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Conduct and Competence Committee Substantive Hearing
28 March 2017 – 30 March 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ
Name of Registrant Nurse: Josh Carter Leeming NMC PIN: 12K1113E Part(s) of the register: Registered Mental Health Nurse – Sub part 3 7 January 2013
Area of Registered Address: England Type of Case: Misconduct Panel Members: Stuart Gray (Chair Lay member)
Susan Field (Registrant member)
Diane Meikle (Lay member)
Legal Assessor: William Hoskins Panel Secretary: Keyorra Shrimpton Mr Leeming: Not present or represented Nursing and Midwifery Council: Represented by Daniel Brown, counsel,
instructed by NMC Regulatory Legal Team.
Facts proved: 1(a)(i), 1(a)(ii), 1(a)(iii), 1(b), 1(c), 1(d), 1(e), 1(f), 2(a), 2(b),3(a), 3(b)
Facts not proved: None
Fitness to practise: Impaired Sanction: Striking-off order Interim Order: Interim suspension order – 18 months
Page 2 of 33
Details of charges (as amended):
That you a registered nurse:
1. On 6 April 2015:
a. Forcibly, and without justification, restrained Service User B by:
i. Sitting on him;
ii. Pushing him against the back of the sofa;
iii. Holding his arms behind him;
b. Pushed your face and nose into Service User B’s face and nose;
c. Slapped and/or pinched Service User B’s cheeks;
d. On one or more occasions, pulled Service User A’s trousers down;
e. Held Service User A’s wrists and used his hands to slap his own face
multiple times;
f. Pinched Service User A’s cheeks;
2. Your actions at charges 1 (a) to (c), were:
a. Contrary to Service User B’s well-being plan;
b. Abusive;
3. Your actions at charges 1 (d) to (f) were:
a. Contrary to Service User A’s well-being plan;
b. Abusive;
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And, in light of the above, your fitness to practise is impaired by reason of your
misconduct.
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Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Mr Leeming was not in
attendance and that written notice of this hearing had been sent to Mr Leeming’s
registered address by recorded delivery and by first class post on 24 February 2017.
The panel took into account that the notice letter provided details of the allegation, the
time, dates and venue of the hearing and, amongst other things, information about Mr
Leeming’s right to attend, be represented and call evidence, as well as the panel’s
power to proceed in his absence. Mr Brown submitted the NMC had complied with the
requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to
Practise) Rules 2004, as amended (“the Rules”).
The panel accepted the advice of the legal assessor.
In the light of all of the information available, the panel was satisfied that Mr Leeming
has been served with notice of this hearing in accordance with the requirements of
Rules 11 and 34. It noted that the rules do not require delivery and that it is the
responsibility of any registrant to maintain an effective and up-to-date registered
address.
Decision on proceeding in the absence of the Registrant: The panel had regard to Rule 21 (2) (b) which states:
“Where the registrant fails to attend and is not represented at the hearing, the
Committee...may, where the Committee is satisfied that the notice of hearing has
been duly served, direct that the allegation should be heard and determined
notwithstanding the absence of the registrant...”
Mr Brown invited the panel to continue in the absence of Mr Leeming on the basis that
he had voluntarily absented himself. Mr Brown told the panel that the recorded delivery
letter was “returned to sender.” He told the panel that such documentation was sent to
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Mr Leeming’s legal representatives at the Royal College of Nursing (RCN), who ceased
to represent Mr Leeming as at 24 February 2017.
Mr Brown guided the panel through email correspondence beginning 18 November
2016 until 17 March 2017 between the RCN and an employee at the NMC, which
included a letter from the RCN written on Mr Leeming’s behalf, as well as a reflective
summary from Mr Leeming.
Mr Brown submitted that the RCN have not been able to obtain instructions as to
whether Mr Leeming is attending today’s hearing. Mr Brown invited the panel to take
into consideration Mr Leeming’s reflective piece, which stated that Mr Leeming no
longer wishes to practise as a nurse, and as such Mr Brown submitted that this may be
why Mr Leeming has not attended today.
In all the circumstances, Mr Brown submitted that Mr Leeming has voluntarily absented
himself from these proceedings. He submitted that the charges date back to 2015, there
is a witness here to give evidence today, and invited the panel to proceed expeditiously
today. Mr Brown submitted that Mr Leeming has not requested an adjournment, and he
invited the panel to consider that an adjournment would not be likely to secure the
attendance of Mr Leeming in the future.
The panel accepted the advice of the legal assessor. The panel noted that its
discretionary power to proceed in the absence of a registrant under the provisions of
Rule 21 is one that should be exercised “with the utmost care and caution” as referred
to in the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5 and General
Medical Council v Adeogba [2016] EWCA Civ 162.
The panel has decided to proceed in the absence of Mr Leeming. In reaching this
decision, the panel has considered the submissions of Mr Brown, and the advice of the
legal assessor. It has had regard to the overall interests of justice and fairness to all
parties.
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It noted that:
• The NMC made efforts to contact Mr Leeming prior to this hearing without
success, as evidenced by a telephone note dated 28 March 2017 made by an
NMC Case Officer;
• The panel noted that Mr Leeming’s representatives at the RCN as at 13 March
2017 were not able to inform the NMC as to Mr Leeming’s attendance at today’s
hearing, as stated in email correspondence. As at 17 March 2017, the RCN
advised the NMC via email correspondence that the RCN no longer represent Mr
Leeming. The panel considered that it had no information regarding Mr
Leeming’s attendance at today’s hearing, and it appears that Mr Leeming has
disengaged with the NMC process;
• There is no reason to suppose that adjourning would secure Mr Leeming’s
attendance at some future date;
• No application for an adjournment has been made by Mr Leeming;
• One NMC witness has attended today to give live evidence;
• Not proceeding may inconvenience the witness and their employer;
• The charges relate to events that occurred in 2015;
• There is a strong public interest in the expeditious disposal of the case.
