Nursing and Midwifery Council Fitness to Practise ......2018/02/15 · 1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 23 - 24 August 2017 6 - 8

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Nursing and Midwifery Council Fitness to Practise Committee

Substantive Hearing 23 - 24 August 2017 6 - 8 December 2017 4 - 5 January 2018

13 - 15 February 2018 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE

Name of registrant: Miss Sarah Louise Carr NMC PIN: 07B1500E Part(s) of the register: Registered Nurse – sub part 1 Adult Nursing (14 September 2007) Area of Registered Address: England Type of Case: Misconduct Panel Members: Jennie Stanley (Chair, Registrant member)

Kenneth Caley (Lay member) Thomas Bingham (Lay member)

Legal Assessor: David Clapham (23-24 August 2017)

Nigel Ingram (6-8 December 2017 & 4-5 January 2018)

Panel Secretary: Anjeli Shah (August 2017 – January 2018) Nour Shaheen (13-15 February 2018) Miss Carr: Present and represented by Mr Keith Carr, Lay

representative, on 23 August 2017 Not present and not represented on 24 August

2017 Not present and not represented on 6-8

December 2017 Not present and not represented on 4-5

January 2018 Not present and represented by Mr Keith Carr,

Lay representative on 13-14 February 2018

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Nursing and Midwifery Council: Represented by Ms Anna Ling, Case Presenter (23 August 2017 – 5 January 2018) and Mr Simon Newman, Case Presenter (13 – XX February 2018)

Facts proved: 2 a) iii) (1), 2 a) iii) (2), 2 a) iii) (3), 2 b) iii( (1), 2

b) iii) (2), 2 b) iii (3), 2 j) v) (1) (in relation to charge 2 j) iii) in respect of charge 2 j) ii) (2) and charge 2 j) ii) (3) ), 2 j) v) (2) (in relation to charge 2 j) iii) in respect of charge 2 j) ii) (2) and charge 2 j) ii) (3) ), 2 j) v) (3) (in relation to charge 2 j) iii) in respect of charge 2 j) ii) (2) and charge 2 j) ii) (3) ), 3, 4 a), 4 b), 4 c), 6, 7a), 7b), 8 a), 8 b), 9

Facts proved by admission: 1 a), 1 b), 1 c), 2 a) i) (1), 2 a) i) (2), 2 a) ii), 2

b) i) (1), 2 b) i) (2), 2 b) i) (3), 2 b) ii), 2 c) i) (1), 2 c) i) (2), 2 d) i) (1) (did not administer), 2 d) i) (2) (did not administer), 2 d) i) (3) (did not administer), 2 e) i) (1) (did not administer), 2 e) i) (2) (did not administer), 2 e) i) (3) (did not administer), 2 f) i) (1) (did not administer), 2 (f) ii) (2) (did not administer), 2 g) i) (1) (did not administer), 2 g) ii) (2) (did not administer), 2 h) i) (1) (did not administer), 2 h) i) (2) (did not administer), 2 h) i) (3) (did not administer), 2 i) i) (1) (did not administer), 2 i) i) (2) (did not administer), 2 j) i) (did not administer), 2 j) ii) (1), 2 j) ii) (2), 2 j) ii) (3), 2 j) iii) (in relation to charge 2 j) ii) (2) and charge 2 j) ii) (2) only), 5

Offer no evidence: 2 c ii), 2 c) iii) (1), 2 c) iii) (2), 2 c) iii) (3), 2 j iii)

(in respect of charge 2 j ii (1) ), 2 j) iv), 2 j) v) (1) (in respect of charge 2 j iii) relating to charge 2 j) ii) (1) and charge 2 j iv) ), 2 j) v) (2) (in respect of charge 2 j iii) relating to charge 2 j) ii) (1) and charge 2 j iv) ), 2 j) v) (3) (in respect of charge 2 j iii) relating to charge 2 j) ii) (1) and charge 2 j iv) )

Fitness to practise: Impaired Sanction: Striking-Off Order Interim Order: Interim Suspension Order – 18 months

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Details of charges (as amended):

“That you, a Registered Nurse:

1) On 13 June 2016, whilst working at The Elms Nursing Home in Bristol:

a) Consumed alcohol belonging to residents; (proved by way of admission) b) Were intoxicated in the presence of Resident X; (proved by way of

admission) c) Had to be escorted from Resident X’s presence owing to your level of

intoxication; (proved by way of admission)


a) In relation to Resident A:

i) Did not administer the following medication to Resident A:

(1) Calceous at 17:00h; (proved by way of admission) (2) Ferrous sulphate at 17:00h. (proved by way of admission)

ii) Incorrectly recorded in Resident A’s MAR that you had administered the

medication referred to at Charge 2(a)(i); (proved by way of admission) iii) That your actions at charge 2(a)(ii) were dishonest in that:

(1) You knew that you had not administered the medication; (proved) (2) You sought to represent that you had administered the medication;

(proved) (3) You sought to deceive any individual that read the MAR. (proved)

b) In relation to Resident B:

i) Did not administer the following medication to Resident B:

(1) Baclofen at 17:00h; (proved by way of admission) (2) Procyclidine at 17:00h; (proved by way of admission) (3) Sodium valproate at 17:00h. (proved by way of admission)

ii) Incorrectly recorded in Resident B’s MAR that you had administered the

medication referred to at Charge 2(b)(i); (proved by way of admission) iii) That your actions at charge 2(b)(ii) were dishonest in that:

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(1) You knew that you had not administered the medication; (proved) (2) You sought to represent that you had administered the medication;

(proved) (3) You sought to deceive any individual that read the MAR. (proved)

c) In relation to Resident C:

i) Did not administer the following medication to Resident C

(1) Cetirizine at 17:00h; (proved by way of admission) (2) Lansoprazole at 17:00h. (proved by way of admission)

ii) Incorrectly recorded in Resident C’s MAR that you had administered the

medication referred to at Charge 2(c)(i); (no case to answer) iii) That your actions at charge 2(c)(ii) were dishonest in that:

(1) You knew that you had not administered the medication; (no case to answer)

(2) You sought to represent that you had administered the medication; (no case to answer)

(3) You sought to deceive any individual that read the MAR. (no case to answer)

d) In relation to Resident D:

i) Did not administer the following medication to Resident D or, alternatively,

failed to record that you had done so:

(1) Trimethoprim at 17:00h; (proved by way of admission in relation to did not administer)

(2) Cocareldopa at 17:00h; (proved by way of admission in relation to did not administer)

(3) Epilin chrono at 17:00h. (proved by way of admission in relation to did not administer)

e) In relation to Resident E:

i) Did not administer the following medication to Resident E, or,

alternatively, failed to record that you had done so:

(1) Angilit at 17:00h; (proved by way of admission in relation to did not administer)

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(2) Docusate at 17:00h; (proved by way of admission in relation to did not administer)

(3) Warfarin at 17:00h. (charge proved by way of admission in relation to did not administer)

f) In relation to Resident F:

i) Did not administer the following medication to Resident F, or,


(1) Calceous at 17:00h; (proved by way of admission in relation to did not administer)

(2) Paracetomol at 17:.00h; (proved by way of admission in relation to did not administer)

g) In relation to Resident G:

i) Did not administer the following medication to Resident G, or,


(1) Adcal D3 at 17:00h; (proved by way of admission in relation to did not administer)

(2) Procyclidine at 17:00h. (proved by way of admission in relation to did not administer)

h) In relation to Resident I:

i) Did not administer the following medication to Resident I, or, alternatively,

failed to record that you had done so:

(1) Calceous at 17:00h; (proved by way of admission in relation to did not administer)

(2) Co-codamol at 17:00h; (proved by way of admission in relation to did not administer)

(3) Cosmocol Powder at 17:00h. (proved by way of admission in relation to did not administer)

i) In relation to Resident J:

i) Did not administer the following medication to Resident J, or,


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(1) Adcal D3 at 17:00h; (proved by way of admission in relation to did not administer)

(2) Metformin at 17:00h. (proved by way of admission in relation to did not administer)

j) In relation Resident K:

i) Did not administer Quetiapine at 17:00h, or, alternatively, failed to record

that you had done so; (proved by way of admission in relation to did not administer)

ii) Did not administer the following medication to Resident K

(1) Gabapentin at 17:00h; (proved by way of admission) (2) Cosmocol at 17:00h; (proved by way of admission) (3) Metformin at 17:00h. (proved by way of admission)

iii) Incorrectly recorded in Resident K’s MAR that you had administered the

medication referred to at Charge 2(j)(ii); (no case to answer in so far as it related to charge 2 j) ii) (1), and proved by way of admission in so far as it related to charge 2 j) ii) (2) and charge 2 j) ii) (3) )

iv) Incorrectly recorded that you had administered Paracetamol at 17:00h;

(no case to answer) v) That your actions at charge 2(j)(iii) and/ or (iv) were dishonest in that:

(1) You knew that you had not administered the medication; (no case to answer in so far as it related to charge 2 j) iii) in relation to charge 2 j) ii) (1) and charge 2 j) iv), and proved in so far as it is related to charge 2 j) iii) in relation to charge 2 j) ii) (2) and charge 2 j) ii) (3) )

(2) You sought to represent that you had administered the medication; (no case to answer in so far as it related to charge 2 j) iii) in relation to charge 2 j) ii) (1) and charge 2 j) iv), and proved in so far as it is related to charge 2 j) iii) in relation to charge 2 j) ii) (2) and charge 2 j) ii) (3) )

(3) You sought to deceive any individual that read the MAR. (no case to answer in so far as it related to charge 2 j) iii) in relation to charge

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2 j) ii) (1) and charge 2 j) iv), and proved in so far as it is related to charge 2 j) iii) in relation to charge 2 j) ii) (2) and charge 2 j) ii) (3) )

3) On or about 29 July 2016, in an application form to Care UK , indicated that you

were not subject to an investigation into your professional conduct, when you

were in fact subject to an NMC investigation. (proved)

4) Your actions at charge 3 were dishonest in that:

a) You knew that you were subject to an NMC investigation; (proved) b) You knew that you were required to disclose that you were subject to an NMC

investigation; (proved) c) You sought to conceal the existence of the NMC investigation from Care UK

and/ or sought to mislead Care UK. (proved)

5) On or about 24 August 2016, failed to inform Care UK in a timely manner that

you were subject to an interim conditions of practice order. (proved by way of admission)

6) Your actions at charge 5 were dishonest in that you sought to conceal from Care

UK that you were subject to an interim order. (proved)

AND, in light of the above, your fitness to practise is impaired by reason of your

misconduct.”

