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Conduct and Competence Committee Substantive Hearing
26, 27, 28, 29 September 2016 & 16 December 2016
Nursing and Midwifery Council, 2 Stratford Place & 61 Aldwych, London Name of Registrant Nurse: Mrs Ana Lakme Focsa NMC PIN: 12K0023C Part(s) of the register: Registered Nurse Area of Registered Address: England Type of Case: Misconduct Panel Members: Linda Stone (Chair - Lay member)
Susan Louise Greenwood (Registrant member) Jennifer Taylor (Lay member)
Legal Assessor: John Caudle Panel Secretary: Harriet Newton (September) & John Barker
(December) Representation: Focsa: Neither present nor represented Nursing and Midwifery Council: Represented by Simon Walters (September) &
James Edenborough (December), Counsel, instructed by NMC Regulatory Legal Team.
Facts proved: All Facts not proved: None Fitness to practise: Impaired Sanction: Striking Off Order Interim Order: 18 month interim suspension order
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Details of charge
That you a registered nurse,
1) Whilst working a night shift at St George’s Nursing Home on 11th August 2013
a) slept whilst on duty
b) allowed and/ or failed to prevent a carer from sleeping during the shift.
2) Whilst working at Headroomgate Nursing Home during the nightshift of 28/ 29 March
2015,
a) On discovering Resident A had low blood pressure of 76/42 you
i) did not escalate this concern and/ or call the GP or ‘111’ or a manager
ii) did not monitor Resident A’s blood pressure every 15 minutes
iii) did not commence a Blood Pressure regular chart
iv) did not commence a fluid intake chart
b) Left the following in an unsecure sideboard.
i) An unsealed needle
ii) One or more sealed needles
iii) One or more insulin needles with syringe attached
And, in light of the above, your fitness to practise is impaired by reason of your
misconduct.
Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Mrs Focsa was not in
attendance and that written notice of this hearing had been sent to her registered
address by recorded delivery and by first class post on 3 August 2016. Royal Mail
“Track and Trace” documentation confirmed that the notice of hearing was sent to her
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registered address by recorded delivery on that date. Further an email from Mrs Focsa
to the NMC dated 23 September 2013 made it clear that she was aware of the hearing.
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 Mrs
Focsa’s right to attend, be represented and call evidence, as well as the panel’s power
to proceed in her absence. The “Track and Trace” documentation also indicated that the
notice was received by Mrs Focsa on 9 August 2016. Mr Walters 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 light of all of the information available, the panel was satisfied that Mrs Focsa had
been served with notice of this hearing in accordance with the requirements of Rules 11
and 34. It took into account that the rules only require proof of sending, 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 Walters invited the panel to continue in the absence of Mrs Focsa on the basis that
she has voluntarily absented herself. Mr Walters submitted that there had been no
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engagement with the NMC beyond her written evidence and the email of 23 September
2016, and so there was no reason to believe that an adjournment would secure her
attendance on some future occasion.
The panel accepted the advice of the legal assessor. The panel took into account 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.
The panel considered the email correspondence from the NMC to Mrs Focsa, dated 22
September 2016, reiterating her reasons for not attending and an email from Mrs Focsa
in which she stated ‘Thanks for keeping me informed. Everything is accurate.’ The panel
decided to proceed in the absence of Mrs Focsa. In reaching this decision, the panel
has considered the submissions of the case presenter, and the advice of the legal
assessor. It has had regard to the overall interests of justice and fairness to all parties.
The panel noted the email exchange of 22 / 23 September 2016, between the NMC and
Focsa, which stated that she had –
• No wish to participate in the hearing via video link or telephone link;
• Made no application for an adjournment;
• Not engaged fully with the NMC;
• Not suggested that by adjourning the hearing, her attendance would be secured
at some future date.
In addition the panel took into account -
• Four witnesses attended to give live evidence;
• Not proceeding may inconvenience the witnesses, their employer(s) and, for
those involved in clinical practice, the clients who need their professional
services;
• These charges relate to events that occurred in 2013 and 2015;
• Further delay may have an adverse effect on the ability of witnesses accurately
to recall events;
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• There is a strong public interest in the expeditious disposal of the case.
There is some disadvantage to Mrs Focsa in proceeding in her absence. Although the
evidence upon which the NMC relies will have been sent to her at her registered
address, she has made a limited response to the charges. She will not be able to
challenge the evidence relied upon by the NMC and will not be able to give evidence on
her own behalf. However, in the panel’s judgment, this can be mitigated. The panel can
make allowance for the fact that the NMC’s evidence will not be tested by cross
examination and, of its own volition, can explore any inconsistencies in the evidence
which it identifies. Furthermore, the limited disadvantage is the consequence of Mrs
Focsa’s decisions to absent herself from the hearing, waive her rights to attend and/or
be represented and to not provide oral evidence or make oral submissions on her own
behalf.
