Conduct and Competence Committee. Substantive Hearing. 3 May May 2016

Transcription

1 Conduct and Competence Committee Substantive Hearing 3 May May 2016 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Registrant: NMC PIN: Dean Jagger 94E0053E Part(s) of the register: Registered Nurse Sub Part 1 Adult Nursing 1 May 2000 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Nursing and Midwifery Council: Mr Jagger: Devon Misconduct Julian Weinberg Lay member, Chair Gi Cheesman Lay member Carla Hartnell Registrant member James Holdsworth Josh Dutton Represented by John Dowlman, NMC Regulatory Legal Team Not present and not represented Facts found proved: 1.1, 2.1, 2.1.1, 2.1.2, 2.1.3, 2.1.4, 2.2.2, 2.2.3, 2.2.4, 2.2.5, 2.3, 2.5.1, 2.5.2, 2.6 Facts not proved: 2.2.1, 2.4 Fitness to practise: Sanction: Impaired Striking-off order Interim Order: Interim suspension order for a period of 18 months Page 1 of 29

2 Decision on service of notice of hearing Mr Jagger was not in attendance and was not represented. In coming to its decision, the panel had regard to Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004, as amended February 2012 ( the Rules ), as follows: 11. (2) The notice of hearing shall be sent to the registrant (b)..in every case, no later than 28 days before the date fixed for the hearing. 34. (1) Any notice of hearing required to be served upon the registrant shall be delivered by sending it by a postal service or other delivery service in which delivery or receipt is recorded to, (a)..[his] address in the register. The panel heard and accepted the advice of the legal assessor. Notice of this hearing was sent to Mr Jagger on 21 March 2016 by first class post and recorded delivery to his address on the register, containing the correct details for today s hearing. In addition, the panel also had regard to a Royal Mail Track & Trace printout showing that the letter was recorded as delivered to Mr Jagger s address on 22 March 2016, and signed for with the printed name of JAGGER. In the light of the information available, the panel was satisfied that notice had been served in compliance and in accordance with Rules 11 and 34. Page 2 of 29

3 Proceeding in absence The panel then considered continuing in the absence of Mr Jagger. The panel heard the submissions made by Mr Dowlman, on behalf of the Nursing and Midwifery Council (NMC) and took account of the legal assessor s advice. The panel was mindful that this was a discretion that must be exercised with the utmost care and caution as referred to in the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5. In deciding whether to proceed in the absence of Mr Jagger, the panel weighed its responsibilities for public protection and the expeditious disposal of the case with Mr Jagger s right to a fair hearing. The panel was made aware that Mr Jagger had indicated in his response to the charges that he did not intend to attend today s hearing. Mr Jagger had received notice of today s hearing and the panel was therefore satisfied that he was aware of it. The panel concluded that Mr Jagger had chosen to voluntarily absent himself and had no reason to believe that an adjournment would result in his future attendance. The panel noted that Mr Jagger had not asked for an adjournment of this hearing. The panel also took into consideration the attendance of the witnesses who were present to give their evidence and the length of time that has elapsed since the allegations came to light. Having weighed the interests of Mr Jagger with those of the NMC and the public interest in an expeditious disposal of this hearing, the panel has determined to proceed in Mr Jagger s absence. Page 3 of 29

4 Decision and reasons on the application under Rule 19: Before the charges were read, Mr Dowlman informed the panel that parts of Schedule A relate to Mr Jagger s private and personal matters. He, therefore, made an application to conduct the hearing partly in private session, under Rule 19 of the 2004 Fitness to Practice Rules, when required by the circumstances of the case.. The panel received advice from the legal assessor. It was mindful that Rule 19 provides that hearings before the Conduct and Competence Committee (CCC) shall generally be conducted in public. However, hearings may be held wholly or partly in private, if the committee is satisfied a) having given the parties, and any third party from whom the committee considers it appropriate to hear, an opportunity to make representations; and b) having obtained the advice of the legal assessor, that this is justified by the interests of any party or of any third party or by the public interest and that this outweighs any prejudice. The panel considered that a departure from the general rule that hearings shall be held in public was justified, as this case involved matters relating to Mr Jagger s private life. The panel is satisfied that those interests justified hearing this case partially in private to the extent that they relate to the matters referred to in respect of points A3 to A6 of Schedule A referred to in the Charge 2.6. Details of charge: That you, a registered nurse, whilst working at Claremont Skin Clinic between 2008 and November In relation to Patient A: 1.1. On one or more occasions on unknown dates, used an inappropriate treatment, namely Trichloracetic Acid ( TCA treatment ) to treat a lesion on the right side of the patient's chin. 2. In relation to Patient B: Page 4 of 29