Further charges:

“That you, a Registered Nurse:

7) Were convicted:

a) On 10 March 2014, for driving a motor vehicle with excess alcohol, contrary to

the Road Traffic Act 1988 s.5(1)(a). (proved by way of admission)

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b) On 20 May 2015 for driving a motor vehicle with excess alcohol, contrary to

the Road Traffic Act 1988, s5 (1) (a). (proved by way of admission)

8) Failed to inform the NMC:

a) Of the conviction at charge 7(a); (proved by way of admission) b) Of the conviction at charge 7(b) on dates between the 20 May 2015 and 29

October 2016. (proved by way of admission)

9) Your actions at Charge 8 were dishonest in that you sought to conceal your

conviction(s) from the NMC. (proved by way of admission) AND, in light of the above, your fitness to practise is impaired by reason of your

conviction at charge 7 and/ or your misconduct at charges 8 and 9.” Decision and reasons on application to amend the charge

The panel heard an application made by Ms Ling, on behalf of the NMC, to amend the

wording of charges 2 (a) (iii), 2 (b) (iii) and 2 (c) (iii). This application was heard before

the charges were read. The amendment was to replace the word “you” with “your”. Ms

Ling submitted that this amendment was to rectify typographical errors within the

charges.

Mr Carr, on your behalf, did not oppose this application.

Original charge:



iii) That you actions at charge 2(a)(ii) were dishonest in that:

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iii) That you actions at charge 2(b)(ii) were dishonest in that:


iii) That you actions at charge 2(c)(ii) were dishonest in that:

Proposed amended charge:



iii) That your actions at charge 2(a)(ii) were dishonest in that:


iii) That your actions at charge 2(b)(ii) were dishonest in that:


iii) That your actions at charge 2(c)(ii) were dishonest in that:

The panel accepted the advice of the legal assessor.

Rule 28 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as

amended (“the Rules”) states:

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28. (1) At any stage before making its findings of fact, in accordance with rule

24(5) or (11), the Investigating Committee (where the allegation relates to a

fraudulent or incorrect entry in the register) or the Fitness to Practise Committee,

may amend

(a) the charge set out in the notice of hearing; or

(b) the facts set out in the charge, on which the allegation is based,

unless, having regard to the merits of the case and the fairness of the

proceedings, the required amendment cannot be made without injustice.

(2) Before making any amendment under paragraph (1), the Committee shall

consider any representations from the parties on this issue.

The panel was of the view that such an amendment, as applied for, was in the interest

of justice. The panel was satisfied that there would be no prejudice to you and no

injustice would be caused to either party by the proposed amendment being allowed. It

was therefore appropriate to allow the amendment, as applied for, to correct the

typographical errors.

Application to adjourn Mr Carr made an application to adjourn this hearing to a future date. Mr Carr submitted

that he was requesting an adjournment in order to obtain documentation that you

required in order to contest allegations which you had denied.

Mr Carr submitted that you had received a letter from the NMC at some time in 2015

which said that no further action would be taken over a previous referral. Mr Carr

submitted that this indicated, in relation to charges 3 and 4, that you did not know that

you were under NMC investigation at the material time.

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Mr Carr also requested an adjournment in order to obtain documentation that could

attest to your state of mind at the time of the incidents alleged in charges 1 and 2. He

submitted that he wished to obtain a statement from a Sister, who worked with you at

the time the previous referral was made, and could attest to the support she offered you

at that time and confirm that the issues that led to the referral were not misconduct

related. Mr Carr submitted that an adjournment would also give you the opportunity to

obtain relevant medical evidence in relation to your health at the time of these incidents,

and in relation to your health now. He submitted that you wished to demonstrate to the

panel, through such evidence, what your circumstances were at the time of the

incidents, and to show how matters stand at present compared with how they stood at

the time of the alleged incidents.

Ms Ling opposed this application. She submitted that the statement that you wished to

obtain from the Sister was not relevant to charge 3. She submitted that the NMC was

not aware of any letter indicating that no further action would be taken. Ms Ling

submitted that there was a supplementary witness statement from Mr 5, which stated

that your case had never been closed. Ms Ling submitted that it was possible that you

were confused by a letter sent to you by the NMC in November 2015 which stated your

case was not being considered for an interim order, but that the investigation into your

fitness to practise matter would still proceed.

Ms Ling submitted that it was for the panel to consider the application for an

adjournment based on the stage reached in the proceedings. She submitted that this

hearing had originally been listed for five days, that the hearing had been shortened to

two days as the NMC was informed that you would be making full admissions to all the

charges, and also in order to accommodate your and Mr Carr’s availability and to give

you the opportunity to attend and give evidence. Therefore, Ms Ling submitted that the

NMC had made sufficient attempts to engage with you and to give you the opportunity

to attend a hearing.

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The panel heard and accepted the advice of the legal assessor which included

reference to Rule 32(4) of the Rules, as follows:

32.⎯(4) In considering whether or not to grant a request for postponement or

adjournment, the Chair or Practice Committee shall, amongst other

matters, have regard to⎯

(a) the public interest in the expeditious disposal of the case;

(b) the potential inconvenience caused to a party or any

witnesses to be called by that party; and

(c) fairness to the registrant.

The panel considered the factors set out in Rules 32(4) in deciding whether or not to

grant Mr Carr’s application for an adjournment.

The panel considered the public interest in the expeditious disposal of this hearing. The

panel noted that most of the charges in this case were of relatively recent origin dating

back to 2016 over one shift. It therefore did not consider the passage of time in this

case to be a critical factor. Therefore, the panel did not consider that adjourning this

hearing would necessarily affect the public interest in terms of disposing of this matter

expeditiously. Nor did the panel consider that adjourning this hearing would cause

inconvenience to any witnesses, as no witnesses were currently in attendance to give

oral evidence.

The panel considered fairness to you in deciding whether to allow the application for an

adjournment of this hearing. The panel noted that you were claiming that there was

some confusion as to whether you had received a letter from the NMC informing you

that no further action would be taken. The panel considered that it may be of benefit to

you to obtain such a letter, if it did exist, in order to put your case forward in relation to

charges 3 and 4. The panel considered that it may also be of benefit to obtain a

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statement from the Sister in your previous employment, and to obtain medical evidence,

that may attest to your state of mind at the time of these allegations. In addition, your

inability to attend this hearing on day 2 and your desire to give evidence at the factual

stage of this hearing was also a significant factor in the panel’s consideration.

For these reasons, the panel decided to accept Mr Carr’s application for an adjournment

of this hearing but the panel determined to proceed to make a finding on the NMC’s

outstanding application to admit witness statements and exhibits into evidence under

Rule 31, and thereafter adjourn this hearing.

Decision and reasons on application pursuant to Rule 31

The panel heard an application made by Ms Ling under Rule 31 to allow the written

statements and exhibits of the following NMC witnesses into evidence as being read:

• Ms 1, a Care Assistant at The Elms Nursing Home (“the Home);

• Ms 2, the Deputy Home Manager at the Home;

• Ms 3, a Staff Nurse at the Home;

• Mr 4, the Clinical Lead at Care UK;

• Mr 5, a Case Investigation Manager employed by the NMC;

• Ms 6, the Home Manager at the Home.

Ms Ling submitted that it had been agreed between you and the NMC, prior to this

hearing, that the witness statements and exhibits would be read to the panel on the

basis that you had accepted the content of the statements and that you would be

admitting all of the allegations. Ms Ling submitted that it had become apparent during

this hearing that some of the allegations were now being denied by you. Ms Ling

submitted that it remained the NMC’s intention for the witness statements to be read

into the record and that these witnesses would not attend the hearing to give oral

evidence. Ms Ling submitted, in relation to the allegations that were now being denied,

that the NMC’s witnesses would not be able to assist the panel in making

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determinations on such matters. Ms Ling submitted that it would be for the panel to

determine how much weight to place on the witness statements and exhibits after

reading them. Ms Ling submitted that it would still be relevant and fair to admit the

witness statements and exhibits into evidence, as the fact that it would be a matter for

the panel to make determinations on the disputed charges would be unaltered.

Mr Carr did not oppose this application. Mr Carr submitted that if these NMC witnesses

were to be present at this hearing, he would not have intended to have cross-examined

them, or to put any matters to them.

The panel heard and accepted the legal assessor’s advice on the issues it should take

into consideration in respect of this application. The legal assessor referred to Rule 31

which allows evidence to be heard even though it is in a form that a court might find

inadmissible in civil proceedings. The criteria are fairness and relevance.

The panel considered the NMC’s application to admit the witness statements and

exhibits of the NMC’s witnesses into evidence as being read, without having the

witnesses attend to give oral evidence, after having read those statements and exhibits.

The panel noted that some of the disputed charges relate to dishonesty, which would

involve considering your capacity and in particular your state of mind at the time of

these incidents.

The panel noted, from its reading of the witness statements, particularly those of Ms 1,

Ms 3 and Ms 6, that it was likely that some of the NMC’s witnesses may be in a position

to comment on your demeanour at the time of these incidents. The panel also

considered that these witnesses may be in a position to comment on whether at the

time of these incidents, in their opinion, you had the capacity to make decisions. The

panel considered that if these witnesses were able to answer questions on such

matters, it may assist the panel in considering your state of mind at the time, and in

making determinations on the dishonesty charges in this case.

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The panel also noted that Mr 4 may be in a position to inform the panel of the nature of

a conversation he had with you about being subject to an interim conditions of practice

order, in relation to charge 6. The panel considered that if Mr 4 were able to assist the

panel with its questions in relation to this conversation, and your demeanour at the time

of having the conversation, this may assist the panel in considering your state of mind at

the time, and in making determinations on charge 6.

In these circumstances, the panel determined that it would not be fair and relevant to

admit the witness statements and exhibits of the NMC’s witnesses into evidence as

being read (except that of Ms 2 and Mr 5 whose statements will be accepted as read).

The panel decided to reject Ms Ling’s application (except in respect of Ms 2 and Mr 5).

The panel considered that having the NMC’s witnesses present to give oral evidence

would be of benefit in allowing the panel to discharge its duty of ensuring fairness to

you, and ensuring it discharged its duty to fulfil its function of protecting the public. The

panel considered that by having witnesses attend, it could then assess their demeanour

and credibility, as opposed to merely reading their witness statements alone.

The panel therefore hopes and expects that arrangements will be made for the

attendance of the witnesses referred to below:

• Ms 1;

• Ms 3;

• Mr 4;

• Ms 6;

Accordingly this hearing is now adjourned.

The substantive hearing is now scheduled to resume on 6 December 2017.