In these circumstances, the panel has decided that it is fair, appropriate and
proportionate to proceed in the absence of Mrs Focsa. The panel will draw no adverse
inference from Mrs Focsa’s absence in its findings.
Background
The first charge arose on 11 August 2013, whilst Mrs Focsa was employed as a
Registered Nurse by St George’s Nursing Home, (‘St George’s’) where she worked as
the sole nurse on the night shift with two carers. On the night of 11 August, two matrons
made an unannounced visit to St George’s at around 2:30am. The Home had 30 beds
spread over two floors. The inspectors on this visit were Ms 1, the Matron of St
George’s and a colleague, Mrs 2, a Matron of a neighbouring nursing home in the same
Century Healthcare Group.
On entering the home it is alleged that, for approximately five minutes, the Matrons
observed a care assistant sleeping on cushions and a pillow on the floor of the lounge.
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He was covered by a blanket. They also saw two chairs pushed together with a blanket
resting on them near to where the carer was sleeping. The matrons then checked the
residents, and at 3:20am they returned to the lounge to find Mrs Focsa covered in a
blanket and sleeping on two chairs. The matrons watched here for 5 minutes.
It is alleged Mrs Focsa then woke up, following which the care assistant was then
woken by the two Matrons. Both the care assistant and Mrs Focsa were separately
taken into the office. Mrs Focsa was asked to leave immediately at 04:15am. Mrs Focsa
was self-employed by the Home, so was asked not to return to work there.
Whilst investigating this case from August 2013, the NMC received a second referral in
relation to Mrs Focsa. This second set of alleged incidents occurred in March 2015,
when Mrs Focsa was the sole nurse on duty on the night of 28-29 March 2015.
In relation to the March 2015 charges, Mrs Focsa completed her night shift at
Headroomgate Nursing Home (‘Headroomgate’) and at the 8am handover to the day
nurse, concerns arose about Mrs Focsa’s care of 19 residents including Resident A. At
4 am Resident A had had a low blood pressure reading of 76/42 taken by Mrs Focsa,
and the NMC alleges this was not escalated by Mrs Focsa, as a concern, as no call to a
manager, GP or 111 was made. No fluid intake or blood pressure charts were
commenced by Mrs Focsa. It is alleged no other details were noted for Resident A,
apart from a three line entry made by Mrs Focsa in Resident A’s records. In contrast
the NMC submits that the nurse who took the morning handover from Mrs Focsa started
immediate observations, and called 111 at 9.30am when the blood pressure for
Resident A was not improving.
It is also alleged that Mrs Focsa left used and new needles with insulin in an unsecure
sideboard, instead of putting them away in the locked medicines trolley. This sideboard
could have been accessed by service users. An internal investigation was conducted by
Mrs 4 and Mrs Focsa was suspended and later dismissed. She was asked to attend an
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informal meeting about the incidents and to provide a statement, but Mrs Focsa did not
cooperate with these requests.
Mr Walters submitted that Mrs Focsa disputes these allegations in her written evidence.
In relation to charge 1, Mrs Focsa insisted she was suffering from food poisoning on the
night of 11 August 2013, and needed to rest for 5 minutes, while having asked another
care assistant to answer the buzzers for her. Mrs Focsa was clear this was the first time
she had ‘rested’ while working, she also claimed she gave Carer A permission to take a
longer break as he too was suffering from food poisoning.
In relation to charge 2a, Mrs Focsa referred in her statement to medical websites on the
general treatment of low blood pressure, stating Resident A did not present any
symptoms, but that she did proceed to regularly check Resident A during the night.
In relation to charge 2b Mr Walters submitted Mrs Focsa’s written evidence is that Mrs 3
instructed her specifically to leave the needles in the sideboard, and this was the reason
that she then resigned.
The panel, in reaching its decisions on the facts, took into account all the oral and
documentary evidence and that the burden of proof rests with the NMC and that the
facts must be proved on the balance of probabilities.
The panel read Mrs Focsa’s written statement. The panel found Mrs Focsa’s evidence
to be contradictory and unreliable.
The panel heard oral evidence, on behalf of the NMC (together with their written
statements), from the following witnesses:
• Ms 1, Matron of St George’s at the time,
• Ms 2, Matron of another home in the same group
• Mrs 3, the day nurse who took the handover on 29 March 2013
• Mrs 4, Registered Manager of Headroomgate, formerly a registered Nurse.
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The panel found all the witnesses for the NMC credible and reliable.
The panel was impressed by the good grace with which Mrs 3 and Mrs 4 responded
when their answers were self-critical.
