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Conduct and Competence Committee Substantive Hearing

Tuesday 7 March 2017 And

Wednesday 8 March 2017 And

Thursday 9 March 2017 And

Friday 10 March 2017 (part heard) Resumed on:

Wednesday 26 April 2017 And

Thursday 27 April 2017 And

Friday 28 April 2017

Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: Ikweninkie Bafikele NMC PIN: 06I0254E

Part(s) of the register: RNMH, Registered Nurse (sub part 1) – Mental

Health (7 December 2006)

Area of Registered Address: England

Type of Case: Misconduct

Panel Members: Jane Kivlin (Chair Registrant member)

Susan Foster (Registrant member)

Deborah Jones (Lay member)

Legal Assessor: Ian Ashford-Thom

Panel Secretary: Aadil Anwar Registrant: Mr Bafikele present and represented by Jude

Imoh of Just and Brown solicitors

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Nursing and Midwifery Council: Represented by Ms Helen Guest, Counsel,

instructed by NMC Regulatory Legal Team (7,

8, 9 and 10 March 2017)

Represented by Mr Neil Jeffs, Counsel,

instructed by NMC Regulatory Legal Team (26,

27 and 28 March 2017)

Facts proved: 1, 2, 3, 4, 5, 6, 7, 8, 9

Facts proved by admission: - Facts not proved: -

Fitness to practise: Impaired

Sanction: Striking-off order Interim Order: Interim suspension order (18 months)

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Details of charge:

That you, a registered nurse

1. Whilst employed by Barnet, Enfield and Haringey Mental Health NHS

Trust as a staff nurse acted in an aggressive and/or inappropriate manner

towards Patient A on 3 July 2014

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

misconduct

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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 adduced in

this case together with the submissions made by Ms Guest, on behalf of the NMC, and

those made by Mr Imoh on your behalf.

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.

Background

The allegations in the charge arose whilst you were employed as a band 5 Registered

Mental Health Nurse by Barnet, Enfield and Haringey Mental Health NHS Trust (‘the

Trust’). You normally worked for the Trust at Chase Farm Hospital (‘the hospital’) on

Sussex Ward. On this occasion, however, you were working an additional 12 hour day

shift as a bank nurse on Dorset Ward (‘the ward’).

You were sitting in an arm chair in the lounge area of the ward. There were two or three

patients sitting in the lounge. Patient A was sitting at a table reading. In relation to

where you were seated, the table at which he was sitting and, closer to you, a row of

arm chairs, were positioned between you and him.

At about 12.41 hours, Mr 1, a Health Care Assistant, approached you and asked you to

assist him taking another patient outside for a cigarette break. It is alleged that you

refused this request. Patient A overheard the exchange between you and Mr 1 and

intervened by verbally abusing you for refusing to help.

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It is alleged that you then reacted to Patient A’s abuse in an aggressive and/or

inappropriate manner by rising from your seat, pointing your finger at him and striding

round the row of chairs towards the table where he was sitting while remonstrating with

him. It is also alleged that you removed the lanyard with your ID badge from around

your neck as a sign of aggression.

As you approached Patient A, he rose from his seat and strode round the table towards

you to confront you. You both stopped close to and facing one another, with Patient A,

who was significantly bigger than you, facing down towards you.

At this point the alarm was activated by Mr 1 and the Acting Ward Manager and others

quickly arrived at the scene and intervened. There was a flash of movement between

you, which appears to have involved an attempt by Patient A to assault you.

After the incident, Patient A alleged that you had assaulted him by punching him.

However, this allegation was investigated by both the Police and the Trust and was

found to be without foundation.

At the outset of the hearing, the Case Presenter made it clear that it was not suggested

by the NMC that you assaulted Patient A. The panel entirely accepted that you did not

assault Patient A.

The panel has had sight of a CCTV recording of the lounge area which captured the

incident as it happened.

In reaching its decisions on the facts, the panel considered all the oral and documentary

evidence in this case. The panel heard oral evidence from two witnesses called on

behalf of the NMC: Mr 1, a Health Care Assistant and Mr 2, a Ward Manager at the

Trust. The panel also heard evidence from you under oath.

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The panel found the NMC witnesses to be credible and reliable. In relation to Mr 1, the

panel found him to be credible. The panel noted that he was the only person called at

the hearing who was an eye witness to the incident. The panel believed that he was

trying to answer questions honestly despite being significantly challenged by Mr Imoh in

his recollection of the events.

