Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 9-13 October 2017

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 9-13 October 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: Mr John Warren NMC PIN: 08F1906E Part(s) of the register: Registered Nurse Sub-part 1 Mental Health Nurse September 2008 Area of Registered Address: England Type of Case: Misconduct Panel Members: Mrs Anne Booth (Chair, Lay member) Ms Tracey Jary (Registrant member) Mr Alex Forsyth (Lay member) Legal Assessor: Ms Gillian Hawken Panel Secretary: Mr Philip Austin (9 12 October 2017) Miss Amna Khan (13 October 2017) Registrant: Mr Warren is not present at this hearing, but is represented in his absence by Ms Mary Percival Nursing and Midwifery Council: Represented by Ms Shelley Brownlee, counsel, instructed by NMC Regulatory Legal Team. Facts proved: All charges (1 & 2) Fitness to practise: Impaired Sanction: Suspension Order 12 months Interim Order: Interim Suspension order 18 months 1

2 Details of charge: That you, a Registered Nurse, 1. Between September 2013 and January 2014, engaged in an inappropriate relationship with Patient A; [proved] 2. On or around 10 January 2014, engaged in inappropriate sexual activity with Patient A; [proved] And, in light of the above, your fitness to practise is impaired by reason of your misconduct. 2

3 Background The NMC received a referral from KCA, adult substance misuse service ( KCA ) on 16 May At the time of the referral, Mr Warren was a former employee of KCA, he was as a mental health nurse, employed as a Keyworker by KCA at Lantern Hall. Although not Patient A s exclusive Keyworker, Mr Warren was a named Keyworker for Patient A, who was a recovering heroin addict, and was engaging with treatment offered by KCA. Mr Warren joined KCA Croydon in March 2012, and worked at Lantern Hall as a shared Keyworker until he resigned and left at the end of August Sometime between the end of September 2013 and beginning of October 2013, Mr Warren invited Patient A to connect with him via LinkedIn. It is alleged that Patient A accepted this invitation two to three weeks later by . Mr Warren is then alleged to have engaged in communications with Patient A via s to personal addresses, text messages and telephones calls. It is alleged that Mr Warren met up with Patient A on three occasions, which culminated in Mr Warren and Patient A having sexual intercourse on 10 January On 17 April 2014, Patient A disclosed to Mr 1, a Keyworker at Lantern Hall, that she had been contacted by and entered into a sexual relationship with Mr Warren. He made a contemporaneous note of that meeting, and escalated this to his Operations Manager the same day. As Mr Warren was no longer employed by KCA, no disciplinary investigation was conducted, but the matter was referred to the NMC by KCA. Objections on points of law to the charges: Ms Percival, on Mr Warren s behalf, raised three objections to the charges on points of law on the following basis: 3

4 In respect of both charges 1 and 2, Ms Percival submitted that the NMC had not sufficiently set out the basis for alleging that Mr Warren s conduct was inappropriate. She submitted that the relationship was consensual, and that there was no professional relationship at the time of the allegations. Therefore, it was not clear to her why the relationship was charged as inappropriate. Ms Percival invited the NMC to explain the basis for the wording of the charges. She further submitted that The code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ) does not specify what would be considered as an inappropriate relationship, nor does it specify that it relates to patients that had previously been under the care of a registered nurse. Ms Percival referred the panel to the High Court judgment of The Honourable Mr Justice Popplewell, in this matter (Warren v NMC)[2017] EWHC 793 (Admin), but submitted that his remarks are not binding on this panel. Ms Percival submitted that the NMC s case around there being an inappropriate relationship is based on what Mr Warren admitted as a lay person without legal advice. Ms Brownlee, on behalf of the NMC, submitted that the NMC do not need to particularise every word of the charge. She submitted that whilst the Code does not specifically define what an inappropriate relationship might be, or specifically state whether sexual boundaries includes patients previously under a registrant s care, it is the NMC s case that there is a sufficiency of evidence for it to put its case on the basis that Mr Warren s alleged conduct was inappropriate. Ms Brownlee also submitted that The Honourable Mr Justice Popplewell s judgment in respect of this is not binding on the panel although it is highly relevant, and in any event, his interpretation is that the word patient can be given a wide definition. The panel took account of the advice from the legal assessor. 4

