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Conduct and Competence Committee
Substantive Hearing
7-10 November 2016
Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ
(7 November 2016)
Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE (8-10 November 2016)
Name of Registrant Nurse: Maryanne Cimbracruz
NMC PIN: 08A3497E
Part(s) of the register: Registered Nurse (Sub part 1)
Mental Health Nursing – October 2008
Area of Registered Address: England
Panel members: Anne Booth (Chair, Lay member)
Claire Gill (Registrant member)
David Braybrook (Lay member)
Legal Assessor: Michael Levy
Panel Secretary: Neeraj Pruthi
Nursing and Midwifery Council: Represented by Alex Mills, Case Presenter,
instructed by NMC Regulatory Legal Team
Registrant: Ms Cimbracruz was present and represented
by Melanie Spencer, instructed by UNISON
Facts admitted: Charges 1, 1.1, 1.2, 1, 2.1, 2.2, 3, 4, 4.1, 4.2,
4.3, 4.4, 5, 6 and 7
Fitness to practise: Impaired
Sanction: Conditions of Practice Order – 2 years
Interim Order: Interim Conditions of Practice Order – 18
months
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Charges as amended
That you, whilst employed as a Staff Nurse at Upper Halliford Nursing Home between
October 2013 and September July 2015:
1. On either 5 January 2015 or 26 January 2015, in relation to Resident A:
1.1. Caused pain to Resident A’s hand when administering medication;
1.2. Did not escalate Resident A’s complaint that you had caused him pain.
2. On unknown dates:
2.1. Inappropriately touched Resident B’s nose;
2.2. Used an inappropriate technique to administer medication to Resident C,
in that you pinched Resident C’s nose in order to make her open her
mouth.
3. On unknown dates, inappropriately closed the bedroom doors of Resident C
and/or Resident E and/or Resident F;
4. On unknown dates, administered and/or instructed others to administer covert
medication to:
4.1. Resident C;
4.2. Resident G;
4.3. Resident H;
4.4. Resident I.
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5. On an unknown date, instructed Colleague A to record on a bowel chart that
Resident D had had a bowel movement when he had not.
6. On an unknown date, instructed Colleague A not to report that Resident I had
two black eyes.
7. Fed Residents G and/or Resident J and/or Resident I in an inappropriate manner.
AND in light of the above, your fitness to practise is impaired by reason of your
misconduct.
Amendment to stem of charge
Following its decision on facts, the panel of its own violation amended the date in the
stem of the charge to July 2015. The panel considered that this amendment would
serve to rectify drafting errors by aligning the date in the stem of the charge to the
evidence presented by the NMC. Further, the panel considered that this amendment
would not affect the substance of the case against you or otherwise result in any
unfairness to you.
The stem of the charge therefore reads as follows,
‘That you, whilst employed as a Staff Nurse at Upper Halliford Nursing Home between
October 2013 and September July 2015’
Both Mr Mills, on behalf of the NMC and Ms Spencer, on your behalf agreed to this
proposed amendment.
Background
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The charges arise whilst you were employed by Healthcare Management Solutions (‘the
Company’) based in Upper Halliford Nursing Home, Shepperton (‘the Home’). You
commenced employment at the Home in October 2013 as a Staff Nurse and by October
2014 were promoted to the position of Unit Manager. You were responsible for the daily
monitoring of care staffing levels, administering medication, changing residents’
dressings and generally overseeing the care of residents.
The panel was informed by Ms Spencer that both you and the NMC had agreed the
facts in this case. It was provided with an agreed statement of facts, which were as
follows:
‘Summary
Ms Cimbracruz (the Registrant) commenced employment as a Staff Nurse at Upper
Halliford Nursing Home (the Home) in October 2013. The Home is a 60 -bedded
Nursing Home accommodating elderly residents including residents who are physically
disabled and residents who suffer from dementia. Each resident has access to their own
bedroom as well as having access to the communal lounge and dining rooms within the
Home.
In October 2014 the Registrant was promoted to the position of Unit Manager. As the
Unit Manager, the Registrant was responsible for taking charge of the floor she was
allocated to, allocating duties to staff, administering medication, changing residents’
dressings, overseeing care delivered to residents by the Healthcare Assistants and
generally overseeing the care delivered to residents.
In January 2015 an allegation was made that the Registrant had caused physical harm
to Resident A whilst administering medication. The Registrant was suspended on 3
February 2015 and a referral was made to the police, who subsequently decided to take
no further action. However, a local investigation was conducted by the Home. During
the course of that local investigation, further concerns regarding the Registrant’s
practise came to light which now form the subject of the remaining charges in this case.
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The local investigation resulted in a disciplinary hearing on 23 June 2015, and the
Registrant was dismissed for gross misconduct. Since 31 August 2015 the Registrant
has been employed as a Unit Manager at Cloisters Nursing Home.
Agreed Facts
The facts of the charges referred to above are as follows:
1. On either 5 January 2015 or 26 January 2015, in relation to Resident A:
1.1. Caused pain to Resident A’s hand when administering medication;
1.2. Did not escalate Resident A’s complaint that you had caused him pain.
Resident A had been a resident at the Home since October 2013 following a period of
hospitalisation during which he had received chemotherapy treatment for lymphoma
cancer. The care provided to Resident A at the Home included assistance with dressing
and washing due to his inability to mobilise autonomously, catheter care and the
provision of medication. Resident A’s Care Plan (dated 24/1/15) provided that those
providing care to him should, “Always be polite, courteous and professional when
conversing with him / carrying out duties. Explain the procedure before carrying it out.”