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This hearing resumed on 6 December 2017

Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Miss Carr was not in attendance

and that written notice of this hearing had been sent to Miss Carr’s registered address

by recorded delivery and by first class post on 5 October 2017. Notice of this hearing

was delivered to Miss Carr’s registered address on 6 October 2017. Further, the panel

noted that notice of this hearing was also sent to Miss Carr’s representative, Mr Keith

Carr, on 4 October 2017.

The panel took into account that the notice letter provided details of the allegations, the

time, dates and venue of the hearing and, amongst other things, information about Miss

Carr’s right to attend, be represented and call evidence, as well as the panel’s power to

proceed in her absence.

Ms Ling submitted that the NMC had complied with the requirements of Rules 11 and

34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended

(“the Rules”).


In the light of all of the information available, the panel was satisfied that Miss Carr has

been served with notice of this hearing in accordance with the requirements of Rules 11

and 34.

Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Miss Carr.

The panel had regard to Rule 21 (2) of the Rules which states:

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(2) Where the registrant fails to attend and is not represented at the hearing, the

Committee

(a) shall require the presenter to adduce evidence that all reasonable

efforts have been made, in accordance with these Rules, to serve the

notice of hearing on the registrant;

(b) may, where the Committee is satisfied that the notice of hearing has

been duly served, direct that the allegation should be heard and

determined notwithstanding the absence of the registrant; or

(c) may adjourn the hearing and issue directions.

Ms Ling, on behalf of the NMC, invited the panel to proceed in the absence of Miss

Carr.

Ms Ling informed the panel that this hearing had been previously adjourned on 24

August 2017 in order to give Miss Carr and her representative, Mr Carr, time to obtain

documentation to put before the panel. This was to include a letter indicating that an

NMC referral had been closed, medical information and a letter from a Sister.

Ms Ling said that upon Miss Carr’s application the matter was adjourned until today’s

hearing and that, on the previous occasion, this panel had requested four witnesses to

attend this hearing to give evidence. She informed the panel that those witnesses,

namely Ms 1, Ms 3, Mr 4 and Ms 6 had attended this hearing to give evidence.

Ms Ling referred the panel to a note of a telephone call between the NMC and Mr Carr

dated 5 December 2017. In that telephone note, Mr Carr stated that he would not be

attending this hearing due to personal reasons, but that he may be able to attend the

hearing when it resumes on 4-5 January 2018, if required. Ms Ling also informed the

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panel that Mr Carr confirmed this in writing to the NMC in an email dated 4 December

2017.

Ms Ling informed the panel that Mr Carr had not stated why Miss Carr herself was

unable to attend today’s hearing. She informed the panel that Mr Carr had submitted a

letter of mitigation on Miss Carr’s behalf, although this was not written by Miss Carr.

Ms Ling submitted that at no point had Mr Carr requested an adjournment of today’s

hearing. She submitted that there was a public interest in the expeditious disposal of

this hearing. Ms Ling said an adjournment was requested and granted previously in

order to give Miss Carr and Mr Carr time to obtain documents, and those documents

had been obtained and placed before the panel. She submitted that a number of

witnesses were in attendance at this hearing to give evidence, and that they would be

inconvenienced if the matter was adjourned. Ms Ling therefore invited the panel to

proceed in the absence of Miss Carr.


The panel noted that it had previously adjourned this matter in order to assist Miss Carr.

The panel also noted that no reason had been provided as to why Miss Carr was unable

to attend today’s hearing, although Mr Carr had said he was unable to attend due to

personal reasons. The panel considered that it was clear that neither Miss Carr nor Mr

Carr had sought an adjournment of today’s hearing. The panel considered that an

adjournment would serve no useful purpose. It noted that four witnesses were in

attendance at this hearing, and that they would be inconvenienced if this matter were to

be adjourned. The panel noted that the charges in this case are serious, and therefore

there was a public interest in the expeditious disposal of this hearing.

There is some disadvantage to Miss Carr in proceeding in her absence. Although the

evidence upon which the NMC relies will have been sent to Miss Carr at her registered

address, she will not be able to challenge the evidence relied upon by the NMC and will

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not be able to give evidence on her own behalf. However, in the panel’s judgment, this

can be mitigated. The panel can make allowance for the fact that the NMC’s evidence

will not be tested by cross examination by, of its own volition, exploring any

inconsistencies in the evidence which it identifies. Furthermore, the limited

disadvantage is the consequence of Miss Carr’s decision to absent herself from the

hearing, waive her right to attend and/or be represented and to not provide evidence or

make submissions on her own behalf.

In these circumstances, the panel has decided that it is fair, appropriate and

proportionate to proceed in the absence of Miss Carr. The panel will draw no adverse

inference from Miss Carr’s absence in its findings of fact.

Decision and reasons on application to offer no evidence

Ms Ling, on behalf of the NMC, made an application to offer no evidence in respect of a

number of charges. She submitted that the Medicines Administration Record (“MAR”)

charts in relation to these charges would not support these charges being found proved.

In relation to charge 2 c) ii), Ms Ling submitted that the MAR chart in respect of

Resident C was not signed by Miss Carr to indicate that she had administered the

medication set out in charge 2 c) i) (1) and charge 2 c) i) (2). She submitted that there

was not sufficient evidence to find charge 2 c) ii) proved and invited the panel to find no

case to answer in respect of this charge.

Ms Ling submitted that charges 2 c) ii) (1), 2 c) ii (2) and 2 c) ii) (3) should fall away as

these charges arose out of charge 2 c) ii).

In relation to charge 2 j) iii) Ms Ling submitted that in the MAR chart for Resident K

there was no signature to indicate that Miss Carr had administered Gapapentin. Ms Ling

therefore invited the panel to find no case to answer in respect of charge 2 j) iii), in so

far as it related to charge 2 j) ii) (1).

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In relation to charge 2 j) iv) Ms Ling submitted that the MAR chart for Resident K was

not signed to indicate that Paracetamol was administered. She therefore invited the

panel to find no case to answer in respect of this charge.

Ms Ling submitted that charges 2 j) v) (1), 2 j) v) (2) and 2 j) v) (3) should fall away, in

so far as they related to charge 2 j) iii) in relation to charge 2 j) ii) (1) and charge 2 j) iv),

as they arose out of these charges.

The panel noted that there was no evidence to support the charges, as outlined by Ms

Ling, being found proved. The panel therefore accepted Ms Ling’s application to offer no

evidence in respect of the following charges:

That you, a Registered Nurse:



ii) Incorrectly recorded in Resident C’s MAR that you had administered the

medication referred to at Charge 2(c)(i);

iii) That your actions at charge 2(c)(ii) were dishonest in that:

(1) You knew that you had not administered the medication;

(2) You sought to represent that you had administered the medication;

(3) You sought to deceive any individual that read the MAR.


iii) Incorrectly recorded in Resident K’s MAR that you had administered the

medication referred to at Charge 2(j)(ii); (only in relation to charge 2 j) ii) (1) )

iv) Incorrectly recorded that you had administered Paracetamol at 17:00h;

21

v) That your actions at charge 2(j)(iii) and/ or (iv) were dishonest in that:

(1) You knew that you had not administered the medication; (in relation to charge 2 j) iii) relating to charge 2 j) ii) (1) and charge 2 j) iv) )

(2) You sought to represent that you had administered the medication; (in relation to charge 2 j) iii) relating to charge 2 j) ii) (1) and charge 2 j) iv) )

(3) You sought to deceive any individual that read the MAR. (in relation to charge 2 j) iii) relating to charge 2 j) ii) (1) and charge 2 j) iv) )

The substantive hearing is now scheduled to resume on 4 January 2018.

This hearing resumed on 4 January 2018

Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Miss Carr was not in attendance

and that written notice of this hearing had been sent to Miss Carr’s registered address

by recorded delivery and by first class post on 18 December 2017. Notice of this

hearing was delivered to Miss Carr’s registered address on 20 December 2017. Further,

the panel noted that notice of this hearing was also sent to Miss Carr’s representative

on 18 December 2017.

The panel took into account that the notice letter provided details of the allegations, the

time, dates and venue of the hearing and, amongst other things, information about Miss

Carr’s right to attend, be represented and call evidence, as well as the panel’s power to

proceed in her absence.

Ms Ling submitted that the NMC had complied with the requirements of Rules 11 and

34 of Rules.


22

In the light of all of the information available, the panel was satisfied that Miss Carr has

been served with notice of this hearing in accordance with the requirements of Rules 11

and 34.

Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Miss Carr.

The panel had regard to Rule 21 (2) of the Rules which states:

(2) Where the registrant fails to attend and is not represented at the hearing, the

Committee

(a) shall require the presenter to adduce evidence that all reasonable

efforts have been made, in accordance with these Rules, to serve the

notice of hearing on the registrant;

(b) may, where the Committee is satisfied that the notice of hearing has

been duly served, direct that the allegation should be heard and

determined notwithstanding the absence of the registrant; or

(c) may adjourn the hearing and issue directions.

Ms Ling, on behalf of the NMC, invited the panel to proceed in the absence of Miss

Carr.

Ms Ling informed the panel that Mr Carr had sent an email to the NMC on 3 January

2018, in which he stated that he would not be attending the hearing on this occasion,

but that he would attend when it resumes in February 2018. There was no indication as

to why Miss Carr would not be attending today’s hearing.

23

Ms Ling submitted that as Miss Carr and Mr Carr had attended these proceedings on

the first day (23 August 2017), Miss Carr would be aware of the hearing taking place

today. Ms Ling submitted that Miss Carr would be aware that the hearing could proceed

in her absence. Ms Ling submitted that there had been no request for an adjournment,

and given that this was the third session of these proceedings, there was a public

interest in their expeditious disposal.


The panel noted that Mr Carr had indicated that he was not attending this hearing and

therefore it could be inferred that Miss Carr would not be attending. The panel noted

that there had not been a request for an adjournment. It considered that there was a

public interest in the expeditious disposal of this hearing.

In these circumstances, the panel has decided that it is fair, appropriate and

proportionate to proceed in the absence of Miss Carr. The panel will draw no adverse

inference from Miss Carr’s absence.

Background The charges in this case arose when Miss Carr was working as an Agency Nurse at the

Elms Nursing Home (“the Home”). The Home is made up of two parts, one for general

nursing and one for dementia patients. At the time of the alleged incidents, Miss Carr

was working on the general nursing side of the Home. The Home has capacity for up to

25 residents, but at the time the Home was not at its full capacity.