5 The panel had sight of the NMC hearing bundle and, at this stage, considered that it could potentially make a finding that the alleged conduct would be considered to be inappropriate if it found the facts of the case proved. The panel noted that there is no legal definition in determining the meaning of the word inappropriate and instead, relied on its ordinary meaning. The panel had sight Mr Warren s witness statements for the purposes of this hearing and noted that he accepts that he initiated contact with Patient A, and that he appears to accept that in doing this, his behaviour would be perceived as inappropriate. This is further supported by Mr Warren s to Patient A dated 14 November 2013 I am happy that you don t feel rejected because we have stayed in touch but I would not tell other people which I hope you understand as it would not seem appropriate even though all we have done is each other. This is unfortunate and seems even more applicable to me than other key workers because I am a nurse, and you only have to go on the Nursing Midwifery website which lists many reasons why nurses have had their registration revoked. The panel received information from within the NMC hearing bundle which indicated at the time of the contact between Mr Warren and Patient A, she was still under the care and treatment of KCA. Mr Warren was aware of her ongoing need for treatment as this is discussed in their exchange, yet he still chose to continue to correspond with her. The panel noted that it had not yet heard evidence from Mr 1, Keyworker, who has attended today to give live evidence to the panel, called on behalf of the NMC. In the panel s view, on the information before it in the bundle, Mr Warren himself clearly felt his actions in contacting, corresponding with, and thereafter meeting with Patient A were inappropriate or could be viewed as such. This is clearly stated by Mr Warren in his statement dated 15 October 2014, I accept that I should not have contacted the service user [Patient A] as she had previously been a client of mine. I recognise this was a 5

6 breach of professional ethics and that I should have maintained clear sexual boundaries between us as she was a former patient. In Mr Warren s witness statement dated 23 February 2015, he states I sent a LinkedIn friend request to Patient A...I regret this deeply and recognise that it was completely inappropriate and in breach of my professional role. Patient A was someone with whom I had previously been in a position of trust, a vulnerable person in treatment for drug addiction. It was utterly wrong of me to make any contact with her and showed a total failure of judgment At this time I viewed Patient A as someone who was making a better job of her life than I was...i see now that this impression was wholly wrong however as Patient A was extremely vulnerable emotionally and looking for a deeper relationship although I failed to notice this Looking back I am very ashamed that I was so absorbed with my own situation that I failed to respect the boundaries between myself and Patient A, and in particular that I did not recognise her vulnerability and the fact that she seemed to be attracted to me as more than a friend. In relation to Ms Percival s submission that the Code did not specify that professional boundaries extended to relationships with former patients, the panel was satisfied from the information before it in the bundle that Mr Warren was aware that the boundaries did extend to those previously within his care. Further, the panel agreed with The Honourable Mr Justice Popplewell s findings on this point in his judgment dated 5 April 2015, contained in paragraph 45. In relation to Ms Percival s objection that the NMC s case was based on what Mr Warren admitted as a lay person, the panel noted that, at the time of his completion of the standard directions form in August 2015, Mr Warren was legally represented. Certainly, Mr Warren s second statement dated 23 February 2016 was written after he had received legal advice. By way of background, the panel was informed that this case had previously been heard by a Conduct and Competence Committee ( CCC ) panel between 4 7 October 2016, 6

7 but has been remitted before a different panel today after the registrant lodged a successful appeal in the High Court. The panel was made aware that on the first occasion this case was heard, Mr Warren had returned the standard directions form with his response to the charges admitting both charges 1 and 2, and that this is consistent with his written statements which have been provided to this panel. However, on this occasion, the panel noted that Mr Warren s position has changed, in that he no longer admits the charges before the panel, despite the wording remaining the same. At this stage, the panel determined that the charges had been sufficiently particularised, and that there was sufficient information before it to determine whether the relationship Mr Warren and Patient A engaged in was inappropriate at the facts stage of this matter. Decision and reasons on application pursuant to Rule 31: The panel heard an application by Ms Percival, on behalf of Mr Warren, under Rule 31 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended, ( the Rules ), not to permit hearsay evidence. Ms Percival submitted that Mr 1 s evidence should not be admitted as it contains hearsay information communicated to him by Patient A. Ms Percival submitted that the hearsay evidence of Patient A within Mr 1 s statement attests to the level of Mr Warren s culpability in these matters. Ms Percival submitted that whilst Patient A has completed a written statement for the purposes of this hearing, the NMC has not yet sought to rely on it as evidence. Ms Percival submitted that she has concerns regarding the reliability and credibility of Patient A, and that she is unable to test her hearsay evidence as reported by Mr 1 in his statement because she has not attended today to give live evidence to this panel. She further submitted that the panel would also therefore be unable to test the veracity of this part of the evidence. 7

