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Nursing and Midwifery Council Fitness to Practise Committee
Substantive Hearing 21- 27 November 2019
Nursing and Midwifery Council2 Stratford Place, Montfichet Road, London, E20 1EJ
Name of registrant: Mary Kathleen Gallen-Friend
NMC PIN: 75H0518E
Part(s) of the register: Registered nurse – sub part 1
RN1: Adult – November 1978
Registered midwife
RML Midwifery - November 1980
Registered nurse – sub part 1
RN3: Mental health – November 1990
Area of registered address: Shropshire
Type of case: Misconduct
Panel members: John Penhale (Chair, lay member)
Mary Golden (Lay member)
Joanne Lay (Registrant member)
Legal Assessor: Lucia Whittle-Martin
Panel Secretary: Anita Abell
Nursing and Midwifery Council: Represented by Dulcie Piff, Case Presenter
Ms Gallen-Friend: Present and represented by Simon Walters,
instructed by the Royal College of Nursing Facts proved: 1a, 1b, 1d, 2, 3, 4, 5a, 5b, 6, 7, 8a, 8b, 8d
and 8f
Facts not proved (no case to answer): Charges 1c, 5c and 8g Facts not proved: Charges 8c, 8e, 9a-c.
Fitness to practise: Impaired
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Sanction: 12 months suspension order. No review
required at expiry.
Interim order: None imposed
Application to amend the charges Ms Piff applied for two amendments to be made to the charges.
The first application related to charge 5c, which alleged that staff member A was not
trained in moving and handling. Ms Piff’s application was to substitute staff member
A with a different member of staff.
The second application related to charge 8g. Ms Piff applied to add the word
“accessible” to the allegation that you had failed to ensure there was a call safety
alarm in the lounge of the Home. She submitted that it was accepted that there was
a call safety alarm in the lounge but it was not accepted that this was accessible.
She argued that this was a technical amendment.
Mr Walters opposed both applications.
In relation to charge 5c, Mr Walters informed the panel that at an earlier stage of the
proceedings the NMC had disclosed the identity of staff member A to your legal
representatives. In the light of this disclosure your representatives made enquiries on
your behalf, by contacting the training provider, and discovered that the person
identified as staff member A had in fact undertaken moving and handling training.
The training provider emailed a copy of the relevant 2017 moving and handling
training certificate to your legal representatives which they forwarded on to the NMC.
The NMC accepted the legitimacy of this material. The NMC now wanted to amend
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the allegation by substituting a different member of staff, which, Mr Walters
submitted, was outrageous.
In relation to charge 8g, Mr Walters objected on the basis that the charges had
already been amended twice, firstly on 17 October 2019 and then on 23 October
2019, when the notice of hearing was sent out. He submitted that the proposed
amendment had been made at a very late stage and submitted it would be unfair and
cause injustice to you.
The legal assessor advised that the panel had the discretion to amend the charges
provided it did not cause injustice to any of the parties
In relation to 5c the panel concluded that the proposed amendment was blatantly
unfair. Your representatives had disclosed material in advance of the hearing which
proved that the person identified as staff member A had in fact been trained in
moving and handling. The legitimacy of this material was accepted by the NMC. The
NMC now wished to circumvent the problem by substituting a different member of
staff. The panel concluded that it would be unfair to permit the NMC to capitalise
from the early disclosure that had been made by your representatives by allowing
the person previously identified as staff member A with an entirely different member
of staff. The panel therefore had no hesitation in refusing that application.
In relation to charge 8g the panel took into consideration that the charges on the
charge sheet today are the third set of charges put before you. Further the NMC had
all the evidence when it was drawing up the charges. The panel concluded that in
these circumstances amending the charges yet again would be unfair and could be
said to have the potential to cause injustice to you. The panel therefore refused the
proposed amendment.
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The charges
That you, a Registered Nurse, whilst working in the position of Manager at the Old
Hall Residential Home [The Home]:
1. In relation to Resident A, on 7 August 2017 you:
a) Failed to ensure that a risk assessment was carried out by an occupational
therapist in relation to the use of stand aid;
FOUND PROVED
b) Failed to ensure that a risk assessment was carried out by an occupational
therapist in relation to the use of a sling;
FOUND PROVED
c) You moved Resident A without the assistance of a colleague trained in
moving and handling;
NO CASE TO ANSWER
d) You moved Resident A without up to date moving and handling training;
ADMITTED AND FOUND PROVED
2. Your actions in charge 1(a) and/or 1(b) and/or 1(c) and/or 1(d) contributed to the
injuries and/or death of Resident A.