Ms 6 was the Registered Manager and Home Manager at the time. On 13 June 2016

Miss Carr was working on a day shift at the Home, from 14:00 until 20:00. Ms 6 spoke

with Miss Carr during handover, where everything appeared to be normal. Miss Carr

was the nurse in charge during the day shift, responsible for the care staff, for providing

nursing care and administering tea time medications to residents at 17:00. Ms 2 was the

24

Deputy Home Manager at the Home. On 13 June 2016 Ms 2 provided a handover to

Miss Carr and she left the Home when she felt that Miss Carr was confident of her

responsibilities. In the evening Ms 2 received a phone call from the night nurse on shift

at the Home raising concerns about Miss Carr. Ms 2 attended the Home the following

day and carried out a medication audit to determine which medicines were administered

and which were not administered to residents. Ms 2 found, in relation to a number of

residents, that medication was signed for as being administered on the relevant MAR

charts, but that those medicines remained within their blister packs.

Ms 1 was a Healthcare Assistant who was scheduled to work on the night shift on 13

June 2016. She came into work around 19:40 and found Miss Carr in Resident X’s

room. Resident X was an end of life patient who was bed bound. Ms 1 found Miss Carr

kneeling beside Resident X’s bed, with half of her body slumped over the resident. Miss

Carr was crying and she smelt strongly of alcohol. Ms 1 says that Resident X looked

uncomfortable and said that Miss Carr was hurting her arm. Ms 1 and the other care

assistants were unable to move Miss Carr and had to seek further assistance. Ms 1

says that Miss Carr was unable to walk without assistance. At approximately 20:00 Miss

Carr’s father arrived to pick her up from work, and he assisted Ms 1 and the other care

assistants in escorting Miss Carr to her father’s car. Ms 1 later checked a storage

cupboard containing alcohol belonging to residents. She found an empty bottle of

whisky which had previously been full and she also found a bottle of rum with little left in

it, this had previously been full.

Ms 3 was a Staff Nurse who was scheduled to work on the night shift at the Home on 13

June 2016. She arrived at work and spoke to the other care assistants, and assisted

them in escorting Miss Carr out of Resident X’s room and into the lounge. Ms 3 says

that Miss Carr smelt strongly of alcohol, her speech was slurred and that she could not

move without swaying. Ms 3 found that the medication trolley had been left in the

corridor, the medication cupboard had been left open and some blister packs had been

taken from the trolley and left open. Ms 3 was able to identify which medicines were due

25

to be administered to particular residents, which medicines remained in their blister

packs and blister packs which were empty.

It is alleged that Miss Carr consumed alcohol belonging to residents, that she was

intoxicated in the presence of Resident X and that she had to be escorted from

Resident X’s presence due to her level of intoxication. Miss Carr has accepted these

allegations.

In relation to a number of residents at the Home, it is alleged that on 13 June 2016 Miss

Carr did not administer their prescribed medications at 17:00, or alternatively in some

cases, that she failed to record that she had done so. In relation to some of the

prescribed medications, it is alleged that Miss Carr incorrectly recorded that these had

been administered in the residents’ respective MAR charts. It is subsequently alleged

that Miss Carr’s actions in respect of incorrect recording in the MAR charts were

dishonest, in that she knew she had not administered the relevant medication, she

sought to represent that she had administered the relevant medication and she sought

to deceive any individual that was reading the relevant MAR chart. Miss Carr has

accepted that she did not administer prescribed medicines to these residents and that in

some cases she incorrectly signed their MAR charts to indicate that she had

administered the medication. However, Miss Carr does not accept that her actions in

this respect were dishonest.

Mr 4, the Clinical Lead at Care UK says that he received a job application dated 29 July

2016 from Miss Carr. As part of this application form, Miss Carr had completed a

declaration of disclosure form in which she confirmed that to her knowledge she had not

been suspended from an NHS Trust or equivalent professional body, she had not been

subject of any investigation into her professional conduct and that she did not know of

any investigations that may have a bearing on her suitability for a role at Care UK.

However, at the time, Miss Carr was subject to an NMC investigation, and Mr 6 became

aware of this when the Human Resources (“HR”) department at Care UK carried out an

employment check in relation to Miss Carr. It is therefore alleged that on or about 29

26

July 2016, in a job application to Care UK, Miss Carr indicated that she was not subject

to an investigation into her professional conduct when she was in fact subject to an

NMC investigation. It is subsequently alleged that Miss Carr was dishonest in that she

knew she was subject to an NMC investigation, she knew she was required to disclose

this and she sought to conceal the existence of the NMC investigation from Care UK

and/or sought to mislead Care UK. Miss Carr accepts that she did not disclose the fact

that she was subject to an NMC investigation at the time on her application form to Care

UK. It is her case that she was unaware that the NMC matter would be taken any

further. Miss Carr does not accept that her actions in this respect were dishonest.

Mr 4 says that on 21 September 2016 he was informed by the HR department at Care

UK, after carrying out employment checks, that Miss Carr was subject to an interim

conditions of practice order and that she had not disclosed this information to Care UK.

Miss Carr was made subject of the interim order on 24 August 2016, and therefore she

would not have been able to disclose this on her application form on 29 July 2016, but

she should have informed Care UK immediately when she became aware of the

existence of the order. It is alleged that on or about 24 August 2016, Miss Carr failed to

inform Care UK in a timely manner that she was subject to an interim conditions of

practice order. It is subsequently alleged that Miss Carr was dishonest in that she

sought to conceal from Care UK that she was subject to an interim order. Miss Carr

accepts that she did not inform Care UK in a timely manner that she was subject to an

interim conditions of practice order. She does not know why she withheld such

information from Care UK but she does not accept that her actions were dishonest in

this regard.

Decision on the findings on facts and reasons

In reaching its decisions on the facts, the panel took into account all the oral and

documentary evidence in this case. The panel heard submissions from Ms Ling, on

behalf of the NMC, and from Mr Carr, on your behalf (on 23-24 August 2017).

27

The panel heard oral evidence from four witnesses called on behalf of the NMC:

Ms 1, a Care Assistant at the Home;

Ms 3, a Staff Nurse at the Home;

Mr 4, a Clinical Lead at Care UK; and

Ms 6, the Registered Manager at the Home.

The written statements of Ms 2, the Deputy Home Manager at the Home, and Mr 5, a

Case Investigation Manager employed by the NMC were read into the record by Ms

Ling.

The panel accepted the advice of the legal assessor, which included reference to the

case of Ivey v Genting Casinos [2017] UKSC 67.

The panel is 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 is satisfied that it is more likely than not that the incidents

occurred as alleged.

The panel first considered the overall credibility and reliability of all of the witnesses it

had heard from.

Ms 1

The panel considered Ms 1 to be a credible, reliable and honest witness. She assisted

the panel with what she saw in relation to the alleged incidents in this case. The panel

considered that Ms 1 had a good recollection of events, that she had no animosity

towards Miss Carr and that she did not seek to embellish her evidence at any point.

Ms 3

28

The panel considered Ms 3 to be credible, reliable and honest. The panel considered

that Ms 3 had a good recollection of events and she was able to assist the panel with

what she saw in relation to the alleged incidents in this case. The panel noted that Ms 3

had a genuine concern for Miss Carr in relation to the alleged incidents and the panel

was confident that she bore no animosity towards Miss Carr.

Mr 4

The panel considered Mr 4 to be a credible, reliable and honest witness. The panel

noted Mr 4 was not a direct witness to particular alleged incidents, however he was able

to assist the panel with the formal interview and job application process within Care UK,

in relation to particular charges in this case. The panel considered Mr 4 to be helpful in

assisting the panel with its questions, particularly in relation to the expectation of nurses

who were applying for jobs at Care UK, and with how much Miss Carr was alleged to

have disclosed in relation to the shift on 13 June 2016.

Ms 6

The panel considered Ms 6 to be a credible, reliable and honest witness. The panel

noted that Ms 6 did not see Miss Carr later in the evening on 13 June 2016, however

she was able to provide the panel with a good timeline of events from the moment she

saw Miss Carr during the day shift, to the moment she left the Home at 18:00. The

panel did not consider that Ms 6 had any animosity towards Miss Carr and she was able

to assist the panel with what she saw and with what she knew in relation to the alleged

incidents in this case.

Letter of Mitigation

The panel was provided with a letter of mitigation, written by Mr Carr, Miss Carr’s

representative and father. This letter was written by Mr Carr on Miss Carr’s behalf. The

panel noted that there was nothing within the letter or signed to the effect from Miss

29

Carr to indicate that she accepted the submissions made on her behalf. The panel also

bore in mind that neither Miss Carr nor her representative attended the resuming

hearing (6-8 December 2017) and therefore she did not give evidence at the factual

stage of the hearing. Ultimately the panel could only place limited weight on the letter of

mitigation provided by Mr Carr.

Miss Carr admitted the following charges at the beginning of this hearing:



a. Consumed alcohol belonging to residents;

b. Were intoxicated in the presence of Resident X;

c. Had to be escorted from Resident X’s presence owing to your level of

intoxication;


a. In relation to Resident A:

i. Did not administer the following medication to Resident A:

1. Calceous at 17:00h;

2. Ferrous sulphate at 17:00h.

ii. Incorrectly recorded in Resident A’s MAR that you had

administered the medication referred to at Charge 2(a)(i);

b. In relation to Resident B:

i. Did not administer the following medication to Resident B:

1. Baclofen at 17:00h;

2. Procyclidine at 17:00h;

3. Sodium valproate at 17:00h.

ii. Incorrectly recorded in Resident B’s MAR that you had

administered the medication referred to at Charge 2(b)(i);

c. In relation to Resident C:

30

i. Did not administer the following medication to Resident C

1. Cetirizine at 17:00h;

2. Lansoprazole at 17:00h.

d. In relation to Resident D:

i. Did not administer the following medication to Resident D or,


1. Trimethoprim at 17:00h; (in that you did not administer) 2. Cocareldopa at 17:00h; (in that you did not administer) 3. Epilin chrono at 17:00h. (in that you did not administer)

e. In relation to Resident E:

i. Did not administer the following medication to Resident E, or,


1. Angilit at 17:00h; (in that you did not administer) 2. Docusate at 17:00h; (in that you did not administer) 3. Warfarin at 17:00h. (in that you did not administer)

f. In relation to Resident F:

i. Did not administer the following medication to Resident F, or,


1. Calceous at 17:00h; (in that you did not administer) 2. Paracetomol at 17:.00h; (in that you did not administer)

g. In relation to Resident G:

i. Did not administer the following medication to Resident G, or,


1. Adcal D3 at 17:00h; (in that you did not administer) 2. Procyclidine at 17:00h. (in that you did not administer)

h. In relation to Resident I:

i. Did not administer the following medication to Resident I, or,


1. Calceous at 17:00h; (in that you did not administer) 2. Co-codamol at 17:00h; (in that you did not administer)

31

3. Cosmocol Powder at 17:00h. (in that you did not administer)

i. In relation to Resident J:

i. Did not administer the following medication to Resident J, or,


1. Adcal D3 at 17:00h; (in that you did not administer) 2. Metformin at 17:00h. (in that you did not administer)

j. In relation Resident K:

i. Did not administer Quetiapine at 17:00h, or, alternatively, failed to

record that you had done so; (in that you did not administer) ii. Did not administer the following medication to Resident K

1. Gabapentin at 17:00h;

2. Cosmocol at 17:00h;

3. Metformin at 17:00h.

iii. Incorrectly recorded in Resident K’s MAR that you had

administered the medication referred to at Charge 2(j)(ii); (in respect of charge 2 j) ii) (2) and charge 2 j) ii) (3) )

5) On or about 24 August 2016, failed to inform Care UK in a timely manner that you

were subject to an interim conditions of practice order.