8 Ms Brownlee, on behalf of the NMC, submitted that Mr 1 gives clear evidence on what he was told by Patient A. Ms Brownlee submitted that the evidence Mr 1 can provide to the panel is relevant and fair and should be included in its entirety. Ms Brownlee submitted that despite numerous attempts made by the NMC to contact Patient A, she has not responded to the notice of hearing letter. She further submitted that Patient A has not attended any of the previous hearings listed in this matter, despite the first hearing adjourning in 2015 for the NMC to secure her attendance. Ms Brownlee informed the panel that the NMC has not had any contact from Patient A since July Ms Brownlee submitted that Patient A s non-attendance does not affect the evidence that Mr 1 can give, in that it does not affect what he was allegedly told by Patient A, and what steps he took in escalating this. Ms Brownlee submitted that Mr Warren will have the opportunity to test the evidence of Mr 1, through his representative, Ms Percival, as she has the opportunity to cross-examine Mr 1. The panel heard and accepted the legal assessor s advice on the issues it should take into consideration in respect of this application. This included that Rule 31 of the Rules provides that, so far as it is fair and relevant, a panel may accept evidence in a range of forms and circumstances, whether or not it is admissible in civil proceedings. The legal assessor referred to the legal authorities of Ogbonna v NMC [2010] EWCA Civ 1216, R (Bonhoeffer) v GMC [2011] EWHC 1585 (Admin), Thorneycroft v NMC [2014] EWHC 1565 and Razzaq v FSA [2014] EWCA 770. The panel gave the application in regard to Mr 1 s evidence serious consideration. The panel noted Mr 1 s contemporaneous note of his meeting with Patient A on 17 April 2014 which had been provided to Mr Warren in advance of this hearing. Ms Percival confirmed that Mr 1 s witness statement had been provided to Mr Warren in advance of this hearing. 8

9 The panel considered the likely prejudice caused to Mr Warren in admitting the evidence of Mr 1. The panel noted that Mr 1 has attended today to give live evidence to the panel, and is therefore able to give direct evidence of what he was told by Patient A. The panel considered the evidence to be relevant as it directly relates to the charges. In assessing fairness to Mr Warren, the panel determined to hear the evidence of Mr 1 and attach what weight it deemed appropriate to what Patient A is alleged to have said to him once the panel had heard and evaluated all the evidence before it. The panel took account of the fact that Ms Percival is present and representing Mr Warren in his absence and is able to test the reliability of Mr 1 s evidence in relation to what Patient A told him. Further, the panel considered that what Patient A is said to have told Mr 1 is not the sole or decisive evidence to support the charges. The panel considered that there was also public interest in the issues being explored fully which supported the admission of this evidence into the proceedings. In these circumstances, the panel came to the view that it would be fair and relevant to accept Mr 1 s witness statement in its entirety. 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 Brownlee, on behalf of the NMC and those made by Ms Percival, on Mr Warren s behalf. The panel heard and accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the 9

10 facts will be proved if the panel was satisfied that it was more likely than not that the incidents occurred as alleged. The panel referred to the Code and a guidance document produced by the Council for Healthcare Regulatory Excellence: Clear sexual boundaries between healthcare professionals and patients: responsibilities of healthcare professionals dated 2008 and put forward as evidence by Ms Percival. The panel heard oral evidence from one live witness, Mr 1, tendered on behalf of the NMC. Mr 1 was formerly employed by KCA as a Senior Recovery Worker and was one of Patient A s Keyworkers after Mr Warren left his post. The panel first considered the overall credibility and reliability of Mr 1 s evidence. The panel noted that Mr 1 was very experienced having been involved in the social care sector since he was 15 years old and had worked as a drug and alcohol recovery worker for the last 19 years. Mr 1 described the nature of the service and gave a description of typical Keyworker sessions. He also told the panel that he was aware Patient A had a history of sexual abuse, as well as drug and alcohol abuse. Mr 1 conveyed what was communicated to him by Patient A, and the steps he then took in escalating his concerns. The panel found Mr 1 to be consistent, credible and clear in his evidence that the relationship Mr Warren and Patient A engaged in was, in his view, inappropriate. When asked about keeping in touch with former patients, Mr 1 stated, It is considered unprofessional and you can leave a patient vulnerable. You just don t do it. He also confirmed that all Keyworkers at KCA would be aware of the CHRE 2008 guidelines with regard to professional boundaries. The panel acknowledged that it should treat with caution the veracity of the hearsay evidence of Patient A, referred to by Mr 1. 10