5 2.1. On one or more of the following occasions, inappropriately administered TCA treatment: On 2 May 2014, to Patient B's right arm On 2 May 2014, to Patient B's left arm On 29 September 2014, to Patient B's right arm On 17 October 2014, to Patient B's right arm 2.2. On 2 May 2014, failed to provide an adequate standard of care and/or hygiene in connection with the application of TCA treatment in that you: Did not wash Patient B's right arm before applying the TCA treatment Did not apply a post-peel mask to Patient B's arms after applying the TCA treatment Did not apply a dressing to Patient B's arms after applying the TCA treatment Did not provide a post-peel mask, a cream and/or solution to Patient B for her to apply following the TCA treatment Did not wear gloves when applying the TCA treatment to Patient B's arms On 6 May 2014 failed to provide an adequate standard of care and/or hygiene in that you did not apply a dressing to Patient B's arms 2.4. On 17 October 2014 failed to provide an adequate standard of care and/or hygiene in that you did not wash the Patient B's right arm before applying TCA treatment 2.5. On 10 November 2014 you failed to provide an adequate standard of care in that You did not attend a follow up appointment You did not make contact with Patient B following the missed appointment Page 5 of 29

6 2.6. Made unprofessional comments and / or personal disclosures to Patient B on one or more of the occasions set out in Schedule A. And, as a result of the facts as set out above your fitness to practise is impaired by reason of your misconduct. Schedule A AI On 25 April when Patient B showed you the scarring on her arms, you said "oh fuck", or words to that effect. A2 On 19 May 2014, you said to Patient B that you could not wait for her next appointment as it would be like a "wet dream" to you, or words to that effect. A3 [PRIVATE] A4 [PRIVATE] A5 [PRIVATE] A6 [PRIVATE] Applications to amend the charges: After the charges were read, the panel noted a factual error in Schedule A in that A1 referred to a date of 25 April 2015 when in fact it could have only occurred in Mr Dowlman submitted that this was a simple typographical error and applied for the charge to be amended to better reflect the evidence before the panel. A further application was made by Mr Dowlman on day two of the hearing. Mr Dowlman submitted that a change in the wording of charges and 2.4 would be required to better reflect the evidence of Patient B. Patient B had stated that her arm was not washed or cleansed before the application of the TCA treatment. Mr Dowlman submitted that, although the definition of washed could be seen to reflect the evidence, the charge would be better drafted to use the terminology of the witness. The panel accepted the advice of the legal assessor. Page 6 of 29

7 The panel concluded that the correction of Schedule A was necessary to better reflect the evidence before the panel. The panel formed the view that this was a typographical error and that the amendment would not cause any injustice to Mr Jagger. So far as the application in relation to allegations and 2.4 are concerned the panel noted that Mr Jagger has responded to the charge and his response only relates to the washing of the patient s arm. In his response to the charge Mr Jagger stated, You do not wash skin if it s socially clean before TCA application. The panel considered that if Mr Jagger had been presented with a charge stating not washed or cleansed his response may have been different as may have been any questions put to the witnesses. The panel therefore concluded that it was not satisfied that injustice would not be caused to Mr Jagger if the charge were to be amended. The NMC has been aware of the contents of Patient B s statement since 27 June 2015 and therefore has had significant time to draft the charges to accurately reflect the evidence. Accordingly, charges and 2.4 will remain unaltered. Background The allegations concern Mr Jagger s practice whilst treating patients at the Claremont Skin Clinic ( the Clinic ). In particular, the inappropriate use of Trichloracetic Acid ( TCA ). It is said that on a number of occasions between 2008 and 2014, Mr Jagger used TCA to treat Patient A when this was not the appropriate treatment for a lesion on Patient A s chin. Patient A attended the Clinic every six to 12 weeks for six years for treatment in relation to the lesion on his chin. Patient A attended the Dermatology Clinic at Donnington Medical Practice on 1 September 2014 following referral from his GP. The lesion was identified as a malignant melanoma following pathology analysis. Patient B attended a free consultation at the Clinic on 25 April Patient B had selfharm scars on her arms, for which she wished to have treatment, to improve their appearance. Mr Jagger proposed a treatment with TCA at 60% with two peels on Patient B's arms and then a dermaroller treatment and possibly laser treatment. During Page 7 of 29