The panel therefore announced these charges proved by way of Miss Carr’s

admissions.

The panel then went on to consider the remaining charges and made the following

findings:

Charge 2 a) iii) 1):



32



1. You knew that you had not administered the medication;

This charge is found proved.

In reaching this decision, the panel took into account the evidence of Ms 1, Ms 3, Ms 6,

and the MAR chart for Resident A.

Whilst the panel has considered each charge alleging dishonesty in relation to incorrect

recording of medication in residents’ MAR charts on 13 June 2016 separately, the panel

also considered the charges jointly and severally and was in no doubt that the facts in

relation to charges 2 a) iii) (2), 2 a) iii) (2), 2 a) iii) (3), 2 b) iii) (1), 2 b) iii) (2), 2 b) iii) (3),

2 j) v) (1), 2 j) v) (2) and 2 j) v) (3) were proved. The panel assessed the evidence in

relation to these charges both individually and as a whole. The panel considered the

MAR charts that were relevant to each of the three residents in respect of the specific

charges that these residents related to. The panel asked itself whether these charges

could be distinguished in any way, but ultimately considered each of them to bear

striking similarities to each other.

The panel noted the evidence Ms 1 and Ms 3 , namely that when they saw Miss Carr at

some time between 19:30 and 20:00 on 13 June 2016, she was very intoxicated and

she was not capable of rational decision making, particularly in relation to administering

medication to residents in the Home.

The panel also noted the evidence of Ms 6, namely that the tea time medication round

at the Home was commenced around 16:40. She told the panel that she spoke to Miss

Carr around 14:00 during handover, and again at 16:00 for a face to face discussion

about medication lasting some ten minutes. Ms 6 said that on both of these occasions,

Miss Carr’s demeanour appeared normal and she had no concerns about her. Ms 6

finished her shift and left the Home at 18:00 that day, without having any concerns

33

reported to her in relation to Miss Carr. It was Ms 6’s evidence that she had an open

door policy, and she had not had any previous problems with staff reporting concerns to

her.

Whilst the panel accepted the evidence of Ms 1 and Ms 3, that Miss Carr was very

intoxicated at the end of her day shift at the Home on 13 June 2016, the evidence of Ms

6 indicated that she was not intoxicated when the tea time medication round was due to

be carried out, and when Miss Carr was alleged to have not administered a number of

medications to residents at 17:00. The panel assessed the MAR chart for Resident A. It

considered that the MAR chart was not a simple document to complete. To complete

the MAR chart in relation to medication administered to any resident in the Home, Miss

Carr would have needed to look at the correct resident, the correct date, the correct

time and the correct medication and dose. She would have needed to put her initials to

sign for medication within a minuet box on the MAR chart. Therefore, she would have

needed to have applied to her mind to complete this document and to have made a

conscious act to sign the MAR chart at the relevant time, with a level of precision, in the

proper and appropriate manner.

The panel considered that Miss Carr would not have been able to fill out the MAR chart

in the proper and appropriate manner if she had been intoxicated to the point of being

incapable. The panel noted that the MAR chart for Resident A was filled in properly and

appropriately to indicate that this resident received their prescribed tea time medications

at 17:00. The panel in assessing the MAR chart considered that it was more likely than

not that Miss Carr was not intoxicated at the time scheduled for doing the tea time

medication round. The panel therefore considered that Miss Carr would have had the

deliberate intention at this time of signing the MAR chart to indicate that she had

administered the medication as set out in charge 2 a) i) (1) and charge 2 a) i) (2).

In assessing whether Miss Carr’s actions were dishonest, the panel applied the test set

out in the case of Ivey v Genting Casinos [2017] UKSC 67:

34

“Although a dishonest state of mind is a subjective mental state, the standard by

which the law determines whether it is dishonest is objective. If by ordinary

standards a defendant’s mental state would be characterised as dishonest, it is

irrelevant that the defendant judges by different standards.”

The panel considered that Miss Carr knew she had not administered the medication to

Resident A at 17:00. The panel noted that Miss Carr had admitted charges 2 a) i) (1)

and 2 a) i) (2). However, she had also stated that she could not recall these events. In

this regard, the panel noted the evidence of Ms 3, who carried out a medication audit at

the Home. She looked at all of the medications prescribed for residents and she was

able to confirm what had been and what had not been administered to particular

residents. Ms 3 assessed this by looking at which medicines had been taken out of their

blister packs and which remained in their blister packs. It was through carrying out this

audit that Ms 3 was able to establish which prescribed medications had not been

administered to residents at 17:00 on 13 June 2016. The panel accepted this evidence,

and considered on the basis of the audit carried out by Ms 3, Miss Carr would have

known that she had not administered the medication to Resident A.

The panel considered that it was likely that at 17:00 Miss Carr was either not intoxicated

or, if she was, then not to the extent that she could not have made a conscious decision

to sign the resident’s MAR chart to indicate medication had been administered, when it

had been not. The panel considered that in the circumstances, Miss Carr’s actions

would be regarded as dishonest by ordinary and objective standards.

The panel considered whether the dishonesty charges, namely that Miss Carr knew she

had not administered the medication, she sought to represent that she had administered

the medication and she sought to deceive any individual that read the MAR, could be

distinguished in any manner. The panel concluded that these charges were ultimately

strikingly similar in nature. It was clear that Miss Carr knew she had not administered

the medication set out in charge 2 a) i), for the reasons outlined above. The panel

considered that by incorrectly recording that medication had been administered to a

resident when it had not been, Miss Carr’s actions were dishonest, as she would have

35

known that she would have represented to any individual reading the MAR chart that

the medication had been administered at 17:00. Given the fact that the medication had

not been administered, the panel considered it more likely than not that Miss Carr

sought to deceive any individual that was reading the relevant MAR chart.

Therefore, this charge is found proved.






2. You sought to represent that you had administered the medication;


In reaching this decision, the panel took into account the evidence of Ms 1, Ms 3 and

Ms 6 and the MAR chart for Resident A.

This charge is found proved for the same reasons as set out in charge 2 a) iii) (1).






3. You sought to deceive any individual that read the MAR.


36


Ms 6 and the MAR chart for Resident A.

This charge is found proved for the same reasons as set out in charge 2 a) iii) (1).

Charge 2 b) iii) 1):





1. You knew that you had not administered the medication; This charge is found proved.


Ms 6 and the MAR chart for Resident B.

The panel relied on the same evidence as set out in charge 2 a) iii) (1), with the

exception of the MAR chart. The panel assessed the MAR chart for Resident B and

ultimately drew the same conclusions as set out in its determination for charge 2 a) iii)

(1), namely that the MAR chart had been filled in properly and appropriately, and it

would have taken a conscious act on Miss Carr’s part to fill the document in in such a

manner, something which she could not have done if she was so intoxicated.

The panel considered that this charge was strikingly similar in nature to charges 2 a) iii).

The panel found this charge proved, for the same reasons as set out in charge 2 a) iii)

(1).


37





2. You sought to represent that you had administered the medication;






(1).






3. You sought to deceive any individual that read the MAR.




38



(1).

Charge 2 j) v) 1):





1. You knew that you had not administered the medication; (in relation to charge 2 j) iii) relating to charge 2 j) ii) (1) and charge 2 j) ii) (2) )



Ms 6 and the MAR chart for Resident K.


exception of the MAR chart. The panel assessed the MAR chart for Resident K and


(1), namely that the MAR chart had been filled in properly and appropriately. It would

have taken a conscious act on Miss Carr’s part to fill complete the document in such a

manner, something which she could not have done if she was intoxicated to the extent

of being incapable.


The panel found this charge proved, in relation to charge 2 j) iii) relating to charge 2 j) ii)

(1) and charge 2 j) ii) (2), for the same reasons as set out in charge 2 a) iii) (1).

Charge 2 j) v) 2):

39





2. You sought to represent that you had administered the medication; (in relation to charge 2 j) iii) relating to charge 2 j) ii) (1) and charge 2 j) ii) (2) )













Charge 2 j) v) 3):





40

3. You sought to deceive any individual that read the MAR. (in relation to charge 2 j) iii) relating to charge 2 j) ii) (1) and charge 2 j) ii) (2) )













Charge 3:


3) On or about 29 July 2016, in an application form to Care UK , indicated that you

were not subject to an investigation into your professional conduct, when you

were in fact subject to an NMC investigation.


In reaching this decision, the panel took into account the evidence of Mr 4, Miss Carr’s

application form to Care UK dated 29 July 2016 and a letter of mitigation from Mr Carr.

41

It was the evidence of Mr 4 that Miss Carr, in her application form to Care UK, was

asked the following questions:

“To your knowledge, are you or have you ever been, the subject of any

investigation into your professional conduct in respect of any current or previous

employment in the UK or any other country?

…

Are you the subject of any investigation by any PCT, NHS Trust or other

professional organisation in the UK or any other country, which might lead to

your removal from any of their lists?”

Mr 4 said Miss Carr had responded “no” to these questions on her application form. In

September 2016, Care UK’s HR department carried out employment checks in relation

to Miss Carr and found out that she was subject to an interim conditions of practice

order, and thereby that she was subject to an NMC investigation. It was the evidence of

Mr 4 that when Miss Carr submitted the application form on 29 July 2016 she did not

disclose the fact that she was subject to an NMC investigation.

The panel had sight of Miss Carr’s application form to Care UK, in which it was clear

that she had answered “no” to the questions listed above.

The panel noted that this charge was originally denied by Miss Carr. However, it had

since been accepted in a letter of mitigation written by Mr Carr, on Miss Carr’s behalf,

that she knowingly withheld information from Care UK, which the panel was assisted by.

That aside, the panel considered on the basis of the evidence before it that it was clear

that Miss Carr did not disclose the fact that she was subject to an NMC investigation,

which was an investigation into her professional conduct.


Charge 4 a):

42



a) You knew that you were subject to an NMC investigation;


In reaching this decision, the panel took into account a referral letter from the NMC to

Miss Carr dated 2 November 2015 and an email from Mr Carr dated 4 December 2017.