11 The panel went on to consider each charge and made the following findings: Charge 1: 1. Between September 2013 and January 2014, engaged in an inappropriate relationship with Patient A; This charge is found proved. In reaching this decision, the panel considered the ordinary definition of the word inappropriate in determining whether Mr Warren, engaging in a relationship with Patient A, would be viewed as such. The panel had sight of Mr Warren s statement dated 15 October 2014, in which he appears to accept that it was inappropriate for him to contact Patient A as he states I accept that I should not have contacted the service user [Patient A] as she had previously been a client of mine. I recognise this was a breach of professional ethics. The panel also had sight of Mr Warren s second statement dated 23 February 2016, in which Mr Warren reiterates this position: I should have refused and it was my action in contacting her that was the cause of everything I admitted to the NMC my breach of the code in having an inappropriate relationship at the earliest opportunity in October The panel noted that there were several correspondences, text messages and telephone calls exchanged between Mr Warren and Patient A. The panel further noted that there is evidence to suggest that Mr Warren and Patient A met up on three separate occasions. In considering the inappropriateness of Mr Warren and Patient A s relationship, the panel also had regard to Mr 1 s evidence. Mr 1 was of the view that in contacting Patient 11

12 A outside of work and entering into a relationship with her, Mr Warren had breached professional boundaries. He stated during evidence that you are not there to be friends with clients [patients], you are there to provide a service and that relationship ends when you cease working with them [patients]. The panel accepted Mr 1 s evidence that, as a Keyworker for Patient A, Mr Warren would be aware of the CHRE guidance on maintaining professional boundaries, and that it would be unacceptable for Mr Warren to enter into a relationship with a former patient. Mr Warren demonstrated in his dated 14 November 2013 to Patient A that he knew his contact with Patient A would be viewed as an inappropriate by seeking to ensure she did not mention they were engaged in communication with others. I am happy that you don t feel rejected because we have stayed in touch but I would not tell other people which I hope you understand as it would not seem appropriate even though all we have done is each other. This is unfortunate and seems even more applicable to me than other key workers because I am a nurse, and you only have to go on the Nursing Midwifery website which lists many reasons why nurses have had their registration revoked. Furthermore, on 18 November 2013, Mr Warren said in an to Patient A As for telling anyone that you are talking to me, I know you understand that it does not seem appropriate even though we are not talking about anything that is inappropriate. In addition, in Mr Warren s statement dated 23 February 2016, he stated I also told her about my money worries. I know I should not have spoken to a former client [patient] in this way and that it was entirely inappropriate to tell her about my problems. The panel took account of all of the evidence before it and determined that, on the balance of probabilities, Mr Warren engaged in an inappropriate relationship with Patient A. This charge is found proved. Charge 2: 12

13 2. On or around 10 January 2014, engaged in inappropriate sexual activity with Patient A; This charge is found proved. In reaching this decision, the panel took account of Mr Warren s two written statements submitted into evidence. Both statements were signed by Mr Warren as declarations of truth. The panel noted that Mr Warren accepts that sexual activity took place on the night of 10 January He states in his written statement dated 15 October 2014, We then returned to her [Patient A s] flat, we went to bed and had sexual relations. This is further supported by Mr Warren s written statement dated 23 February 2016, in which he states, I did not force or coerce Patient A to have sexual intercourse with me Patient A initiated and consented. The panel also noted that Ms Percival, on Mr Warren s behalf, accepts that sexual intercourse between Mr Warren and Patient A took place. Her contention is that it was not inappropriate for them to engage in this act as Mr Warren was no longer in a professional relationship with Patient A as she was no longer under his care and the relationship was consensual. The panel took the communication between Mr Warren and Patient A into consideration. The panel was of the view that a consensual sexual relationship had been formed between Mr Warren and Patient A, and that Patient A herself appeared to be actively encouraging the sexual relationship. The panel noted that the submissions from the NMC did not suggest that the relationship was anything other than consensual between Patient A and Mr Warren. In Mr Warren s statement, he further states It was not until I was back home that I actually realised what I had done. Far from being an equal relationship between friends I recognised that Patient A was a vulnerable person with a history of addiction and that I 13