Shortly after 13:00 on either 5 January or 26 January 2015, the Registrant entered
Resident A’s room to conduct the second medication round. The Registrant was alone
and Resident A remained in bed throughout her visit. Resident A described the
Registrant’s demeanour when she entered his room as being, “Completely normal.”
As the Registrant approached Resident A’s bed, Resident A put out his right hand with
his palm facing upwards so that the Registrant could tip the medication from a plastic
container into his hand. Whilst his hand was outstretched, the Registrant held Resident
A’s hand firmly with her left hand, on the part of his hand between his palm and thumb.
The effect of doing so was that Resident A could not move his hand.
The Registrant then bashed her right hand containing the plastic medication container
into Resident A’s right hand. The Registrant then bent the fingers of Resident A’s right
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hand into a clenched fist, using her right hand to do so which she then closed around
Resident A’s hand. The Registrant then twisted her hand forcing pressure onto Resident
A’s finger joints.
The Registrant did not say anything to Resident A during this incident. The Registrant
then left the room and Resident A did not call for assistance or press the emergency
buzzer.
Resident A was distressed that the Registrant had displayed an act of violence toward
him that was, in his view, both unjustified and unprovoked. Resident A’s fingers were
painful for several months after the incident. Resident A reported the incident the
following day.
On 7 April 2015 the Home Manager conducted an investigatory meeting with Resident
A. At the start of that meeting Resident A stated, “That’s when she hurt me must have
been just after Christmas time” before demonstrating how the Registrant had bent his
hand when she gave him medication. Resident A informed the Home Manager, “That
nurse was horrible to me no call for it.” Resident A went on to state that the Registrant,
“Shoved the pot in my hand – when I said she was hurting me she smiled – I said it was
not funny.” Resident A went on to describe the Registrant as being rough, rude and in
his opinion, should not be, “Let loose near the elderly.”
The Home Manager conducted an investigatory meeting with the Registrant on 7 April
2015. During that meeting the Registrant explained that when she had placed the
medication into Resident A’s hand on the day in question he told her that he disliked the
way that she gave him his medication. The Registrant said that she apologised to
Resident A and that he accepted her apology.
When asked to demonstrate how she had placed the medication into Resident A’s
hand, the Registrant stated that she placed the medication into Resident A’s hand and
closed his fingers gently around the medication. When Resident A told her that she had
hurt his hand, the Registrant said that she apologised and said that she never meant to
hurt him.
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The Home Manager was concerned that the Registrant had made no effort to report this
incident involving Resident A. Such an incident should have been reported to a senior
member of staff as soon as possible so that appropriate action could be taken. On the
26 January 2015 the Registrant had stated to a Care Assistant that Resident A had
been complaining about her giving him medication. The Registrant informed the Care
Assistant that she was aware that Resident A was not happy with her asking him to take
his medication.
2. On unknown dates:
2.1. Inappropriate touched Resident B’s nose;
2.2. Used an inappropriate technique to administer medication to Resident C,
in that you pinched Resident C’s nose in order to make her open her
mouth.
During the course of the local investigation in relation to Charge 1, the Home Manager
conducted an investigatory meeting with a Care Worker named Ms 1. During that
meeting, Ms 1 was asked whether she had any concerns regarding the Registrant’s
practise as a nurse.
Ms 1 stated that she considered the Registrant to be a bully and that the Registrant
regularly pinched Resident B’s nose. Although the Registrant appeared to do so in a
playful manner, Ms 1 considered it to be inappropriate and unprofessional behaviour.
Ms 1 did not consider it appropriate to touch a resident’s face unless it was required
when delivering care.
Ms 1 went on to state that on one occasion, when Resident C had refused to take her
medication, she witnessed the Registrant pinching Resident C’s nose so that Resident
C would open her mouth, allowing the Registrant to place medication into her mouth.
Ms 1 was particularly concerned by this incident as she had been taught during her
induction and training at the Home that if a resident refuses to take their medication, you
should not attempt to force them to do so.
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During the course of the investigatory meeting with the Home Manager, the Registrant
stated that she often touched Resident B’s nose in an effort to build rapport with the
residents. The Registrant informed the Home Manager that she considered her actions
to be appropriate as it was done in a playful manner. However, the Home Manager did
not consider this to be appropriate on the basis that staff should not touch residents
unless required to do so when delivering care to them.
3. On unknown dates, inappropriately closed the bedroom doors of Resident C
and/or Resident E and/or Resident F.
During the course of investigatory meetings with three Care Assistants, namely Ms 1,
Ms 2 and Ms 3, it was reported to the Home Manager that the Registrant closed
residents’ bedroom doors when those residents became agitated.