The panel is of the view that Mr Leeming has voluntarily absented himself. By not
attending, Mr Leeming will not be able to challenge the evidence relied upon by the
NMC and will not be able to give evidence on his own behalf.
In all the circumstances, the panel has decided that it is fair and proportionate to
proceed in the absence of Mr Leeming. The panel will draw no adverse inference from
Mr Leeming’s absence in its findings of fact.
Decision and reasons on application pursuant to Rule 31: Mr Brown, on behalf of the NMC, made an application under Rule 31 of the Rules to
adduce the written statement of Mr 2, and for the panel to rely on this statement as
hearsay evidence.
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Mr Brown submitted that the written statement of Mr 2 explains how the CCTV footage
in this case came into existence. It is apparent from the interviews with Mr Leeming,
that there is no challenge to the authenticity of the CCTV footage. Mr Brown told the
panel that the NMC has a signed declaration from Mr 2 indicating the contents of his
NMC witness statement are true and correct. Mr Brown submitted that it would not be
proportionate to call Mr 2 in all the circumstances.
The panel accepted the legal assessor’s advice who referred the panel to the terms of
Rule 31 which provides that the panel may consider evidence so far as it is fair and
relevant, whether or not it is admissible in civil proceedings. Rule 31 states:
31. (1) Upon receiving the advice of the legal assessor, and subject only to the
requirements of relevance and fairness, a Practice Committee considering an
allegation may admit oral, documentary or other evidence, whether or not such
evidence would be admissible in civil proceedings.
The panel first considered that the statement of Mr 2 was relevant to the charges. The
panel then went on to consider whether it was fair to admit it as evidence. The panel
noted that Mr Leeming did not challenge the content of the CCTV footage. It noted that
Mr Leeming was at all times aware that there were CCTV cameras in the bungalow.
The panel determined that it was fair to admit the hearsay statement of Mr 2 in these
proceedings.
As such, the panel accepted Mr Brown’s application and the panel accepted into
evidence the written hearsay statement of Mr 2.
Decision and reasons on application to amend charge
The panel heard an application made by Mr Brown, on behalf of the NMC, to amend the
wording of charge 1(d). Mr Brown submitted that the change in this charge reflects the
CCTV footage. He submitted that the panel should take into account the fact that this in
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effect, lessens the charge. He submitted there would be no injustice in amending
charge 1(d).
The proposed amendment to charge 1(d) should read as follows:
Charge 1(d) 1. On 6 April 2015:
(d) On one or more occasions, Repeatedly pulled Service User A’s trousers down, on some occasions while he was restrained by a care assistant;
The panel accepted the advice of the legal assessor that Rule 28 of the Rules states:
28 (1) At any stage before making its findings of fact …
(i) … the Conduct and Competence Committee, may amend
(a) the charge set out in the notice of hearing …
unless, having regard to the merits of the case and the fairness of the
proceedings, the required amendment cannot be made without injustice.
The panel was of the view that such an amendment, as applied for, was in the interest
of justice. The panel was satisfied that there would be no prejudice to Mr Leeming
because the amendment if anything, reduces the seriousness of this charge. It was
therefore appropriate to allow the amendment.
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Background: Mr Leeming was employed as a Band 5 Staff Nurse at Lincolnshire Partnership NHS
Foundation Trust from 22 April 2011. The allegations against Mr Leeming occurred on 6
April 2015 during a day shift at one of the Long Leys Bungalows in the Long Leys Court
complex.
In relation to two vulnerable service users, Mr Leeming is alleged to have demonstrated
behaviour which was contrary to their respective care plans, and was abusive. Both
service users were individuals with various complex needs as a result of their mental
health.
Service User A was a 19- year old male at the time of the allegations with autistic
spectrum disorder and dyspraxia, amongst other health issues. He was admitted to the
Trust on 26 January 2015 under the Mental Health Act. Historically, Service User A has
been subject to safeguarding referrals. The information available about Service User A
included information that he had been sexually abusive towards other foster children,
and physically aggressive towards staff and family. The panel noted that Service User
A’s history included threats of rape and also information that he had planned physical
attacks, sourcing objects to use as weapons.
Service User B was 38 at the time of the allegations, and had been diagnosed with a
moderate learning disability and autistic spectrum disorder. He is known to have
demonstrated sexually inappropriate behaviour, and had a history of violence and
aggression towards others, both staff and peers.
The incidents which are the subject of the charges are alleged to have been captured
on CCTV, amounting to less than 20 minutes of total viewing time.
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Decision on the findings on facts and reasons: In reaching its decisions on the facts, the panel considered all the evidence presented in
this case together with the submissions made by Mr Brown, on behalf of the NMC.
The panel heard and accepted the advice of the legal assessor.
The panel was aware that the burden of proof rests on the NMC, and that the standard
of proof is the civil standard, namely the balance of probabilities. This means that the
facts will be proved if the panel is satisfied that it was more likely than not that the
incidents occurred as alleged.
The panel heard oral evidence from one witness called on behalf of the NMC:
• Ms 1: At the time of the allegations Ms 1 was employed as a Human Resources
Investigator at Lincolnshire Partnership NHS Foundation Trust (the Trust).
The panel also read the witness statement of the following witness
• Mr 2: At the time of the alleged incidents was employed by the Trust as the
Acting Associate Director for Estates and Facilities.