14 had betrayed my professional duty in meeting her and then having a sexual encounter I fully recognise the necessary boundaries which must be maintained between a nurse in the role that I had at Lantern Hall and a former service user [patient]. The relationship of trust which had existed between us at that made an equal friendship impossible. Patient A was vulnerable emotionally and sexually because of her history of addiction. Although she took the lead in seeking a sexual relationship with me I should have refused and it was my action in contacting her that was the cause of everything. I am truly sorry for the distress and harm that I caused Patient A and the relapse that she has since suffered in her drug treatment. The panel took account of the CHRE guidelines of January 2008 in relation to Clear sexual boundaries between healthcare professionals and patients: responsibilities of healthcare professionals as recited below. The panel accepted Mr 1 s evidence, that Mr Warren would be aware of these guidelines, and this document was submitted by Ms Percival for the panel s consideration. Sexual activity with former patients or their carers Sexual relationships with any former patient, or the carer of a former patient, will often be inappropriate however long ago the professional relationship ended. This is because the sexual relationship may be influenced by the previous professional relationship, which will often have involved an imbalance of power as described above. The possibility of a sexual relationship with a former patient may arise, for example through social contact. If a healthcare professional thinks that a relationship with a former patient might develop, he or she must seriously consider the possible future harm that could be caused and the potential impact on their own professional status. They must use their professional judgment and give careful consideration to the following: when the professional relationship ended and how long it lasted the nature of the previous professional relationship and whether it involved a significant imbalance of power 14

15 whether the former patient was particularly vulnerable at the time of the professional relationship, and whether they might still be considered vulnerable whether they would be exploiting any power imbalance, knowledge or influence obtained while they were the patient s healthcare professional to develop or progress the relationship If a healthcare professional is not sure whether they are or could be seen to be abusing their professional position, they should seek advice from an appropriate professional body. However consensual a relationship appears to be if a complaint is made the onus will always be on the healthcare professional to show that they have acted professionally by giving serious consideration to the points above in relation to the circumstances in question, and by seeking appropriate advice. Having reviewed the above guidelines, the panel noted what Mr Warren stated in his statement dated 23 February 2016, I understand that any sexual relationship risks being an abuse of power and I can see now that as regards Patient A and myself I was the person who had the power even though she had initiated our sexual contact. I failed to recognise Patient A s vulnerability and saw her as someone more successful and experienced in life than I was. I did not intend and was not conscious of taking advantage of Patient A but I now recognise that my view that we were friends supporting each other was completely wrong. Because I was focusing on my own problems I lost sight of the imbalance in our relationship which was inevitable as Patient A was a person recovering from addiction and I had been her key worker. I accept that, although I wish I could make amends to Patient A, I cannot now undo the harm I caused her by initiating and continuing this relationship and allowing it to become sexual. The panel took account of all of the evidence before it. The panel considered Mr Warren s professional responsibilities as set out in the Code and in accordance with the CHRE guidance document referred to above, together with the fact that Patient A was still receiving treatment at Lantern Hall at the time of Mr Warren s sexual encounter with her and was vulnerable due to her addiction. The panel determined that Mr Warren 15

16 engaged in inappropriate sexual activity with Patient A and, as such, this charge is found proved. Submissions on misconduct and impairment: Having announced its finding on the facts, the panel then moved on to consider, whether the facts found proved amount to misconduct and, if so, whether Mr Warren s fitness to practise is currently impaired. There is no statutory definition of fitness to practise. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Ms Brownlee referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. Ms Brownlee submitted that, considering all the information before it, including the Code, the CHRE guidance, Mr 1 s evidence and Mr Warren s statements and reflective piece, the matters that the panel has found proved are capable of amounting to misconduct. Ms Brownlee invited the panel to take the view that Mr Warren s actions were serious, and amounted to breaches of the Code. She then directed the panel to specific paragraphs and identified where, in the NMC s view, Mr Warren s actions amounted to misconduct. Ms Brownlee submitted that the Code should not be viewed in isolation and that the panel should also consider CHRE guidance together with Mr 1 s evidence that it would never be acceptable for support workers (Keyworkers) to engage in a relationship, even when a professional relationship has ended. Ms Brownlee also submitted that Mr Warren disregarded CHRE healthcare guidelines, which make reference to the imbalance of power and the responsibility of healthcare professionals to be aware of professional boundaries, including with former patients. Mr Warren was aware that his behaviour would be perceived to be inappropriate, yet he initiated, continued to engage in, and actively encouraged an inappropriate relationship 16