Ms 2, a Senior Carer, reported that on several occasions she had witnessed the
Registrant closing Resident C’s door. Ms 2 did not recall the specific dates of the
incidents but stated that Resident C had difficulty with communication and would often
shout out when she wanted assistance. When Resident C shouted out, the Registrant
would close Resident C’s door. Ms 2 was unaware if any harm was caused to Resident
C because of the Registrant shutting her door, but assumed that it would be unpleasant
for Resident C to have her bedroom door closed if she could not communicate
effectively.
Ms 2 informed the Registrant that she should not close residents’ bedroom doors as
they did not like it, but the Registrant said that she was the Mental Health Nurse and
she could do what she wanted.
Care Assistant Ms 3 informed the Home Manager that on several occasions she had
witnessed the Registrant closing residents’ bedroom doors when they shouted for
assistance. Ms 3 stated that she did not recall the specific dates, but that this happened
during each shift that she worked with the Registrant.
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Ms 3 stated that Resident C had a tendency to cry out for attention because she did not
have the capacity to communicate very well. Resident C made a loud whimpering sound
when she wanted assistance. When Resident C called out for assistance, the Registrant
attended to her room, told her to be quiet and shut her door without establishing why
she was calling out or shouting.
Ms 3 stated that Resident E did not have the capacity to communicate and made a
“Cuckoo” sound when she wanted assistance. When Resident E made that noise, the
Registrant went to her bedroom, told her to be quiet and shut her bedroom door. The
Registrant did not ask Resident E why she was calling out or try to establish if she
needed any assistance. Ms 3 felt that the Registrant was ignoring the residents’ needs
as she did not always attend to them when they called out or asked if they needed
assistance.
Ms 3 stated that on several occasions she informed the Registrant that she did not think
it was appropriate for the Registrant to shut residents’ doors when they called for
assistance. The Registrant informed Ms Liger that she knew that the residents were
asking for assistance, but that they were disturbing others so she closed their doors. Ms
3 stated that the Registrant referred to Residents C and E as the, “Disturbing residents”
because they shouted out.
Care Worker Ms 1 informed the Home Manager that on several occasions she
witnessed the Registrant closing Resident C’s door when Resident C started shouting
or became distressed. Ms 1 considered such conduct inappropriate because Resident
C had a tendency to pull herself off her chair or bed onto the floor when she was
distressed, so the reason for keeping Resident C’s bedroom door open was to ensure
that she could be easily supervised.
Ms 1 also stated that, on a date that she did not recall, she witnessed the Registrant
closing Resident F’s bedroom door. Resident F had a tendency to shout and put himself
from his chair or bed when he became distressed, and as a result was often found on
his bedroom floor due to having pulled himself off his chair. Ms 1 stated that on one
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occasion, when Resident F had been found on the floor outside his bedroom, the
Registrant put Resident F back into his bedroom and closed Resident F’s bedroom door
as opposed to assisting him. Ms 1 was concerned that the Registrant had returned
Resident F to his bedroom without having assessed him thoroughly.
Resident C’s care plan (some of which dated from March and April 2015, thus after the
incidents in question) stated the following:
- “I am sometime very frustrated and cry out a lot to get attention.”
- “High risk of fall due to poor mobility and Alzheimer’s disease which is
accompanied by confusion and disorientation.”
- “Ensure safety is maintained at all times.”
- “I need you to maximise my potential for communication.”
- “To give me extra time to verbalise my thoughts.”
- “On occasions Resident C forgets that she is unable to walk and will try and
stand up, staff to observe.”
- “Resident C requires discreet observation to promote her safety.”
- “Resident C is unable to use call bell.”
- “If Resident C presents as anxious or agitated staff must report this to the RGN
on duty and the following should be considered: Offer her comfort and
reassurance to alleviate potential feelings of distress, loneliness or uncertainty.”
During an investigatory meeting with the Registrant, the Home Manager discussed with
the Registrant the allegations that she had closed the bedroom doors of residents when
they became anxious or started displaying challenging behaviour. The Registrant stated
that Resident C often started screaming and so she closed Resident C’s bedroom door
to prevent disruption to nearby residents. The Registrant stated that she did this until
Resident C calmed down.
The Home Manager did not consider it appropriate to close a resident’s door, even if
they are displaying difficult behaviour, unless it was to maintain a resident’s dignity. The
Home Manager was of the view that it was the Registrant’s responsibility as a registered
nurse to have tried to calm Resident C and to address any concerns that she had,
particularly as she was aware that Resident C was distressed.
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4. On unknown dates, administered and/or instructed others to administer covert
medication to:
4.1. Resident C;
4.2. Resident G;
4.3. Resident H;
4.4. Resident I.
During the course of the investigatory meetings with Ms 2, Ms 1 and Ms 3, it was
reported to the Home Manager that the Registrant had covertly put medication into a
resident’s food bowl to be administered by a Care Assistant in addition to covertly
administering medication herself.
Ms 1 stated that in July 2014, several days after she had started working at the Home,
the Registrant had instructed her to take a bowl of cereal and give it to a resident to eat.
However, Ms 1 thought that the Registrant meant that she should give it to a different
resident and so attempted to do so. That resident refused to eat the cereal and so Ms 1
returned it to the Registrant. The Registrant then confirmed the identity of the resident
for whom the cereal was intended. The Registrant then informed Ms 1 for the first time
that the cereal contained medication. This incident concerned Ms 1, who felt that she
could easily have given the cereal, and thus the medication, to the wrong resident. In
addition, Care Workers were not permitted to administer medication to residents.