In reviewing the oral evidence of Ms 1, the panel found that she was credible, reliable
and very knowledgeable about the Trust investigation with Mr Leeming. The panel
considered that Ms 1 had a good recollection of events, and was able to give details of
the interview in response to panel questioning. The panel considered that her evidence
was measured.
Mr Leeming has not attended to give evidence or to be cross examined. The panel has
drawn no adverse inference from his absence.
The panel considered each charge and made the following findings:
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That you a registered nurse:
Charge 1(a)(i)-(iii)
1. On 6 April 2015:
a. Forcibly, and without justification, restrained Service User B by:
i. Sitting on him;
ii. Pushing him against the back of the sofa;
iii. Holding his arms behind him;
When considering these charges, the panel considered the oral evidence of Ms 1, who
was able to identify to the panel each member of staff or service user in the CCTV
footage shown to the panel.
In addition to watching the CCTV footage between 08:33AM and 08:40AM on 6 April
2015 during the course of the evidence, the panel, when deliberating, reviewed the
footage on two further occasions so as to be sure of what it showed in relation to each
sub-charge.
The panel considered that the CCTV footage was unequivocal. It showed that on 6 April
2015, Mr Leeming restrained Service User B by sitting on him, pushing him against the
back of the sofa and holding his arms behind him.
When considering whether or not Mr Leeming used force, the panel was satisfied, from
watching the CCTV footage, that Mr Leeming did use force when restraining Service
User B. The panel noted that physical force was evident and there was no indication
that such force was reasonably required or clinically warranted.
The panel noted the Lincolnshire Partnership NHS Foundation Trust interview transcript
with Mr Leeming dated 9 June 2016. In response to a question about whether or not Mr
Leeming recalled an incident with Service User B on the morning of 6 April 2016, Mr
Leeming stated, “There was no incident and I’m quite adamant about that you can say I
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did x, y, and z but I would have sat on his lap in front of his Mother, I’d have sat on
Service User B’s lap in front of my band, my band 7.”
In response to a question as to whether it was appropriate to sit on Service User B’s lap
and push him into the back of the sofa, Mr Leeming replies “Umm, no.”
Asked why did it happen, Mr Leeming replied, “Because we were just messing around.”
The panel determined that on 6 April 2015, Mr Leeming forcibly, and without
justification, restrained Service User B by sitting on him, pushing him against the back
of the sofa and holding his arms behind him.
Accordingly, the panel found charges 1(a)(i)-(iii) PROVED.
Charge 1(b) 1. On 6 April 2015:
(b) Pushed your face and nose into Service User B’s face and nose;
The panel considered the CCTV footage was unequivocal.
The panel noted the Lincolnshire Partnership NHS Foundation Trust interview transcript
with Mr Leeming dated 9 June 2016. In relation to the actions as set out in this charge,
Mr Leeming stated, “…I know at one point I leant forward and our foreheads came
together, that wasn’t an intimidating thing we were just talking.”
The panel considered that the footage clearly showed Mr Leeming intentionally pushing
his face and nose into Service User B’s face and nose.
Accordingly, the panel found this charge PROVED.
Charge 1(c) 1. On 6 April 2015:
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(c) Slapped and/or pinched Service User B’s cheeks;
The panel considered the CCTV footage was unequivocal.
The panel therefore determined that on 6 April 2015, Mr Leeming slapped and/or
pinched Service User B’s cheeks.
Accordingly, the panel found this charge PROVED.
Charge 1(d) 1. On 6 April 2015:
(d) On one or more occasions, pulled Service User A’s trousers down;
The panel considered the CCTV footage, between 11:08 and 11:33 on 6 April 2015, in
relation to Service User A, was unequivocal.
The panel noted the Lincolnshire Partnership NHS Foundation Trust interview transcript
with Mr Leeming dated 9 June 2016. When asked about why Mr Leeming pulled
Resident A’s pants down three times, Mr Leeming responded, “I couldn’t…I
don’t…Because I’m an idiot.” Further, Mr Leeming stated in interview that with regards
to Service User A, he did “make reference to his trousers and for whatever reason, I’ve
got no idea I tugged on them and they came down.”
The panel determined that on one or more occasions, Mr Leeming pulled Service User
A’s trousers down.
Accordingly, the panel found this charge PROVED.
Charge 1(e) 1. On 6 April 2015:
(e) Held Service User A’s wrists and used his hands to slap his own face multiple times;
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The panel considered the CCTV footage was unequivocal.
The panel noted the Lincolnshire Partnership NHS Foundation Trust interview transcript
with Mr Leeming dated 9 June 2016. When describing the incidents that occurred on 6
April 2015, Mr Leeming told the interviewer that he, “held Service User A’s hand, he sort
of did that (rubs side of face) on the footage it looks like we are bashing him. I don’t
remember bashing him, I just remember doing that (rubs side of face) with Service User
A and joking with him saying you need to stop now… and he was laughing and we were
rubbing his face etc.”
The panel also noted that in the same interview, Mr Leeming was asked why he and a
Healthcare Assistant were using Service User A’s own hands to “slap.” In response, Mr
Leeming stated, “I can’t give a reason, I genuinely can’t, I have no excuse or rationale
behind it.”
Mr Leeming was later asked in interview how many times he used Service User A’s
hands to slap the other side of his face. The interviewer stated that it was 19 times, to
which Mr Leeming responded that he had “no idea” how many times it occurred.
The panel therefore determined that on 6 April 2015, Mr Leeming held Service User A’s
wrists and used his hands to slap his own face multiple times.
Accordingly, the panel found this charge PROVED.
