Fitness to Practise Committee Substantive Hearing 26-27 February 2018 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: Miss Victoria Phamudi NMC PIN: 05E0411O Part(s) of the register: Registered Nurse Sub Part 1 Area of Registered Address: Type of Case: Panel Members: Adult Nursing May 2005 England Caution Michael Murphy (Chair, Registrant member) Louise Poley (Registrant member) Michael Glickman (Lay member) Legal Assessor: Panel Secretary: Iain Ross Calvin Ngwenya Nursing and Midwifery Council: Represented by Jeremy Loran, Case Presenter Miss Victoria Phamudi: Present via telephone but not represented Facts proved by admission: 1 Facts not proved: N/A Fitness to practise: Impaired Sanction: Suspension Order (6 months) Interim Order: Suspension Order (18 months) 1
Details of charge: That, you, a registered nurse 1. On 25 November 2016, received a simple caution at Chesterfield Police Station under Section 20 of the Criminal Justice and Courts Act 2015 for ill treatment or wilful neglect (Care Worker offence) And, in light of the above, your fitness to practise is impaired by reason of your caution. Following the reading of the charges, you indicated that you admitted the fact alleged in charge 1. However, you told the panel that you did not accept that your fitness to practise is currently impaired. The panel therefore found charge 1 proved by way of your admission. Mr Loran, on behalf of the NMC outlined the background of the circumstances leading to your police caution and referred the panel to the relevant parts of the hearing bundle. He also invited the panel to view the CCTV footage of the incidents of 18/19 January 2016 and referred it to the documents you submitted for its consideration. These included your witness statement, your response to the allegations at different stages of the investigations and certificates of training you have undertaken. Background: You were referred to the NMC by your previous employer, Cliff House Nursing and Residential Home, Chesterfield ("the Home") where you were employed as a staff nurse between November 2015 and January 2016. The referral was in relation to two incidents which occurred at the Home on the night shift over 18/19 January 2016. On 19 January 2016, the Home s Matron was informed 2
that a resident, Resident A, was admitted to hospital in the early hours of the morning and that he had been aggressive to staff and other residents. The Matron reviewed the footage recorded by the Home's CCTV cameras. The CCTV showed first that on 18 January 2016, whilst one of the Healthcare Assistants (HCAs) was attempting to feed Resident A at meal time, you were seen to push down on Resident A s shoulder. When Resident A lashed out at you, you threatened to call the police. You were then seen to grab Resident A by his left arm/wrist and to pin it to the side of the chair. The CCTV also showed that in the early hours of 19 January 2016, Resident A was seen to be agitated and repeatedly heading towards the fire door. You were seen to approach Resident A and pull him away from the fire door. Resident A was seen to lash at you with one arm, after which you took his arm and held it in an arm pit hold which you used to take him to the sofa. After sitting Resident A on the sofa, you were heard saying I ll kill you to which he responded by threatening to kill you. Resident A s wife approached and an argument ensued between you, Resident A and his wife, during which you shouted that if Resident A went outside again, you would lock him out. The Home s Matron made a referral to the local safeguarding authority on 22 January 2016 as a result of the incidents. Following the safeguarding referral, the Matron provided a copy of the CCTV footage to Derbyshire Police (the Police) who carried out an investigation. You were interviewed by the police on 15 April 2016 in relation to the incidents of 18/19 January 2016. In the interview you alleged that Resident A could be aggressive and recalled a number of incidents and stated that there was friction between you and other workers at the Home. You allegedly offered no explanation as to why you had restrained Resident A in the first incident. You allegedly stated that Resident A had attacked you in relation to the first incident and that some of the CCTV footage of the incidents was missing. You admitted threatening to kill Resident A. After a review of the evidence it was concluded by the Crown Prosecution Service that you should be issued with a caution. On 25 November 2016, you accepted a simple caution from the Police, under Section 20 of the Criminal Justice and Courts Act 2015 for ill treatment or wilful neglect (Care Worker offence). 3
You resigned from your employment at the Home prior to any disciplinary action being taken. Submissions on impairment: The panel then moved on to consider whether your fitness to practise is currently impaired by reason of your police caution. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. In reaching its decision on impairment, the panel took into account all the oral and documentary evidence in this case including CCTV footage of the incidents of 18/19 January 2016. It heard submissions from Mr Loran on behalf of the NMC and from yourself. Mr Loran provided the panel with written outline submissions on impairment. In summary, he submitted that the panel does not need to consider the issue of misconduct, but that The Code: Professional standards of practice and behaviour for nurses and midwives (2015) ( the Code ) may be of assistance in characterising the conduct, which led to your caution. He submitted that the following parts are relevant: 1 Treat people as individuals and uphold their dignity To achieve this, you must: 1.1 treat people with kindness, respect and compassion 1.2 make sure you deliver the fundamentals of care effectively 2 Listen to people and respond to their preferences and concerns To achieve this, you must: 2.1 work in partnership with people to make sure you deliver care effectively 4