ADMITTED AND FOUND PROVED IN FULL
3. In relation to Resident B’s weight loss, you:
a) Failed to take adequate action;
b) Failed to ensure that the GP reviews were followed up;
c) Failed to ensure that a referral was made to the dietician;
d) Failed to ensure that adequate records were kept of Resident B’s food and
fluid intake;
e) Failed to ensure that the MUST assessment was updated since 31 July 2017
to reflect Resident B’s malnutrition risk;
ALL ADMITTED AND FOUND PROVED
4. In relation to medication management, you:
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a) During the period 14 August 2017 to 10 September 2017, on one or more
occasions reduced Resident C’s medication without consulting a GP;
b) Failed to ensure the information in relation to constipation medication in
Resident C’s care plan dated 14 April 2017 coincided with the prescribed
medication;
c) Failed to ensure the accurate monitoring of medication stock levels for
Resident C;
d) Failed to ensure the accurate monitoring of medication stock levels for
Resident F;
e) Failed to ensure the accurate monitoring of medication stock levels for
Resident I;
f) Failed to ensure the information on Resident C’s care plan dated 14 April
2017 in relation to prescribed creams coincided with the medicines
prescribed;
ALL ADMITTED AND FOUND PROVED
5. Failed to ensure that staff were adequately trained, in that:
a) Your moving and handling training was not up to date;
ADMITTED AND FOUND PROVED
b) You completed assessments on the use of stand aids and/or slings despite
not being qualified to do this;
FOUND PROVED
c) Staff member A was not trained in moving and handling;
NO CASE TO ANSWER
6. In relation to the Home’s records, you:
a) On or around 13 September 2017, failed to ensure Resident F’s care plan in
relation to their mobility was updated;
b) During the period 14 August 2017 to 10 September 2017, failed to ensure
Resident C’s notes to explain when and/or where topical skin cream should
be applied was updated;
c) On or around 29 August 2017, failed ensure Resident C’s skin integrity plan
was updated;
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d) On or around 6 September 2017, failed to ensure Resident C’s notes to
document nightly checks was updated;
e) On or around 14 August 2017, failed to ensure there was a PRN care plan for
Resident B for PRN pain relief medication;
f) On or around 29 August 2017, failed to ensure Resident B’s skin integrity plan
was kept up to date;
g) Removed 9 care plans from the Home on 25 September 2017;
ALL ADMITTED AND FOUND PROVED
7. In relation to staffing, you:
a) On 6 September 2017, failed to ensure that Resident F was supervised when
mobilised;
b) During September 2017, failed to ensure two or more members of staff with
moving and handing training were on duty during shifts;
BOTH ADMITTED AND FOUND PROVED
8. In relation to safety, you:
a) From 9 May 2017, failed to ensure there was a door alarm for Resident B;
ADMITTED AND FOUND PROVED
b) On or around 16 September 2017, failed to ensure a risk assessment of
falling was conducted after Resident H was found on the floor during the night
on 3 separate occasions; ADMITTED AND FOUND PROVED
c) On or around 13 September 2017, failed to ensure two members of staff were
available to ensure Resident G was moved and/or handled in accordance with
their care plan;
FOUND NOT PROVED
d) You failed to ensure bed rail safety checks were completed for Resident C
and Resident F; ADMITTED AND FOUND PROVED
e) You failed to address concerns in relation to infection control;
FOUND NOT PROVED
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f) On or before 13 September 2017, you failed to ensure Resident F’s pressure
pads were replaced and/or updated their care plan in relation to mobility;
ADMITTED AND FOUND PROVED
g) You failed to ensure there was a call safety alarm in the lounge of the Home;
NO CASE TO ANSWER
9. You failed to ensure one or more residents’ choices and/or needs were respected
in relation to:
a) Drinks;
b) Food;
c) Bathing;
FOUND NOT PROVED IN ITS ENTIRETY AND in light of the above, your fitness to practise is impaired by reason of your
misconduct.
Application under Rule 19 for the parts of the hearing to be held in private
Mr Walters informed the panel that he would need to refer to your health and
personal circumstances during the course of his questioning both the witnesses and
during your evidence. He applied for those parts of hearing to be held in private.
Ms Piff did not object to this application.
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.
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The panel accepted that it was necessary to refer to your health and personal
circumstances during the questioning of the witnesses and in your evidence. It
concluded that such questions should be asked in private session. The panel
determined that it would hear information relating to health and personal matters in
private but the rest of the hearing would be in public.
Background At the relevant time you were the Registered Manager and Registered Provider of
the Old Hall Care Home (the Home), Malpas, Cheshire. You purchased the Home in
January 2004, jointly with your husband. It was registered for 16 residents in 14
bedrooms. In mid to late 2017 there were 11 residents living at the Home.
On 7 August 2017 you were transferring Resident A into a wheelchair using a stand
aid to help support Resident A with this process. Resident A was classified as
needing two people to support her at all times when she was mobilising. She had a
history of osteoporosis, osteoarthritis and dementia. You were assisted by Mr B, your
husband, during this process. After Resident A had stood on her feet Mr B left the
room to fetch a wheelchair. Whilst Mr B was out of the room Resident A fainted and
you were unable to stop her falling to the floor. As she fell her arm was partially
trapped in the stand aid. You and Mr B settled Resident A on the floor, and later
moved her onto her bed. Her GP attended but did not make any referral.
On the following day a bruise was noticed on Resident A and she was referred to the
Countess of Chester Hospital. Resident A had suffered multiple fractures (pelvis,
femur, tibia, fibula and humerus) as a result of her fall. Because of the extent of her
injuries Resident A was unable to mobilise and using a hoist to mobilise caused her
pain and distress. She was also unable to sit upright. Resident A remained in
hospital where she developed pneumonia. She died on 6 October 2017 and the
cause of death was given as hospital acquired pneumonia, multiple fractures and
cerebral amyloid angiopathy.
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The safeguarding authority and the Care Quality Commission (CQC) had been made
aware of the incident involving Resident A on 8 August 2017. The matter was
investigated by the CQC.
Separate unannounced CQC inspections took place at the Home on 6, 13 and 26
September 2017. The Home was not due for an inspection until 2018 but it was
brought forward because of the incident with Resident A. The inspection identified a
significant number of concerns relating to the care provided to Residents B, C, F, G,
H and I. The concerns covered monitoring weight loss and diet, medication
management, staff training, documentation and record keeping, staffing, safety and
allowing residents to choose what to drink, eat and when to have a bath.
The records indicated that Resident B had lost 4.7kg between June and August
2017. This had been discussed with the district nurse who suggested seeking
advice from the GP. It is alleged that this suggestion to contact the GP was not
followed up, nor was any other intervention sought. Further Resident B’s food and
fluid intake was not adequately recorded and the Malnutrition Universal Screening
Tool (MUST) assessment had not been updated since 31 July 2017.