Charge 1(f) 1. On 6 April 2015:
(f) Pinched Service User A’s cheeks;
The panel considered the CCTV footage was unequivocal.
The panel noted the Investigatory Meeting notes dated 9 June 2016. The interviewer,
Ms 1, stated, “Following the incident of you and [an HCA] slapping Service User A’s
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face with his hands, you pinch both of Service User A’s cheeks. Why did you pinch his
cheeks?” Mr Leeming stated in response, “I can’t remember. I don’t know, it was
probably because I used to tell him he was…not wind him up, I used to tell him he was
cute, I wanted to put him in my pocket, so it would have been done in an endearing
way.”
In response to further questioning in the same interview, Mr Leeming stated that “no” it
was not appropriate to pinch Service User A’s cheeks.
The panel considered that Mr Leeming has accepted his actions as set out in this
charge.
Accordingly, the panel found this charge PROVED. Charge 2(a) 2. Your actions at charges 1 (a) to (c), were:
a. Contrary to Service User B’s well-being plan;
The panel had sight of Service User B’s detailed care plan, which was exhibited by Ms
1.
Under the heading, “What we want to achieve is:” it stated, “To promote and maintain a
safe therapeutic environment at all time for Service User B, peers, staff and visitors to
the unit. Under the heading, “How will we achieve this?” it stated, “Staff to familiarise
themselves with Service User B’s triggers and ancedent (sic) behaviours that may lead
to aggression.”
The panel noted that Service User B’s assessment/review had stated that Service User
B, “has been attempting to engage staff in play fighting, which puts him and others at
risk.” The same document stated that “Service User B is to be firmly advised that play
fighting is not allowed and puts him and staff at risk.”
The panel noted that Service User B’s comprehensive Wellbeing Plan was drawn up to
reflect the complexity of Service User B’s history, behaviours, aggression and risk
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assessment. The panel noted that this comprehensive plan is in place to protect staff as
well as protect Service User B. The panel considered that Service User B was not in a
position to decide what was acceptable, and needed to be directed by the staff who
were caring for him.
As such, Mr Leemings’ actions, by forcibly and without justification restraining Service
User B by sitting on him, pushing him against the back of the sofa, holding his arms
behind him, pushing his face into Service User A’s face and nose and slapping/pinching
Service User B’s cheeks, were all actions contrary to his care plan.
The panel had sight of the Disciplinary Hearing Minutes dated 28 July 2016, where Mr
Leeming stated, “I am aware that in relation to his care plan, that wasn’t followed 1 iota
but equally I wasn’t then aggravating any situation to have caused an incident from in
relation to my actions.” The panel considered that Mr Leeming therefore accepts that he
did not follow Service User B’s care plan. Indeed, his actions may well have increased
the risk, both to Service User B and staff. Mr Leeming acknowledged when interviewed
that his actions were an “unorthodox” way of doing things.
The panel determined that Mr Leemings actions at charges 1(a)-(c) were contrary to
Service User B’s care plan.
Accordingly, the panel found this charge PROVED.
Charge 2(b) 2. Your actions at charges 1 (a) to (c), were:
b. Abusive;
The panel considered that Service User B was a vulnerable adult. Mr Leeming has not
sought to suggest that Service User B was in need of restraint at the time. Mr Leeming,
as the nurse in charge of the shift on 6 April 2015, was in a position of trust and
authority. He abused his position. Service User B was not in a position to challenge Mr
Leeming’s actions. Those actions were not clinically justified and showed a lack of
respect for a vulnerable adult. They were liable to humiliate Service User B.
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The panel had sight of the minutes of the Disciplinary Hearing for Josh Leeming dated
28 July 2016, where Mr Leeming stated, “I can’t give logical reasoning behind what you
have seen all I can say is that I have engaged in the process as much as I have been
asked and I have been consistent with what I have said. I did have good interpersonal
relations with both Service User B and Service User A and I accept that my actions
were inappropriate …I accept my actions were inappropriate and wrong and I put my
hands up to that.” During the course of the Trust’s investigation, Mr Leeming
emphasised that his actions were not motivated by malice, and were, in his view, a way
of establishing a good relationship with Service User B. Whether that was so or not, the
panel was satisfied that, looked at objectively, his actions were abusive and insensitive
in that they abused the position of trust which Mr Leeming held, were liable to humiliate
Service User B, and undermine and diminish his dignity.
The panel was satisfied that Mr Leeming’s actions at charges 1(a)-(c) were abusive.
Accordingly, the panel found this charge PROVED. Charge 3(a) 3. Your actions at charges 1 (d) to (f) were:
a. Contrary to Service User A’s well-being plan;
The panel had sight of Service User A’s detailed care plan, which was exhibited by Ms
1.
The panel noted that historically, Service User A has been subject to safeguarding
referrals. The information available about Service User A included information that he
had been sexually abusive towards other foster children, and physically aggressive
towards staff and family. The panel noted that Service User A’s history included threats
of rape and also information that he had planned physical attacks, sourcing objects to
use as weapons.
Page 18 of 33
The panel had sight of Service User A’s comprehensive Wellbeing Plan, drawn up to
reflect the complexity of Service User A’s history, behaviours, aggression and risk
assessment. The panel noted that this comprehensive plan is in place to protect staff,
protect Service User A and respond to his care needs.
In Service User A’s Wellbeing Plan under the heading “What we want to achieve is:” it
stated, “To ensure that Service User A’s right (sic) are adhered to at all times.” It also
stated an aim as “To provide and promote and safe therapeutic environment for Service
User A, his peers, staff and visitors, at all times… Staff to ensure that aware of Service
User A pre-cursors and triggers for his behaviours.”