8 the consultation Patient B took her cardigan off to show the Registrant the scars on her arm and Mr Jagger s alleged response was "oh fuck". On 2 May 2014 Mr Jagger performed a test peel on Patient B's arms. Mr Jagger allegedly did not wear gloves when applying the TCA. Mr Jagger used 30% strength TCA. He applied 2/3 layers with a brush to Patient B's forearms. Patient B's right arm was allegedly not washed/ cleansed in any way prior to Mr Jagger applying the TCA who said to Patient B that it would "burn like hell". Patient B found this procedure incredibly painful and felt a burning sensation. It is alleged that Mr Jagger then said that he would wipe Patient B's left arm with acetone prior to applying the TCA so that it would "take better". Mr Jagger wiped Patient B's left arm with acetone and then applied the TCA in two or three layers of TCA onto Patient B's left arm. Allegedly no cream or solution was applied to Patient B's arms following the TCA treatment and no cream or solution was given to Patient B to take away from the Clinic. Patient B left the Clinic without any dressing on her arm and no instructions were given to Patient B in relation to cleaning or dressing her arms. Patient B felt unwell and nauseous for a few days following this procedure and was sick on two occasions. It is alleged that Mr Jagger had not explained the side effects of the procedure to Patient B. Patient B's arms were weak, fragile and very painful. Patient B returned to the Clinic on 6 May 2014 and was seen again by Mr Jagger. Mr Jagger appeared shocked at the extent of the peeling on Patient B's arms and proposed a specialist burns dressing. It is alleged that Mr Jagger told Patient B that she had second degree burns on her arms and that he would not put any dressing on Patient B's arms at this stage as the skin was not at a point where it needed dressing. Mr Jagger allegedly said that he would get some burns dressings for Patient B. Patient B attended a further appointment with Mr Jagger on 9 May 2014 and on this occasion he applied aloe vera gel and placed six or seven small pad dressings, allegedly purchased from a local supermarket, to each of Patient B's arms. On 12 May 2014 Patient B attended the Clinic to have the dressings reviewed as she was in pain and her arms were sore and weeping. It is alleged that Mr Jagger used two litres of saline to remove the dressings and told Patient B that usually she would be in Page 8 of 29

9 hospital for this kind of treatment. He proposed dressing Patient B's arms regularly and using zinc and castor oil cream instead of aloe vera gel. Patient B attended further appointments on 16 and 19 May 2014 at which zinc and castor oil cream were applied to her arms along with large pad dressings, which had again been purchased from a local supermarket. Patient B's arms continued to weep and bled each time the dressings were changed. Mr Jagger allegedly did not recommend that Patient B saw a doctor or anyone else in relation to the burns on her arms. During these appointments Mr Jagger said that he saw her more than he saw his wife. On 19 May 2014 Patient B visited Mr Jagger for him to change the dressings on her arms. It is alleged that Mr Jagger said during this appointment that Patient B's next appointment would be like "a wet dream" to him. Patient B attended the Clinic for an appointment on 22 May Patient B telephoned the Clinic and the answer machine message said that the Clinic was closed due to "unforeseen circumstances" and that clients would be contacted in due course. As a result, Patient B had to change her own dressings. Patient B saw on Facebook that the Clinic had closed and had gone into liquidation. Mr Jagger allegedly disclosed details about his personal circumstances on the Clinic's unofficial Facebook page. On 29 May 2014 Patient B received a text message from Mr Jagger which said "Hi [Patient B] its [Mr Jagger] I need to look at your arms. Sorry I couldn't see you last week. But I will make sure you will be okay. Just let me know when you're free and I will be there. Please don't worry. I haven't forgotten about you." Mr Jagger visited Patient B at her home on 30 May 2014 where he allegedly discussed his personal circumstances. He proposed regular visits to check on the progress of Patient B's arms and visited again on 13 and 27 June During these visits Mr Jagger allegedly disclosed further details regarding his personal life. At around the end of June 2014 the dressings on Patient B's arms were removed. Page 9 of 29

10 Mr Jagger visited Patient B again at her home on 16 September Patient B had been experiencing discomfort in her left arm which was tight, itchy, and red and had raised scars on it. Mr Jagger allegedly informed Patient B that he did not know why her arm was like that and that the scars (which had not been on Patient B's arm before) were hypertrophic. He said that he could fix the scarring on Patient B's left arm with TCA treatment. On various dates between May and October 2014 Mr Jagger allegedly made a number of personal disclosures to Patient B. On 17 October 2014 Mr Jagger applied TCA at 30% strength to Patient B's right arm. He allegedly did not wash or cleanse Patient B's arm before applying the TCA. Mr Jagger did not attend the follow up appointment scheduled for 10 November 2014 and Patient B had no further contact with him. Patient B attended another clinic, Cedar House Clinic for treatment. Mr 1, Medical Director of Cedar House Clinic, recommended steroid injections placed within the scar tissue followed by a course of treatment with a fractional carbon dioxide laser for Patient B. 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 Mr Dowlman. The panel heard and accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the panel was satisfied that it was more likely than not that the incidents occurred as alleged. The panel heard oral evidence from the following witnesses called on behalf of the NMC: Page 10 of 29