The panel made the following findings of fact in respect of the charges:
Charge 1a:
1) Whilst working a night shift at St George’s Nursing Home on 11th August 2013
a) slept whilst on duty
The panel had regard to the written evidence of Ms 1, where she stated, Focsa was
found at 3.30 ‘‘asleep on two chairs pushed together covered by a blanket ... Two
buzzers had gone off during this time.’’ Ms 1 told the panel that Mrs Focsa’s ‘‘legs were
on the chair in front, under blankets, her shoes were off’’. Ms 1 stated a second carer
who was on duty with them was awake, and he had been the person to ask for the
inspection. He had opened the door to permit the Matrons’ unannounced entry at
02.30am. On waking Mrs Focsa said she ‘had not done this’ before, thereby accepting
she had been caught sleeping, but denied that this had happened before.
The panel heard Ms 2 confirm that Carer A had been asleep on the floor with blankets
and a pillow, and two chairs had been placed opposite each other to sleep on. Ms 2
further recalled that the lighting in the room was low, and that Mrs Focsa awoke with a
‘startled look’ when she saw the two Matrons standing near her.
Mrs Focsa in her written statement indicated she had food poisoning, and had asked
the second carer ‘to answer the buzzers’. Focsa’s account is, ‘[I] closed my eyes to try
to relax and detach from the pains.’ The panel considered this to be an inappropriate
response.
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The panel found that Mrs Focsa was sleeping whilst on duty when she was the sole
registered nurse responsible for thirty elderly residents in the home. The panel found
that she was observed asleep for 5 minutes by Ms 1 and Mrs 2. The position of the
chairs indicated that this behaviour was planned by Mrs Focsa.
This charge is found proved. Charge 1b:
Whilst working a night shift at St George’s Nursing Home on 11th August 2013
b) allowed and/ or failed to prevent a carer from sleeping during the shift.
The panel took into account the written and oral account of the two Matrons who carried
out their night time inspection. The panel accepted the Matrons had to wake up Carer A
after he had slept for a full hour during their visit.
The panel disputed Mrs Focsa’s account that Carer A had been granted ‘‘all his breaks
all at once’’ by her because he had ‘‘food poisoning’’ and ‘‘abdominal pains’’.
The panel took into account Mrs Focsa’s submission about abdominal pains, but
considered that had Carer A and Mrs Focsa been ill they should have reported this to a
manager. Allowing a carer to sleep was an inappropriate response.
This charge is found proved. The panel then had regard to the charges relating to Resident A, in March 2015.
Resident A was a frail elderly high risk client, with multiple and complex medical issues,
that required her to maintain a high fluid intake. As a vulnerable adult, Resident A was
more or less bed bound, in a bed with cot sides to prevent her from falling from the bed.
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Charge 2a(i):
2) Whilst working at Headroomgate Nursing Home during the nightshift of 28/ 29 March
2015,
a) On discovering Resident A had low blood pressure of 76/42 you
i) did not escalate this concern and/ or call the GP or ‘111’ or a manager
The panel relied on the written evidence of Mrs 4 who stated, ‘I didn’t get to the bottom
of how [Mrs Focsa] came to do the blood pressure, you would usually have to see
something medically wrong in order to take the blood pressure…possibly due to the
resident being unresponsive.’
Mrs 4 in her oral evidence explained Mrs Focsa had been given training in relation to
escalating concerns on a low blood pressure reading. At four o’clock in the morning Mrs
Focsa took Resident A’s blood pressure, and recorded the low reading. Mrs Focsa
made only one three line entry in Resident A’s notes between taking this blood pressure
measurement at 04.00am and concluding her shift with handover at 8am. This brief
entry stated, ‘No complaints of pain…regularly checked’, with no detail of what was
meant by ‘regularly checked’ and no evidence of anything having being done.
The panel found that Mrs Focsa took no action whatsoever in relation to raising
concerns about Resident A. Mrs Focsa’s evidence was contradictory in her written
submissions about why she did not do this. She explained her treatment of Resident A
by referring to www.bloodpressureuk.org and www.NHS.UK. The panel considered that
Mrs Focsa had a duty to raise a concern and/ or call the GP or ‘111’ or a manager and
she did not.
Accordingly this charge is found proved.
Charge 2a(ii)
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2) Whilst working at Headroomgate Nursing Home during the nightshift of 28/ 29 March
2015,
a)On discovering Resident A had low blood pressure of 76/42 you
(ii) did not monitor Resident A’s blood pressure every 15 minutes
The panel accepted Mrs 4’s oral evidence that Mrs Focsa was trained in how to respond
to low blood pressure at her induction which was completed two to three weeks earlier.
Mrs 4 in oral evidence stated that she had worked in nine different nursing homes and
during Mrs Focsa’s induction she would have repeated the common nursing practice in
the home of the duty to monitor blood pressure at 15 minute intervals when an
abnormal blood pressure reading was found. Mrs 3, the nurse on the next shift,
commenced regular blood pressure monitoring, and observations, at 8.15am after Mrs
Focsa had left.