Resident C had been prescribed one and a half Nitrazepam 5mg tablets at night to
help her sleep. It is alleged that on one or more occasions you reduced the
medication to one Nitrazepam 5mg. It is alleged that Resident C’s care plan referred
to different constipation medication, and different creams, to those which were
prescribed for her. It is also alleged that you failed to ensure accurate monitoring of
medication stock levels for Residents C, F and I.
It is alleged that your moving and handling training was not up to date, that you
completed assessments on the use of stand aids/slings when you were not qualified
to do so and that staff member A had not been trained in moving and handling.
In relation to documentation it is alleged that care plans and other documentation
had not been updated for Residents B, C and F. Further there was no care plan in
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relation to “as required” medication (PRN) for Resident B. It is also alleged that you
removed nine care plans from the Home on 25 September 2017.
In relation to staffing, it is alleged that you failed to ensure that Resident F was
supervised when mobilised on 6 September 2017, and during September 2017, you
failed to ensure two or more members of staff with moving and handling training
were on duty during shifts.
There were also a number of concerns relating to safety in the Home. In particular,
there was no door alarm for Resident B after 9 May 2017. Resident H had fallen
during the night on three occasions but no risk assessment was conducted.
Resident G required the assistance of two members of staff when being moved or
handled and it is alleged that this did not happen when she was moved on or around
13 September 2017. It is also alleged that bed rail safety checks were not completed
for Residents C and F and that Resident F’s faulty pressure pads were not replaced
nor his care plan updated in relation to mobility. It is also alleged there were
concerns relating to infection control, in particular relating to food hygiene training
and a broken bin. It is also alleged that you failed to ensure that there was a call
safety alarm in the Home’s lounge.
Finally it is alleged that on occasions residents were told that coffee was not
available, only tea and on another occasion residents stated that they were hungry. It
is also alleged that bathing was done on a rota and not as and when residents
wanted a bath.
The CQC inspection report, which was published on 3 November 2017, concluded
that the Home was not safe, was not responsive and not well-led. It also concluded
the Home needs to improve in relation to being effective and caring. The Home was
given an overall rating of inadequate.
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Application of no case to answer
At the close of the NMC case Mr Walters made an application under Rule 24(7) of
the NMC Fitness to Practise Rules 2004 that charges 1c, 5c and 8g should be
dismissed as no case to answer.
Charge 1c alleges that in relation to Resident A, on 7 August 2017 you moved
Resident A without the assistance of a colleague trained in moving and handling. Mr
Walters stated that it was not disputed that the colleague who assisted in moving
Resident A was Mr B who did not appear on the staff training matrix. Mr Walters had
obtained and supplied the NMC with a certificate which indicated that Mr B had
attended moving and handling training on 22 May 2017. In such circumstances Mr
Walters submitted there was no evidence relating to this charge and it should be
dismissed as no case to answer.
Charge 5c alleges that staff member A was not trained in moving and handling. Mr
Walters accepted that on the training matrix there is no date for moving and handling
training for staff member A. However, after inquiring as to the identity of staff
member A Mr Walters had obtained and supplied the NMC with a certificate which
indicated that staff member A had attended moving and handling training on 22 May
2017. In such circumstances Mr Walters submitted there was no evidence relating
to this charge and it should be dismissed as no case to answer.
Charge 8g alleges that you failed to ensure there was a call safety alarm in the
lounge of the Home. Mr Walters reminded the panel that Ms C had stated that there
was a call safety alarm in the lounge of the Home and that this was also in the CQC
report. In such circumstances Mr Walters submitted there was no evidence relating
to this charge and it should be dismissed as no case to answer.
In relation to charge 1c Ms Piff accepted that the colleague referred to was Mr B, and
that a moving and handling training certificate had recently been provided to the
NMC. In relation to charge 5c Ms Piff accepted that a moving and handling training
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certificate for staff member A had recently been provided to the NMC. She made no
positive submissions on these charges.
In relation to charge 8g Ms Piff reminded the panel of the earlier application to
amend this charge. She submitted that whether there was a case to answer was a
matter for the panel.
The panel heard and accepted the advice of the legal assessor who reminded the
panel of the case of R v Galbraith [1981] 1 W.L.R. 1039 which states that if there is
no evidence against the registrant to support a particular charge or misconduct then
the case must be stopped in respect of that particular charge. The difficulty arises
where there is some evidence but it is of a tenuous character in that is it is inherently
weak or vague or inconsistent with other evidence. In these circumstances, and
where the panel taking the NMC’s evidence at its highest could not properly find the
particular charge to be proved on the balance of probabilities factually or in respect
of misconduct, then the case must be stopped as far as that particular charge is
concerned. However, where the NMC’s evidence is such that its strength or
weakness depends on the view to be taken of a witness’s reliability, or other matters
which are generally within the province of the panel, as judges of the facts, and
where on one possible view of the facts there is evidence on which the panel could
properly come to the conclusion that a particular charge is proved or amounts to
misconduct, then the case should proceed.
The panel carefully considered the submissions made by both parties and all of the
evidence. It applied the test in Galbraith to each charge separately.
The panel concluded that all parties were agreed that the colleague referred to in
charge 1c was Mr B and that there was evidence in the form of a moving and
handling training certificate. The panel therefore concluded that there was no
evidence in relation to charge 1c.
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Likewise, a moving and handling training certificate had been provided in relation to
staff member A. The panel therefore concluded that there was no evidence in
relation to charge 5c.