The panel also found Mr 2 to be a credible and reliable witness. The panel bore in mind

that his role was to investigate an allegation of an assault. He took over the

investigation from another manager. In addition, the panel noted that Mr 2’s role in the

investigation was to merely identify issues in relation to the alleged incident and not to

make an autonomous decision regarding the outcome of the investigation. His report in

relation to the alleged incidents was to inform the Trust’s decision whether to progress

matters further.

You also gave evidence under oath. The panel found your evidence at times to be

evasive, unclear and inconsistent. The panel considered that you were unwilling to

accept personal responsibility for your actions and repeatedly attempted to shift that

responsibility onto others, including Patient A. The panel also considered that you

lacked the clinical judgement one would expect of an experienced Registered Mental

Health Nurse working in an acute ward regarding the needs and behaviours of patients.

The documentary evidence before the panel included Patient A’s handwritten account of

the incident dated 7 July 2014 on a complaint form. For reasons identified by the legal

assessor in his advice, the panel concluded that it would not be safe to place any

reliance on this evidence.

The panel considered the allegations in the charge and made the following findings:

Charge 1:

That you, a registered nurse

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1. Whilst employed by Barnet, Enfield and Haringey Mental Health NHS Trust as

a staff nurse acted in an aggressive and/or inappropriate manner towards Patient

A on 3 July 2014

This charge is found proved.

In reaching this decision, the panel took into account the evidence, in particular, the

CCTV footage.

The panel noted that you were seated whilst conversing with Mr 1. The panel accepted

that Patient A intervened by verbally abusing you, and that this included racial abuse.

The panel was satisfied that you reacted inappropriately by rising from your seat,

pointing your finger at Patient A and hurriedly walked round the row of chairs towards

the table where he was sitting.

In cross-examination, you accepted that your behaviour had been inappropriate. You

did not accept, however, that you were aggressive. You told the panel that the effect on

you of Patient A’s abuse was “bad”. In cross-examination you said that you felt insulted,

but that you were not angry or aggressive. You told the panel that you were seeking to

de-escalate the situation. You considered it appropriate to tell Patient A at once that his

behaviour was unacceptable.

The panel had no doubt that your actions in rising rapidly from your seat, pointing your

finger at Patient A and walking rapidly towards him were confrontational and

aggressive. The panel rejected your assertion that you were trying to de-escalate the

situation. It must, or should, have been obvious, to you as an experienced Registered

Mental Health Nurse, that your actions were likely to inflame the situation by provoking

Patient A, as they in fact did.

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The panel determined that many of the interventions in the Prevention and Therapeutic

Management of Violence and Aggression (PTMVA) Policy were not followed, in

particular:

“8.3.1.1 De-Escalation:

• Actively listen to what the patient is saying

• Remain calm. Maintain eye contact, avoid staring and maintain an appropriate

tone of voice…

• Avoid signalling your anger or even your potential aggression (Through verbal

and non-verbal behaviour)

• Avoid heavy criticism or being contrary

• Above all you must be perceived as trying to help”

In addition, the panel also determined that you, as a ward based member of staff,

breached the following parts of the Trust’s policy, at page 195:

“3. We must gauge our own stress levels and assess whether our own judgement is

impaired

7. Try to place physical barrier between you and your patient i.e. a table.

9. Be aware of personal space. (Remain at least arms and legs length away).

10. Adopt appropriate body stance. (Side on, open hands).

13. Avoid any provocation whether verbal or non-verbal.

17. Observe all signs whether they are verbal or non-verbal and act upon them.”

The panel did not accept your assertion that your reaction would have been entirely

different had you been made aware at handover that Patient A had a history of violence

and aggression. The panel was satisfied that you should, as an experienced Mental

Health Nurse, have been well aware that any patient detained under the Mental Health

Act on an acute psychiatric ward might have such a history, or might act in an

unpredictable manner.

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The panel also rejected your evidence that you stood up to make your way to the office.

The panel was satisfied that the nearest entry to the office was in the opposite direction

to that in which you were walking.

The panel, however, did not find that your action in removing your broken lanyard with

your ID badge was aggressive or inappropriate in the circumstances. The panel

accepted that you did this for your own safety.

For the above reasons, the panel found the charge proved.

Following the announcement of its findings on fact in relation to charge 1, the panel was

then told by the Case Presenter that there were further charges to consider. As they

related to convictions and a caution, in accordance with Rules 29 (2) of the Nursing and

Midwifery (Fitness to Practise) Rules 2004 (‘the Rules’) the panel had not been

informed of them until after the allegation in Charge 1 had been heard and determined.