This charge is found proved. Charge 2a(iii)
2) Whilst working at Headroomgate Nursing Home during the nightshift of 28/ 29 March
2015,
a) On discovering Resident A had low blood pressure of 76/42 you
iii) did not commence a Blood Pressure regular chart
Mrs 4 told the panel that copies of blood pressure and fluid balance charts were readily
available in the office, for which Mrs Focsa had the key. There was no separate
paperwork for the night of 28 -29 March, commenced by Mrs Focsa, and neither were
any further entries made in the written notes for Resident A. Further, as the panel has
already found that Mrs Focsa did not measure Resident A’s blood pressure every 15
minutes there would have been nothing to record. Accordingly the panel has found that
no blood pressure chart was commenced or kept for Resident A.
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This charge is found proved.
Charge 2a(iv) 2) Whilst working at Headroomgate Nursing Home during the nightshift of 28/ 29 March
2015,
a) On discovering Resident A had low blood pressure of 76/42 you
iv) did not commence a fluid intake chart
There is no record of a fluid intake chart because Mrs Focsa did not commence or keep
one. The panel considered that a competent nurse would have monitored fluid intake for
Resident A given the low blood pressure reading at 4am. Mrs Focsa did write ‘Resident
A took fluids’ but did not record the amounts or time. Mrs 4 stated in oral evidence that
Resident A’s personal plan was in her bedroom, and this detailed her condition and her
need for fluid intake.
This charge is found proved.
Charge 2(b) 2) Whilst working at Headroomgate Nursing Home during the nightshift of 28/ 29 March
2015,
b) Left the following in an unsecure sideboard.
i) An unsealed needle
ii) One or more sealed needles
iii) One or more insulin needles with syringe attached
The panel relied on the written evidence of the Home’s Medications Policy and
Procedure which states, ‘There will be adequate storage facilities to ensure all
medications are stored correctly and that no medications will be stored on the floor.’
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The panel heard the oral evidence of Mrs 3 and Mrs 4 who were clear that the Home
Policy for needles was that they were to be locked in the medicine trolley on the first
floor, or in the locked treatment room. They both reiterated some residents were elderly
and some suffered from dementia and there was, as Mrs 4 stated, a ‘risk of them
injecting themselves or someone else’ from needles not being securely placed out of
anyone’s reach.
The panel did not accept Mrs Focsa’s written evidence that she had been ‘specifically
instructed’ by Mrs 3 to leave the needles in an unlocked side cupboard, even though
she did not want to do this. Both Mrs 3 and Mrs 4 firmly denied that this would ever
have happened. Instead the panel concluded that as Mrs Focsa was the only nurse on
duty on the previous shift she did not follow the Home’s policy in relation to the storage
and disposal of needles.
Therefore these charges are found proved. Submission on misconduct and impairment: Having announced its finding on all the facts, the panel then moved on to consider
whether the facts found proved amounted to misconduct and, if so, whether Mrs
Focsa’s fitness to practise is currently impaired. The NMC has defined fitness to
practise as a registrant’s suitability to remain on the register unrestricted.
Mr Walters submitted that Mrs Focsa’s behaviour showed serious misconduct. In
relation to misconduct he submitted that by sleeping on duty whilst the sole registered
nurse in charge, by failing to provide a high standard of care to Resident A, and by
failing to ensure that needles and syringes were locked away securely, she breached
key tenets of the nursing profession.
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Mr Walters submitted that Mrs Focsa’s conduct was in breach of the Preamble, and
paragraphs 4, 24, 26, 28, 35, 42,56 and 61 of the Code: Standards of Conduct,
Performance and Ethics for Nurses and Midwives 2008 (‘the Code’).
In relation to public protection, Mr Walters submitted the facts found proved were across
a wide spectrum of differing nursing practices, and over a substantial period of time. He
submitted that the residents in both homes were placed at risk of harm in different ways.
The level of risk was high as the NMC charges related to sleeping on duty, the
inadequate care of Resident A, and the unsafe storage of needles and syringes. He
submitted Mrs Focsa’s practices and responses to being challenged showed a
disregard for the wellbeing of residents.
In relation to current impairment Mr Walters submitted on behalf of the NMC that Mrs
Focsa had shown no insight, or remediation, and minimal remorse. In fact Mr Walters
noted that in her written statement, Mrs Focsa had not said that she was sorry but
rather was expressing regret at the fact that these allegations were being made against
her and did not show any insight into her failings as a registered nurse. The panel
agreed with this assessment, and noted that Mrs Focsa had also shown a complete
absence of relevant reflection in her written response but instead had written at length
setting out various excuses rather than concentrate on her responsibilities as a
registered nurse.