In relation to charge 8g Ms C had given evidence that there was a call safety alarm
in the lounge of the Home. Further, it was referred to in the CQC report. The panel
therefore concluded that there was no evidence in relation to this charge.
The panel therefore dismisses charges 1c, 5c and 8g as no case to answer.
Determination on facts
At the outset of the hearing you admitted charges 1d, 2, 3 in its entirety, 4 in its
entirety, 5a, 6 in its entirety, 7 in its entirety, 8a, 8b, 8d, and 8f.
The panel therefore found charges 1d, 2, 3, 4, 5a, 6, 7, 8a, 8b, 8d and 8f proved by way of admission.
The outstanding charges
The panel heard evidence from, and read the exhibits of the following witness:
• Ms C, who was the lead investigator for the CQC inspection carried out in
September 2017 and who attended on all three inspections
• Ms D, who was the other investigator for the CQC inspection carried out in
September 2017and who attended on two inspections
The panel read a witness statement and the exhibits from Dr E, who provided a
medical report for the Coroner following the death of Resident A on 6 October 2017.
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The panel read the NMC bundle which contained the exhibits from the witnesses. It
also read a bundle of documents provided by you which included a reflection,
training certificates, information about your health and some references.
When considering the charges, the panel took into account the submissions of Ms
Piff, and of Mr Walters, all of the evidence before it, both documentary and oral.
The panel considered Ms C to be a clear and credible witness with a good
recollection of events. She was able to distinguish between what she had witnessed
and what had been reported to her by Ms D. Her evidence was balanced and she
told the panel of some of the good aspects of the care provided by you.
The panel considered Ms D to be professional in her evidence and she was fair to
you, giving you credit when she considered it appropriate.
You also gave evidence to the panel. You came across as a caring and honest
nurse, who was remorseful about the shortcomings identified in the Home. You had
already admitted a significant number of the charges and you did not try to minimise
your culpability in your evidence.
The panel heard and accepted the advice of the legal assessor.
The burden of proof rests upon the NMC and you do not have to prove or disprove
anything. The standard of proof is the civil standard, namely the balance of
probabilities. This means that, for a fact to be found proved, the NMC must satisfy
the panel that what is alleged to have happened is more likely than not to have
occurred. In determining the facts, the panel is entitled to draw common-sense
inferences but not to speculate.
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When considering the outstanding charges the panel took into account that they all
allege a “failure” on your part. The panel is aware that if the allegation alleges a
failure, it must be satisfied that the NMC have proved that you have a duty to carry
out the actions specified in the charge.
The panel then considered the outstanding charges against you which are:
That you, a Registered Nurse, whilst working in the position of Manager at the Old
Hall Residential Home [The Home]:
1. In relation to Resident A, on 7 August 2017 you:
a) Failed to ensure that a risk assessment was carried out by an occupational
therapist in relation to the use of stand aid;
b) Failed to ensure that a risk assessment was carried out by an occupational
therapist in relation to the use of a sling;
At the beginning of the hearing Mr Walters stated that you denied this charge on the
basis that whilst you accepted that there was no risk assessment in place, you
challenged whether an occupational therapist was required to provide it.
The evidence from Ms C was clear that the CQC would expect the risk assessment
to be carried out by an occupational therapist. She stated that this was best practice
and accepted that this was the “gold standard”.
Your evidence was that, in August 2017, you believed that, through your many years
of experience as a nurse, you were competent to carry out these risk assessments.
You stated that guidance refers to the need for the assessor to be a competent
person. However, during the course of your evidence before the panel you
accepted if the CQC stated that an occupational therapist was required, then one
was required.
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The panel also heard evidence from Ms C that your moving and handling training
was out of date. You accepted this and also that the assessments should have been
assessed by a competent person external to the Home.
Mr Walters drew attention to a 3-day course you completed in May 2018, entitled
“Moving and Handling Risk Assessment” and he submitted that this indicated that it
was possible to be trained and competent in risk assessment without being an
occupational therapist. The panel concluded that it has too little information about
the course to reach any conclusion as to its suitability as an indication of
competence in relation to risk assessment of the equipment being used.
Because your training certificate in moving and handling was out of date at the time
of the incident the panel considered that you could not be seen as competent to risk
assess and you accepted this. Taking into account the clear evidence of Ms C that
an occupational therapist was required to carry out the assessment, and your
acceptance of this evidence the panel found this charge proved.
The panel therefore find this charge proved.
5. Failed to ensure that staff were adequately trained, in that:
b) You completed assessments on the use of stand aids and/or slings despite
not being qualified to do this;
The panel took into account its decision relating to charges 1a) and 1b) that an
occupational therapist was an appropriate professional to carry out these
assessments. You have not produced any evidence of any relevant qualification or
training undertaken at the time. In fact, at the time your moving and handling training
was overdue by 12 months. In your evidence you admitted that you did complete
assessments on the use of stand aids and/or slings but stated that at the time you
considered yourself competent. However, during the course of your evidence you
accepted that you were not qualified to do this.
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The panel therefore find this charge proved.
8. In relation to safety, you:
c) On or around 13 September 2017, failed to ensure two members of staff were
available to ensure Resident G was moved and/or handled in accordance with
their care plan;
Ms D told the panel that she was sitting in an armchair in the lounge when you and
another person were moving Resident G from an armchair to a wheelchair. Resident
G’s care plan stated that she should have two people with her at all times when she
was being moved.
Ms D’s evidence was that during the course of this manoeuvre, the other person left
the lounge to get a wheelchair from the dining room, leaving only one person to
support Resident G. Ms D could not say how long the other person was away but
stated it “enough time to be of concern” and that Resident G was out of the sightline
of the other person during this period.