Details of charges:

That you, a registered nurse

2. Were convicted on 26 November 2004 at the Magistrates sitting at Haringey of

driving a motor vehicle with excess alcohol contrary to section 5 (1) (a) of the

Road Traffic Act 1988

3. Did not declare your 2004 conviction on the Notification of Practice form dated

25 November 2009

4. Did not declare your 2004 conviction on the Notification of Practice form dated 4

December 2012

5. Your conduct as alleged in charges 3 and/or 4 were dishonest, in that you:

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(a) knew that you were required to disclose/declare your conviction(s) in the

Notification of Practice form(s), but did not do so;

(b) intended to conceal the fact that you had received the conviction(s) in

question and/or create the impression that you had not received such

conviction(s)

6. Were convicted on 7 March 2014 at the Magistrates sitting at North London of

driving a motor vehicle with excess alcohol contrary to section 5 (1) (a) of the

Road Traffic Act 1988

7. On 14 January 2016 accepted a police caution for common assault

8. Did not inform the NMC of your police caution dated 14 January 2016 in a timely

manner

9. Your conduct as alleged in charge 8 was dishonest in that you:

(a) knew that you were required to disclose/declare the police caution to the

NMC, but did not do so;

(b) intended to conceal the fact that you had received the police caution in

question and/or create the impression that you had not received such a

caution

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

convictions in relation to charges 2 and 6 above, by reason of your caution in relation to

charge 7 above, and by reason of your misconduct in relation to 3, 4, 5, 8 and 9 above.

Admissions

You admitted the following charges;

That you, a registered nurse

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2. Were convicted on 26 November 2004 at the Magistrates sitting at Haringey of

driving a motor vehicle with excess alcohol contrary to section 5 (1) (a) of the

Road Traffic Act 1988

3. Did not declare your 2004 conviction on the Notification of Practice form dated

25 November 2009

4. Did not declare your 2004 conviction on the Notification of Practice form dated

4 December 2012

6. Were convicted on March 2014 at the Magistrates sitting at North London of

driving a motor vehicle with excess alcohol contrary to section 5 (1) (a) of the

Road Traffic Act 1988

7. On 14 January 2016 accepted a police caution for common assault

The Chair therefore announced that the facts of these five charges were found proved.

The panel then went on to consider the remaining charges.

The panel received in evidence the agreed witness statements dated 22 July 2016 and

24 August 2006 of David Dewar, a Senior Case Investigation Officer employed by the

NMC, together with a bundle of documents relied on by the NMC. The panel also

received from you your letter of self-referral dated 4 September 2015 and a number of

documents relating to your police caution for common assault.

You gave oral evidence to the panel on oath. The panel found you to be evasive, self-

contradictory and lacking in honesty and credibility as a witness. You once again

demonstrated a lack of responsibility for your actions as an experienced Registered

Mental Health Nurse.

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In reaching its decisions on the facts, the panel considered all the evidence adduced in

this case together with the submissions made by Ms Guest, on behalf of the NMC, and

those made by Mr Imoh on your behalf.

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.

Background and findings of fact You yourself made a referral to the NMC received on 9 September 2015 in respect of

two convictions for driving a motor vehicle with excess alcohol. The caution, dated 14

January 2016, had not yet been administered. Your self-referral was in respect of the

two convictions.

Charge 2 relates to the first conviction. The memorandum of conviction shows that the

offence was committed on 13 October 2004. The alcohol level is recorded as “A109”. It

is not clear from this whether the figure relates to alcohol in breath, blood or urine. Your

evidence, however, was that the police tested your breath five times on this occasion.

The legal limit for driving with alcohol is 35 micrograms in 100 millilitres of breath. You

were disqualified from driving for 12 months and fined £150. In your evidence you told

the panel that you had dined in a restaurant with a friend who gave you a bottle of

energy drink. You did not know it contained alcohol as your friend did not inform you of

this and there was nothing to indicate this on the bottle. In cross-examination, however,

you admitted that you had realised that it contained alcohol immediately after you had

drunk it. Despite this you decided to drive because although you had consumed alcohol,

you did not think that you were drunk and did not feel unsafe to drive. You stated in your

letter to the NMC dated 4 September 2015 that “I was in full control of the vehicle I was

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driving and was not under influence although I was found to be over the legal drink

limit.”

Charge 6 relates to the second conviction. The offence took place on 13 February 2014.