Mr Walters then submitted that Mrs Focsa’s attempts to lay her failures on Mrs 3 were a
further indication of lack of insight. Mr Walters indicated that instead of developing any
level of insight, Mrs Focsa’s response indicated that she is impaired, with the real risk of
repetition thus putting residents and public at future risk of harm.
Mr Walters submitted that in addition, there is a need to declare and uphold proper
standards of conduct and behaviour so as to protect the public and maintain public trust
and public confidence in the profession and the regulatory process.
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The panel has accepted the advice of the legal assessor which included reference to a
number of judgments which are relevant, these included: Roylance v General Medical
Council (No 2) [2000] 1 A.C. 311 and Council for Healthcare Regulatory Excellence v
(1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). The panel
adopted a two-stage process in its consideration.
First, the panel must determine whether the facts found proved amounted to
misconduct. Secondly, only if the facts found proved amounted to misconduct, the panel
must decide whether, in all the circumstances, Mrs Focsa’s fitness to practise is
currently impaired as a result of that misconduct. When determining whether the facts
found proved amounted to misconduct the panel had regard to the terms of the Code.
In reaching its decision the panel took into account the public interest and exercised it’s
own professional judgement. It accepted that there was no burden or standard of proof
at this stage.
The panel considered that Mrs Focsa’s actions did fall significantly short of the
standards expected of a registered nurse, and that her actions amounted to numerous
breaches of the 2008 Code. Namely;
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… • work with others to protect and promote the health and wellbeing of those in your care, … • provide a high standard of practice and care at all times • …uphold the reputation of your profession. Paragraphs:
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4 You must act as an advocate for those in your care, helping them to access
relevant health and social care, information and support.
24 You must work cooperatively within teams and respect the skills, expertise and
contributions of your colleagues.
26 You must consult and take advice from colleagues when appropriate.
28 You must make a referral to another practitioner when it is in the best interests of
someone in your care.
31 You must make sure that everyone you are responsible for is supervised and
supported.
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.
45 You must ensure any entries you make in someone’s paper records are clearly
and legibly signed, dated and timed.
56 You must cooperate with internal and external investigations.
61 You must uphold the reputation of your profession at all times.
The panel appreciated that breaches of the Code do not automatically result in a finding
of misconduct. However, the panel considered that Mrs Focsa’s breaches of the code
were serious and did amount to serious misconduct.
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Vulnerable residents were left unattended while Mrs Focsa slept. St George’s was a
nursing home and as such nurses were not allowed to sleep on a night shift. Mrs Focsa
knew that she was not permitted to sleep whilst the sole registered nurse on a night shift
at St Georges. Mrs Focsa was responsible for Carer A and allowed him to sleep whilst
on duty, further placing residents at risk as she left Carer B, unsupervised, to care for 30
residents on his own. Mrs Focsa’s defence of stomach ailments did not reassure the
panel in any way as, if it was genuine, a manager should have been informed of the
situation.
When working as the nurse in charge on the night shift at Headroomgate, Mrs Focsa
recorded Resident A’s blood pressure as 76/42. She did not follow the training and
policies she had been taught. She did not monitor Resident A or keep clear and
accurate records and she did not ensure that syringes and needles were stored safely
and securely. Further Mrs Focsa did not respond to Mrs 4 when, on 30 March 2015,
early on in the investigation, Mrs 4 tried to contact Mrs Focsa to discuss her concerns
about charge 2.
The panel determined that Mrs Focsa did not observe the basic tenet’s of the nursing
profession but instead followed an unsafe level of practice that was likely to cause a
serious risk of harm. The panel found that her actions did fall seriously short of the
conduct and standards expected of a registered nurse and amounted to misconduct. It
accepted the NMC’s position, submitted by Mr Walters, that this behaviour as set out in
charges 2a and 2b, placed Resident A at real risk of harm, along with the other elderly
and vulnerable residents in her care at Headroomgate and therefore amounted to
serious misconduct.
Decision on impairment The panel then considered whether, on the basis of this serious misconduct Mrs
Focsa’s fitness to practise is currently impaired. The panel took into account all the
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evidence before it and that its primary function is to protect residents and the wider
public interest which includes maintaining confidence in the nursing profession and
upholding the proper standards and behaviour.
The panel considered the questions posed by Silber J in Cohen v General Medical
Council [2008] EWHC 581, namely whether the misconduct in issue was
a) remediable,
b) whether it had in fact been remedied and
c) whether it is highly unlikely to be repeated.
The panel considered that Mrs Focsa’s behaviour was remediable. However there was
no evidence whatsoever before it to demonstrate any remediation. The panel therefore
could not be satisfied that Mrs Focsa would not repeat her behaviour.
The panel then considered the following questions in Council for Healthcare Regulatory
Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin),
Paragraph 76:
a. has in the past acted and/or is liable in the future to act so as to
put a resident or residents at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the
medical profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach
one of the fundamental tenets of the medical profession; and/or
d. has in the past acted dishonestly and/or is liable to act
dishonestly in the future.
