG. The panel considered Ms 2 was credible and gave factual evidence to the panel. The panel bore in mind that Ms 2 had limited experience in inspecting care homes and had only been in the role a number of months prior to undertaking the inspection. Ms 3- Ms 3 was employed by Barchester as the Operations Director. Ms 3 was the line manager for Registrant A. The panel considered that Ms 3 was open, honest and credible. The panel further considered that Ms 3 was fair and balanced to both Registrant A and Registrant B in the way in which she gave her evidence to the panel. The panel considered that Ms 3 s level of knowledge was very helpful in articulating and assisting the panel as to what the balance of responsibility was for both Registrant A and Registrant B. Ms 9

10 3 also assisted the panel as to the position of the Home at the end of January and the panel found Ms 3 to be a very balanced witness. Mr 4 Mr 4 was the Consultancy Director of Shield HR. Mr 4 completed a root cause analysis for Barchester to look at the responsibilities of individuals in relation to concerns raised by the Care Quality Commission (CQC). The panel considered Mr 4 was not a helpful witness, his report was of little value and the statements which he took were neither certified corrected or signed by any of the people that he interviewed. The panel did not rely on his evidence and considered it was of limited assistance. Ms 5 Divisional Director of Barchester Healthcare. Ms 5 was operationally responsible for Barchester s independent hospitals and complex care services nationwide. The panel considered that Ms 5 was very experienced and had worked for Barchester for approximately 5 years. The panel concluded that Ms 5 gave her evidence in a way which was unfairly critical of Registrant A and Registrant B. The panel considered there were a number of inspectors that went into the Home during the same time frame and that they did not have the same concerns as Ms 5. The panel considered that Ms 5 s view was not supported by other independent evidence. The panel considered that Ms 5 based her conclusions in her statement given to the NMC on what she saw and did not base it on any other evidence including the Quality First Report prepared by Ms 3 (Barchester employee). The panel considered Ms 5 s evidence to be at odds with other independent evidence. The panel considered that Ms 5 appeared to have no knowledge regarding Registrant A s job specification and/or that of Registrant B. The panel considered that Ms 5 s evidence both in her statement and oral evidence to the panel was based upon a mixture of assumption and what she saw when she visited having gone in blind. The above titles refer to the individuals positions at the time of the charges. 10

11 The panel also heard the oral evidence of Registrant B and read the written submissions of Registrant A. Decision on the findings on facts and reasons: In reaching its decisions on the facts, the panel considered all the evidence adduced in this case together with the submissions made by Ms Jones, on behalf of the NMC, and the written submissions of Registrant A. The panel 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 was satisfied that it was more likely than not that the incidents occurred as alleged. The panel has drawn no adverse inference from the non-attendance of Registrant A. However, it did mean that Registrant A had not presented any oral evidence to undermine or contradict that adduced by the NMC. The panel went on to consider the charges. Charge 1 That you, whilst employed by BH Ltd as Manager at Forest Care Centre ( the Home ), Mansfield, between 2 April 2012 and 15 June 2015: 1. Failed to ensure that there was a system in place to re-evaluate whether the following residents with complex needs could be adequately cared for at the Home: 1.1 Resident E who suffered with motor neurone disease 1.2 Resident C who had sexual disinhibition 11

12 This charge is found proved The panel first considered whether there was a duty on Registrant A to ensure that a system was in place at the Home to re-evaluate whether residents with complex needs could be adequately cared for at the Home. The panel took into account that Registrant A in her statement to the panel dated 15 November 2016 confirmed that she became Home Manager in September Her statement reads In September 2014, due to revenue issues, 20 of the beds were reregistered as Care Home beds in one of the hospital units. I was subsequently appointed as Home Manager for what became Forest Care Centre, however, I also remained in position as Hospital Director for the remaining 2 hospital wards (being 30 beds). From the evidence, it was not in dispute that Registrant A was registered with the CQC as the Registered Manager of the Home. This meant that she had statutory responsibilities under the CQC Regulated Activities Regulations The panel took into account paragraph 10 of the CQC Regulated Activities Regulations 2010 which reads: The registered person must protect service users, and others who may be at risk, against the risks of inappropriate or unsafe care and treatment, by means of the effective operation of systems designed to enable the registered person to (a) Regularly assess and monitor the quality of the services provided in the carrying on of the regulated activity against the requirements set out in this Part of these Regulations and (b) Identify, assess and manage risks relating to the health, welfare and safety of service users and others who may be at risk from the carrying on of the registered activity. The panel therefore concluded that there was a duty on Registrant A which was a statutory duty to ensure that there was a system in place to re-evaluated whether Resident E and Resident C could be adequately cared for in the Home. 12