You told the panel that the person assisting you did not leave the room. You
provided a diagram showing where Ms D and Resident G were sitting. You believe
that Ms D would not have had a clear and unobstructed view, at all times, of the
person assisting you. You and your assistant were on the other side of Resident G
who was sitting in an armchair with a high back. The wheelchair was to the side of,
or just behind, Resident G’s chair, potentially obscured by a wall, and it is possible
that Ms D could not see it from where she was sitting. You also explained. Using
your diagram, that the chairs were angled towards the TV which could further
obstruct Ms D’s view. It is possible that this situation has the potential for some
confusion. Further, you pointed out to the panel that this incident took place a few
weeks after the incident with Resident A and you were acutely aware at the time of
transfer that there was a CQC inspector in the room which you say made you feel
you “must get this right”.
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The panel has already concluded that both Ms D and yourself are credible
witnesses. The panel considered that your explanation, that Ms D did not have a
clear and unobstructed view the person assisting you or of the area just behind
Resident G, is possible and created the potential for some confusion.
The panel therefore finds that the NMC have not proved this charge on the balance
of probabilities.
The panel therefore find this charge not proved.
e) You failed to address concerns in relation to infection control;
The evidence before the panel is that this charge is based solely on two infection
control audit documents produced by a senior carer at the Home, the first being
produced on 16 July 2017 and the second on 2 August 2017. The audits assess 12
general items in the Home, relating to physical items such as bedrooms, mattresses
and laundry. The audits also list 4 staff items.
The evidence of Ms C was that these observations were made in the CQC report in
order to demonstrate concerns over a lack of governance and not in regard to
infection control.
In both audits a broken bin in the kitchen is listed as a concern and in the second
audit there was a concern that food hygiene certificates are out of date for some staff
members. There are no further details such as how many staff are concerned nor
when the food hygiene certificates expired.
The panel concluded that neither of these matters related to infection control but
rather to the governance of the Home. The panel concluded that NMC has not
proved that you failed to address concerns in relation to infection control.
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The panel therefore find this charge not proved.
9. You failed to ensure one or more residents’ choices and/or needs were respected
in relation to:
a) Drinks;
The evidence for this charge came from Ms C who witnessed a member of staff
offering tea to the residents in the evening. She stated that one resident, or possibly
two, asked for coffee and was refused on the basis that it was nearly bedtime and
coffee would keep her/them awake. Your evidence was that you were not present
when this incident occurred. Further, you stated that this was not usual practice, that
you knew of at least one resident who only drank coffee, that you would expect the
wishes of residents to be respected and your staff were aware of this. You explained
that training and supervision given to new members of staff to ensure that they were
aware of expectations relating to person-centred care and resident choice.
The panel concluded that it could not find this charge proved based on one incident.
The charge had been drafted in a way that was generic. The panel concluded that a
finding in relation to one possible stand-alone failure, namely a refusal to provide
coffee, did not equate to a failure to provide “drinks”.
The panel therefore find this charge not proved.
b) Food;
Ms C told the panel that when she visited the Home at mid-morning a number of
residents told her they were hungry. You told the panel that you accepted this could
have happened and that all of the residents would have been offered breakfast,
although some of them, suffering from dementia, may not remember eating it.
Further, there was always a supply of snacks available, and residents were
encouraged to have snacks and drinks throughout the day. You explained the
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importance of this including to promote hydration, prevent dehydration and aid
medication absorption.
Ms C also stated that she saw that when meals were given out there were no
condiments on the table. You accepted this and explained that you had one resident
who tended to pour excess salt on his meals rendering them inedible. He then used
other residents’ salt from other tables to continue that practice. You therefore kept
the condiments to one side in the dining room, but all residents were offered them at
every meal. In your evidence you told the panel how you tried to cater for residents
individual dietary preferences, sometimes buying them their preferred food or ready
meals from a supermarket, over and above what was already on offer in the Home.
The panel also noted that within the CQC report there was evidence that residents
commented positively upon the quality and sufficiency of the food available to them.
The panel concluded that it accepted your explanation in relation to these two
incidents and it could not find this charge proved based on two instances.
The panel therefore find this charge not proved.
c) Bathing;
Ms C informed the panel that she saw a bathing chart on the wall with an allocated
time and day for a bath and she concluded the Home had an “institutionalised”
practice in relation to bathing. However, both inspectors accepted that during the
time of the inspection all residents were well-presented.
You accepted that there was a chart on the wall. However, you explained that the
chart was an aide-memoire and was not rigidly adhered to. You told the panel that
when helping residents to bath and shower the Home took into account individual
factors. For example if a resident had a hairdressing appointment they may not want
a bath or shower on that same day. You talked about a resident whose daughter
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visited every Tuesday and the chart was used as an aide memoire to ensure he was
offered a shower or bath prior to her arrival. If he chose not to do this his wishes
were respected but further offers of a shower/bath would be made.
The panel accepted your evidence that the bathing chart was simply an aide-
memoire. The panel accepted your assertion that you saw how it could be
interpreted as institutionalised and you would not use one in future.
The panel therefore find this charge not proved. Determination on misconduct and impairment
The panel went on to consider, on the basis of the facts found proved, whether your
fitness to practise is impaired under Rule 24 (12) of the Nursing and Midwifery
Council Fitness to Practise Rules 2004.
Ms Piff submitted the wide-ranging and serious nature of the charges found proved
were sufficiently below the standard expected of a registered nurse to amount to
misconduct. She drew attention to the provisions of the Nursing and Midwifery
Council publication The Code: Professional standards of practice and behaviour for
nurses and midwives (effective from 31 March 2015) (the Code) which she submitted
had been breached.