Senior Carer, Ms 2, stated that on several occasions she had witnessed the Registrant
crumbling residents’ medication into their food. Ms 2 stated that she witnessed the
Registrant give medication in food to Residents C, G and H.
On one occasion Ms 2 witnessed the Registrant put medication for Resident G into a
bowl of cereal and ask Care Assistant Ms 1 to feed Resident G the cereal. However, Ms
1 took the bowl of cereal to Resident H who refused to eat it. Ms 1 informed the
Registrant that Resident H had not eaten her cereal. The Registrant responded by
stating that she had told Ms 1 to give the cereal to Resident G, not resident H. Ms 2
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then informed the Registrant that she was not allowed to ask the carers to administer
medications as it was not their responsibility.
Care Assistant, Ms 3, stated that during shifts she had worked with the Registrant she
witnessed the Registrant put residents’ medication in their porridge or cereal and feed it
to them rather than administering the medication orally. Ms 3 stated that the Registrant
opened medication capsules for Resident G and Resident I and put them in their
porridge. Ms 3 had not witnessed other nurses administering medication in that way, but
did not speak with the Registrant about it, as the Registrant was the nurse in charge
and Ms 3 believed that the Registrant was able to administer medication in that way
because she was clinically trained.
During the investigatory meeting with the Registrant, the Home Manager asked the
Registrant to explain the procedure for administering covert medication to residents.
The Registrant explained that if she was required to administer medication to a resident
covertly, she would discuss this with the resident’s family and GP, as well as liaising
with pharmacy about it. When asked if she had ever put a resident’s medication into a
bowl of cereal to be administered covertly, the Registrant confirmed that she had done
so in respect of Resident B, as that was authorised within Resident B’s care plan and by
Resident B’s GP. The Home Manager subsequently reviewed Resident B’s care plan,
which confirmed that Resident B could receive medication covertly. Consequently, the
Registrant had authority to administer Resident B’s medication covertly.
In relation to Resident C, Resident G, Resident H and Resident I, there is no evidence
that administering medication covertly had been agreed with the resident, the GP or the
pharmacy service.
5. On an unknown date, instructed Colleague A to record on a bowel chart that
Resident D had had a bowel movement when he had not.
On an unknown date the Registrant asked a Care Worker, Colleague A, to input dates
into Resident D’s bowel chart to signify that Resident D’s bowels had opened. However,
in reality, Resident D had not been to the toilet for a period of between two and three
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weeks at that stage. Colleague A refused to make the entries on Resident D’s bowel
chart. The Registrant then inputted these dates herself to show that Resident D had
opened his bowels when he had not.
When asked about this incident during the investigatory meeting, the Registrant denied
having ever instructed staff at the Home to make entries in the residents’ nursing
documentation when care had not been provided to the resident.
6. On an unknown date, instructed Colleague A not to report that Resident I had
two black eyes.
On an unknown date around Christmas 2014 a Care Worker, Colleague A, discovered
that Resident I had suffered two black eyes as a result of a fall. Colleague A discussed
this incident with the Registrant, who informed Colleague A that the incident need not
be reported. However, Colleague A was concerned that Resident I needed to be taken
to hospital as soon as possible given that she may have suffered a serious head injury
and, therefore, reported the incident to members of management.
Any bruising to a resident should be recorded contemporaneously in the resident’s daily
records and reported to the Manager, as well as an incident report form and body map
document being completed. When asked about this incident during the investigatory
meeting with the Home Manager, the Registrant stated that she did not recall such an
incident.
7. Fed Resident G and/or Resident J and/or Resident I in an inappropriate manner.
During an investigatory meeting with the Home Manager, a Care Assistant, Ms 3,
expressed her concern at the way in which the Registrant fed residents. Ms 3 stated
that when feeding the residents hot food, the Registrant did not wait for it to cool down
and did not give them a break in between mouthfuls. Ms 3 felt that the Registrant was
forcing food down the residents’ throats and was worried that they could choke.
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Resident J had difficulty swallowing. It usually tool Ms 3 approximately 12 minutes to
feed Resident J her porridge and Resident J liked to have a rest in between spoonfuls
so that she could digest her food and swallow it properly. On several occasions Ms 3
witnessed the Registrant feed Resident J hot porridge in approximately seven minutes.
Resident J coughed and had tears in her eyes whilst the Registrant fed her. Ms 3 was
worried because she felt that Resident J was finding it difficult to swallow her food and it
looked to her as though Resident J was almost choking.
Ms 3 went on to state that when the Registrant fed Resident G and Resident I, she did
so very quickly and without giving them breaks to digest their food. Resident G,
Resident J and Resident I did not have the mental capacity to communicate and so
would not have been able to tell the Registrant if they were uncomfortable when she
was feeding them or if they wanted a break. Ms 3 felt that the Registrant should have
been aware from the residents’ reactions, such as Resident J having tears in her eyes
whilst being fed, that she was feeding them too quickly. Ms 3 felt that the Registrant was
not respecting the residents’ preferences to ensure that they were comfortable, and that
she was trying to complete her duties very quickly without considering the residents’’
feeling.