The panel considered that limbs a, b and c were engaged.
Mrs Focsa did act in a manner that put residents at serious risk of harm. In the absence
of any evidence of remediation or insight the panel concluded that there is a significant
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risk of Mrs Focsa repeating her behaviour. Accordingly, she is likely to bring the
profession into disrepute and breach fundamental tenets in the future. Mrs Focsa had
denied that there were failings in her nursing conduct, and has attempted to divert
responsibility for this.
Further evidence of Mrs Focsa’s lack of insight is her failure to cooperate with
any internal investigations and her failure to accept any responsibility in her written
response to the NMC. In this written response which contains no relevant reflection, Mrs
Focsa gave excuses such as suffering from food poisoning on 11 August 2013. She
also attempted to blame Mrs 3 for her failure to secure needles and syringes on the 29
March 2015.
The panel concluded that a finding of impairment is necessary on the grounds of public
protection. The panel further determined that, in this case, a finding of impairment on
public interest grounds is also required. The public would be concerned at a finding of
no impairment for a nurse who behaved in the way that Mrs Focsa did, by sleeping
whilst on duty at St George’s, by failing to provide Resident A with the high standard of
care that she was entitled to expect and by leaving needles and syringes in an
unsecured place.
Having regard to all of the above, the panel was satisfied that Focsa’s fitness to practise
is currently impaired.
Resuming Hearing: 16 December 2016 Service of Notice of Hearing The panel was informed at the start of this hearing that Mrs Focsa was not in
attendance and was not represented in her absence.
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The panel was informed that the notice of this hearing was sent to Mrs Focsa on 25
October 2016 by recorded delivery and first class post to her address on the register.
The Royal Mail Track & Trace printout shows that the notice was delivered and signed
for on 28 October 2016 by someone with the name ‘A Focsa’.
The panel accepted the legal assessor’s advice that a notice of hearing must be served
in accordance with Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to
Practise) Rules Order of Council 2004 (as amended February 2012) (The Rules):-
11. (2) The notice of hearing shall be sent to the registrant—
(b) in every case, no later than 28 days before the date fixed for the
hearing.
11. (3) The Notice of hearing shall-
(b) where the Committee is to consider the allegation at an initial hearing,
contain a charge particularising the allegation, and-
(i) where it is alleged that the registrant has committed misconduct or
received a criminal conviction, particularising the alleged facts upon which
the allegation is based, or
(ii) in any other case, setting out the grounds or alleged facts in support of
the allegation;
34. (1) Any notice of hearing required to be served upon the registrant shall be
delivered by sending it by a postal service or other delivery service in which
delivery or receipt is recorded to,
(a) her address in the register
The panel was satisfied that a notice of this hearing was sent to Mrs Focsa on 25
October 2016 and that the rules of service have been complied with. It was therefore
satisfied that service had been effected in accordance with the Rules.
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Decision on whether to proceed in Mrs Focsa’s absence Mr Edenborough, on behalf of the NMC, submitted that it was in the interests of the
public and of public protection to proceed in Mrs Focsa’s absence. He referred the
panel to the last communication received by the NMC from Mrs Focsa, an email dated
22 November 2016, in which she stated:
“I'm writing this letter to let you know that I've received all the documents
you've sent me. Unfortunately I won't be able to attend to any of the hearings
due to the big distance between Blackpool and London especially cause I
neither own a car or have a driving license and also the fact that I can't take
any holiday within the next 3 months or more plus financial hardship like I've
stated before in my previous email. Again I have nothing more to add to any
of the cases as I gave my answers previously. Thanks again for keeping me
posted.”
In light of the communication from Mrs Focsa, Mr Edenborough submitted that it was
clear she did not intend to attend the hearing. He reminded the panel that Mrs Focsa did
not attend the hearing in September 2016 and highlighted the fact that she had not
made an application to adjourn these proceedings.
Mr Edenborough submitted that service had been effected in accordance with the Rules
and that there is a clear public interest in dealing with this matter expeditiously. As such
Mr Edenborough stated that the panel can reasonably come to the conclusion that Mrs
Focsa has voluntarily absented herself.
The panel heard and accepted the advice of the legal assessor as to how to exercise its
discretion as to whether to proceed in Mrs Focsa’s absence. The panel took into
account that the discretion to proceed in absence must be approached with the utmost
care and caution, as referred to in the case of R. v Jones (Anthony William), (No.2)
[2002] UKHL 5.
22
The panel was satisfied that notice had been served in compliance and accordance with
the Rules and Mrs Focsa was made aware of today’s hearing. The panel considered
Mrs Focsa’s comments in her email to the NMC, dated 22 November 2016, to
demonstrate the fact that she had voluntarily absented herself from the hearing. There
has been no request for an adjournment and the panel considered that an adjournment
would serve no purpose as it would be unlikely to result in Mrs Focsa’s attendance.