11 Patient B Mr 1 Medical Director of Cedar House Clinic Dr 2 Speciality Doctor in Dermatology The panel also had copies of the witness statements together with a document bundle provided by the NMC together with photographs of Patient B s left arm both before and after treatment by Mr Jagger. The panel considered that Patient B was honest and reliable in her evidence. The panel had no reason to doubt any aspect of her evidence. The panel noted that Patient B explained that the high level of detail in her statement was as a result of her maintaining contemporaneous records in her diary of the way in which her treatment progressed. The panel considered Mr 1 to be a credible witness able to provide detailed evidence in relation to skin treatments. Mr 1 presented himself as being a knowledgeable and experienced practitioner who was reluctant to offer a response to questions where he felt he was unable to do so. The panel considered that Mr 1 was a credible witness throughout his evidence. In relation to Dr 2 the panel was of the view that she could be considered a fair witness. She was able to provide the panel with an accurate account of her involvement with Patient A. The panel noted that Dr 2 acknowledged when she was unable to answer questions outside of her areas of expertise. The panel considered that this added to her overall credibility. The panel has drawn no adverse inference from the non-attendance of Mr Jagger. However, as he was not available to provide his evidence in person, and allow himself to be cross-examined, the panel determined that it could not attribute as much weight to his evidence as that of the witnesses in attendance. Page 11 of 29

12 Findings on facts The panel considered each charge individually and made the following findings: Charge 1 1. In relation to Patient A: 1.1. On one or more occasions on unknown dates, used an inappropriate treatment, namely Trichloracetic Acid ( TCA treatment ) to treat a lesion on the right side of the patient's chin. The panel had not received any evidence from Patient A in regard to this charge. However, it received accurate and detailed evidence form Dr 2. The panel noted that Mr Jagger had not denied treating Patient A with TCA, but he denies that the course of treatment was inappropriate. The panel noted the evidence of Dr 2 who I her statement stated, I would not recommend acid, laser or tattoo removal treatment for these lesions. In her oral evidence she told the panel that she had never heard of TCA treatment being applied to moles. The panel was satisfied, given the length of the treatment without significant improvement, TCA treatment had been ineffective and had no impact on the mole. Dr 2 outlined the correct procedure given Patient A s circumstances. There was a a high risk of this patient s lesion being malignant due to his age, sex and ethnicity. She suggested that the correct course of action would have been to refer the patient to his GP for a detailed assessment to be undertaken. The panel was mindful that Mr Jagger had been seeing Patient A every two to three months over a six year period. In this time he had continued to apply TCA treatment and at no point did he refer the patient to his GP. Dr 2 stated, the Registrant should have been absolutely confident that the lesions on Patient A s face were benign before using any type of treatment and advised the patient to see his GP. If the lesion was a mole when the patient first saw the Registrant, should not have been treated using acid Page 12 of 29

13 In Mr Jagger s of 30 January 2015 he stated, when I first met [Patient A] in early 2008, he presented with a plane molar [sic] to the right side of his chin. The panel concluded that the treatment provided by Mr Jagger to Patient A had been inappropriate and accordingly found Charge 1 proved. Charge 2 2. In relation to Patient B: 2.1. On one or more of the following occasions, inappropriately administered TCA treatment: On 2 May 2014, to Patient B's right arm On 2 May 2014, to Patient B's left arm On 29 September 2014, to Patient B's right arm On 17 October 2014, to Patient B's right arm In relation to the sub charges, outlining the dates of the treatment, the panel had evidence from Patient B which identified these dates as being accurate. The panel considered that Patient B had been able to provide highly detailed and accurate evidence in the light of her contemporaneous diary which she kept during the period in question. The panel also noted the dated 27 December 2014 from Mr Jagger which stated, [Patient B] s account of events is mainly accurate. Also, in his response to the charges, Mr Jagger does not deny the accuracy of the dates and only mentions the appropriateness of the treatment. The panel could therefore be satisfied that the dates are correct. In relation to the appropriateness of the treatment the panel noted Mr Jagger s response to the charge, TCA is not an inappropriate tx. If a client presented again with such significant self harm scars I would use TCA, even if I had a CO2 laser. In his dated 27 December 2014 Mr Jagger stated, The results obtained could only be Page 13 of 29

14 considered as excellent. However, there is evidence of 4 areas of hypertrophic scarring to the left forearm In conclusion I have not failed in my duty of care, did not perform an inappropriate treatment and had no reason to believe that hypertrophic scarring would occur. The panel noted the statement of Mr 1 which stated, In my opinion the treatment provided by the Registrant had, by inducing inflammation within the scars, rendered the scars more hypertrophic and more erythematous than had they not been treated. I regularly attend national conferences in the field of Aesthetic Medicine and I had not previously heard of chemical peels being used to treat such scars and cannot understand how that treatment could possibly work TCA is used to treat fine wrinkles, pigmented patches, skin textural changes and acne. In his oral evidence Mr 1 stated that he was very surprised at the use of TCA to treat self-harm scars. Patient B s arm exhibited deep scarring and TCA treatment, as a chemical peel, would not be able to penetrate deep enough to treat the scars. Mr 1 also told the panel that he had never seen TCA treatment used to treat any type of scarring. Furthermore, he had not seen any evidence from literature or from TCA manufacturer s recommendations for use in this way. Mr 1 explained the most appropriate treatment to improve the appearance of self-harm scars was a different course of treatment which he has now provided to Patient B. The panel concluded that the treatment provided by Mr Jagger had been inappropriate for treating the patient s scarring and had exacerbated the condition causing hypertrophic and more erythematous scarring. Accordingly, the panel determined that the treatment, on all the dates outlined in the sub charges, was inappropriate and found Charge 2.1 proved in its entirety On 2 May 2014, failed to provide an adequate standard of care and/or hygiene in connection with the application of TCA treatment in that you: Given the panel s findings that Mr Jagger inappropriately administered TC treatment for the reasons set out above, it follows that any steps taken by him in administering that Page 14 of 29