The alcohol level was 51 micrograms in 100 millilitres of breath. You were disqualified

from driving for 36 months, fined £200 and ordered to pay some costs. The period of

disqualification was reduced by 9 months because you attended an alcohol awareness

course. You told the panel that you had had “one or two glasses of wine” on this

occasion. You told the panel that you had given up alcohol following this conviction. You

produced a letter dated 17 September 2015 from your GP stating that you have no

recorded history of alcohol or drug related issues over the 13 years you have been

registered with the practice.

You admitted that you did not declare your 2004 conviction on the Notification of

Practice forms completed by you on 25 November 2009 and 4 December 2012.

Charge 5:

5. Your conduct as alleged in charges 3 and/or 4 were dishonest, in that you:

(a) knew that you were required to disclose/declare your conviction(s) in the Notification of Practice form(s), but did not do so;

(b) intended to conceal the fact that you had received the conviction(s) in question and/or create the impression that you had not received such conviction(s)

This charge is found proved.

In reaching this decision, the panel took into account all the documentary evidence

before it and had regard to the oral evidence given by you under oath.

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Initially, you claimed that you did not know that you were required to declare your

convictions to the NMC because you had informed your employer of the convictions and

assumed that your employers would inform the NMC. You pointed out that you had

voluntarily disclosed the convictions in your letter of self-referral to the NMC dated 4

September 2015. You told the panel that you had done this because you had declared

the convictions to a new employer at an interview for employment and had been

advised by the interviewer that you should have disclosed them to the NMC. You

pointed out that this advice is referred to in the last paragraph of your letter and that

your new employer and the name of your interviewer are shown at the bottom of the

letter as having been sent a copy of your letter.

In cross-examination, however, you at one stage admitted that you had been dishonest

when you completed and signed the forms without declaring your conviction on them.

You later told the panel, however, that you did not know what dishonesty or deception

meant.

The panel noted that the terms of the Notification of Practice forms are crystal clear.

You were required to put a cross in a “Yes” box if you had been convicted of a crime

since 1 August 2004, other than motoring offences which did not lead to your

disqualification from driving for any period of time. You left this box blank. You then

signed the forms under a declaration in bold type that “… all of the above information is

a true and accurate statement.”

You had clearly placed “x” in the boxes confirming practice hours and CPD. The panel

could see no reason for you to confirm these matters and not that in the conviction box,

unless you intended the NMC to understand that you had no such convictions.

The section of the forms relating to convictions has written below the “Yes” box the

words, “If NO, please go direct to Step 2”. Step 2 is the box to be signed below the

declaration of truth. On the form completed by you on 4 December 2012, you have

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placed a tick beside these words, thereby, on the face of it, expressly asserting that you

do not have any such conviction.

You told the panel that you did not know why you had made this tick. You said at one

point that you did not read the words in this section of the form and that you had just put

a tick there without knowing what you were ticking because you were in a hurry. You

also said that you did not understand the form “very well”.

The panel did not believe you. The panel found it most implausible that you would have

placed a tick beside these words without having read both those words and the words

above them, as the meaning of the words beside which you placed your tick could only

be understood by reading them in conjunction with those words.

The panel did not believe you when you claimed that you believed that you did not need

to declare your conviction on the forms as you had assumed your employer would have

notified the NMC. Nor did the panel believe you when you claimed that the catalyst for

the disclosure of your convictions in your letter of 4 September 2015 was advice in an

employment interview. The panel noted that the assault by you on Patient B had

occurred on 16 May 2015, and that at the time of your letter you were under the police

investigation for that assault which led to your caution on 14 January 2016. The panel

considered that the most likely explanation for your decision to send that letter was your

realisation that the assault which you had committed was likely to be the subject of a

referral to the NMC, leading to investigations by the NMC into your criminal record, and

that you decided that it would be better for you to disclose your convictions belatedly

than have them discovered by such investigations.

The panel had no doubt that you knew perfectly well that you were required to disclose

your 2004 conviction on the forms and that you deliberately failed to do so because you

intended to conceal the fact of the conviction because you were concerned that your

livelihood as a registered nurse would be jeopardised had you made such disclosure.

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The panel considered whether your conduct as described above was dishonest by the

ordinary standards of reasonable and honest registered nurses. The panel had no

hesitation in deciding that it would. The panel then considered whether you yourself

must have known that what you were doing was dishonest by those standards. The

panel decided that it was obvious that you must have known that this was the case.

The panel therefore found charge 5 proved.

Charge 8:

8. Did not inform the NMC of your police caution dated 14 January 2016 in a timely manner

This charge is found proved.