2.5 respect, support and document a person s right to accept or refuse care and treatment, and; 2.6 recognise when people are anxious or in distress and respond compassionately and politely. 3 Make sure that people s physical, social and psychological needs are assessed and responded to. To achieve this, you must: 3.1 pay special attention to promoting wellbeing, preventing ill health and meeting the changing health and care needs of people during all life stages. 3.3 act in partnership with those receiving care, helping them to access relevant health and social care, information and support when they need it, and 3.4 act as an advocate for the vulnerable, challenging poor practice and discriminatory attitudes and behaviour relating to their care. 4 Act in the best interests of people at all times To achieve this, you must: 4.1 balance the need to act in the best interests of people at all times with the requirement to respect a person s right to accept or refuse treatment. 20 Uphold the reputation of your profession at all times. To achieve this, you must: 20.5 keep to and uphold the standards and values set out in the Code 5
20.5 treat people in a way that does not take advantage of their vulnerability or cause them upset or distress. Mr Loran submitted that the conduct which led to your caution is plainly serious and has the potential to impair your fitness to practise on the grounds of public protection and the wider public interest. Mr Loran referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin), particularly paragraph 76 of Mrs Justice Cox s judgement. He submitted that sub-paragraphs a-c in paragraph 76 of Mrs Justice Cox s judgement in the case of Grant are engaged in your case. Mr Loran invited the panel to consider your level of insight, remediation and remorse and referred it to the case of Cohen v General Medical Council [2008] EWHC 581 (Admin). He submitted that although you admit the fact of receiving a police caution, you do not in fact accept that your conduct amounted to ill treatment or wilful neglect or that there is anything wrong with your treatment of Resident A. He submitted that the panel may take the view that you have not provided evidence of insight into your conduct. Therefore, the risk of repetition of the conduct leading to your caution remains. Mr Loran reminded the panel of the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession. He submitted that in the circumstances of your case, a finding of impairment is therefore required on the grounds of public protection and the wider public interest. You told the panel about the difficult set of circumstances when you worked the night shift of 18/19 January 2016. You told the panel that the HCAs on shift that night left you neglected with Resident A who was aggressive to members of staff and other residents. You told the panel that if the HCAs had responded appropriately to the fire alarm, the situation would have been avoided. You told the panel about issues with staff levels on the shift, lack of team work and communication, which you stated that you had 6
unsuccessfully attempted to discuss with the Home s management on several occasions. You told the panel that you had no intention to cause Resident A any distress and you only sought to prevent him from going outside, falling and hurting himself. With regard, to saying I ll kill you to Resident A, you told the panel that it was out of character and that you were shocked that you said such words as you are not an aggressive person. You apologised profusely for your actions to the panel and stated that your actions were due to the stress of not being supported and being abandoned by the HCAs. With regard to the second incident, you told the panel that you held Resident A s arm without applying too much force to prevent him from hitting you. You apologised to the panel and said that you really cared and were concerned for Resident A, which is why you called an ambulance for him following the incidents. You told the panel that you had learnt your lesson as a result of these incidents and that there would be no repeat of the conduct that led to your caution. You told the panel that you did not fully appreciate the implications of accepting a police caution and the impact it would have on your nursing career. You said that you were given the wrong legal advice and that you were shocked to receive a referral as a result of the police caution. Decision on impairment: The panel heard and accepted the advice of the legal assessor. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Grant in reaching its decision, in paragraph 76 she said: 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 25.67 she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but 7
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 b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. The panel considered that your actions had engaged a-c above. The panel determined that you had acted so as to put Resident A at unwarranted risk of harm. The panel considered that you may have been working under difficult and challenging circumstances on the night of 18/19 January 2016. However, the panel determined that, notwithstanding that context, your actions were unacceptable and unnecessary, particularly given the vulnerability of Resident A. In the panel s view, as an experienced nurse, you should have sought to de-escalate the situation, communicate appropriately with Resident A and try to calm him down. Your actions were confrontational and aggressive, and saying I ll kill you to Resident A fell well below what was expected in the circumstances, notwithstanding that Resident A displayed challenging behaviour. The panel was of the view that the offence of ill treatment and wilful neglect in a clinical setting, in relation to which you accepted a police caution, is a serious matter. You breached fundamental tenets of the profession and you brought the profession into disrepute. 8