13 In finding the charge proved, the panel also took into account the evidence of Ms 1. who stated: there must be regular reviews of a resident s needs throughout the stay in any setting and obviously that would depend on how complex the needs are, so weekly, monthly but we would expect as a minimum that there would be a monthly review. And obviously part of the process if their needs have changed, then obviously the responsibility would lie with the setting [sic] to work with the council or funder to let them know that the needs have changed and they can no longer meet those needs. Ms 1 went on to say that the re-evaluation process was not taking place as there were only sporadic recordings of resident s needs and a full picture was not possible. Ms 3 told the panel that the Ms 6, Head of Care at the Home, was responsible for the admission of residents to the Home. Ms 3 said that some of the residents admitted to the home had highly complex needs and were difficult to manage. She also said in her oral evidence that the Head of Care should have re-evaluated whether Residents E and C were suitable to remain in the Home. Ms 5 in giving her evidence said that Resident E was not a suitable admission to the Home since although he had full cognitive ability staff did not understand what motor neurone disease was or what behaviour was due to the disease and had no understanding of the physical aspect of his care. The Quality Monitoring report of 27 February 2015 refers to Resident E s injuries after his admission to Kingsmill Hospital including areas of pressure damage, numerous skin tears, bruising and possible marks caused by bites, fingers and nails, and a significant injury to his finger where a pad had almost totally been removed which it is believed happened when he entered another resident s room and it became caught in the door. Resident C showed sexual disinhibition. Ms 2 found that the recorded incidents at the Home showed that he had assaulted Resident A on three occasions including one occasion when he was found lying on top of Resident A. Her evidence was that she would have expected there to have been an investigation and an incident form completed and an evaluation and care plan considered to see if it was possible to 13

14 prevent or mitigate further issues. A young female member of staff had to try and distract him from touching her breasts continually. Ms 3 told the panel that as the Registered Manager, Registrant A would have been aware of the concerns around the complex needs of Residents E and C and that she had a duty to re-evaluate residents as to whether the admission was appropriate and whether they should remain in the Home. Ms 3 said that Registrant A had an overarching responsibility to ensure that there was an appropriate system in place. The panel was satisfied that it was Registrant A s professional duty, as a Registered Nurse and Manager of the Home, to ensure that there was a system in place to reevaluate whether residents with complex needs could be adequately cared for at the Home. Accordingly, the panel finds this charge proved. Charge 2 2. Did not ensure that residents were provided with an adequate standard of care in that: 2.1 You failed to provide a range of activities suitable for residents varying needs and/or ensure that the same was provided This charge is found not proved The panel accepted that there was a duty on Registrant A as the registered manager of the Home to provide a range of activities suitable for the residents varying needs. The panel heard conflicting evidence in relation to this charge from a number of witnesses. The panel considered the evidence given by Ms 5 in relation to her visit to the Home on 28 January 2015 and in which she stated that on the day of her visit, the activities coordinator was off sick but there were activities planned for the residents in the afternoon and that there was an activity timetable of daily activities available. She says 14

15 that she was heartened by the fact that the staff were actually introducing activities and had a programme of activities that they were going to conduct. She went on to say that the staff knew the residents very well and were interacting with them. Her Quality First Visit report relating to that visit read The appointments of an activities co-ordinator is having a positive impact on the service and a positive note is that there is support from the OT in guiding this forward. Registrant B told the panel that when the activity co-ordinator was there, there were trips out, shopping trips, trips to the hairdressers, walks, a Christmas carol concert and a lot of community support. The maintenance man would take male residents outside into the garden to help him clear up the leaves. The activity room had an exercise bike, books were not used as much as they could have been as there needed to be somebody there supervising the activity. The panel also considered what had been said by Ms 2 that there appeared to be a lack of structure in terms of what people could do throughout the day and she had some concerns that some of the behaviour was due partly to a lack of meaningful activity, which was by no means an easy thing because of the complexity and mixture of people at the Home. The panel considered that the NMC have not brought sufficient evidence to prove on the balance of probabilities that the activities provided were insufficient for the residents varying needs. Accordingly, the panel finds this charge not proved. 2.2 You failed to provide a suitable environment for residents varying needs and/or ensure that the same was provided This charge is found not proved In reaching this decision, the panel took into account the evidence of Ms 1 and Registrant B. Ms 1 described the environment as beautiful and said it was new build. Most of the environment was hotel-like. She said that there was more that could have been done but there was nothing wrong. It was not unclean. The environment was 15