Resident G’s care plan expressly referred to the need to, “To also allow her time to
swallow food.”
Ms 3 approached the Registrant and informed her that she felt that the Registrant fed
the residents too quickly and that they were uncomfortable with it. However, the
Registrant was dismissive of her and said that the residents were fine. As the Registrant
was the nurse in charge, Ms 3 felt that she could not argue with her.
When asked by the Home Manager whether she considered that she ever fed residents
too quickly, perhaps when the Home was understaffed or particularly busy, the
Registrant replied that she did not’.
Decision on the findings on facts and reasons
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At the outset of this hearing, Ms Spencer informed the panel that you admit all of the
above charges, namely charges 1, 1.1, 1.2, 2, 2.1, 2.2, 3, 4, 4.1, 4.2, 4.3, 4.4, 5, 6 and
7.
Accordingly, the panel found the above charges proved by way of admission.
Determination on misconduct and impairment
Having announced its finding on the facts, the panel then moved on to consider,
whether the facts found proved amounted to misconduct and if so whether your fitness
to practise is currently impaired. The NMC has defined fitness to practise as a
registrant’s suitability to remain on the register unrestricted.
You gave oral evidence to the panel.
Mr Mills on behalf of the NMC referred the panel to various sections of The Code:
Standards of conduct, performance and ethics for nurses and midwives 2008 (“the
Code”). He highlighted specific paragraphs in the Code that, in his assertion, had been
breached by your failings. He submitted that these breaches of the Code were serious
enough to amount to misconduct.
Mr Mills referred the panel to the case of Roylance v General Medical Council (No 2)
[2000] 1 A.C. 311, in which it was stated that,
“Misconduct is 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”.
In relation to the matter of impairment, Mr Mills referred to the case of CHRE v NMC
and Grant [2011] EWHC 927 (Admin) and the matters to be considered in deciding
whether your fitness to practise is currently impaired.
Ms Spencer on your behalf adopted a neutral stance.
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The panel heard and accepted the advice of the legal assessor who referred to
judgements in the cases of: Roylance v General Medical Council (No 2) [2000] 1 A.C.
311, Cohen v General Medical Council [2008] EWHC 581 (Admin) and CHRE v NMC
and Grant [2011] EWHC 927 (Admin).
The panel, in reaching its decision, accepted that there was no burden or standard of
proof at this stage and exercised its own judgement.
In reaching its determination, the panel took account of all the evidence presented,
together with Mr Mills’ and Ms Spencer’s submissions.
Decision on whether the facts found proved amount to misconduct:
The panel began by considering whether each charge individually amounted to
misconduct.
1. On either 5 January 2015 or 26 January 2015, in relation to Resident A:
1.1 Caused pain to Resident A’s hand when administering medication;
1.2 Did not escalate Resident A’s complaint that you had caused him pain.
You accepted you caused pain to Resident A and that you were aware of this at the
time. When questioned by your employer about this incident following Resident A’s
complaint, you initially denied causing pain. You also sought to minimise your
responsibility both at the investigation stage and during your disciplinary hearing by
suggesting Resident A had mental health problems despite your knowledge that he had
been assessed as fully competent.
You had cared for Resident A for over 1 year without previous complaint. In his
complaint he described you as,
‘rough, rude and in his opinion should not be let loose near the elderly’.
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The panel concluded your actions fell below the standard expected of a registered
nurse and thus determined that your actions amounted to misconduct.
You admitted in oral evidence that at the time of administering medication to Resident A
you knew you had caused him pain and you failed to escalate this.
2. On unknown dates:
2.1 Inappropriately touched Resident B’s nose;
The panel regarded this as misconduct. You did not seek consent from Resident B and
you also gave contradictory evidence as to the manner of touching. Touching Resident
B’s nose was not part of her care plan and was an invasion of her personal space and
her dignity.
2.2 Used an inappropriate technique to administer medication to Resident C, in that
you pinched Resident C’s nose in order to make her open her mouth.
In oral evidence you told the panel that Resident C often spat out her medication. The
panel took the view that in doing so Resident C was refusing to take her medication and
that accordingly, you should have followed the proper procedure by consulting other
colleagues, her GP and her family as Resident C was clearly withholding her consent.
Instead you took matters into your hands and your action in pinching her nose so that
she opened her mouth could be regarded as an assault and in any event failed to
respect Resident C’s dignity and wishes and was inappropriate.
3. On unknown dates, inappropriately closed the bedroom doors of Resident C
and/or Resident E and/or Resident F;
These three residents suffer from dementia and have communication difficulties. You
told the panel that you closed their bedroom doors when the residents were ‘playing up’
by exhibiting challenging behaviour. You closed the doors to give them time to calm
down and to prevent them disturbing other residents. In doing this you isolated
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vulnerable elderly residents. In your oral evidence you agreed that you would have
probably caused them to be in fear. Your actions were in total disregard of Resident C’s
care plan, in particular this resident was deemed to be at a high risk of falls and it was
noted in her care plan that she should be observed at all time. You sought to minimize
your action by saying either you yourself or your care assistants would carry out hourly
checks. The panel regard this as totally insufficient as you agreed that these residents
would be at a greater risk of harm as they were in an agitated state.