The panel noted the Disciplinary Hearing Minutes dated 28 July 2016. The interviewer
asked, “In Service User A’s Wellbeing Plan it says staff to reinforce boundaries and
rules regarding appropriate behaviour, what would be inappropriate behaviour for
Service User A?” In response, Mr Leeming stated, “Appropriate interaction with peers,
staff. Inappropriate would be how I interacted with [Service User A] and anything similar
to that.”
Furthemore, Mr Leeming was asked whether he thought Service User A’s dignity was
“protected” in relation to the pulling down of Service User A’s trousers. Mr Leeming
responded “No.” Mr Leeming, when interviewed, acknowledged that his actions were an
“unorthodox” way of doing things. His actions may well have increased the risk, both to
Service User A and staff.
The panel considered that Mr Leeming’s actions at charges 1 (d) to (f) were contrary to
Service User A’s Wellbeing Plan.
Accordingly, the panel found this charge PROVED.
Charge 3(b) 3. Your actions at charges 1 (d) to (f) were:
b. Abusive;
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The panel considered that Service User A was a vulnerable adult. Mr Leeming has not
sought to suggest that Service User A was in need of restraint at the time Mr Leeming,
as the nurse in charge of the shift on 6 April 2015, was in a position of trust and
authority and abused his position. The panel considered that Service User A was not in
a position to challenge Mr Leeming’s actions. The panel determined that Mr Leeming’s
actions at charge 1(d) to (f) were not clinically justified and showed a lack of respect for
a vulnerable adult. They were liable to humiliate Service User A. Mr Leeming has not
sought to suggest that Service User A was in need of restraint at the time
The panel noted the minutes of the Disciplinary Hearing for Josh Leeming dated 28 July
2016, where Mr Leeming stated, “I can’t give logical reasoning behind what you have
seen all I can say is that I have engaged in the process as much as I have been asked
and I have been consistent with what I have said. I did have good interpersonal
relations with both Service User B and Service User A and I accept that my actions
were inappropriate …I accept my actions were inappropriate and wrong and I put my
hands up to that.”
In respect of Service User A also, the panel finds that Mr Leeming’s actions when
considered objectively, were not clinically warranted and were liable to humiliate a
vulnerable adult, and to undermine and diminish the dignity of Service User A.
The panel was satisfied that Mr Leeming’s actions at charges 1(d) to (f) were abusive.
Accordingly, the panel found this charge PROVED.
Page 20 of 33
Submissions on misconduct and impairment:
Having announced its findings on all of the facts, the panel then moved on to consider
whether the facts found proved amounted to misconduct and, if so, whether Mr
Leeming’s fitness to practise is currently impaired.
The panel carefully considered the submissions made by Mr Brown, on behalf of the
NMC, as well as all the documentation before it.
Mr Brown submitted that Mr Leeming’s actions are serious, and members of the nursing
profession would consider Mr Leeming’s actions deplorable. Mr Brown, on behalf of the
NMC, invited the panel to take the view that Mr Leeming’s actions amounted to
breaches of The Code: Professional Standards of Practice and Behaviour for Nurses
and Midwives 2015 (“the Code”), in particular paragraphs 1.1, 3.4, 20.5, 20.6 and 20.8.
Mr Brown drew attention to the panel’s finding that Mr Leeming’s actions were abusive,
and invited the panel to find misconduct in this case.
Mr Brown then moved on to the issue of impairment. He submitted that the first three
limbs of the test identified in the case of CHRE v NMC & Grant [2011] EWHC 927
(Admin) (Grant) were engaged in Mr Leeming’s case.
Mr Brown submitted that Mr Leeming had engaged with the internal investigation, and
had expressed some remorse, albeit that there had not been a completely full and frank
explanation for Mr Leeming’s actions. Mr Brown submitted that due to the lack of
insight, there is a risk of repetition. Mr Brown submitted that a finding of impairment is
required on the grounds of public protection and also to mark the wider public interest in
this matter.
The panel heard and accepted the advice of the legal assessor.
The panel adopted a two-stage process in its consideration. Firstly, it must determine
whether the facts found proved amounted to misconduct and secondly, if the facts found
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proved amount to misconduct, it must then decide whether, in all the circumstances, Mr
Leeming’s fitness to practise is currently impaired by reason of that misconduct.
Panel’s decision on misconduct: The panel, in reaching its decisions regarding misconduct, had regard to public
protection and the wider public interest. This included the declaring and upholding of
proper standards of behaviour and public confidence in the profession and the NMC as
its regulator. The panel accepted that there was no burden or standard of proof at this
stage and exercised its own professional judgement.
When determining whether the facts found proved amount to misconduct, the panel had
regard to the terms of the Code, relevant to the period covered in the charges.
The panel considered that Mr Leeming’s actions breached the following parts of the
Code:
“Prioritise people You put the interests of people using or needing nursing or midwifery services first. You
make their care and safety your main concern and make sure that their dignity is
preserved and their needs are recognised, assessed and responded to. You make sure
that those receiving care are treated with respect, that their rights are upheld and that
any discriminatory attitudes and behaviours towards those receiving care are
challenged.
1 Treat people as individuals and uphold their dignity
To achieve this, you must:
1.1 treat people with kindness, respect and compassion
1.2 make sure you deliver the fundamentals of care effectively
3 Make sure that people’s physical, social and psychological needs are assessed and responded to
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To achieve this, you must:
3.4 act as an advocate for the vulnerable, challenging poor practice and discriminatory
attitudes and behaviour relating to their care.