16 lovely but at the beginning it was hotel-like but they did make it more homely with little things. She went on to say that that s how she would like her house to be with creams and beiges and there was nothing unpleasant about it but not a lot of stimulation Registrant B said that there was a themed colour for Wilson Unit which was green. She said there were paintings on the walls and a big residents Board which showed residents activities for the week. The activity room was decorated in 50s style with lots of retro art on the walls In her written statement to the panel dated 15 November 2016, Registrant A said: The environment was originally intended to be that of a hospital. However, when the 20 beds were re-registered I did what I could to alter the environment into that of a home with the extreme challenging and aggressive behaviours of the residents, the environment was regularly damaged, with pictures, ornaments and furniture being thrown or broken The panel also took into account the evidence given by Ms 5 that the furniture was dirty and the floors smelt of urine. The Quality First Audit dated 28 January 2015 read the environment is clean tidy with no odours and the Regulation Team Audit dated 20 December 2014 read It (the Home) was found to be clean and tidy throughout with no malodours It was found to be very clean well maintained with high quality furnishings and decoration being evident. Registrant A in her written submission said that she did not believe that the service at Forest Care Centre fitted the Barchester rigid protocol around furnishing and environment since the residents were under 65 and were not within the Memory Lane Communities they were also much more complex individuals. On balance the panel prefer the evidence of Ms 1 who was one of the NMC s witnesses to that of Ms 5. It does not find that the NMC has proved its case on the balance of probability. 16

17 The panel determined that Barchester had a responsibility to ensure that there was a smooth transition from hospital to care home but that they did nothing in terms of the environment to achieve this. Accordingly, the panel finds this charge not proved. Charge 3 3. Did not ensure that staff at the Home were properly and/or adequately trained in that there was a lack of evidence of training in the following areas; 3.1 Head injuries; This charge is found proved The panel had regard to the CQC s findings set out in the report dated 28 March 2015 which states Staff were not supported to provide best practice. We saw incident records relating to Person B who had fallen on 18 November Despite the swelling to this persons head and a cut to their eye staff did not attempt to contact emergency services. There were ineffective systems in place to ensure that staff responded to people s needs. Staff had not been supervised to produce appropriate responses to head injuries as described in the National Institute for Health and Clinical excellence guidance on head injuries. There had been no recordings showing that any neurological assessment had taken place. Therefore people who were injured in a fall did not have access to appropriate investigation and treatment there was no oversight by management and quality monitoring systems had not picked it up. You failed to ensure that staff knew what the best practice was, that it was being monitored or evaluated for effectiveness or inform improvements in the treatment of head injuries. Ms 3 s told the panel that the Head of Care had a responsibility to ensure that the staff at the Home received adequate training and that this responsibility was overseen by Registrant A as the registered manager. The panel also noted the Regulation Team Audit dated 30 December 2014 which states: The Home s overall training statistics were recorded at 80% The home s trainer and General Manager are to monitor training records to ensure that mandatory 17

18 training is above 85%. The General Manager is to develop the staff team through effective training to improve their skills and knowledge base through effective training. There was no evidence presented which contradicted this CQC report. Accordingly, the panel found this charge is proved. 3 Did not ensure that staff at the Home were properly and/or adequately trained in that there was a lack of evidence of training in the following areas; 3.2 Dementia This charge is found proved The Quality Monitoring report dated 2 March 2015 completed by Ms 2 listed her findings of which she gave evidence. This included a finding that there was a lack of dementia training at the Home. Ms 5 and Registrant B stated that training was available through their Psychologist (6 sessions). Whilst the panel noted that some training in dementia and challenging behaviour was in place, the panel considered Registrant A s written submissions in which she stated that no additional training was provided as this was due to be ready for delivery in March 2015 and that some staff were yet to receive it. Ms 5 said that would Barchester would review all training. Accordingly, the panel found this charge proved. 3. Did not ensure that staff at the Home were properly and/or adequately trained in that there was a lack of evidence of training in the following areas; 3.3 De-escalation of behaviour This charge is found proved Ms 5 in giving her evidence to the panel accepted that staff at the Home had failed to put in place a de-escalation plan for resident C rather than physically restraining him. A de-escalation plan should have been clearly in place based on Resident C s behaviour.she goes on to say that effective training should have been in place for staff so that 18