You were at the time an experienced mental health nurse, having worked in this and
similar environment for seven years. Additionally, in May 2014 you had undertaken
training in dementia care and the management of challenging behaviour. Your care was
not focused on the needs of these residents when you closed their bedroom doors. You
did not carry out a thorough assessment as to why they were distressed or agitated.
You deprived these residents of their liberty and when questioned during your
disciplinary proceedings you accepted that if a nurse acted in this manner it could be
regarded as ‘inhumane’.
4. On unknown dates, administered and/or instructed others to administer covert
medication to:
4.1 Resident C;
4.2 Resident G;
4.3 Resident H;
4.4 Resident I.
You accepted in oral evidence you knew the correct procedure for the administration of
covert medication and indeed had properly followed this in relation to two other
residents. Despite this knowledge you failed to follow proper protocol and did not
consult colleagues, the resident’s GP or family members with regards to Resident C, G,
H and I. There was a significant risk of harm of over or under medication. You totally
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disregarded these residents’ right to refuse medication. Again, in your words you ‘took
matters into your own hands’.
In directing a junior care assistant to feed a resident with porridge containing covert
medication you failed a) to inform her the porridge contained medication b) to ensure
she gave the porridge to the correct resident and c) that the medication was consumed.
You accepted that this junior care assistant was not trained or permitted to administer
medication.
5. On an unknown date, instructed Colleague A to record on a bowel chart that
Resident D had had a bowel movement when he had not.
During your oral evidence you accepted your actions could have constituted falsification
of records. In the panel’s view it is wholly unacceptable to instruct junior colleagues to
record information they have neither undertaken nor observed.
6. On an unknown date, instructed Colleague A not to report that Resident I had
two black eyes.
This was contrary to safeguarding guidance and ignored Resident I’s care plan
which noted her deteriorating mobility and the need for observation to ensure her
safety. As the registered nurse on duty you had the responsibility to ensure that
Resident I’s injuries were reported and checked so that she could receive
appropriate care and treatment.
7. Fed Residents G and/or Resident J and/or Resident I in an inappropriate manner.
All these residents were extremely vulnerable and unable to communicate their wishes.
You fed them hot food at an unusual speed to the extent that one resident was seen by
you and others to have tears in her eyes and having difficulty swallowing. The panel
considered this to be an abuse of trust and cruel. The fact that you were aware that you
were causing distress is an aggravating factor.
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The panel found that each charge taken individually and cumulatively did amount to
misconduct.
The panel was of the view that your conduct set out in the charges found proved
constituted serious departures from the following standards of The Code: Standards of
conduct, performance and ethics for nurses and midwives 2008 (‘the Code’):
Preamble
The people in your care must be able to trust you with their health and wellbeing
To justify that trust, you must:
• make the care of people your first concern, treating them as individuals and respecting
their dignity
• work with others to protect and promote the health and wellbeing of those in your care,
their families and carers, and the wider community
• provide a high standard of practice and care at all times
• be open and honest, act with integrity and uphold the reputation of your profession.
As a professional, you are personally accountable for actions and omissions in your
practice, and must always be able to justify your decisions.
1: You must treat people as individuals and respect their dignity;
3: You must treat people kindly and considerately;
8: You must listen to the people in your care and respond to their concerns and
preferences;
11: You must make arrangements to meet people’s language and communication
needs.
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12: You must share with people, in a way they can understand, the information they
want or need to know about their health.
13: You must ensure that you gain consent before you begin any treatment or care;
14: You must respect and support people’s rights to accept or decline treatment and
care;
15: You must uphold people’s rights to be fully involved in decisions about their care;
22: You must work with colleagues to monitor the quality of your work and maintain the
safety of those in your care;
24: You must work cooperatively within teams and respect the skills, expertise and
contributions of your colleagues;
29: You must establish that anyone you delegate to is able to carry out your
instructions;
30: You must confirm that the outcome of any delegated task meets required standards;
33: You must inform someone in authority if you experience problems that prevent you
working within this code or other nationally agreed standards;
35: You must deliver care based on the best available evidence or best practice;
42: You must keep clear and accurate records of the discussions you have, the
assessments you make, the treatment and medicines you give, and how effective
these have been;
61: You must uphold the reputation of your profession at all times.
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The panel had in mind the case of CHRE v (1) NMC (2) Grant [2011] EWHC 927
(Admin) and the judgment of this case which cites Dame Janet Smith’s Fifth Report
from Shipman. The panel considered the issue of your current impairment in the terms
set out by Dame Janet Smith, specifically the questions of whether she:
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 […] 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 […] profession; […]
d) [N/A].
The panel considered that a, b and c are engaged in this case.
You have admitted all the charges. The panel acknowledged that you have expressed
remorse and regret for your actions. To your credit, you state that you have learned
from your past misconduct and you now do things differently in accordance with the
Code and best practice. You are currently working in a supportive environment and are
described by your current employer as ‘a hardworking and reliable staff member’.
In answering questions from the panel, it felt your insight is developing, however the
panel were concerned that you refer to your misconduct as ‘mistakes’ and do not
appear to have recognised the severity of your departure from acceptable practice. It is
clear to the panel that at the time you were fully aware of the standards required.