Promote professionalism and trust You uphold the reputation of your profession at all times. You should display a personal
commitment to the standards of practice and behaviour set out in the Code. You should
be a model of integrity and leadership for others to aspire to. This should lead to trust
and confidence in the profession from patients, people receiving care, other healthcare
professionals and the public.
20 Uphold the reputation of your profession at all times To achieve this, you must:
20.3 be aware at all times of how your behaviour can affect and influence the behaviour
of other people
20.5 treat people in a way that does not take advantage of their vulnerability or cause
them upset or distress
20.6 stay objective and have clear professional boundaries at all times with people in
your care (including those who have been in your care in the past), their families and
carers”
The panel took into account that breaches of the Code do not automatically result in a
finding of misconduct.
The panel considered whether the acts and omissions in relation to the charges found
proved fell seriously short of what is proper in all the circumstances, thereby amounting
to misconduct.
As to charge 1, the panel considered that Mr Leeming’s actions did not treat Service
Users A and B with dignity or respect, was humiliating for both service users and was
unwarranted. In particular, Mr Leeming’s actions took place whilst at least one other
Healthcare assistant was present in the bungalow, and as such, Mr Leeming failed to
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set a good example as the nurse in charge. Further, Mr Leeming failed to act as an
advocate for the vulnerable, failed to challenge the poor practice of an HCA in his
presence and both Mr Leeming and the HCA engaged in abusive behaviour, and
demonstrated discriminatory attitudes and behaviour relating to Service User A and B’s
care. The panel considered that Mr Leeming’s actions were not clinically warranted, and
Mr Leeming applied physical force without a full explanation as to why he had behaved
in that way.
As to charges 2 and 3, the panel considered that Mr Leeming completely disregarded
the Wellbeing Plans of Service User A and B. The panel considered that Mr Leeming
took advantage of the both service users’ vulnerability. This was because he decided,
without any clinical justification, to disregard the care plans, and in so doing, put himself,
the service users and other staff at risk of harm.
The panel has found that Mr Leeming’s actions were abusive and insensitive in that
they abused the position of trust which Mr Leeming held, were liable to humiliate
Service Users A and B, and undermine and diminish their dignity. The panel noted that
it was documented in Service User A’s Wellbeing Plan that he complained about the
treatment he had received from staff on the following day, namely 7 April 2015. He
stated he disliked it when staff had teasingly pulled down his trousers on two occasions,
and he requested staff ask for this not to be done again.
The panel noted that when the CCTV was played back to Mr Leeming during the Trust
interview on 9 June 2016, Mr Leeming himself was shocked to see the way in which he
had behaved. The panel considered that any members of the nursing profession and
indeed of the public, would consider that Mr Leeming’s conduct as a registered nurse
was deplorable.
The panel therefore considered that Mr Leeming’s actions fell significantly short of the
standards expected of a registered nurse, and amounted to misconduct.
Panel’s decision on impairment:
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The panel next went on to consider whether Mr Leeming’s fitness to practise is currently
impaired by reason of his misconduct.
In considering the issue of impairment, the panel had regard to all the relevant
information available to it, including the written submissions provided by Mr Leeming,
together with the submissions made by Mr Brown on behalf of the NMC.
The panel took account of the guidance given by Dame Janet Smith in her Fifth
Shipman Report, cited with approval by Mrs Justice Cox in the case of CHRE v NMC &
Grant EWHC (Grant) and whether Mr Leeming had in the past and/or was liable in the
future to act in such a way as to:
• Put a patient or residents at unwarranted risk of harm; and/or
• Bring the nursing profession into disrepute; and/or;
• Breach one of the fundamental tenets of the profession.
The panel considered that Mr Leeming’s disregard of the relevant care plans did place
patients at unwarranted risk of harm. The panel considered Mr Leeming’s actions, were of a nature and seriousness which did bring the nursing profession into disrepute.
Further, Mr Leeming has breached fundamental tenets of the nursing profession,
including the need to provide a high standard of practice and care at all times.
In reaching its decision, the panel also considered the case of Cohen and, in particular,
the three matters which are described as being ‘highly relevant’ to the determination of
the question of current impairment, namely:
1. Whether the conduct that led to the charge(s) is remediable?
2. Whether it has been remedied?
3. Whether it is highly unlikely to be repeated?
In relation to all the charges found proved, the panel considered that whilst the
misconduct was serious, it is in principle, remediable.
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However, the panel had no information about any attempts by Mr Leeming to remedy
his past failings. The panel had no evidence of any training undertaken by Mr Leeming.
In fact, the panel had little information about Mr Leeming’s current circumstances.
However, the panel noted that in a letter from Mr Leeming’s past legal representatives
at the RCN dated 17 November 2016 (the letter), it stated “since these incidents, Mr
Leeming has not worked clinically. He has found a job outside of nursing and does not,
at present, have any intention of returning to a nursing role.”
In the absence of evidence of remediation, the panel determined that Mr Leeming’s
conduct was highly likely to be repeated, and therefore Mr Leeming is liable in the future
to put patients at unwarranted risk of harm, damage the reputation of the nursing
profession, and breach fundamental tenets of the nursing profession.
The panel then went on to consider whether Mr Leeming has displayed insight or
remorse.
The panel noted the letter from the RCN dated 17 November 2016 which stated, “Mr
Leeming does not, and has at no point, ever disputed the facts of the incidents in
question. He does accept that, looking back, his actions were inappropriate and accepts
responsibility for this. He did not, however, appreciate how inappropriate his actions
were at the time. Had he done so, Mr Leeming would not have acted in the way he
did….Mr Leeming cannot specifically recall the reasons for his actions towards Service
User B, but believed that it would have been part of a joke-like interaction. Mr Leeming
denies ever intentionally abusing the Service Users or acting in a way that was contrary
to their best interests. Neither of the staff members present at the time perceived the
interaction to be abusive.”