17 with Patient A. She submitted that Mr Warren was aware of the imbalance of power between himself and Patient A, and that sensitive information would have been conveyed to him in respect of Patient A in the course of his employment at KCA. Ms Brownlee submitted that at the time of the CCC hearing between 4 7 October 2016, the written statements and reflective piece which were drafted for the previous panel s consideration demonstrate that Mr Warren knew what he was doing would be considered to be inappropriate. Ms Brownlee addressed the panel on current impairment, and 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. Ms Brownlee submitted that Mr Warren has not attended to give live evidence to the panel. She submitted that Mr Warren s statements and reflective piece, provided to the previous panel, appear to indicate that he acknowledged the impact his actions had on Patient A, however, there has been nothing new submitted by Mr Warren for the purposes of this hearing. Ms Brownlee submitted that there is a risk of repetition of the events in this case and the panel cannot be satisfied that it is a negligible or non-existent risk. Ms Brownlee submitted that it is for the panel to determine whether Mr Warren s fitness to practise is currently impaired. Ms Percival submitted that there was no professional relationship in existence at the time Mr Warren and Patient A engaged in their relationship. She drew the panel s attention to The Code: Professional standards of practice and behaviour for nurses and midwives (2015) and stated that, in this subsequent version, there is a specific reference to not engaging in inappropriate relationships with former patients, but this was not included in the 2008 Code in force at the time of the events. She therefore 17

18 submitted that Mr Warren was not in breach of the Code in force at the time, and that he does not now accept he breached paragraph 20 of the 2008 Code. Ms Percival referred to this panel s findings at the fact stage that the relationship was consensual and that Patient A had actively encouraged it. Ms Percival reiterated her stance in relation to issues of credibility and reliability in relation to Patient A maintaining her evidence is unreliable and the panel should be cautious in attaching any weight to her evidence. She submitted that the panel have received no direct evidence from Patient A and that Mr Warren s account should be fully considered rather than completely disregarded. In relation to the CHRE guidance, Ms Percival submitted that this was never annexed to or adopted by the Code and that it is simply guidance. She acknowledged that the guidance contains red flags for registrants. Ms Percival submitted that it is not unusual for nurses to have relationships with people that had previously been in their care. She stated that a previous acceptance within Mr Warren s statement that what he did was wrong is not sufficient to make a finding of current impairment. Ms Percival cited the European Convention of Human Rights Act 1998 and said that Mr Warren has a right to a private life; she did, however, concede that this is a qualified rather than absolute right. Ms Percival submitted that fully informed members of the public would not consider Mr Warren s nursing practice to be impaired as there was no subsisting professional relationship and no exploitation of Patient A by Mr Warren. Furthermore, Ms Percival submitted that the panel should be willing to take account of the vulnerabilities of both Patient A and Mr Warren. She said that Mr Warren had been drinking alcohol at the time of the events, which impaired his judgment. Ms Percival submitted that Patient A knew Mr Warren had been drinking alcohol and insisted that he 18

19 came to see her at her flat. She submitted that Mr Warren had been taken advantage of by Patient A. Ms Percival submitted that there has been no repetition of the facts found proved and that Mr Warren has had no previous disciplinary findings against him. Ms Percival informed the panel that Mr Warren has not been working in the healthcare setting as he has been suspended on an interim basis since the last NMC hearing. She said that Mr Warren has always said that he regrets the conduct and accepts that it was a gross error of judgment but noted a distinction between the conduct being inappropriate by Mr Warren s own standards as opposed to by interpretation of the Code. The panel has accepted the advice of the legal assessor which included reference to a number of judgments which are relevant, these included: Roylance v GMC, Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin), Cohen v GMC [2008] EWCH 581 (Admin) and Yeong v GMC[2009] EWHC 1923 (Admin). The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, Mr Warren s fitness to practise is currently impaired as a result of that misconduct. Decision on misconduct: When determining whether the facts found proved amount to misconduct the panel had regard to the terms of the Code. 19

20 The panel, in reaching its decision, had regard to the public interest and accepted that there was no burden or standard of proof at this stage and exercised its own professional judgement. The panel was of the view that Mr Warren s actions did fall significantly short of the standards expected of a registered nurse, and that his actions amounted to a breach of the Code. Specifically: 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 be open and honest, act with integrity and 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. 1. You must treat people as individuals and respect their dignity. 20. You must establish and actively maintain clear sexual boundaries at all times with people in your care, their families and carers. 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. However, the panel was of the view that Mr Warren, having engaged in an inappropriate relationship with Patient A and by having inappropriate sexual activity with her amounted to serious misconduct. The panel noted that Mr Warren initiated the original LinkedIn contact with Patient A, and in the region of a maximum of six weeks after leaving the employment of KCA. He 20