15 treatment means that he failed to provide an adequate standard of care. However, the panel has nevertheless independently considered the factual allegations and makes the following findings of fact Did not wash Patient B's right arm before applying the TCA treatment The panel heard and accepted the evidence of Patient B that Mr Jagger did not wash her arm. Mr Jagger asserts in his written response that washing was not required if the patient s arm was socially clean. In the circumstances the panel found that Mr Jagger did not wash Patient B s arm. The panel then went on to consider that by not washing her arm he had failed to provide an adequate standard of care or hygiene. Mr 1 informed the panel that all types of chemical peel products recommend the degreasing of skin before application. This is achieved most commonly by the use of an alcohol solution to cleanse the skin. The panel considered that this process was different to washing as this would indicate the use of soap and water. Mr 1 made no reference in his evidence to the recommendation and/or requirement to wash the skin before the application of the treatment. The panel therefore found Charge not proved Did not apply a post-peel mask to Patient B's arms after applying the TCA treatment The panel heard and accepted the evidence of Patient B that Mr Jagger did not apply a post-peel mask to her arm after applying TCA treatment. Mr Jagger accepts that he did not apply a post-peel mask because he was not using a skintech peel. In the circumstances the panel found that Mr Jagger did not apply a post-peel mask to Patient B s arm following TCA treatment. The panel then went on to consider that by not applying a post-peel mask to her arm he had failed to provide an adequate standard of care. Mr 1 informed the panel that it is recommended that a post peel mask is placed on top of the peel. This mask is used to calm the symptoms of the peel, which is usually a feeling of discomfort, while assisting in preventing infection. The panel considered that such action would be required when using TCA treatment on the patient s arm as it would be in the patient s best interests. In failing to apply the post-peel mask Mr Jagger Page 15 of 29

16 had failed to provide an adequate standard of care by not assisting in relieving the patient of discomfort and by increasing the risk of infection. Accordingly, the panel found Charge proved Did not apply a dressing to Patient B's arms after applying the TCA treatment Mr 1 suggested that an area of the body which had been treated with TCA and which would subsequently covered by clothing would require a dressing in order to prevent rubbing from the clothing and limit the risk of infection. Mr Jagger had stated that he did apply a dressing on this occasion. However, the panel noted the highly detailed evidence of Patient B who stated that on 2 May 2014 no dressing was applied. The panel had already determined that Patient B s evidence could be attributed more weight than the assertions of Mr Jagger as she had provided a witness statement, attended and given evidence under oath. Accordingly, the panel determined that, on the balance of probabilities, no dressing was applied on 2 May 2014 and that, in failing to do so, Mr Jagger had failed to provide an adequate standard of care, and found Charge proved Did not provide a post-peel mask, a cream and/or solution to Patient B for her to apply following the TCA treatment. The panel heard and accepted the evidence of Patient B that Mr Jagger did not provide a post-peel mask, cream and/or solution to her after applying the TCA treatment. Mr Jagger stated in his written response that he had not used a skintech peel and therefore he did not need to provide a post-peel mask, cream and/or solution to Patient B. In the circumstances the panel found that Mr Jagger did not provide a post-peel mask, cream and/or solution to Patient B s following TCA treatment. The panel then went on to consider that by not providing a post-peel mask, cream and/or solution to her arm he had failed to provide an adequate standard of care. Page 16 of 29