Further, the panel noted that Mrs Focsa was aware that she could represent herself at
this hearing (as explained in the notice of hearing bundle), but has chosen not to do so.
The panel considered there to be a clear public interest in dealing with this case
expeditiously. It noted that some of the charges are already over three years old and
that it was in the interests of public protection that this hearing be concluded without
further delay. The panel considered in all the circumstances of this case that any
prejudice to Mrs Focsa was outweighed by the public interest considerations.
Accordingly the panel decided to proceed in Mrs Focsa’s absence.
Determination on sanction
The panel has considered carefully the question of what sanction, if any, should be
imposed in this case and has decided to make a Striking Off Order.
When considering the issue of sanction the panel had regard to the submissions of Mr
Walters and all the evidence presented to it throughout the hearing. The panel heard
and accepted the advice of the legal assessor who advised that the purpose of sanction
is the protection of residents and the public interest. The public interest includes
maintenance of confidence in the profession and the declaring and upholding of proper
standards of conduct and performance.
23
The panel has taken into account that any sanction imposed must be appropriate and
proportionate. The purpose of any sanction is not to be punitive though it may have a
punitive effect. The panel had careful regard to the Indicative Sanctions Guidance (June
2016) (“ISG”) published by the NMC. It has recognised the decision on sanction is a
matter for the panel exercising its own independent judgement. The panel noted the
aggravating and mitigating factors of the case.
The panel considered the aggravating factors in this case:
• Mrs Focsa’s misconduct spanned over an 18 month period at two separate
Nursing Homes;
• Mrs Focsa’s clinical and managerial failures covered a wide range of basic
nursing skills and put residents and staff at serious risk of harm;
• Mrs Focsa lacked professional judgement by sleeping on duty and allowing
colleagues to sleep on duty;
• Focsa failed in her duty of care to Carer B at St George’s by not supervising or
assisting him, leaving him alone to care for 30 vulnerable elderly residents;
• Mrs Focsa’s persistent poor care of Resident A namely, failing to recognise a
potential medical emergency and subsequently failing to escalate this situation
appropriately. The panel considered this (described in charge 2(a)) to amount to
negligence;
• Mrs Focsa’s unsafe disposal of needles and syringes at Headroomgate Home
put residents, their visitors and colleagues at risk of harm;
• Mrs Focsa refused to accept responsibility for her failures, both during local
investigations and in her letter to the NMC, and attempted to blame her former
colleagues for her actions;
• Mrs Focsa has expressed no relevant remorse for her actions and has
demonstrated no insight or remediation;
• Mrs Focsa’s lack of remorse was compounded by her refusal to cooperate with
local Nursing Home investigations.
24
The panel struggled to find any mitigating factors. Given that Mrs Focsa has only been
registered with the NMC since 2 November 2012, the panel could not rely on previous
good practice and had not been provided with any testimonials or references. The
panel also considered that Mrs Focsa’s excuse that she had fallen asleep on duty due
to food poisoning lacked credibility.
The panel has taken into account that any sanction imposed must be reasonable,
appropriate and proportionate. In exercising its function the overarching objective of the
panel is to protect the public. This objective encompasses the protection, promotion,
and maintenance of the health, safety and wellbeing of the public.
The panel first considered whether to take no action but concluded that this would be
wholly insufficient in view of the seriousness of the misconduct and the findings set out
regarding Mrs Focsa’s current impairment. It considered that taking no further action
would not protect the public and would undermine public confidence in the profession
and its regulatory function.
The panel then considered whether it would be sufficient to impose a caution order. The
panel concluded that the misconduct found in this case was not “at the lower end of the
spectrum of impaired fitness to practise”. Mrs Focsa put residents, their visitors and
colleagues at risk of harm by leaving needles unattended and sleeping on duty. She has
never accepted responsibility for her actions nor shown insight into why they posed a
risk. As such the risk of repetition was high and the panel considered that the
seriousness of this misconduct meant a caution order would neither protect the public
nor serve the wider public interest.
The panel next considered whether placing conditions of practice on Mrs Focsa’s
registration would be a sufficient and appropriate response. The panel took into account
that any conditions imposed must be proportionate, measurable, workable and relevant.
25
The panel considered the conduct of Mrs Focsa to be a serious departure from the
standards expected of a registered nurse. The panel was also concerned by Mrs
Focsa’s attitude to the extent that it was harmful. This attitudinal problem, which
manifested itself in Mrs Focsa’s approach toward resident safety and the safety of her
colleagues, was compounded by her failure to cooperate with the Home. In addition,
Mrs Focsa did not engage with the internal investigations and has never accepted
responsibility for her part in the poor care of residents. As such the panel concluded that
Mrs Focsa has shown little or no willingness to respond positively to retraining. Given
the level and wide ranging nature of her misconduct, the panel concluded that a
conditions of practice order would not adequately protect residents and nor would it
sufficiently address the public interest. As such, the panel deemed that it could not
formulate any workable conditions to protect the public and address the wider public
interest.