19 they were aware of the correct procedures to follow. There is no evidence that any such training had been given to staff at the Home. The panel determined that as the Registered Manager of the Home you had a duty to ensure that staffs at the Home were properly trained. It determined, from the evidence before it the Registrant A had failed in this duty. Accordingly, the panel found this charge proved. Charge 4 4. Did not ensure that there were a sufficient number of members of staff at the Home to provide an adequate standard of care; This charge is found proved The panel is satisfied that as the Registered Manager of the Home that Registrant A had the responsibility of ensuring that there were a sufficient number of members of staff at the Home to provide an adequate standard of care. The panel took into account Ms 1 s evidence that there were inadequate staffing levels at the Home. She said that basically every time she visited the service was in chaos and that residents were left alone for long periods of time so that if a buzzer went in a resident s room and if it required two staff to attend it was common to find that all the staff on duty were busy with one resident and the other residents were unattended. Ms1 said that the staff were telling her that they were struggling to manage the residents and that it was the responsibility of Registrant A to ensure that there were sufficient staff members. Ms 3 in her evidence stated that there were sufficient agency staff to make sure there were enough numbers but said that at times there were difficulties with agency staff who did not know residents. Her evidence was also that in her opinion the staffing model used by Barchester was not high enough and she frequently discussed this with her line manager and spoke weekly with Registrant A about agency hours. Staffing was over budget in order to try to keep residents safe and where Registrant A thought she 19

20 needed staff she would increase the numbers and Ms 3 would report that to her line manager. Ms 3 did not believe that safety was compromised and she readily acknowledged that Registrant A regularly escalated concerns about staffing levels to her on a weekly basis. The Quality First Report on 28 January 2015 included staff comments that it was difficult to meet resident s needs due to staffing issues. The panel also heard from Ms 5 who says that one of the things which Barchester immediately did on learning of the situation was to increase staffing levels. The CQC issued Barchester with a Warning Notice. In that notice it stated that it was concerned about the number of people who raised concerns with it regarding the levels of staff in the service since there were no effective systems in place to assess the number of staff required to support people safely. It found that there was a degree of tolerance to the poor standards of care that residents were receiving and there was a failure to monitor the incidence of pressure ulcers, accidents and assaults to inform a review of staffing levels and ensure people received safe care. On considering the evidence before it the panel has concluded that there were not sufficient members of staff at the Home to provide an adequate standard of care and the charge is found proved. Accordingly, the panel found this charge proved. Charge 5 5. Did not demonstrate that you had carried out a documentation audit and/or ensured that residents documentation was up to date in that: 5.1 You did not ensure that any/or any adequate care plans were put in place for Resident A between January and March 15 This charge is found proved. In determining charge 5, the panel recognised that the responsibility for putting in place adequate care plans rests with different people at different levels in the organisation. It 20

21 was not Registrant A s duty as the Homes Registered Manager to appropriately complete care plans and body maps. That responsibility lies with the nurse or other clinician responsible for the care of residents who will write, implement and evaluate the plan and complete the body map. Registrant A s responsibility was to maintain an audit system which ensured completion of adequate and up to date care plans and body maps. Ms 2 had decided to inspect Resident A s care plans on 2nd March 2015 Resident A had a fractured clavicle. On 3rd March she noted that there was no plan in place which related to the fracture. At the same time her evidence is that she reviewed recorded incidents relating to Resident A at the Home. On 10 January 2015 Resident A had been found in the corridor on the floor which resulted in the fracture. On 13 January, 21 January and 23 rd January she was assaulted by a male resident, Resident C. There should have been an investigation and an incident form for each assault. This was not done. There should have been a care plan in place to prevent or mitigate any further issues between Resident A and Resident C. It was recorded that A could be violent to others and she would shout and scream and cause agitation to other residents. Ms 2 expected Resident A s care plans to have highlighted previous incidents and outlined mitigating plans. This was not in place. A serious incident should have been reported to the CQC. Registrant A accepted in her written response to the charges that this should have been picked up by herself at some point also although it was not something that she checked automatically as the manager of the service but would have formed part of her liaison with the clinical lead and Matron. The panel recognising Registrant A s responsibility has therefore found this charge proved. Accordingly, the panel found this charge proved. 5.2 You did not ensure that a body map was put in place for Resident A in respect of her fractured clavicle and/or the wound above her eye This charge is found proved. 21