The panel noted Mr Leeming’s reflective piece, which stated, “Having questioned so
many times how did I end up in this situation through watching 15 seconds of CCTV
footage I was able to understand. It was awful. I had attempted to appeal throughout
this process to my inner strength and knowing that I am not a bad person and have
never harmed or intentional (sic) shamed anyone previously but that footage confirmed
my deepest saddest thoughts that I was a bad person...I had let [Service User A] down,
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myself, my profession, colleagues, Trust and further afield his parents whom trusted me
and other patients I worked with.”
The panel considered that as such, Mr Leeming has displayed some insight into his
behaviour over time, and has expressed some remorse for his actions on 6 April 2015.
However, the panel noted that there was no reference in Mr Leeming’s reflective piece
to the importance of following a care plan, particularly when providing care to service
users A and B, both of whom had complex needs and were potentially volatile. During
the course of the Trust’s investigation it was clear that Mr Leeming believed that there
was a place for what he considered to be his “unorthodox” form of interaction with a
complete disregard for both service users’ Wellbeing Plans. His belief in this respect
was seriously misplaced given the violent and aggressive behaviours and complex
needs of Service Users A and B. His conduct was such as to risk provoking a violent
and aggressive reaction from both Service User A and Service User B and placed them,
his colleagues, and himself at risk of harm. In the panel’s view, he has not
acknowledged this in his reflective piece and his insight can therefore only be said to be
very limited.
The panel therefore considers that there is a risk of repetition and a significant lack of
remediation. Mr Leeming’s fitness to practise is currently impaired on the grounds of
public protection.
The panel concluded that a finding of impairment was also necessary in order to satisfy
the wider public interest because the public would be very concerned about Mr
Leeming’s actions, as captured on the CCTV footage.
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Determination on sanction: Having determined that Mr Leeming’s fitness to practise is impaired, the panel has
considered what sanction, if any, it should impose. In reaching its decision, the panel
has considered all the evidence provided, together with Mr Brown’s oral submissions
and the documentary material submitted by Mr Leeming.
The panel has borne in mind that any sanction imposed must be appropriate and
proportionate and, although not intended to be punitive in its effect, may have such
consequences. The panel had careful regard to the Indicative Sanctions Guidance
(“ISG”) published by the NMC. It recognised that the decision on sanction is a matter for
the panel, exercising its own independent judgement.
The panel found the following aggravating features in relation to Mr Leeming:
- Mr Leeming’s actions were abusive and insensitive and undermined the dignity and
respect of Service User A and Service User B;
- Mr Leeming abused his position of trust;
- Mr Leeming used his position to embarrass and humiliate vulnerable service users
with complex mental health and clinical needs;
- Mr Leeming disregarded the comprehensive care plans that had been prepared in
respect of each service user and applied his own “unorthodox” approach;
- Mr Leeming put himself, others and the service users at risk of harm;
- Mr Leeming compromised his position as an advocate for the service users.
The panel identified the following mitigating features in relation to Mr Leeming:
-Mr Leeming has shown some evidence of remorse and insight as evidenced in his
reflective piece attached to the letter from the RCN dated 17 November 2016;
- Mr Leeming did engage with the Trust’s internal process;
- Mr Brown, on behalf of the NMC, told the panel there had been no other referrals;
-Mr Leeming has previously engaged with the NMC in relation to this case.
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The panel first considered whether to take no action. The panel concluded that due to
the seriousness of the misconduct, the breaches of the Code and the risk of repetition, it
would not be appropriate to take no action. To do so, would fail to protect the public and
would not be in the public interest.
Next, in considering whether a caution order would be appropriate in the circumstances,
the panel took into account the ISG, which states:
“60. A caution order is the least restrictive sanction that can be applied in a case
where a panel has concluded that a nurse or midwife’s fitness to practise is impaired. It
does not restrict the nurse or midwife’s ability to practise, but is recorded on the
Register and published on the NMC’s website.”
The panel noted that a caution order may be appropriate where ‘the case is at the lower
end of the spectrum of impaired fitness to practise and the panel wishes to mark that
the behaviour was unacceptable and must not happen again.’ The panel considered
that Mr Leeming’s misconduct was not at the lower end of the spectrum and that a
caution order would be inappropriate given the seriousness of the misconduct, the risk
of repetition identified, and the lack of insight Mr Leeming has displayed. As such, the
panel determined that such an order would not satisfy the public protection issues or the
wider public interest in this case.
The panel next considered whether placing conditions of practice on Mr Leeming’s
registration would be a sufficient and appropriate response. The panel was mindful that
any conditions imposed must be proportionate, measurable and workable. The panel
took into account the ISG, in particular:
“63.1 Will imposing conditions be sufficient to protect patients and the public interest?
64 This sanction may be appropriate when some or all of the following factors are apparent (this list is not exhaustive):
64.1 No evidence of harmful deep-seated personality or attitudinal problems
64.2 Identifiable areas of nurse or midwife’s practice in need of assessment and/or retraining
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64.3 No evidence of general incompetence
64.4 Potential and willingness to respond positively to retraining
…
64.7 The conditions will protect patients during the period they are in force
64.8 It is possible to formulate conditions and to make provision as to how conditions will be monitored”
The panel considered that there is evidence of harmful deep-seated personality or
attitudinal problems on Mr Leeming’s part. Mr Leeming had a complete disregard for the
Wellbeing Plans, as illustrated in his behaviours exhibited in the CCTV footage.