The panel was mindful that the issue it had to determine was that of current impairment. It therefore had to look to the future and consider whether you are liable in future to act in such a way as to put the public at unwarranted risk of harm, breach fundamental tenets of the profession and bring the profession into disrepute. In assessing the risk of repetition in your case, the panel had regard to the level of insight and remorse you have demonstrated and whether your conduct has been or is capable of being remedied. The panel considered whether you had demonstrated genuine insight following the incident. It took into account that you made an admission to the fact of the caution and that you apologised profusely for your actions in these proceedings. In your oral submissions, you demonstrated genuine remorse and regret for using threatening language towards Resident A. However, in the panel s judgement, you did not demonstrate insight or critically reflect on the impact of your conduct on Resident A or the inappropriateness of your actions. You did not explain how you would act if faced with a similar situation in the future. The panel considered that you did not demonstrate an understanding of how your behaviour was inappropriate, of the risks associated with your actions and of how they impacted negatively upon Resident A, your colleagues and the reputation of the nursing profession as a whole. The panel concluded that you had limited insight into your professional shortcomings. With regard to remediation, the panel considered that your failings were remediable. It noted that you undertook a training course in Psychological & Physical Intervention, to address some of the issues that led to your police caution. However, the panel was of the view that a course relating to safeguarding of vulnerable adults and de-escalation techniques would have been more pertinent in addressing those issues. The panel noted that you have not practised as a registered nurse since the incidents, therefore there is no evidence of applying your training in a similar clinical environment without repetition. Having regard to the above, the panel concluded that in the absence of the requisite level of insight and remediation, the risk of repetition of the conduct that led to your 9
caution remains. The panel therefore decided that a finding of impairment was 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 and 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 the light of your police caution, and the need to uphold proper professional standards, public confidence in the profession would be undermined if a finding of impairment were not made. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired by reason of your police caution. Determination on sanction: The panel has considered this case carefully and has decided to make a suspension order for a period of 6 months. The effect of this order is that the NMC register will show that your registration has been suspended. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case together with the submissions of Mr Loran, on behalf of the NMC and those made by you. Mr Loran referred the panel to the Sanctions Guidance ( SG ) and addressed the panel on the question of sanction and noted the aggravating and mitigating factors in your case. You told the panel that you have reflected on your actions and appreciate that you need to improve your communication skills and learn to calm down in stressful situations 10
instead of panicking. You said you should have treated Resident A as an individual with respect and dignity. You told the panel that you apologise to Resident A, his wife and family. You told the panel that you recognise the need to undertake further training to address the concerns highlighted in your practice, such as dealing with dementia patients. You also told the panel that you had not appreciated the effect that a police caution would have on your ability to practise or on the reputation of the nursing profession. You told the panel that you were concerned about the possible outcome of these proceedings as you love your patients and want to continue practising as a nurse. The panel heard and accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the SG published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgment. The panel first considered the aggravating and mitigating factors in your case: The panel identified the following as aggravating factors in your case: Resident A, who was an elderly and very vulnerable person was put at risk of harm; You failed to treat Resident A in a compassionate and respectful manner; Your limited insight; You failed to consider the potential harm which could have been caused to Resident A by manhandling him; You failed to take full responsibility for your own conduct and sought to blame your actions on others. 11