The panel noted that it was originally Miss Carr’s case that she believed she had

received a letter from the NMC indicating that a referral had been closed, which is why

she did not disclose being subject to an NMC investigation to Care UK in her application

form. However, since then it has been accepted by Miss Carr that she did not receive

such a letter from the NMC.

Mr Carr, on Miss Carr’s behalf, sent an email to the NMC on 4 December 2017 stating:

“I would also like to submit that I am now in possession of the letter from …,

screening officer, dated 2nd. November 2015, which clearly states that Sarah’s

case would continue to be reviewed, so she was wrong not to disclose this when

she should have done. We must apologize for that. However, neither of us can

remember any of the suggested follow up from the NMC and we thought that the

matter had paled into insignificance and died a natural death, so it became

disregarded.”

The panel assessed the letter sent by the NMC to Miss Carr on 2 November 2015, in

relation to a fitness to practise referral. The letter stated:

43

“Your case will now progress for further investigation. You will shortly hear from

our Investigation colleagues who will provide you with information regarding next

steps.”

The panel considered that it was clear upon reading this letter that Miss Carr, at the

time, remained subject to an NMC investigation. The panel considered that anyone

reading the letter would be aware that an NMC investigation remained ongoing. The

panel considered that it was more likely than not that Miss Carr knew that she was

subject to an NMC investigation. The panel bore in mind the test for dishonesty set out

in the case of Ivey. The panel found on the facts of this case, Miss Carr’s actions would

be regarded as dishonest.


Charge 4 b):



b) You knew that you were required to disclose that you were subject to an NMC

investigation;


In reaching this decision, the panel took into account the evidence of Mr 4 and Miss

Carr’s application form to Care UK dated 29 July 2016.

The panel noted that it was the evidence of Mr 4 that Miss Carr had a duty to be honest

and disclose the fact that she was under investigation as part of her declaration form,

when she applied for a position at Care UK.

44

The panel assessed Miss Carr’s application form to Care UK, specifically the

declaration of criminal convictions or professional issues section. In this form Miss Carr

was asked to declare whether she had any convictions, charges or cautions; whether

she was subject to any investigation into her professional conduct and whether she was

subject to any investigation by any PCT, NHS Trust or other professional organisation in

the UK. In the form, Miss Carr had answered “no” to each of these questions.

The panel considered that it was clear from the questions asked of Miss Carr on her

application form to Care UK, and from the evidence of Mr 4, that she was under a duty

to disclose the fact that she was subject to an NMC investigation. The panel considered

that in such circumstances, the fact that she did not disclose this, would be regarded as

dishonest according to the standard as set out in the case of Ivey.


Charge 4 c):



c) You sought to conceal the existence of the NMC investigation from Care UK and/

or sought to mislead Care UK.


In reaching this decision, the panel took into account the evidence of Mr 4 and the notes

of a disciplinary hearing dated 4 October 2016.

It was the evidence of Mr 4 that Care UK found out Miss Carr was subject to an interim

conditions of practice order in September 2016. It was his evidence that he had an

informal meeting with Miss Carr on 29 September 2016, in which she said that she

intended to disclose the interim order to Care UK at the end of her probationary period.

45

The panel considered that it could reasonably infer that Miss Carr did not want to inform

Care UK of the fact that she was subject to an NMC investigation until the end of her

probationary period.

The panel noted from the minutes of the disciplinary hearing held on 4 October 2016

that Miss Carr apologised for not notifying Care UK. It was the evidence of Mr 4 that

Miss Carr was aware of the expectations on her and apologised accordingly. The panel

drew a reasonable inference that Miss Carr was apologising for not informing Care UK

of the NMC investigation.

Having determined that Miss Carr knew that she was required to disclose the fact that

she was subject to an NMC investigation to Care UK, and that failing to disclose in the

circumstances was dishonest, the panel considered that it was more likely than not that

she was seeking to conceal the investigation from Care UK. This was made clear in the

circumstances where she told Mr 4 that she intended to inform Care UK of her interim

order at the end of her probationary period. The panel considered that Miss Carr

seeking to conceal the fact that she was subject to an NMC investigation would be

regarded as dishonest according to the standard as set out in the case of Ivey.


Charge 6:


6) Your actions at charge 5 were dishonest in that you sought to conceal from Care

UK that you were subject to an interim order.


46

In reaching this decision, the panel took into account the evidence of Mr 4, an interim

order notice of hearing to Miss Carr dated 15 August 2016, an interim order decision

letter from the NMC to Miss Carr dated 26 August 2016 and minutes of a disciplinary

hearing dated 4 October 2016.

The panel had sight of the interim order decision letter sent to Miss Carr by the NMC on

26 August 2016. In that letter it was confirmed that Miss Carr was made subject to an

interim conditions of practice order at a hearing on 24 August 2016.

It was the evidence of Mr 4 that Miss Carr would not have had to disclose the fact that

she was subject to an interim order when she applied for a position at Care UK on 29

July 2016, as she was made subject to this order after, namely on 24 August 2016. Miss

Carr had agreed in her application form to immediately inform Care UK of any

investigations or referrals relating to her professional conduct. However, Mr 4 said that

Miss Carr did not immediately inform Care UK of the interim order. Instead Mr 4 found

out that Miss Carr was subject to an interim order when the HR department conducted

employment checks.

The panel considered whether it was likely that Miss Carr would have been aware of her

responsibility to disclose the interim conditions of practice order to Care UK.

The panel noted that in the interim order decision letter, in the section under proceeding

in absence, there was reference to an email sent by Miss Carr to the NMC on 18 August

2016, in which she stated that she would not be attending the hearing on 24 August

2016. The panel considered that by such a reference it was clear that Miss Carr was

aware of the interim order hearing which took place on 24 August 2016.

The panel noted from the notice of interim order hearing letter that it was made clear

what the potential outcomes of such a hearing could be for Miss Carr. Furthermore, in

the interim order decision letter, the interim conditions of practice were clearly set out,

47

including a condition which made it clear that Miss Carr would need to inform any

current or prospective employer of the existence of the interim order:

7. You must immediately tell the following parties that you are subject to a

conditions of practice order under the NMC’s fitness to practise procedures,

and disclose the conditions listed at (1) to (6) above, to them:

a. Any organisation or person employing, contracting with, or using you to

undertake nursing work;

b. Any agency you are registered with or apply to be registered with (at the

time of application) to provide nursing services;

c. Any prospective employer (at the time of application) where you are

applying for any nursing appointment; and

d. Any educational establishment at which you are undertaking a course of

study connected with nursing or midwifery, or any such establishment to

which you apply to take such a course (at the time of application).

In the minutes of the disciplinary hearing held on 4 October 2016 Miss Carr apologised

to Mr 4 for not notifying Care UK of the interim conditions of practice order. It was the

evidence of Mr 4 that Miss Carr apologised because she knew she had a duty, within

those interim conditions, to make her employer aware of the existence of the order

immediately.

The panel noted that Miss Carr has accepted the allegation that she did not inform Care

UK she was subject to an interim conditions of practice order in a timely manner. The

panel considered that as Miss Carr was aware of the hearing which led to the imposition

of the interim conditions of practice order, it was likely she would have been aware of

48

the outcome of that hearing. The panel also noted the evidence of Mr 4 that during an

informal meeting with Miss Carr on 29 September 2017 she said that she intended to

inform Care UK of the interim conditions of practice order after her probationary period.

Based on this evidence, the panel considered it was clear that Miss Carr would have

been aware of the fact that she was under a duty to make Care UK aware of the

existence of the interim conditions of practice order, whilst she was employed with the

organisation, in a timely manner upon the imposition of the order. The fact that she did

not comply with such a duty, and that she accepted not doing so, and said to Mr 4 that

she intended to disclose this at the end of her probationary period at Care UK, led the

panel to infer that it is more likely than not that she intended to conceal from Care UK

that she was subject to an interim order. The panel considered that such conduct would

be regarded as dishonest according to the standard set out in the case of Ivey.

Therefore, this charge is found proved. Submissions and decision on misconduct

Having announced its finding on all the facts, the panel then considered whether the

facts found proved amount to misconduct. The panel heard submissions from Ms Ling,

on behalf of the NMC.

Ms Ling 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 Ling referred the panel to The Code: Professional standards of practice and

behaviour for nurses and midwives (2015) (“the Code”). She then directed the panel to

specific paragraphs and standards and invited the panel to consider whether Miss

Carr’s actions amounted to a breach of those standards.

49

Ms Ling then moved on to the issue of whether the facts found proved amounted to

misconduct. She referred the panel to a number of themes to consider in making its

decision. This included Miss Carr being intoxicated whilst on duty, failing to administer

medication to ten residents, dishonestly recording that medications were administered

and making dishonest representations to a new employer. Ms Ling submitted that Miss

Carr’s actions fell far below what would be regarded as proper in the circumstances.

She invited the panel to determine that Miss Carr’s actions amounted to misconduct.

The panel accepted the advice of the legal assessor which included reference to the

case of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311 and Nandi v GMC

[2004] EWHC 2317 (Admin).

The panel, in reaching its decision as to whether the facts found proved amount to

misconduct, had regard to the protection of the public and the wider 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 Miss Carr’s actions fell

significantly short of the standards expected of a registered nurse, and that her actions

amounted to a breach of the Code. The panel considered that by her actions, Miss Carr

failed to prioritise people, to practise effectively, to preserve safety and to promote

professionalism and trust. The panel considered that the following standards in the

Code were breached:

1 Treat people as individuals and uphold their dignity 1.2 make sure you deliver the fundamentals of care effectively

1.4 make sure that any treatment, assistance or care for which you are

responsible is delivered without undue delay

10 Keep clear and accurate records relevant to your practice 10.3 complete all records accurately and without any falsification, taking

immediate and appropriate action if you become aware that someone has

not kept to these requirements

50

19 Be aware of, and reduce as far as possible, any potential for harm associated with your practice 19.1 take measures to reduce as far as possible, the likelihood of mistakes,

near misses, harm and the effect of harm if it takes place

20 Uphold the reputation of your profession at all times 20.1 keep to and uphold the standards and values set out in the Code

20.2 act with honesty and integrity at all times, treating people fairly and without

discrimination, bullying of harassment

23 Cooperate with all investigations and audits 23.3 tell any employers you work for if you have had your practice restricted or

had any other conditions imposed on you by us or any other relevant body

The panel appreciated that breaches of the Code do not automatically result in a finding

of misconduct. The panel had already determined that there was a striking similarity

between a number of the charges in this case. It therefore considered the charges

individually and collectively, in determining whether they amounted to misconduct.