Ms Piff further submitted that your past behaviour engaged limbs a), b) and c) of the
guidance formulated by Dame Janet Smith in her Fifth Shipman Report, as cited in
CHRE v NMC and Grant [2011] EWHC 97, regarding the proper approach to be
taken when considering impairment:
22
a) Whether the registrant 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;
b) Whether the registrant has in the past brought and/or is liable in the future
to bring the profession into disrepute;
c) Whether the registrant has in the past breached and/or is liable in the
future to breach one of the fundamental tenets of the profession.
d) …not relevant…”
Ms Piff also submitted that whilst you had shown some insight, including an
undertaking not to work in a managerial role and had undertaken training, there is
still a risk of repetition until you had demonstrated full remediation. She therefore
asked the panel to find that your fitness to practice was impaired on public protection
grounds. She further submitted that the seriousness of the charges found proved,
particularly charge 2 that your actions contributed to the injuries and/or death of
Resident A, were such that the panel should make a finding that your fitness to
practice was impaired on public interest grounds. That is the need to uphold
standards of behaviour in the profession and to maintain confidence in the
profession and in the NMC as regulator.
Mr Walters stated that you accepted that the panel would find misconduct and that
your fitness to practise was currently impairment on public interest grounds.
Mr Walters submitted that your fitness to practice was not currently impaired on the
grounds of public protection. He described the events in mid to late 2017 as a
“vicious circle”. You had health and personal family problems. You also had two
experienced members of staff depart, as well as one going on maternity leave, one
of whom had been with you since 2004. You had difficulty recruiting new staff so had
taken extra shifts yourself, as well as undertaking your managerial duties. The
evidence of Ms C was that the needs of the residents at the Home had increased
23
since her last inspection in January 2017, so there was greater pressure on the
Home.
Mr Walters contrasted this situation with your situation today. You took a break from
work towards the end of 2017 for ten months. Since then you have worked in two
similar residential home environments and have provided the panel with a positive
reference from each. You have undertaken significant training in order to remediate
your practice. You expressed remorse when giving your evidence. You have shown
insight through your reflective piece and oral evidence. You have also given an
undertaking that you will not work in a management role again. Mr Walters reminded
the panel that you have 40 years experience as a nurse with no previous concerns
and there has been no repetition of events. In these circumstances Mr Walters
submitted that your fitness to practice was not currently impaired on the grounds of
public protection.
The panel heard and accepted the advice of the legal assessor who reminded it of
the case of Nandi v GMC[2004] All ER (D) 25, which described misconduct as
actions which could be considered ‘deplorable’ by other registered nurses. She also
drew attention to the case of Schodlok v The General Medical Council (GMC) [2015]
EWCA Civ 769 which stated:
“a small number of allegations of misconduct that individually are held not to
be serious misconduct should normally not be regarded collectively as serious
misconduct. Where, however, there are a large number of findings of non-
serious misconduct, particularly where they are of the same or similar
misconduct, I consider the position is different. In such a case, it should in
principle be open for a Fitness to Practise Panel to find that, cumulatively,
they are to be regarded as serious misconduct capable of impairing a doctor’s
fitness to practise.”
24
The panel approached its deliberations as a two stage process. It considered firstly
whether as a matter of judgment, there has been misconduct, and secondly, if so,
whether, in the light of all the material before it, your fitness to practise is currently
impaired by that misconduct.
Determination on misconduct
The panel first considered whether the facts proved amount to misconduct. It bore in
mind the case of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311,
where misconduct was defined by Lord Clyde as:
…a word of general effect, involving some act or omission which falls short of
what would be proper in the circumstances. The standard of propriety may
often be found by reference to the rules and standards ordinarily required to
be followed by a [medical] practitioner in the particular circumstances.
The panel took into account the submissions of Ms Piff and Mr Walters, the advice of
the legal assessor, and all of the evidence before it. This included the oral evidence
relating to impairment which you gave at an earlier stage.
The panel had regard to the Nursing and Midwifery Council publication The Code.
The panel consider each charge separately. The panel concluded that you had had
breached the following provisions of the Code:
1 Treat people as individuals and uphold their dignity
To achieve this, you must:
1.2 make sure you deliver the fundamentals of care effectively
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1.4 make sure that any treatment, assistance or care for which you are responsible
is delivered without undue delay
3.1 pay special attention to promoting wellbeing, preventing ill-health and meeting
the changing health and care needs of people during all life stages
6.2 maintain the knowledge and skills you need for safe and effective practice
10 Keep clear and accurate records relevant to your practice
This applies to the records that are relevant to your scope of practice. It includes but
is not limited to patient records.
To achieve this, you must:
10.1 complete records at the time or as soon as possible after an event, recording if
the notes are written some time after the event
10.5 take all steps to make sure that records are kept securely
13 Recognise and work within the limits of your competence
To achieve this, you must, as appropriate:
13.1 accurately identify, observe and assess signs of normal or worsening physical
and mental health in the person receiving care
13.2 make a timely referral to another practitioner when any action, care or treatment
is required
13.3 ask for help from a suitably qualified and experienced professional to carry out
any action or procedure that is beyond the limits of your competence
13.4 take account of your own personal safety as well as the safety of people in your
care
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
26
25 Provide leadership to make sure people’s wellbeing is protected and to improve their experiences of the health and care system
To achieve this, you must:
25.1 identify priorities, manage time, staff and resources effectively and deal with risk
to make sure that the quality of care or service you deliver is maintained and
improved, putting the needs of those receiving care or services first.
The panel is aware that not all breaches of the Code are sufficiently serious to reach
the threshold for a finding of misconduct.