21 knew Patient A only because of his previous position as her named Keyworker. Mr Warren was aware that Patient A was still engaging with the treatment offered by KCA at the time of events, and that she was a vulnerable patient because of her addiction history. The panel considered that, in acting in this way and in failing to maintain proper professional boundaries by contacting her initially and continuing the inappropriate relationship which culminated in sexual intercourse, Mr Warren prioritised his own needs and put Patient A at a risk of relapse. Mr Warren had numerous opportunities to reflect on his behaviour and cease his relationship with Patient A. The panel was informed that Patient A did not accept his invitation on LinkedIn for some two to three weeks, allowing a period of reflection. During Mr Warren and Patient A s exchange, Mr Warren recognised he was acting inappropriately by asking Patient A not to disclose their discussions with anyone else. Mr Warren met her on two occasions for coffee and he recognised he should have refused her advances which led to sexual intercourse. Mr Warren did not consider her vulnerability at any stage. The panel also noted from Mr Warren s statement that he was clearly aware of best practice, the he was in breach of the 2008 Code, and the CHRE guidelines which, at the time, he was expected to follow as a registered nurse. The panel specifically noted in Mr Warren s to Patient A dated 14 November 2013, his statement that, I am happy that you don t feel rejected because we have stayed in touch but I would not tell other people which I hope you understand as it would not seem appropriate even though all we have done is each other. This is unfortunate and seems even more applicable to me than other key workers because I am a nurse, and you only have to go on the Nursing Midwifery website which lists many reasons why nurses have had their registration revoked. The panel was of the view that this demonstrated that Mr Warren was aware that his actions would be perceived as inappropriate, as he asked Patient A not to disclose their correspondence, and entered into a non-professional relationship with her for approximately a further seven weeks. The panel noted that Mr Warren states that he had been drunk at the time sexual intercourse took place at Patient A s 21

22 flat, however, there were times where he was not drunk during the course of the relationship yet still allowed the inappropriate relationship to continue. Mr Warren did not appear to consider the power imbalance between himself and Patient A at that time, or his professional responsibilities as her former Keyworker. The panel determined that, although the relationship was consensual, the imbalance of power between Mr Warren and Patient A meant they were not on an equal footing. The panel also took account of Mr 1 s evidence in that he was absolutely clear that engaging with a former patient outside of the professional environment is something that Mr Warren would be aware he was not permitted to do and that this would be a breach of best practice. Mr 1 confirmed Mr Warren would have been aware of the CHRE guidelines recited above in the panel s finding of facts. The panel considered Mr Warren to have breached fundamental aspects of the nursing profession in engaging in an inappropriate relationship with Patient A, and by having sexual intercourse with her. The panel found that Mr Warren s actions did fall seriously short of the conduct and standards expected of a registered nurse and amounted to misconduct. Decision on impairment: The panel next went on to decide if as a result of this misconduct, Mr Warren s fitness to practise is currently impaired. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the 22

23 case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74 she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes. Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or 23

24 b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel found limbs a, b, and c to be engaged in this case. In relation to limb (a), the panel noted that Patient A suffered a relapse in her condition following the relationship with Mr Warren, and that Mr Warren stated in his 23 February 2016 statement that I cannot now undo the harm I caused her by initiating and continuing this relationship and allowing it to become sexual. In relation to limb (b), the panel was clear that a relationship with a vulnerable former patient in these circumstances has brought the nursing profession into disrepute and Mr 1 s evidence in his contemporaneous note supported this referring to Patient A s recent wariness with engaging with Lantern Hall following the relationship. Further, the panel took account of Mr Warren s acceptance in this statement Having a relationship with someone to whom I had once stood in a position of trust was wholly wrong. In relation to limb (c), the panel determined that Mr Warren s breach of professional boundaries was a breach of a fundamental tenet of the nursing profession and further he prioritised his own needs as opposed to Patient A s. In respect of Ms Percival s submissions on Article 8 of the European Convention of Human Right Act 1998, the panel was firmly of the view that right to a private life is not an absolute right, and that any professional regulatory concerns would take priority over Mr Warren s right to a private life in this respect. 24

25 The panel had regard to Mr Warren s two witness statements and his reflective piece. The panel considered Mr Warren to have displayed some insight into the charges at the time of writing these documents. The panel found that Mr Warren recognised that his behaviour was wrong. The panel noted that Mr Warren stated he would not allow a similar situation to arise again. The panel further noted that Mr Warren was engaging with his general practitioner ( GP ) [PRIVATE]. There are no further reflections, confirmation from his GP with regard to his current personal health [PRIVATE]. The panel therefore considered Mr Warren to have demonstrated some insight at the time of the previous hearing, in acknowledging that he operated outside of professional boundaries and addressing any health issues he had at the time. However, when considering current impairment today, the panel noted that it had received no new information from Mr Warren, other than his response to the charges which, through his representative, he denied at the outset of this hearing. The panel was troubled that the previous documentary evidence submitted by Mr Warren, by way of his two written statements and reflective piece, appears to contradict the approach he has taken, through Ms Percival, at this hearing. To the panel s mind, either what Mr Warren stated in 2014 and 2016 was not accurate or his true belief, (despite the statements being signed as declarations of truth) or it was true at that time but Mr Warren has now changed his mind. In light of the above, the panel was of the view that, in the absence of Mr Warren demonstrating full insight, a risk of repetition remains in this case. Further, on viewing Mr Warren statement dated 23 February 2016, although he says on his return home after engaging in sexual intercourse with Patient A, he regretted his action, felt guilty, and did not know what to do put things right. In his subsequent communication with Patient A on 12 January 2014, he expresses nothing of this, nor any remorse and encourages further contact by stating I love you to bits but I am not 25