Furthermore, in considering whether the facts amounted to misconduct, the panel had

regard to the submissions of Ms Ling and had no hesitation in adopting these as being

the correct descriptor of Miss Carr’s behaviour.

The panel considered that Miss Carr’s actions were serious and fell far short of the

standards expected of a registered nurse. This was in light of the fact that Miss Carr

consumed alcohol whilst being the only registered nurse on duty, with the responsibility

of providing care for numerous vulnerable residents. She took property belonging to

residents, namely the alcohol which she consumed. She was found so intoxicated that

she had to be escorted out of a resident’s room by a number of colleagues. That same

resident, who was on end of life care, suffered a level of distress as a result of Miss Carr

being so intoxicated.

51

Miss Carr failed to administer prescribed medications to ten residents (which included

anti-epileptic, anti-coagulants, antibiotics, analgesia and diabetic medication), placing

those residents at risk of harm. In dishonestly recording that medications were

administered when they had not been, Miss Carr gave a false impression that

medication had been given, and she caused a loss of opportunity for those medications

to be administered at a later stage.

By not informing Care UK that she was subject to an NMC investigation, Miss Carr

undermined the responsibility of a potential employer to assess her clinical skills and

their duty to preserve the safety and wellbeing of patients in their care. By then not

informing Care UK of the fact that she was subject to an interim conditions of practice

order, Miss Carr displayed a pattern of dishonest behaviour over a period of time. The

panel considered that in these circumstances, Miss Carr’s actions would be regarded as

deplorable by fellow registered nurses.

For these reasons, the panel determined that Miss Carr’s actions, individually and

collectively, amounted to serious misconduct.

Further charges Further to the incidents which occurred at the Home on 13 June 2016, and in relation to

Miss Carr failing to disclose to Care UK the fact that she was subject to an NMC

investigation and an interim conditions of practice order and the surrounding dishonesty

allegations, there are further allegations in this case.

Having determined that the charges 1-6 in this case amount to misconduct, the panel

was then provided with the following set of charges:


52

7) Were convicted:

a) On 10 March 2014, for driving a motor vehicle with excess alcohol, contrary to

the Road Traffic Act 1988 s.5(1)(a).

b) On 20 May 2015 for driving a motor vehicle with excess alcohol, contrary to

the Road Traffic Act 1988, s5 (1) (a).


a) Of the conviction at charge 7(a);

b) Of the conviction at charge 7(b) on dates between the 20 May 2015 and 29

October 2016.

9) Your actions at Charge 8 were dishonest in that you sought to conceal your

conviction(s) from the NMC.

AND, in light of the above, your fitness to practise is impaired by reason of your

conviction at charge 7 and/ or your misconduct at charges 8 and 9.

Background

It is alleged that Miss Carr was convicted on 10 March 2014 and 20 March 2015 of

driving a motor vehicle with excess alcohol, contrary to the Road Traffic Act 1988

section 5 (1) (a). It is further alleged that Miss Carr failed to inform the NMC of these

convictions and that she was dishonest, in that she sought to conceal her convictions

from the NMC. Miss Carr has accepted these allegations.

Decision on the findings on facts and reasons

The panel took into account all of the documentary evidence in this case. The panel

heard submissions from Ms Ling, on behalf of the NMC.


53

The panel is 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 is satisfied that it is more likely than not that the incidents

occurred as alleged.

Ms Ling provided the panel with a signed response to charges form dated 25 April 2017

in which Miss Carr had made admissions to the following charges:


7) Were convicted:

a. On 10 March 2014, for driving a motor vehicle with excess alcohol, contrary to

the Road Traffic Act 1988 s.5(1)(a).

b. On 20 May 2015 for driving a motor vehicle with excess alcohol, contrary to

the Road Traffic Act 1988, s5 (1) (a).

Charges 7 a) and 7 b) concern Miss Carr’s convictions. The panel was provided with a

copy of the memorandums of conviction, dated 10 March 2014 and 20 May 2015 in

relation to these charges. Rule 31 (2) and (3) of the Rules states:

(2) Where a registrant has been convicted of a criminal offence

(a) a copy of the certificate of conviction, certified by a competent officer of

a Court in the United Kingdom (or, in Scotland, an extract conviction)

shall be conclusive proof of the conviction; and

(b) the findings of fact upon which the conviction is based shall be

admissible as proof of those facts.

(3) The only evidence which may be adduced by the registrant in rebuttal of a

conviction certified or extracted in accordance with paragraph (2)(a) is

54

evidence for the purpose of proving that she is not the person referred to in

the certificate or extract.

The panel found these charges proved by reference to the memorandums of conviction

and by way of Miss Carr’s admissions.

In relation to charges 8 and 9, the panel was provided with a signed response to

charges form dated 25 April 2017, in which Miss Carr made full admissions to the

following charges:



a) Of the conviction at charge 7(a);

b) Of the conviction at charge 7(b) on dates between the 20 May 2015

and 29 October 2016.

9) Your actions at Charge 8 were dishonest in that you sought to conceal

your conviction(s) from the NMC.

The panel was also provided with an email from Miss Carr’s representative, Mr Carr,

dated 5 January 2018 in which he confirmed that Miss Carr was still making full

admissions to these charges.

The panel therefore found these charges proved by way of Miss Carr’s admissions.

The substantive hearing is now scheduled to resume on 13 February 2018.

This hearing resumed on 13 February 2018

Decision and reasons on application pursuant to Rule 31

55

The panel heard an application made by Mr Carr under Rule 31 of the Rules to allow

Miss Carr to give evidence by telephone as she was unable to attend today in person

due to work commitments.

Mr Newman, on behalf of the NMC, did not oppose the application. He submitted that it

would be fair and relevant to hear Miss Carr’s evidence by telephone as she was unable

to attend in person.

The panel 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 panel came to the view that it would be fair and relevant to accept Miss Carr’s

evidence by telephone in the circumstances. It therefore allowed the application.

Decision and reasons under Rule 19 During the course of Miss Carr’s evidence the panel determined to hear the parts of her

evidence which related to her health conditions in private in accordance with Rule 19 of

the Rules.

Mr Newman was in agreement with the panel that such parts of Miss Carr’s evidence

should be held in private.

The legal assessor reminded the panel that while Rule 19 (1) provides, as a starting

point, that hearings shall be conducted in public, Rule 19 (3) states that the panel may

hold hearings partly or wholly in private if it is satisfied that this is justified by the

interests of any party or by the public interest.

Submission on misconduct and impairment:

56

Having announced its finding on the remainder of the facts the panel then moved on to

consider, whether the facts found proved in respect of charges 8 and 9 amount to

misconduct and, if so, whether Miss Carr’s fitness to practise is currently impaired.

There is no statutory definition of fitness to practise. However, the NMC has defined

fitness to practise as a registrant’s suitability to remain on the register unrestricted.

Mr Carr presented the panel with a number of documents on behalf of Miss Carr. This

included a signed letter of mitigation, evidence of training from Miss Carr’s current role

as an Optical Consultant and a number of web print outs addressing Wenicke-Korsakoff

syndrome, confabulation and the Glasgow Coma Scale. Miss Carr also gave telephone

evidence at this stage.

In his submissions Mr Newman invited the panel to take the view that Miss Carr’s

actions in respect of charges 8 and 9 amount to a breach of The Code: Professional

standards of practice and behaviour for nurses and midwives (2015) (“the Code”). He

then directed the panel to specific paragraphs and identified where, in the NMC’s view,

your actions amounted to misconduct.

Mr Newman 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.’ and to the case of GMC

v Meadow [2007] QB 462 (Admin).

He 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 Newman referred the panel to the

cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin) and Ronald Jack Cohen v General

Medical Council [2008] EWHC 581 (Admin).

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57

Mr Carr [PRIVATE] submitted that Miss Carr has been working in her current job for

fourteen months where she has become more positive and confident. Mr Carr further

submitted that, although Miss Carr has some interest in ophthalmology and does not

pass up any opportunities to learn more, she is keen to get back to nursing, albeit in a

different sphere, as she found this more fulfilling. He invited the panel to find no current

impairment in respect of Miss Carr’s fitness to practise and submitted that if he felt that

she was not equal to the task, he would certainly not recommend it.

The panel accepted the advice of the legal assessor which included reference to a

number of relevant authorities. These included: Roylance, Meadow, Grant and Cohen.

The panel adopted a two-stage process in its consideration, as advised. First, the panel

must determine whether the facts in charges 8 and 9 found proved amount to

misconduct. Secondly, only if the facts found proved amount to misconduct, the panel

must decide whether, in all the circumstances, Miss Carr’s fitness to practise is currently

impaired as a result of that misconduct. In any event, the panel must also decide

whether Miss Carr’s fitness to practise is impaired by reason of her misconduct in

charges 1 – 6 and her convictions in charge 7.

Decision on misconduct

When determining whether the facts found proved in charges 8 and 9 amount to

misconduct the panel had regard to the terms of the Code.

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.

58

The panel was of the view that Miss Carr’s actions did fall significantly short of the

standards expected of a registered nurse, and that her actions amounted to a breach of

the Code. Specifically:

20 Uphold the reputation of your profession at all times To achieve this, you must:

20.1 keep to and uphold the standards and values set out in the Code

20.2 act with honesty and integrity at all times, treating people fairly and without

discrimination, bullying or harassment

23 Cooperate with all investigations and audits To achieve this, you must:

23.2 tell both us and any employers as soon as you can about any

caution or charge against you, or if you have received a conditional discharge in relation

to, or have been found guilty of, a criminal offence (other than a protected caution or

conviction)

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 Miss Carr’s actions in

dishonestly concealing her convictions from the NMC directly impacted on the NMC’s

ability to carry out any risk assessments, as it had no basis on which to do so, and

consequently on the integrity of the register. This is relied upon by employers and

others. This, in the panel’s view, put patients at unwarranted risk of harm, particularly

because of the nature of the convictions [PRIVATE]. Miss Carr prioritised her needs

over that of patients. As such, the panel concluded that Miss Carr’s actions fell

significantly short of the standards expected of a registered nurse and amounted to

misconduct.

Decision on impairment

59

The panel next went on to decide if as a result of the misconduct found in respect of

charge 1-6 and 8-9 and convictions in respect of charge 7 Miss Carr’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. Patients and their families must be able to trust nurses with their

lives and the lives of their loved ones. To justify that trust, nurses must be honest and

open and act with integrity. They must make sure that their conduct at all times justifies

both their patients’ and the public’s trust in the profession. In this regard the panel

considered the judgement of Mrs Justice Cox in the case of Council for Healthcare

Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927

(Admin) in reaching its decision. 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.”