The panel considered each of the charges separately. The panel considered that
each of the charges found proved related to basic and essential nursing care that a
nurse of your experience should have been able to provide. Any nurse working in
residential care environment should be able to move residents safely without
endangering them. Further, monitoring of patients for weight gain, keeping
medication records and care plans up to date, and ensuring that there was adequate
and appropriately trained staff on duty are fundamental nursing skills.
The panel concluded that your behaviour in relation to each charge individually and
also cumulatively, and the numerous breaches of the Code, would be considered
deplorable by fellow nurses. As such the panel concluded that your behaviour
amounted to misconduct.
Determination on impairment
Having found that your behaviour amounted to misconduct, the panel went on to
consider whether your fitness to practise is currently impaired by reason of that
misconduct. The panel was mindful that a registrant’s impairment should be judged
by reference to her suitability to remain on the register without restriction.
27
In deciding this matter the panel has exercised its independent professional
judgement. The panel took into account the submissions of Ms Piff and Mr Walters,
the advice of the legal assessor and all of the evidence before it.
The panel considered the case of Grant and took into account the guidance provided
by Dame Janet Smith and approved by Cox J. When deciding whether fitness to
practise is impaired, it should be aware of the need to protect the public and the
need to declare and uphold proper standards of conduct and behaviour so as to
maintain public confidence in the profession.
The panel reminded itself of the guidance formulated by Dame Janet Smith in her
Fifth Shipman Report, as cited in Grant, regarding the proper approach to be taken
when considering impairment:
e) Whether the registrant 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;
f) Whether the registrant has in the past brought and/or is liable in the future
to bring the profession into disrepute;
g) Whether the registrant has in the past breached and/or is liable in the
future to breach one of the fundamental tenets of the profession.
h) …not relevant…”
The panel concluded that in the past your behaviour had engaged limbs (a) to (c)
above.
Resident A suffered actual harm, a number of fractured bones, which your actions
contributed to. Further these fractures were attributed as one of the causes of her
death by a doctor.
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There were numerous other instances of potential patient harm in the charges found
proved, for example, care plans and medication management plans for individual
patients did not match up. Other care plans were not updated. You conducted risk
assessments that you were not qualified to do and neglected to carry out a risk
assessment for a patient who had fallen three times.
The panel concluded that the numerous, serious and wide-ranging charges found
proved against you brought the profession into disrepute. Further, your acting in this
way has breached fundamental tenets of the profession in that you did not
• prioritise people
• practise effectively
• preserve safety
• promote professionalism and trust.
The panel next considered whether your fitness to practise is currently impaired and
considered your likely future behaviour. In doing so, it took into account the
guidance in the case of Cohen v General Medical Council [2008] EWHC 581
(Admin):
“… It must be highly relevant in determining if a [nurse's] fitness to practise is
impaired that first his or her conduct which led to the charge is easily
remediable, second that it has been remedied and third that it is highly
unlikely to be repeated.”
The panel concluded that your behaviour was potentially remediable as the failings
relate to clinical skills. The panel took into account that you have undertaken
significant relevant training including but not limited to:
• An overview of appetite decline in older people
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• Safeguarding vulnerable adults
• Medication management
• MUST care
• Moving and Handling
• Moving and Handling Risk assessment
• Prevention of falls.
You also provided two current references. The first related to your employment at
Bradeney House (October 2018 to April 2019) which states:
“I have always found Ms Friend to be a competent professional
practitioner…shows passion and motivation…has never to my knowledge
compromised resident/patient safety…a valuable member of the team”.
The other reference related to employment at Corbrook Park (April to October 2019)
dated 17 November 2019 which describes you as:
“…professional and knowledgeable. Of highest concern to her was the need to
provide a safe and accountable environment…documentation was thorough and
informative… always seek(s) advice to check on her practice…sound professional
judgement”.
The panel concluded that your training, and the references relating to your practice
in two similar work environments, you had demonstrated that you had remediated
the clinical shortcomings in your practice.
The panel further concluded from your evidence, both documentary and oral, that
you have insight into the matters that led to your appearance before this panel and
that you have made strenuous efforts to address your shortcomings. You have also
expressed deep remorse.
30
The panel noted that you gave an undertaking not to work in a managerial role. This
undertaking is not enforceable and the panel reached its decision on impairment
without regard to this undertaking.
Taking into account your remediation, insight and remorse the panel concluded that
there was a minimal risk of repetition of similar behaviour in the future. The panel
has therefore concluded that your fitness to practise is not currently impaired on the
basis of public protection.
However, the panel bore in mind that the overarching objectives of the NMC are to
protect, promote and maintain the health safety and well-being of the public and
patients, and to uphold/protect the wider public interest. This includes upholding the
proper professional standards and promoting and maintaining public confidence in
the nursing profession and in the NMC as regulator.
The panel concluded that members of the public would expect nurses to practise
effectively, safely and with professionalism. The nursing profession is respected by
the public and the panel concluded that your serious and wide-ranging misconduct
damaged this respect and the reputation of the profession.
Taking these factors into account leads the panel to conclude that an informed
member of the public would consider a finding of impairment necessary to mark the
misconduct in this case. It therefore determined that, in this case, a finding of
impairment on public interest grounds is required.
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Determination on sanction
Having determined that your fitness to practise is impaired, the panel went on to
consider what sanction, if any, it should impose on your registration.
The panel took into account the submissions made by Ms Piff and Mr Walters and all
of the evidence before it.
Ms Piff reminded the panel that there had been no previous regulatory concerns in
respect of your registration. She summarised what the NMC submitted were the
aggravating and mitigating features. She submitted that the appropriate sanction
was a suspension order for 12 months.