17 Mr 1, in his evidence, stated that a post-peel mask would be required irrespective of the product type. The panel therefore found that the application of a post-peel mask was required in response to the TCA treatment and in light of the risk of infection and to alleviate the discomfort to the patient, she should have been provided with these products. In the circumstances the panel founds that Mr Jagger failed to provide an adequate standard of care and/or hygiene to Patient B. Accordingly, the panel found Charge proved Did not wear gloves when applying the TCA treatment to Patient B's arms. The panel heard and accepted the evidence of Patient B that Mr Jagger did not wear gloves while applying the TCA treatment. Mr Jagger stated in his written response that he was not required to do so. In the circumstances the panel found that Mr Jagger did not wear gloves when applying the TCA treatment. The panel then went on to consider that by not wearing gloves whether Mr Jagger had failed provide an adequate standard of care and/or hygiene. The panel heard evidence from Mr 1 that the use of gloves for all medical procedures was the proper approach. In any event the panel noted that the use of gloves would have been Mr Jagger s own interests to avoid TCA contacting his own skin. He stated that there was no reason not to follow this approach in the application of TCA. The panel considered that the TCA treatment would expose the patient to a risk of infection and by not wearing gloves, Mr Jagger had failed to minimise this risk. The panel therefore found that by Mr Jagger not wearing gloves while applying the TCA treatment had not provided an adequate standard of care and/or hygiene. The panel considered that, on the balance of probabilities, Charge is found proved. Page 17 of 29

18 2.3. On 6 May 2014 failed to provide an adequate standard of care and/or hygiene in that you did not apply a dressing to Patient B's arms The panel again noted that Mr Jagger submitted that he had dressed Patient B s arms on 6 May However, Patient B had provided evidence that her arms were not dressed on this occasion and that Mr Jagger had informed her that he would obtain specialist burns dressings for the next appointment. On the 6 May 2014 Mr Jagger had identified Patient B s arms as suffering second degree burns, but that he had said that he would not put any dressing on the arms as the skin was not at a point where it needed dressing. The panel determined that Mr Jagger had left Patient B at an increased risk of infection and in discomfort by not dressing her arms. Accordingly, the panel found that Mr Jagger did not apply a dressing to Patient B s arms and as a result he failed to provide an adequate standard of care and/or hygiene. Accordingly, the panel found Charge 2.3 proved On 17 October 2014 failed to provide an adequate standard of care and/or hygiene in that you did not wash the Patient B's right arm before applying TCA treatment For the same reasons as set out in relation to Charge 2.2.1, the panel found this charge not proved On 10 November 2014 you failed to provide an adequate standard of care in that You did not attend a follow up appointment You did not make contact with Patient B following the missed appointment In relation to this charge the panel noted that Mr Jagger indicated that he accepted the charge and offered an explanation for his failure to attend or make contact with Patient Page 18 of 29

19 B. At this stage the panel determined that both Charges and could be found proved in light of the evidence of Patient B and the acceptance of Mr Jagger Made unprofessional comments and / or personal disclosures to Patient B on one or more of the occasions set out in Schedule A. The panel noted that Mr Jagger accepted that he made the comments outlined in Schedule A and stated that the context was difficult to explain. The panel had evidence from Patient B regarding the disclosures made by Mr Jagger and she stated that she felt shocked and really upset. Patient B also stated that she did not want to know about Mr Jagger s personal life, but she did exhibit understanding of Mr Jagger s emotional state at the time. The panel determined that the disclosures were personal in nature and had no relevance to the treatment of Patient B nor were they clinically required. The panel therefore determined that they were also unprofessional in any context and demonstrated an absence of awareness of the nature of an appropriate relationship between clinician and patient. Patient B was a vulnerable patient and that these unprofessional disclosures had caused her emotional distress. Accordingly, the panel found Charge 2.6 proved. Determination on misconduct and impairment: Having announced its finding on all the facts, the panel then moved on to consider first whether the facts found proved amount to misconduct and, if so, whether Mr Jagger s fitness to practise is currently impaired. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. In his submissions Mr Dowlman invited the panel to conclude that Mr Jagger s actions amount to a breach of The code: Standards of conduct, performance and ethics for Page 19 of 29

20 nurses and midwives 2008, the Code. He then directed the panel to specific paragraphs and identified where, in the NMC s view, Mr Jagger s actions amounted to misconduct. Mr Dowlman referred the panel to the case of Roylance v General Medical Council (no. 2) [2000] 1 AC 311 which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. Mr Dowlman then moved on to the issue of impairment, and addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards and maintain public confidence in the profession and in the NMC as a regulatory body. Mr Dowlman referred the panel to the cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). The panel has accepted the advice of the legal assessor which included reference to a number of judgments which are relevant in this case. These included: Roylance v GMC, Meadow v General Medical Council [2006] EWCA Civ 1390, R. (on the application of Zygmunt) v General Medical Council [2008] EWHC 2643 (Admin), Ronald Jack Cohen v General Medical Council [2008] EWHC 581 (Admin), Cheatle v GMC [2009] EWHC 645 (Admin) and CHRE v NMC and Grant. The panel adopted a two stage process in its consideration as advised. Decision on whether the facts found proved amount to misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of the code in force at that time, namely the May 2008 edition. 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. Page 20 of 29