She went on to say:

“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 in my

view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

60

Do our findings of fact in respect of the doctor’s misconduct,

deficient professional performance, adverse health, conviction,

caution or determination show that his/her fitness to practise is

impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to

put a patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the

medical profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach

one of the fundamental tenets of the medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act

dishonestly in the future.”

The panel finds limbs a, b, c and d engaged. Miss Carr has in the past acted so as to

put patients at unwarranted risk of harm. Her conduct in being intoxicated whilst on shift

alongside her motoring convictions for driving under the influence of alcohol have

brought the nursing profession into disrepute. By failing to provide a high standard of

care and in dishonestly concealing these NMC proceedings and her interim conditions

of practice order to Care UK, and further in dishonestly failing to disclose her motoring

convictions to the NMC, Miss Carr has breached fundamental tenets of the nursing

profession.

Regarding insight, the panel noted that Miss Carr admitted all remaining charges

against her demonstrating some insight. It considered that whilst Miss Carr has

demonstrated a degree of insight into the impact of her undertaking shifts whilst under

the influence of alcohol on patients, she is yet to demonstrate an unequivocal and clear

understanding of the impact of her actions on Resident X, the nursing profession, the

NMC as a regulator and the wider public. Further, in respect of her non-disclosure of

these investigations on Care UK and her non-disclosure of her convictions to the NMC,

61

although remorseful, she was unable to demonstrate the risk of harm posed to patients

by frustrating both organisations’ ability to carry out their safeguarding duties.

The panel noted some belated insight from Miss Carr into expressing remorse in

respect of endangering patients. However, it noted that most of Miss Carr’s evidence,

and indeed the letter of mitigation, was limited to mitigating her accountability in respect

of her actions and focused mainly on the effects of these incidents on Miss Carr

personally as opposed to addressing any insight in respect of the reputation of the

nursing profession and the effects of her actions on the public’s confidence in the

nursing profession and the NMC as a regulator.

[PRIVATE]

The panel considered that the essence of insight is that it should come from the

registrant themselves. The panel read the signed letter of mitigation, which was written

by Mr Carr on Miss Carr’s behalf. It was of the view that the letter showed reliance on

Mr Carr and therefore was not satisfied that the letter conveyed Miss Carr’s original

thought processes and accordingly attached limited weight to it.

The panel has however now had sight of a handwritten reflective piece, not prepared for

these proceedings, which comes from Miss Carr’s own hand. This reflective piece,

though belatedly before the panel, goes some way to explain the troubled background

she has been living with and her prolonged [PRIVATE], all of which Miss Carr says she

is now addressing. The panel accepts this reflection as genuine and gives credit for her

honest reflection in this regard.

In its consideration of whether Miss Carr has remedied her practice the panel noted that

medication errors are easily remediable. However, the panel has not been presented

with any evidence of training, testimonials or any other evidence of remediation in this

respect. The panel accepted that dishonesty, in principle, is difficult to remediate. It

noted that whilst Miss Carr accepts its findings in respect of dishonesty, the panel was

62

not persuaded that she had fully addressed the impact of her actions. The panel also

noted Miss Carr’s evidence in respect of her current employer, namely that her line

manager is generally aware of these proceedings but not the circumstances and the

detailed nature of the charges she is facing.

In the light of Miss Carr’s incomplete insight and remediation, the panel was not

confident that she would not repeat matters of the kind find proved. The panel therefore

decided that Miss Carr is liable in the future to put patients at unwarranted risk of harm,

bring the nursing profession into disrepute, breach fundamental tenets of the nursing

profession, and act dishonestly. It 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 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. The

panel considered that, given the nature of the misconduct found, which included a

number of findings of dishonesty in two different sets of circumstances, and as Miss

Carr is yet to demonstrate full insight into the risk of harm to patients as a result of her

misconduct, a finding of no impairment on public interest grounds would undermine

public confidence in the nursing profession and the NMC as a regulator, as well as fail

to declare and uphold proper standards of conduct and behaviour.

Having regard to all of the above, the panel is satisfied that Miss Carr’s fitness to

practise is currently impaired.

Determination on sanction:

63

The panel has considered this case very carefully and has decided to make a striking-

off order. The effect of this order is that the NMC register will show that Miss Carr has

been struck-off the register.

In reaching this decision, the panel had regard to all the evidence that has been

adduced in this case. The panel accepted the advice of the legal assessor which

included reference to the case of Parkinson v NMC [2010] EWHC 1898 (Admin). 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 Sanctions Guidance (“SG”)

published by the NMC. It recognised that the decision on sanction is a matter for the

panel, exercising its own independent judgement.

The panel assessed the aggravating and mitigating factors in this case as follows:

Aggravating:

• Limited insight into the effects of Miss Carr’s actions on patients, the nursing

profession and the NMC as a regulator;

• Lack of accountability for her actions;

• Breach of trust;

• No evidence of remediation;

• The risk of harm to patients, albeit no actual harm was caused;

• The misconduct was over a prolonged period of time;

• Multiple instances of dishonesty; and

• Miss Carr consumed alcohol whilst being the only nurse on duty.

Mitigating:

• Admissions to the charges;

• Miss Carr has demonstrated insight into her own health conditions;

• Miss Carr has been remorseful and embarrassed for her actions; and

• There have been no previous regulatory proceedings before these incidents.

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In relation to the dishonesty found proved, the panel is acutely aware that dishonesty

can undermine the trust of the public in the profession. The panel was mindful that not

all dishonesty is equally serious. To this end it has considered the nature of the

dishonesty in this case. The panel was of the view that Miss Carr’s dishonesty was

premeditated, systematic and a longstanding deception, therefore placing it at the

higher end of dishonesty.

The panel first considered whether to take no action but concluded that this would be

manifestly inappropriate in view of the seriousness of the case. The panel decided that

it would be neither proportionate nor in the public interest to take no further action, nor

would it adequately protect the public.

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 Miss Carr’s misconduct was not at the

lower end of the spectrum and that a caution order would be inappropriate in view of the

seriousness of the case. The panel decided that it would be neither proportionate nor in

the public interest to impose a caution order, nor would it adequately protect the public.

The panel next considered whether placing conditions of practice on your registration

would be a sufficient and appropriate response. The panel is mindful that any conditions

imposed must be proportionate, measurable and workable. The panel took into account

the SG, in particular:

• it is possible to formulate conditions and to make provision as to how conditions

will be monitored

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The panel is of the view that there are no practical or workable conditions that could be

formulated, given the nature of the charges in this case. The misconduct identified in

this case centred on dishonesty which was not something that can be addressed

through retraining. Furthermore the panel concluded that the placing of conditions on

Miss Carr’s registration would not adequately address the seriousness of this case and

would not protect the public given the array of misconduct found.

The panel then went on to consider whether a suspension order would be an

appropriate sanction. The SG indicates that a suspension order would be appropriate

where (but not limited to):

• 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 Committee is satisfied that the nurse or midwife has insight and does not

pose a significant risk of repeating behaviour

The aggravating factors that the panel took into account, in particular are, the potential

patient harm in consuming alcohol whilst on duty, which was further compounded by the

fact that Miss Carr was the only nurse on duty at the time. Furthermore, the panel’s

findings of dishonesty related to a number of different circumstances (to patients, to

employers and the regulator) and the persistent lack of insight and remediation into her

misconduct raising the issue of potential repetition.

The panel has taken into account the mitigation put forward on Miss Carr’s behalf by Mr

Carr, namely that this was a difficult period in Miss Carr’s life [PRIVATE]. Whilst the

panel fully acknowledges Miss Carr’s difficult personal circumstances, her fortunes are

overshadowed by the fundamental importance of protecting the public, maintaining

public confidence in the profession and the NMC as a regulator and upholding the

standards of the profession.

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The facts found proved, as highlighted by the misconduct, were a serious and

significant departure from the standards expected of a registered nurse. The panel

noted the serious breaches of the fundamental tenets of the profession, as evidenced

by Miss Carr’s actions. The panel therefore determined that a suspension order would

not be a sufficient, appropriate or proportionate sanction.

Finally, when considering a striking-off order, the panel took note of the following from

the SG:

This sanction is likely to be appropriate when the behaviour is fundamentally

incompatible with being a registered professional, which may involve any of the

following factors.

• A serious departure from the relevant professional standards as set out in key

standards, guidance and advice.

• Doing harm to others or behaving in such a way that could foreseeably result

in harm to others, particularly patients or other people the nurse or midwife

comes into contact with in a professional capacity. Harm is relevant to this

question whether it was caused deliberately, recklessly, negligently or through

incompetence, particularly where there is a continuing risk to patients. Harm

may include physical, emotional and financial harm. The seriousness of the

harm should always be considered.

• Persistent lack of insight into seriousness of actions or consequences.

• Convictions or cautions involving any of the conduct or behaviour in the

above examples. The panel considered that all the above factors were present. Honesty, integrity and trustworthiness are to be considered the bedrock of any nurse’s

practice. Miss Carr’s actions were significant departures from the standards expected of

a registered nurse, and are fundamentally incompatible with her remaining on the

register. The panel concluded that the findings in this particular case demonstrate that

Miss Carr’s actions were serious and to allow her to continue practising would

undermine public confidence in the profession and in the NMC as a regulatory body.

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Balancing all of these factors and after taking into account all the evidence before it

during this case, the panel determined that the only appropriate and proportionate

sanction is that of a striking-off order. Having regard to the matters it identified, in

particular the effect of Miss Carr’s actions in bringing the profession into disrepute by

adversely affecting the public’s view of how a registered nurse should conduct herself,

the panel has concluded that nothing short of this would be sufficient in this case.

The panel noted the hardship such an order will inevitably cause Miss Carr. However

this is outweighed by the public interest in this case. The panel considered that this

order was necessary to mark the importance of maintaining public confidence in the

profession, and to send to the public and the profession a clear message about the

standard of behaviour required of a registered nurse.

Determination on Interim Order The panel has considered the submissions made by Mr Newman that an interim

suspension order should be made for a period of 18 months on the grounds that it is

necessary for the protection of the public and is otherwise in the public interest.

Mr Carr made no submissions.


The panel was satisfied that an interim suspension order is necessary for the protection

of the public and is otherwise in the public interest. The panel had regard to the

seriousness of the facts found proved and the reasons set out in its decision for the

substantive order in reaching the decision to impose an interim order. To do otherwise

would be inconsistent with its earlier findings.

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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 striking-off order 28

days after Miss Carr is sent the decision of this hearing in writing.

That concludes this determination.

Documents

Nursing and Midwifery Council Fitness to Practise ......2018/02/15 · 1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 23 - 24 August 2017 6 - 8