The panel concluded that it would not be possible to formulate conditions and to make
provision as to how conditions will be monitored. Mr Leeming had not engaged recently
with the NMC and the failings identified were attitudinal, rather than matters of clinical
competence. Mr Leeming had decided that he would adopt his own approach to service
users A and B, without any regard to the Wellbeing Plans and the risks identified in
those plans. The panel determined that a conditions of practice order would not be a
suitable sanction to prevent abuse of patients and the behavioural issues demonstrated
by Mr Leeming.
Further, the panel considered that a conditions of practice order would not be
enforceable or realistic considering that Mr Leeming has stated, through a letter
submitted on his behalf by the RCN dated 17 November 2016, that since these
incidents he has not worked clinically, and that he “does not, at present, have any
intention of returning to a nursing role.” The panel determined that in the absence of
evidence of any remediation and the risk of repetition, a conditions of practice order
would not mark the public interest, nor would it satisfy the public protection grounds.
The panel then went on to consider whether a suspension order would be an
appropriate sanction. Paragraphs 66-68 of the ISG indicates that key considerations in
respect of a suspension order are as follows:
“66.1 Does the seriousness of the case require temporary removal from the register?
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66.2 Will a period of suspension be sufficient to protect patients and the public interest? … 68.1 A single instance of misconduct but where a lesser sanction is not sufficient.
68.2 No evidence of harmful deep-seated personality or attitudinal problems.
68.3 No evidence of repetition of behaviour since the incident.
68.4 The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour.”
The panel noted that Mr Leeming’s misconduct was serious and his behaviour had
brought the reputation of the profession into disrepute and breached fundamental tenets
of the profession. The panel concluded that Mr Leeming had taken a “cavalier”
approach to the care of both service users, and that his attitude and approach was
inconsistent with fundamental tenets of the nursing profession. He had exhibited deep-
seated personality and attitudinal problems through his behaviour in undermining the
respect and dignity of two vulnerable adults and humiliating them in the process.
The panel was satisfied that due to the seriousness of the misconduct, a suspension
period is insufficient to protect the public and satisfy the public interest in maintaining
public confidence in the profession and the NMC as the regulator.
The panel then went on to consider a striking off order. The panel took note of the
following paragraphs of the ISG:
“71.1 Is striking-off the only sanction which will be sufficient to protect the public interest?
71.2 Is the seriousness of the case incompatible with ongoing registration (see paragraph 66 above for the factors to take into account when considering seriousness)?
71.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register? 72 This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional, which may involve any of the following (this list is not exhaustive): 72.2 Doing harm to others or behaving in such a way that could foreseeably result in harm to others, particularly patients or other people the nurse or midwife comes into contact with in a professional capacity, either deliberately, recklessly, negligently or
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through incompetence, particularly where there is a continuing risk to patients. Harm may include physical, emotional and financial harm. The panel will need to consider the seriousness of the harm in coming to its decision
72.3 Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients … 72.7 Persistent lack of insight into seriousness of actions or consequences In the panel’s judgment these paragraphs of the ISG are all engaged.
The panel considered that Mr Leeming’s actions and omissions were very serious
departures from the standards expected of a registered nurse and that such serious
breaches of the Code, rules, standards and fundamental tenets of the profession were
incompatible with him remaining on the register. Mr Leeming has abused his position of
trust, demonstrated a substantial lack of insight into his actions, and his misconduct
involved the abuse of vulnerable service users which humiliated them and diminished
their dignity and respect which was completely unwarranted. Through his actions he
placed the service users, members of staff and himself at risk of harm. The panel
considered that there was a significant risk of repetition.
The panel was of the view that to allow Mr Leeming to continue practising as a nurse
would undermine public confidence in the profession and in the NMC as a regulatory
body. This order will mark the importance of maintaining public confidence in the
profession, and will send to the public and the profession a clear message about the
standard of behaviour required of a registered nurse.
Balancing all of these factors and having taken into account all the evidence put before
it, the panel determined that the only appropriate and proportionate sanction is that of a
striking-off order. This is the only sanction that will adequately protect the public and
satisfy the public interest.
The panel has determined to make a striking-off order in this case and directs the
Registrar to strike Mr Leeming’s name off the register.
Mr Leeming will be informed of this decision in writing and will have 28 days from the
date when written notice of the result of this hearing is deemed to have been served
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upon him in which to exercise his right of appeal. Unless he exercises his right of
appeal, the direction imposing the striking off order will take effect 28 days from when
written notice of the decision is served upon him.
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Decision on interim order and reasons: The panel has considered the submission made by Mr Brown, on behalf of the NMC,
that an interim suspension order for a period of 18 months should be made on the
grounds that it is necessary for the protection of the public and is otherwise in the public
interest.
The panel accepted the advice of the legal assessor.
The panel was satisfied that an interim order was necessary for the protection of the
public and was otherwise in the public interest. In reaching the decision to impose an
interim order, the panel had regard to the reasons set out in its decision for the
substantive order. The panel decided to impose an interim suspension order for the
same reasons as it imposed the substantive order. To do otherwise would be
incompatible with its earlier findings. The panel did not consider that an interim
conditions of practice order was appropriate in this case for the same reasons as given
in the determination on sanction.
The period of this interim suspension order is for 18 months to allow for the possibility of
an appeal to be made and determined. If no appeal is made then the interim order will
be replaced by the substantive order 28 days after Mr Leeming is sent the decision of
this hearing in writing.
That concludes this determination.
This decision will be confirmed to Mr Leeming in writing.
Decision on the findings on facts and reasons:
Recommended