21 The panel was of the view that Mr Jagger s actions did fall significantly short of the standards expected of a registered nurse, and that his actions amount to a breach of the Code. Specifically the preamble, as follows: The people in your care must be able to trust you with their health and wellbeing. To justify that trust, you must: make the care of people your first concern, treating them as individuals and respecting their dignity provide a high standard of practice and care at all times uphold the reputation of your profession. As a professional, you are personally accountable for actions and omissions in your practice, and must always be able to justify your decisions. The panel also concluded that Mr Jagger had breached the following standards of the Code: 35. You must deliver care based on the best available evidence or best practice. 36. You must ensure any advice you give is evidence-based if you are suggesting healthcare products or services. 54. You must act immediately to put matters right if someone in your care has suffered harm for any reason. 55. You must explain fully and promptly to the person affected what has happened and the likely effects. 57. You must not abuse your privileged position for your own ends. 61. You must uphold the reputation of your profession at all times. The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. The panel considered that by administering inappropriate treatment to more than one patient, for prolonged periods of time, Mr Jagger had acted outside of the best interests of the patients. Mr Jagger s inappropriate treatment and inadequate care provided had Page 21 of 29

22 placed the patients at an increased risk of harm in the case of Patient A and caused actual harm in the case of Patient B. Mr Jagger had failed to refer Patient A s lesions to his GP despite him being defined at high risk of malignancy, for almost six years during which time he saw Patient A regularly. In relation to Patient B Mr Jagger had provided inappropriate treatment which had exacerbated her condition. Mr Jagger also failed to provide Patient B with an adequate standard of care which caused her pain and increased discomfort which continues to this day and exposed her to an increased risk of infection, over a period of six months. In acting unprofessionally by disclosing details of his personal circumstances Mr Jagger s behaviour caused Patient B further emotional distress. With regard to Patient A, a malignancy was diagnosed in the lesion in October Mr Jagger, by treating the patient inappropriately for some six years without referral to a GP, delayed the onset of any treatment that this patient subsequently had. The panel considered that the charges found proved, when taken both individually and cumulatively, amount to misconduct. Decision on impairment The panel next went on to decide if, as a result of this misconduct, Mr Jagger s fitness to practise is currently impaired. To assist in making its decision, the panel also considered the judgement of Mrs Justice Cox in the case of Grant in reaching its decision, in paragraph 74 she said; 74. 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 Page 22 of 29

23 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: Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d.... The panel found that sub-paragraphs a, b and c were engaged in that Mr Jagger s actions and omissions had put vulnerable patients at an unwarranted risk of harm and had brought the nursing profession into disrepute by breaching fundamental tenets of the profession. The panel determined that the incidents were not isolated and occurred over a protracted period of time. The panel has not been provided with any evidence of remediation through either retraining or keeping his knowledge up to date or any other demonstrable evidence of his understanding of his failings. The panel has no evidence to show that Mr Jagger has demonstrated any remorse for his actions, which had placed vulnerable patients at an unwarranted risk of harm. The panel had serious concerns in relation to Mr Jagger s lack of insight into the inappropriateness of the care he provided. In his response to the charges he stated, If a client presented again with such significant self harm scars I would use TCA, even if I Page 23 of 29

24 had a CO2 laser. In his of 27 December 2014 he stated that, the results obtained could only be considered as excellent. Having heard the evidence in this case, noting the impact of Mr Jagger s treatment on Patient A and Patient B, this panel wholly rejects that assessment of the quality of treatment provided. The panel therefore considered that he has an absence of insight. The panel considered that without any evidence of remediation or even an intention to improve his practice, combined with the lack of insight and remorse, there is a real risk that Mr Jagger will repeat the misconduct in this case. The charges found proved had demonstrated a pattern of failings associated with the basic nursing care of vulnerable patients and conduct not expected of a registered nurse. The panel also noted Mr Jagger s unprofessional conduct and considered that Mr Jagger has demonstrated little understanding in relation to maintaining professional boundaries with patients. His actions had caused emotional harm, in addition to the physical harm caused by his inappropriate treatment, to Patient B. The panel had borne in mind that its primary function was to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding proper standards and behaviour. The panel was satisfied that the public would expect nurses to provide patients in their care with appropriate treatments and an adequate level of care and/or hygiene. Further, the panel determined that public trust and confidence in the profession would be undermined if a finding of impaired fitness to practise was not made in these particular circumstances. Having regard to all of the above, the panel was satisfied that a finding of Mr Jagger s fitness to practise to be currently impaired is necessary on the grounds of public protection and is otherwise in the public interest. Page 24 of 29