Mr Walters accepted the aggravating and mitigating features submitted by the NMC.
He submitted to the panel that you were fined by the CQC in relation to Resident A
and this fine could be taken into account when considering the public interest. Mr
Walters accepted that a suspension order was the appropriate sanction. However,
he submitted that the public interest could be served by the imposition of a shorter
period of suspension taking into account that you have already been fined by the
CQC.
The panel accepted the advice of the legal assessor.
Under Article 29 of the Nursing and Midwifery Council Order 2001, the panel can
take no further action or impose one of the following sanctions: make a caution order
for one to five years; make a conditions of practice order for no more than three
years; make a suspension order for a maximum of one year; or make a striking off
order. The panel has borne in mind that the purpose of a sanction is not to be
32
punitive, though it may have a punitive effect. It took into account the NMC
publication, Sanctions Guidance (the SG).
The panel considered the sanctions in ascending order of seriousness.
The panel has applied the principles of fairness, reasonableness and proportionality,
weighing the interests of patients and the public with your own interests and taking
into account the mitigating and aggravating factors in the case. The public interest
includes the protection of patients, the maintenance of public confidence in the
profession and declaring and upholding proper standards of conduct and behaviour.
The panel concluded that the aggravating features in this case are:
• there was a pattern of serious misconduct over a period of time
• there was potential for resident harm.
The panel concluded that the mitigating features in this case are:
• you have demonstrated insight and remorse
• you have made extensive efforts to address the shortcomings in your practice
• there have been no previous concerns in a lengthy career of 40 years
• there were personal and health concerns which impacted upon your practice
at the time.
The panel first considered taking no further action but determined that this would be
inappropriate. It would not address the seriousness of the misconduct which included
a charge that you contributed to the injuries and/or death of Resident A. In those
33
circumstances it would not be in the public interest to take no further action as it
would neither be sufficient to maintain public confidence in the profession and in the
NMC as regulator, nor would it uphold the standards of behaviour expected of a
registered nurse.
The panel then went on to consider whether a caution order would be appropriate.
The panel concluded that a caution order was not appropriate as the matters of
concern were too serious and could not be described as being at the lower end of
the spectrum of impaired fitness to practise. A caution order would not be in the
public interest as it would not maintain confidence in the profession and in the NMC
as regulator, and it would not uphold the standards of behaviour expected of a
registered nurse.
The panel next considered a conditions of practice order. The panel has earlier
concluded that you have remediated the clinical concerns relating to your practice
and that the risk of repetition of similar misconduct is negligible. For these reasons,
the panel concluded that a conditions of practice order would serve no purpose.
However, the panel also concluded that conditions of practice would not be
appropriate given the seriousness of the charges found proved in this case.
Conditions of practice would not address the public interest in maintaining standards
and public confidence in the profession and in the NMC as regulator.
The panel considered whether a suspension order would be appropriate in this case.
The panel took into account the factors listed in the SG which render a suspension
appropriate. The panel concluded that whilst this was not a single instance of
misconduct there was a pattern of serious misconduct. However,
• there is no evidence of a personality or attitudinal issue
• there has been no repetition of the misconduct and you have worked in two
similar settings since the incidents in question and have produced references
indicating current good practice
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• the panel has evidence of insight and has identified a negligible risk of
repetition.
The panel concluded that having taken the above factors into account a suspension
order is the appropriate and proportionate sanction.
Before settling on a suspension order the panel considered whether a striking off
order would be appropriate and proportionate. The panel has already concluded that
the charges, and in particular charge 2, were a serious departure from the relevant
professional standards. However, your evidence demonstrated remorse, remediation
and insight and the panel concluded that public confidence in the profession, and in
the NMC as its regulator, would not be undermined if you were allowed to remain on
the register.
Taking into account the context in which the misconduct occurred, the panel
concluded that a suspension order would be sufficient to satisfy the public interest in
this case. However, given the seriousness of the charges the panel determined that
the maximum period of suspension was required, that is a period of 12 months
suspension.
The panel has concluded that a period of 12 months suspension would be sufficient
to satisfy the public interest and concluded that there was no need for a review at the
expiry of this order.
Determination on Interim Order
Pursuant to Article 29 (11) of the Nursing and Midwifery Order 2001, this panel’s
decision will not come into effect until after the 28 day appeal period, which begins
on the date that notice of the suspension order has been served. Article 31 of the
Nursing and Midwifery Order 2001 outlines the criteria for the imposition of an interim
35
order. The panel may only make an interim order if it is satisfied that it is necessary
for the protection of the public, or is otherwise in the public interest or in your own
interest. The panel may make an interim conditions of practice order or an interim
suspension order for a maximum of 18 months.
Ms Piff made an application that the panel impose an interim suspension order in the
public interest for an 18 months period to cover the appeal period and any possible
appeal. Ms Piff accepted that it was a high bar to impose an order on public interest
grounds alone but reminded the panel that the charges found proved were very
serious.
Mr Walters submitted that an order was not necessary in this case. He reminded the
panel that you are not currently working and that it had concluded that there were no
protection concerns in this case.
The panel has accepted the advice of the legal assessor. She reminded the panel
that it was rare to impose an interim order solely on public interest grounds.
The panel has had regard to the NMC’s guidance to panels in considering whether to
make an interim order. The panel has taken into account the principle of
proportionality, bearing in mind the interests of the public and your own interests. It
had recognised that the bar is set high to impose an interim order solely on public
interest grounds.
The panel has already concluded that there are no public protection issues. It has
further concluded that this case did not meet the high bar for imposing an interim
order solely on public interest grounds.
That concludes this determination.