26 in love that way, and you make me laugh about friendship with extras... and thereafter signing off Till next time John x. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold/protect the wider public interest, which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. The panel determined that, in this case, a finding of impairment on public interest grounds was also required. Mr Warren initiated the contact between himself and Patient A and did not reflect at any point during the course of their relationship. He participated in sexual intercourse with a vulnerable former patient whom he had been actively responsible for her wellbeing and care, and whose treatment was continuing. Mr Warren was responsible for her less than five months before the act of sexual intercourse and this was a clear breach of professional boundaries which requires a message to be sent out to other practitioners that such behaviour is totally unacceptable. Having regard to all of the above, the panel was satisfied that Mr Warren s fitness to practise is currently impaired. Determination on sanction: In reaching its decision on sanction, the panel considered all the evidence that had been placed before it throughout the hearing and had regard to its earlier findings at the facts and impairment stages. The panel took into account the submissions made by Ms Brownlee, on behalf of the NMC and those made by Ms Percival on behalf of Mr 26

27 Warren. It accepted the advice of the legal assessor and took into account the NMC s Indicative Sanctions Guidance (SG). The panel approached the question of which sanction, if any, to impose, by considering the least restrictive sanction first and moving upwards. The panel bore in mind that the purpose of a sanction is not to be punitive, although it may have this effect, but is to protect patients and the wider public interest. The wider public interest includes maintaining public confidence in the profession and the regulatory process, and declaring and upholding proper standards of conduct and behaviour. The panel had regard to the overarching objective of protecting the public and also the maintenance of confidence in the profession and the NMC as its regulator declaring and upholding proper standards of conduct and behaviour. It applied the principles of proportionality, weighing the interests of the public with the registrant s interests, and took into account the mitigating and aggravating factors in this case. The panel considered that the aggravating factors in this case are as follows: Patient A was a vulnerable patient; Mr Warren had been Patient A s former key worker, and thus, was in possession of confidential information relating to her health; Patient A had an addiction history and was still receiving treatment at KCA at the time of the events; Mr Warren was aware of best practice and CHRE guidelines on sexual professional boundaries; Mr Warren initiated the contact with Patient A shortly after his resignation as her key worker; During their initial correspondence, Mr Warren asked Patient A not to discuss their correspondence with others as he could be at risk of having his registration revoked; 27

28 Prior to the sexual encounter in this relationship, there was contact and communication between Mr Warren and Patient A over a period of three and a half months; Within their correspondences, Mr Warren discussed Patient A s drug addiction and his own personal problems in relation to health and financial matters; During the ongoing communications, it is clear from Patient A s correspondence that Mr Warren was aware of Patient A s vulnerability and reliance on him. Patient A expressed at the outset that she felt comfortable with Mr Warren as her key worker and that she lost hope when he left the service; Mr Warren had several opportunities to stop the development of this relationship; Potential impact and harm to Patient A Patient A had in the past suffered 15 relapses; in April 2014 she disclosed to Mr 1 that she had suffered a further relapse and stated that she no longer trusted healthcare professionals; Mr Warren did not recognise that there was a power imbalance in his relationship with Patient A, owing to the vulnerability of Patient A and Mr Warren s position of trust whilst he was working with her; Mr Warren, at the time, did not consider that embarking on and continuing a relationship with Patient A could cause her potential harm; Mr Warren gave the impression to Patient A, after the sexual encounter, that the relationship may continue. The panel considered that the mitigating features of this case are as follows: The misconduct in this case occurred over a relatively short period of time with one former patient; The relationship was consensual and there was no coercion or exploitation by Mr Warren; The sexual intercourse occurred on one day; it has been found by the panel that the sexual intercourse was consensual and initiated and encouraged by Patient A who invited Mr Warren to come to her home; 28