25 Decision on sanction Having found that Mr Jagger s fitness to practise is currently impaired, the panel considered what sanction, if any, to impose. In reaching its decision on sanction, the panel considered all the evidence before it including the submissions of Mr Dowlman. Mr Dowlman referred the panel to the NMC s Indicative Sanctions Guidance for panels ( ISG ) and submitted that determining the appropriate sanction was a matter for the panel s professional judgment. The panel heard and accepted the advice of the legal assessor. The panel applied the principles of fairness, reasonableness and proportionality, weighing the public interest with Mr Jagger s own interests. The public interest includes the protection of the public, the maintenance of public confidence in the profession and the NMC as its regulator, and the declaring and upholding of proper standards of conduct and behaviour. The panel took account of the current version of the ISG, bearing in mind that the decision on sanction is one for its own independent judgment. The panel recognised that the purpose of a sanction is not to be punitive, although it may have a punitive effect. The panel has identified the following mitigating factors in this case: Mr Jagger s engagement with the regulatory process, albeit limited; The fact that Mr Jagger has no adverse regulatory findings; Mr Jagger s personal circumstances at the time. The panel considered the aggravating factors in this case: Risk of harm to Patient A; Actual harm caused to Patient B; Repeated failures in fundamental basic clinical care; High risk of repetition; Page 25 of 29

26 Mr Jagger s complete absence of insight or remorse; Abuse of his position of trust; No evidence of remediation; Repeated unprofessional conduct as set out in Schedule A, which included a comment of a sexual nature. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. The panel decided that, given the ongoing risk of harm to the public and the public interest, such a course would not protect the public and would be neither proportionate nor in the public interest. The panel next considered whether a caution order would be appropriate in the circumstances. The panel was of the view that a caution order would not be sufficient to address the seriousness of Mr Jagger s misconduct. Further, given that the panel has had no evidence regarding any steps Mr Jagger may have taken to remedy his failings, a caution order would neither adequately protect the public nor the public interest as it would allow Mr Jagger to practise without restriction. The panel then went on to consider whether placing conditions of practice on Mr Jagger s registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel considered that Mr Jagger has demonstrated a complete lack of insight into the impact of his actions, and has failed to show remorse or evidence of remediation. The panel had identified a high risk of him repeating his misconduct in the light of the comments in his correspondence with the NMC. The panel could also not be satisfied that, even if they were appropriate and workable, Mr Jagger would be willing to comply with a conditions of practice order, given the absence of evidence that he had identified his failings and that there is scope for remediating them. Mr Jagger has demonstrated serious attitudinal deficiencies. In his repose to the charges he stated, I wouldn t spend 4 days in London to explain why I never washed a patient s arms when you are not supposed to, apply a cream for a skin peel system that I wasn t using because some idiot doctor, with little experience using TCA made a complaint. The doctor is correct, Page 26 of 29

27 the nurse is wrong. Hey things haven t changed. Congratulations NMC for standing up for your members. The panel therefore concluded that conditions of practice would neither be workable nor sufficient to address the range of failings found proved such that they could protect the public or to maintain public confidence in the profession or the NMC as its regulator. The panel then went on to consider whether a suspension order would be an appropriate sanction. Paragraph 67 of the ISG indicates that a suspension order would be appropriate where (but not limited to): 67.1 A single instance of misconduct but where a lesser sanction is not sufficient No evidence of harmful deep-seated personality or attitudinal problems No evidence of repetition of behaviour since the incident The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour. The panel did not consider the matters in this case to be isolated, but a pattern of repeated failings. Mr Jagger provided inappropriate treatment to Patient A for six years and to Patient B for a number of months. The panel identified serious attitudinal concerns in the light of Mr Jagger s responses to the NMC. Mr Jagger has demonstrated a complete absence of insight in relation to his actions and as a result the panel considered there to be a high risk of repetition. The panel considered that there was no evidence that Mr Jagger had acknowledged or reflected on the seriousness of his misconduct or that he had considered the wider implications of it on patients in his care, the public or the reputation of the profession. There appeared to be a persistent lack of insight in respect of his misconduct. These are all matters that have led the panel to conclude that the imposition of a suspension order was not the appropriate sanction to imposed. Page 27 of 29

28 The panel considered that Mr Jagger s lack of insight or remorse combined with the gravity of his failings, together with his stated intention not to change his working practices and the ongoing risk to patient safety, meant that his conduct was fundamentally incompatible with remaining on the register. Having taken into account all this information, the panel determined that the only appropriate and proportionate sanction is that of a striking-off order. The panel noted that such an order is likely to have adverse effects for Mr Jagger, although the panel has limited information about his current financial or employment situation. However, it considered that Mr Jagger s interests are outweighed by the need to protect the public, and to serve the wider public interest by upholding the proper standards expected of a nurse, as well as ensuring the maintenance of public trust and confidence in the profession and in the NMC as a regulator. The panel, therefore, determined that a striking-off order should be made and directed the Registrar to strike Mr Jagger s name from the Register. This order will come into effect after the 28 day appeal period, which commences upon Mr Jagger s receipt of the panel s written determination, has expired. At the end of the appeal period if Mr Jagger has not lodged an appeal, the order will come into effect. Mr Jagger s record in the NMC register will show that his name has been removed. Mr Jagger may not apply for restoration until after five years after the date that this decision takes effect. Page 28 of 29