22 The panel considered that ensuring that a body map was put in place was basic and fundamental record keeping and that the responsibility for carrying this out was with the named nurse and Ms 6 who was Head of Unit with clinical responsibility. The panel was also satisfied that given Registrant A s overall responsibility as Registered Manager to ensure documentation and audit systems were in place, the charge should be found proved. Accordingly, the panel found this charge proved. 5.3 Did not ensure that any/any adequate care plan was put in place for Resident B in respect of his physical wellbeing, psychological wellbeing or activities This charge is found proved The panel took into account Ms 2 evidence that Resident B on 23 February 2015 was confirmed to be blind in one eye and to have limited sight in the other eye. Ms 2 expected a care plan to have been created in relation to his impairment and how this would affect the care given to him. Records did not indicate any care plan or referral to a specialist diabetes nurse in relation to his complex existing and emerging physical health needs. His significant changing physical health needs were not reflected in the assessment, management or evaluation of his care. Psychological well-being and activity care plans do not appear to have been created. On the basis of this evidence the panel finds that Registrant A had not ensured that resident s documentation was up to date in that no adequate care plan was in place. There was also no evidence before the panel that a documentation audit had been carried out. Accordingly, the panel found this charge proved. 5.4 Did not ensure that there was a de-escalation care plan in place for Resident C This charge is found proved 22

23 The panel considered the evidence of Ms 5 that there was no care plan in place for Resident C. There should have been a care plan in place that highlighted what should be done and how to reduce this behaviour. A specific care plan was required by the Home s Care Planning Policy. Her view was that registered nurses at the Home would have had the responsibility to complete a specific care plan but that Registrant A would have been responsible for ensuring that the care plan was in place. The panel on this occasion accepted the evidence of Ms 5 and accordingly finds this charge proved. 5.5 Did not ensure that there was a care plan in place for Resident C in respect of his sexually disinhibited behaviour. This charge is found proved For the reasons set out above in respect of charge 5.4, the panel finds this charge proved, 5.6 Did not ensure that there was an epilepsy monitoring chart in place for Resident D This charge is found proved The panel heard evidence that Ms 2 had recognised signs and symptoms of epilepsy in Resident D. There was blood in her mouth because she had bitten her tongue when she had a seizure. Despite this the GP had not been contacted. Ms 2 said that the standard practice was for an epilepsy monitoring chart to be completed to record trends so the GP could be told of any changes. Ms 5 said that it was the Staff Nurse s responsibility to pick up the indicators but that Registrant A was responsible to see that an audit system was in place to oversee the documentation and ensure that the staff were following the correct procedures. The panel accepted this evidence and accordingly found the charge proved. Accordingly, the panel found this charge proved. 23

24 Charge 6 6. In approximately January 2015, did not take any/any adequate steps to reevaluate Resident A s care plan to protect her from the risk of assault from Resident C; This charge is found proved The evidence before the panel was that Resident A was a disruptive and vulnerable patient. She had been assaulted a number of times by Resident C. The panel considered the CQC s comments to Barchester in respect of Resident A in its Warning Notice which read as follows which read as follows :- Information was not being used where appropriate to make the necessary operational changes to the protect service users and others from the risks of inappropriate and unfair treatment we identified concerns relating to your assessing and managing risks relating to the health welfare and safety of people for whom you provide care and accommodation The person Resident A General Services Assessment care plan which described how staff were to manage behaviour. Incident records indicated that Person A had 20 episodes of physical violence against other people using the service since September The incidents were not used to review the plan of care to determine the effectiveness or suitability of the support provided. The manager had not always completed a critical incident analysis. The practice was able to continue unchallenged and continued to place people at harm. Although there was clear evidence before the panel that Head of Care (Lucy Stupple) would have had responsibility to see that the care plans were re-evaluated, the panel concluded that Registrant A as Registered Manager must also carry the ultimate responsibility for protecting service users who are put at risk. Accordingly, the panel found this charge proved. Charge 7 24