However you chose to take matters into your own hands. Your reflection is limited as to
the impact your misconduct had on both residents and your junior colleagues. You
stated at the time that you were working in a pressurised environment without support
and the Home was understaffed. Your misconduct affected 10 residents and occurred
over a period of 20 months. The panel believe there is a real risk of repetition despite
your assertion that you have learnt from your failings. By using the word ‘mistakes’, the
panel do not believe you have fully accepted responsibility nor have you shown full
insight.
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Further, the panel was satisfied that the public interest in this case and the need to
uphold proper professional standards and public confidence in the profession would be
undermined if a finding of impairment were not made.
For these reasons, the panel determined that your fitness to practise is currently
impaired by reason of your misconduct.
Determination on Sanction
The panel has considered this case very carefully and has decided to make a conditions
of practice order for 2 years. The effect of this order is that your name on the NMC
register will show that you are subject to a conditions of practice order and anyone who
enquires about your registration will be informed of this order.
Having determined that your fitness to practise is impaired, the panel considered what
sanction, if any, it should impose in your case. In reaching its decision on sanction, the
panel has heard submissions from Mr Mills and Ms Spencer and considered all the
evidence that has been placed before it.
Mr Mills, on behalf of the NMC, made no specific submissions with regard to the level of
sanction, however he directed the panel to the NMC Indicative Sanctions Guidance
(ISG) and sought to identify the mitigating features in this case.
Ms Spencer addressed the panel on all sanctions. She informed the panel that you are
willing to comply with any conditions imposed on your practice.
Ms Spencer submitted that imposing a suspension order or striking off order would be
disproportionate. In particular she submitted that imposing a suspension order would
limit your ability to remediate your misconduct and a striking-off order would deprive the
public of a nurse who has made a valuable contribution to the profession both before
and after these events.
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Ms Spencer informed the panel of your ongoing health condition and also outlined your
personal and financial circumstances. In addition, she submitted that your health
condition may prevent you from obtaining other forms of employment. She submitted
that imposing a suspension order would cause you financial hardship.
The legal assessor reminded the panel that the purpose of sanctions is to protect
patients and the wider public interest by maintaining public confidence in the profession
and declaring and upholding proper standards of conduct and behaviour. He reiterated
the need for the panel to act proportionately and to consider sanctions in ascending
order of severity, starting with the option of taking no action and only proceeding to a
more restrictive sanction if the lesser sanction was insufficient. He referred the panel to
the NMC’s Indicative Sanctions Guidance (“ISG”).
The panel considered the sanctions available to it under Article 29 of the Nursing and
Midwifery Council Order 2001. The panel can take one of the following actions in
ascending order: it can take no action; 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 it can make a striking off order. The panel has borne in mind
that the purpose of a sanction is not to be punitive, although it recognises that it may
have a punitive effect.
The panel has been mindful of the principles of fairness, reasonableness and
proportionality, weighing the interests of patients and the public with your own interests.
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 has also taken account of the current NMC publication
Indicative Sanctions Guidance (“ISG”).
The panel has taken into account all the mitigating and aggravating factors in your case.
Aggravating features
You abused the trust that had been placed in you.
You were the nurse in charge and you caused pain and distress to residents who
relied on you for care and you did not respond to their needs.
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You disregarded the contents of the residents’ care plans.
You were aware of best practice and the NMC requirements of the Code of
practice.
You did not admit the charges in the first instance
Your were dismissive when colleagues approached you expressing their
concerns.
Mitigating factors
You fully engaged and admitted all the charges at the commencement of these
proceedings.
No previous regulatory findings
No repetition in current employment.
In September and October 2015 you completed e-learning courses involving
safeguarding and aspects of care.
You have provided positive testimonials and references.
Your positive assertion in your reflective piece that ‘At work I always seek my
colleagues’ advice and make joint decisions with the service user’s best interests
in mind.’
You have shown some insight.
The panel considered all the available sanctions in ascending order, considering the
least restrictive first.
The panel first considered whether to take no action but concluded that this would be
manifestly insufficient given the seriousness of your misconduct and the risk of
repetition identified at the impairment stage.
The panel noted paragraph 58 of the Indicative Sanctions Guidance which states that:
“panels will usually need to take action to secure patient safety, to secure public trust
and confidence in the profession, or to declare and uphold proper standards of conduct
and behaviour.” The panel determined that to take no action would not be in the wider
public interest, nor would it protect the public.
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In considering a caution order, the panel took into account the Indicative Sanctions
Guidance, 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.” Given the
seriousness of the misconduct found proved, the panel did not consider this case to be
at the lower end of the spectrum. Further, the panel considered that imposing a caution
order would not provide you with the opportunity to address the deficiencies in your
practice nor would it protect the public or satisfy the public interest.
The panel next considered a conditions of practice order. The panel was mindful that
any conditions imposed must be proportionate, measurable and workable. It noted the
factors set out in paragraphs 63 to 65 of the ISG which indicate when such an order
may be appropriate. Specifically, it looked at whether conditions would be sufficient to
protect patients/residents in your care and satisfy the public interest.