The panel next considered whether a suspension order would be an appropriate
sanction. It took into account the following sections of the ISG regarding the making of a
suspension order:
68 This sanction may be appropriate where the misconduct is not
fundamentally incompatible with continuing to be a registered nurse or
midwife in that the public interest can be satisfied by a less severe outcome
than permanent removal from the register. This is more likely to be the case
when some or all of the following factors are apparent:
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.
68.4 The panel is satisfied that the nurse or midwife has insight and does
not pose a significant risk of repeating behaviour.
26
The above factors, for the reasons given above, do not apply. In all the circumstances
the panel concluded that this is not a case in which a suspension order would be
sufficient, proportionate or appropriate. Mrs Focsa is a registered nurse who has
demonstrated wide ranging failures in basic nursing care, compounded by an attitudinal
problem. Her behaviour was a serious and sustained departure from the standards
expected of a registered nurse, which has been exacerbated by Mrs Focsa’s continuing
lack of insight into how her actions impacted upon vulnerable elderly residents,
colleagues and the reputation of the profession. The panel concluded that a suspension
order does not address the seriousness of her failings, nor does it sufficiently protect
residents and the wider public interest.
The panel then considered whether a striking off order would be an appropriate
sanction. It took into account the following sections of the ISG regarding the making of a
striking off order:
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:
72.1 Serious departure from the relevant professional standards as set out
in key standards, guidance and advice including (but not limited to):
72.1.1 The code: Standards of conduct, performance and ethics for nurses
and midwives
72.2 Doing harm to others or behaving in such a way that could foreseeably
result in harm to others, particularly residents or other people the nurse or
midwife comes into contact with in a professional capacity, either
deliberately, recklessly, negligently or through incompetence, particularly
where there is a continuing risk to residents. Harm may include physical,
emotional and financial harm. The panel will need to consider the
seriousness of the harm in coming to its decision
27
72.3 Abuse of position, abuse of trust, or violation of the rights of residents,
particularly in relation to vulnerable residents
72.7 Persistent lack of insight into seriousness of actions or consequences
The panel concluded that in light of Mrs Focsa’s misconduct the above paragraphs of
guidance are engaged.
These incidents involved a serious departure from the relevant professional standards
expected of a registered nurse. Mrs Focsa exposed numerous frail elderly residents,
their visitors and her colleagues to serious risk of harm. At St.George’s she left a single
carer unsupervised and responsible for 30 vulnerable elderly residents (over two floors)
while she and Carer A slept. At Headroomgate, Mrs Focsa failed to appropriately
monitor Resident A, exposing her to significant risk of harm. In addition, by leaving
needles and syringes in an unsecured sideboard she exposed all the residents, their
visitors and colleagues to significant risk of harm.
Further, there was an abuse of position in relation to sleeping on duty; allowing a
colleague to sleep on duty; and refusing to assist a HCA when they needed help caring
for 30 vulnerable elderly residents. Mrs Focsa failed in her duty of care to Resident A
and then refused to accept responsibility for her failings.
Mrs Focsa’s misconduct was compounded by her total lack of insight, relevant remorse,
remediation and her overall attitude. In addition, Mrs Focsa failed to provide any
references or testimonials to mitigate against her wide ranging failings. In light of this
the panel concluded that when taking all of these factors together the threshold for a
striking off order has been crossed.
In all the circumstances, the panel concluded that a striking off order was the only
sanction that would adequately protect the public and uphold public confidence in the
28
profession and the NMC as its regulator. Accordingly, the panel made an order directing
the Registrar to strike Mrs Focsa off the Register.
Decision on Interim Order The panel has considered the submissions made by Mr Edenborough that an interim
suspension order for 18 months should be made on the grounds that it is for protection
of the public and was otherwise in the public interest.
The panel heard and accepted the advice of the legal assessor.
The panel considered whether an interim conditions of practice order was appropriate,
but concluded that such an order would be wholly inconsistent with its substantive
striking off order.
The panel is satisfied that an interim suspension order is necessary for the protection of
the public and is otherwise in the public interest. In reaching the decision to impose an
interim suspension order, the panel has had regard to the seriousness of the
misconduct and the reasons set out in its decision for the substantive striking off order.
The period of this order is for 18 months to allow for the possibility of an appeal to be
made and determined.
If no appeal is made then the interim order will be replaced by the substantive striking
off order 28 days after Mrs Focsa is notified of the decision of this hearing in writing.
That concludes this case.