You admitted that on 14 January 2016 you accepted a police caution for common

assault. The panel noted that you first informed the NMC of this caution on 16 June

2016. This was in a form that the NMC had sent to you for you to complete to allow the

police to disclose information in relation to you to the NMC. (It is clear from Mr Dewar’s

statement of 24 August 2016 that the NMC had discovered the existence of the caution

from the Police National Computer on 17 May 2016 in the course of investigating the

drink driving convictions.) You denied that this amounted to a failure on your part to

inform the NMC of your caution in a timely manner.

You claimed that you believed that you were not required to disclose your caution at an

earlier date because during this period you were “appealing” against the caution which

you had accepted. You produced correspondence and documents showing that on 11

February 2016 you wrote to the Independent Police Complaints Commission

complaining that the decision by the police to give you the caution was unfair because

you had been acting in self-defence. You claimed that you believed that, having

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appealed, you were not required to disclose the caution until your appeal had been

resolved.

The panel noted that 4 weeks elapsed after your caution before you wrote your letter of

11 February 2016. The panel also noted the caution form, signed by you on 14 January

2016 confirming the offence and your acceptance of the caution. The panel did not

accept that you did not realise what you were signing. Although the panel was not given

a clear explanation for the delay in making your appeal, the reasons you gave for the

appeal gave the panel considerable concern regarding your judgement in a clinical

setting as an experienced Registered Mental Health Nurse.

The panel noted the terms of the police caution and the summary of the circumstances

of the offence attached to it. It is stated that Patient B had been admitted as a suicide

risk suffering from depression to the ward where you were working. Patient B had told

you that he wished to leave the hospital. You were attempting to persuade him to

remain until he was seen by a consultant when he had lashed out with both arms

striking you. You had activated the alarm and a response team attended. They

restrained Patient B and escorted him to a seclusion room. You were not present when

this was taking place. Patient B had been placed on a bed in the seclusion room with

staff holding his arms and legs. After a few minutes the staff appeared to be making him

comfortable and he was not fighting them.

You then entered the seclusion room. You walked over to one of the walls and looked

into a mirror. Within seconds of looking in the mirror you walked over to Patient B who

was lying on the bed and punched him twice in the face causing common assault injury.

The staff member standing near Patient B’s legs then appears to have intervened to

stop you from hitting Patient B again. You then left the room. The panel received

evidence that “at no point on the CCTV does it show the victim fighting back…or

retaliate [sic].”

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You gave evidence about the incident. You told the panel that you had been badly

injured by Patient B. You produced evidence including photographs of your injuries. You

suffered an eye injury which required surgery. You told the panel that the pain in your

eye was excruciating. You also suffered facial lacerations. You told the panel that you

had blood gushing from your face.

You told the panel that when you looked in the mirror and saw the extent of your injuries

you had an instinctive reaction. You admitted that you struck the patient twice. You told

the panel that it is easy to judge if you are not involved. You told the panel that in view

of the way you were gushing blood and in pain in your eye the “law was not mathematic

1 + 1 =2” and there was a human side to your reaction.

It was put to you in cross-examination that your behaviour was pure retaliation. Patient

B was by then posing no threat to you or to anyone else. You denied that you had

assaulted Patient B in retaliation. You claimed that if you had not punched him he would

have assaulted other staff.

The panel noted the terms of your letter of complaint to the Independent Police

Complaints Commission dated 11 February 2016, including the following passage:

“I had strong pain in my left eye, I went to checked [sic] on the seclusion room’s mirror

and saw that my face was cover [sic] with blood, I had an emotional reaction,

uncontrolled and punched him twice and said stop attacked staffs [sic] for nothing. He

replied “sorry” and I said to him “sorry” too and left the ward and went to attend A & E. I

used that reasonable force to push him back and stop him continue attacking us. My

force did not hurt him, no cut, no swollen and no bruise. According to ACT 1967 criminal

lawlegislation.gov.uk, regarding the SELF DEFENCE states that: “A person may use

such force as is reasonable in the circumstances in the prevention of crime, or in

effecting or assisting in the lawful arrest of offenders or suspected offenders or of

persons unlawfully at large”. He was ready to attack again.”

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The panel wholly rejected your claims that your assault on Patient B was justified on

legal or any other grounds. The panel had no doubt that your assault was an

inexcusable and criminal act of retaliation against a vulnerable patient.