25 7. Did not demonstrate that there was a system of staff supervision in place; This charge is not proved The Panel first considered the Regulation Team Audit dated 30 December 2014 which was carried out on the Home. Under the heading Well Lead the report reads that staff files showed that the General Manager monitored and supported staff after a period of sickness by completing a return to work interview. It went on to read that Staff supervision meetings were regularly completed and staff who were spoken with spoke highly of the General Manager. All staff said that she was very supportive, and they had regular supervision meetings and these were evident in the staff files and a matrix showing that they had been completed. It went on to say that managerial audits were observed and action plans showed evidence that the manager had reviewed them. The Quality First Audit dated 28 January 2015 read Do staff have supervision and appraisals on a regular basis, the answer was yes It was Ms 5 s evidence that she had spoken with staff about whether they were having supervision that they had appeared confused and that led her to assume that supervision was not occurring correctly. Ms 5 did admit that she did not go through Registrant B s filing cabinets to look for the supervision records but had asked a number of staff who could not assist her. At the time she had suspended all senior members of staff at the Home and so could not make proper enquiries for the supervision records. Registrant B s evidence was that she did the supervision of the Unit Managers at the Hospital and the Home and that had been carried out. On the evidence the panel has therefore concluded that on the balance of probabilities this charge is not found proved. Accordingly, the panel found this charge not proved. Charge 8 25

26 8. Did not ensure that residents were provided with adequate nutrition and hydration in that restrictions had been placed on residents access to food and drink This charge is not proved The panel heard evidence from Registrant B that the residents at the Home had three set meals a day. In addition to those meals residents would have a cup of tea or be taken by a member of staff to the café in the building. Housekeepers and staff from the kitchen would also make residents tea and coffee. There was a bowl of fruit in the dining room, there would be packets of crisps and biscuits out on the side. There was one individual Resident F who had a fixation with food and would eat anything in his field of vision. Resident F s food intake had to be managed but it was not restricted. The staff would not leave a plate of biscuits where he would see them since he would sit down and eat all of them, in consequence no food was left out however, snacks were available on request. The Quality First Report read Residents/Patients have easily available access to drinks and snacks at all times. The panel determined that the actions taken were a result of a difficult but considered professional judgment between conflicting residents needs. Overall the actions taken did not give rise to the provision of inadequate nutrition and hydration for the residents. In considering this evidence the panel was not satisfied that the residents had been deprived of adequate food and drink because of the difficulties with Resident F. Accordingly, the panel found this charge not proved. Charge 9 9. Inappropriately permitted the use of observation duty at the Home; This charge is not proved 26

27 In considering this charge, the panel took into account the evidence of Ms 3 that the use of observation duty was the responsibility of the named nurse or the Head of Care If a resident required observations of them that decision had to be made by the people who actually had face to face contact with the resident as managers do not have that detail to hand. It would be for the nurse prescribing the care to consider whether or not it was appropriate. Ms 5 gave evidence that she did not find observation duty acceptable as this was in effect corridor duty. This was the case even though the residents were active because they were a younger age group who did walk around the unit and this observation duty was introduced to keep residents in sight when walking around and to observe them in the corridor. The unit was based around a T-shaped corridor which made casual line of sight observations problematic. Registrant A told Ms 4 that observers were only placed there at certain times during the day and the practice was only adopted when staff were in rooms attending to residents and there was a lack of staff on the floor. Such observations were carried out in the interests of residents safety. Registrant B firmly disagreed with Ms 5 and said that this was a matter for the nurse s professional clinical judgement and that she would do the same again if put in the same situation with similar residents. The panel also noted that Ms 1 did not see anything inappropriate in the use of such observation duty at the Home. Taking all of the evidence into account the panel has concluded that this charge is not proved. Accordingly, the panel found this charge not proved. Charge Did not ensure that a medication audit system was in place at the Home; This charge is not proved Ms 3 s evidence was that she had done a medication audit on 28 January 2015 and the quality first audit by her dated 28 January 2015 read work is currently in progress to 27

28 develop monthly management reports with medication checks. Any discrepancy will be recorded as a near miss. The panel took into account that there was nothing in the CQC report to indicate that it had any concerns in relation to the medication auditing system. Registrant B confirmed that there was a medication auditing system in place. The charge appears to be based on the evidence of Ms 5 alone. The panel is not satisfied on the balance of probabilities that Registrant A did not ensure that there was a medication audit system in place. Accordingly, the panel found this charge not proved. 28