The panel identified the following as mitigating factors in this case: You have no previous regulatory history; You have an extensive career as a nurse; You expressed genuine remorse for your actions; You admitted the fact of the police caution and have engaged with the NMC s regulatory process by attending via telephone; The incidents were isolated and occurred in the course of a single night shift. The panel then turned to the question of which sanction, if any, to impose. It considered each available sanction in turn, starting with the least restrictive sanction and moving upwards. The panel first considered whether to take no action. The panel bore in mind that it had identified at the impairment stage that there remained a risk of repetition due to your limited insight and remediation. As such, any repetition of your conduct would bring with it unwarranted risk of harm to patients. To take no action would therefore not provide any protection to the public. In addition, the panel considered that to take no further action would be inadequate to mark the seriousness of your police caution and would therefore not be in the public interest of declaring and upholding standards and maintaining public confidence in the profession. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the SG, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that your impairment was not at the lower end of the spectrum and that a caution order would be inappropriate in view of the seriousness of your case along with the panel s findings on impairment. A caution order would offer no protection to the public, as it would not restrict your practice. Therefore, 12
the panel decided that it would be neither proportionate nor in the public interest to impose a caution order. The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. Whilst the panel has already determined that the matters giving rise to your police caution are remediable, remediation in the panel s view can only be achieved once you have demonstrated full insight. Accordingly, the panel considered that a conditions of practice order, would at this stage, not be appropriate or practicable given your lack of insight as outlined in the panel s finding on current impairment. The panel next considered a suspension order. The panel concluded that it was necessary and proportionate for a suspension order to be imposed in your case. Your actions, although serious, are not fundamentally incompatible with your remaining on the Register. The public interest could therefore be satisfied by a less severe outcome than permanent removal from the Register. The panel took into account the mitigating factors identified. The incidents which gave rise to your police caution were isolated and happened in the course of a single night shift. Having heard your submissions at the sanction stage, the panel was satisfied that there are no deep-seated attitudinal concerns. The panel also noted that your insight is developing. The panel therefore concluded that a suspension order was the sufficient, appropriate and proportionate sanction. The panel did consider whether a striking-off order would be the appropriate sanction. In the light of its finding that your actions were not fundamentally incompatible with remaining on the register, the panel determined that a striking-off order would be disproportionate as it was not the only sanction which would be sufficient to protect the public and satisfy the public interest. 13
The panel therefore decided to impose a suspension order for 6 months. This would be sufficient to protect the public, to mark the seriousness of your actions and to satisfy the public interest. The panel determined that a suspension order of this length would give you the opportunity to fully remediate your failings and develop full insight into the impact of your actions on Resident A, his relatives, the public and the reputation of the profession as a whole. At the end of the period of suspension, another panel will review the order. At the review hearing the panel may revoke the order, or it may confirm the order, or it may replace the order with another order. The panel determined that a future reviewing panel may be assisted by: Evidence consisting of a reflective piece which demonstrates an understanding of why what you did was wrong and the negative impact your actions had upon Resident A, your colleagues, the public and the reputation of the profession; Evidence of training in relation to safeguarding vulnerable adults, de-escalation techniques, team work and communication skills; References and testimonials, both in the form of character references and references from any employment (paid or unpaid, and within or outside the healthcare sector); Evidence of keeping up to date with current nursing practice. Determination on Interim Order: Mr Loran invited the panel to impose an interim suspension order on the grounds of public protection and the wider public interest in the light of the panel s decision on sanction. He submitted that the interim suspension order, which would take immediate effect, should be for a period of 18 months to cover the possibility of an appeal being lodged by you in the 28 day appeal period. 14
You did not oppose the application for an interim order. The panel heard and accepted the advice of the legal assessor. The panel had regard to the circumstances of your case and the reasons set out in its decision for imposing a suspension order. The panel decided to make an interim suspension order for a period of 18 months. The panel had particular regard to its earlier finding that there remained a risk of repetition in your case. The panel concluded, in light of its earlier decisions on impairment and sanction, that an interim order was necessary for the protection of the public and otherwise in the public interest in order to uphold professional standards and maintain public confidence in the profession. For the reasons already set out in detail in the decision on sanction, the panel considered that workable interim conditions of practice could not be formulated which would be adequate to address the concerns in your case so as to protect the public pending any appeal. The panel therefore concluded that it is necessary for your registration to be subject to an interim suspension order on the grounds of public protection and in the public interest. To do otherwise would be inconsistent with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by the 6 month suspension order 28 days after you are sent the decision of this hearing in writing. That concludes this determination. 15