Based on the evidence before it, the panel considered that there is now no evidence of
deep seated harmful attitudinal problems nor evidence of general incompetence. The
panel considered that there were identifiable areas of your practice in need of
assessment and/or retraining. Given your willingness to undertake further relevant
training and your developing insight throughout these proceedings, it considered that
the failings in your practice could be adequately addressed by imposing suitable
conditions on your practice. Imposing conditions of practice would give you an
opportunity to address the concerns identified and also time to develop further insight
into your failings.
The panel next considered whether the seriousness of your case required your
temporary removal from the register, bearing in mind the public interest and the severity
of your misconduct. The panel was of the view that a suspension order would allow you
time to reflect further upon your failings but not allow you the opportunity to demonstrate
your improving practice. The panel gave you credit for attending and fully engaging in
these proceedings. In light of your developing insight, it concluded that the public could
be adequately protected by the imposition of a conditions of practice order. It is also
Page 27 of 31
satisfied that by ensuring an ongoing assessment of your practice this would satisfy the
public interest and maintain confidence in the profession and the NMC as its regulator.
The conditions of practice order is imposed for a period of 2 years. The panel decided
that this is a sufficient period to mark the seriousness of your failings and to enable you
to continue to demonstrate that you can practise safely as a registered nurse. Further,
this period would also provide you with a sufficient period to demonstrate compliance
with the conditions of practice order and to further build on your developing insight.
As such it has determined that the following conditions are proportionate and
appropriate:
1. At any time that you are employed or otherwise providing nursing services, you
must place yourself and remain under the supervision of a workplace line
manager, mentor or supervisor nominated by your employer, such supervision to
consist of working at all times on the same shift as, but not necessarily under the
direct observation of, a registered nurse who is physically present in or on the
same ward, unit, floor or home that you are working in or on.
2. You must work with your line manager, mentor or supervisor (or their nominated
deputy) to create a personal development plan designed to address the concerns
about the following areas of your practice:
- Dementia care;
- Capacity and consent;
- Safeguarding;
- Managing challenging behaviour;
- Communication with residents, your work colleagues and other professionals and
residents’ family members;
- Teamwork;
- Accountability.
3. You must undertake a recognised face-to-face dementia care course/training
programme which addresses the following areas:
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- Managing challenging behaviour;
- Safeguarding;
- Capacity and consent;
- Communication.
4. You must maintain a reflective practice profile detailing how you have put the
above training into practice. This must be signed by your mentor or line manager
and contain their comments.
5. You must provide a copy of this reflective practice profile to the NMC every 6
months.
6. You must meet with your line manager, mentor or supervisor (or their nominated
deputy) at least every month to discuss the standard of your performance and
your progress towards achieving the aims set out in your personal development
plan.
7. You must forward to the NMC a copy of your personal development plan within
28 days of the date on which these conditions become effective or the date on
which you take up an appointment, whichever is sooner.
8. You must send a report from your line manager, mentor or supervisor (or their
nominated deputy) setting out the standard of your performance and your
progress towards achieving the aims set out in your personal development plan
to the NMC every 6 months.
9. You must allow the NMC to exchange, as necessary, information about the
standard of your performance and your progress towards achieving the aims set
out in your personal development plan with your line manager, mentor or
supervisor (or their nominated deputy) and any other person who is or will be
Page 29 of 31
involved in your retraining and supervision with any employer, prospective
employer, and at any educational establishment.
10. You must tell the NMC within 14 days of any nursing appointment (whether paid
or unpaid) you accept within the UK or elsewhere, and provide the NMC with
contact details of your employer.
11. You must tell the NMC of any professional investigation started against you and
any professional disciplinary proceedings taken against you within 14 days of you
receiving notice of them.
12. You must within 14 days of accepting any post or employment requiring
registration with the NMC, or any course of study connected with nursing or
midwifery, provide the NMC with the name/contact details of the individual or
organisation offering the post, employment or course of study.
13. You must immediately inform 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 (12) above, to them:
a) Any organisation or person employing, contracting with, or using you to
undertake nursing work;
b) Any nursing agency you are registered with or apply to be registered with (at
the time of application);
c) Any nursing prospective employer (at the time of application); 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).
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This conditions of practice order will be reviewed by a panel of the Conduct and
Competence Committee shortly before its expiry.
At the review hearing the panel may revoke the order, it may confirm the order, or it may
replace the order with another order.
Determination on Interim Order
Mr Mills invited the panel to impose an interim conditions of practice order for a period
of 18 months on the grounds that it is necessary for the public protection.
Ms Spencer opposed Mr Mills’ application for an interim conditions of practice order.
She reminded the panel that you have worked one year following the incident without
concern. She further stated that due to staffing levels and a forthcoming regulatory
inspection at the Home, the employer should be provided with an opportunity to review
the conditions of practice order and put in place the necessary steps in order to ensure
that they fulfil their obligations as outlined in the conditions of practice order.
The panel accepted the advice of the legal assessor.
Whilst the panel took account of Ms Spencer’s submissions, it considered that its
primary objective was to protect the public and satisfy the public interest. The panel was
therefore satisfied that an interim conditions of practice order in the same terms as the
substantive 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 incompatible with its earlier findings.
The period of this order is for 18 months to allow for the possibility of an appeal to be
made and determined.
If no appeal is lodged, then the interim order will be replaced by the substantive order
28 days after you are sent the decision of this hearing in writing.
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That concludes this determination.