The panel did not believe your claim that you did not realise you were required to

declare your caution because you were “appealing” against it. The panel was satisfied

that you were well aware of your duty to disclose your caution promptly to the NMC and

that you failed to do so in a timely manner. During this period, you may have been

under the illusion that your complaint to the Independent Police Complaints Commission

might result in the caution being overturned.

The panel accordingly found charge 8 proved.

Charge 9:

9. Your conduct as alleged in charge 8 was dishonest in that you:

(a) knew that you were required to disclose/declare the police caution to the

NMC, but did not do so;

(b) intended to conceal the fact that you had received the police caution in

question and/or create the impression that you had not received such a

caution

This charge is found proved. For the above reasons, the panel was satisfied that you knew full well that you were

required to disclose your caution to the NMC promptly.

The panel was also satisfied that you deliberately failed to do so because you intended

to conceal the fact that you had received the police caution because you were

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concerned that your livelihood as a registered nurse would be jeopardised had you

made such disclosure.

The panel considered whether your conduct as described above was dishonest by the

ordinary standards of reasonable and honest registered nurses. The panel had no

hesitation in deciding that it would. The panel then considered whether you yourself

must have known that what you were doing was dishonest by those standards. The

panel decided that it was obvious that you must have known that this was the case.

Accordingly, the panel found charge 9 proved.

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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 in charges 1, 3, 4, 5, 8 and 9 amount to misconduct and,

if so, whether your fitness to practise is currently impaired by reason of misconduct. The

panel also had to consider whether your fitness to practise is impaired by reason of your

convictions in charges 2 and 6 and/or by reason of your caution in charge 7. The NMC

has defined fitness to practise as a registrant’s suitability to remain on the register

unrestricted.

The panel heard further oral evidence from you under oath. In addition, the panel also

had regard to the documentary evidence that you submitted at this stage, including an

emailed reference dated 30 March 2017 from Ms 1, the Registered Manager of ANA

Nursing, the agency for which you have recently been working as a healthcare

assistant. You also provided certificates of your completion of online training courses;

your undated written personal reflective piece; a letter from Moorfields Eye Hospital

dated 29 June 2016; a letter from the Disclosure and Barring Service dated 3 June

2016; photographs of your injuries following the incident with Patient B; a letter from

Islington Housing and Adult Social Services dated 3 June 2015; a photocopy of a

receipt of purchase from Eye Value Opticians dated 16 January 2015; an invoice from

Eye Value Opticians dated 7 January 2015; death certificates in relation to two of your

family members dated 25 July 2014 and 13 May 2015; a letter from Gospel Tabernacle

Church of London dated 2 September 2015; a letter dated 14 March 2014 from VMCL

Limited in relation to a drink driving course and a letter from Amwell Group Practice

dated 17 September 2015.

In relation to the emailed reference dated 30 March 2017, shortly after the panel went

into camera to begin its deliberations, the Case Presenter, Mr Jeffs, asked the panel to

reconvene. Mr Jeffs told the panel that he had just received emails from the Case

Officer, who had contacted Ms Luca by telephone and email on 26 April 2017 to carry

out a routine check in respect of the authenticity of the reference. Whilst it was clear that

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Ms Luca accepted that she was indeed the author of the reference, Mr Jeffs pointed out

that Ms Luca had stated in her latest email that “we are not aware of the current NMC

proceedings”. Mr Jeffs suggested that this appeared to conflict with your statement in

oral evidence that you had informed the agency about these NMC proceedings. Mr

Imoh on your behalf submitted that you had not said anything in your evidence which

was untrue, although he did not intend to call you to give further evidence as you had

found giving evidence very stressful. Mr Imoh then told the panel that you accepted that

you had not informed Ms Luca of these proceedings at the time she was asked to

provide the reference, although it was not you who had requested it. The panel received

and accepted legal advice in respect of this issue.

The panel considered that your oral evidence as to what information you had given to

the agency in relation to these NMC proceedings had been somewhat vague. The panel

was not satisfied that you had said anything in your evidence in relation to this reference

which was untrue or which was intended to mislead the panel. The panel accordingly

drew no conclusion adverse to you from Ms Luca’s latest email.

In his submissions Mr Jeffs invited the panel to take the view that your actions in

charges 1 – 6 amount to breaches of The Code: Standards of conduct, performance

and ethics for nurses and midwives 2008 (“the 2008 Code”) and, in respect of charges 7

– 9, to breaches of The Code: Professional standards of practice and behaviour for

nurses and midwives 2015 (“the 2015 Code”). Mr Jeffs identified the relevant

paragraphs from the Codes relied on by the NMC.

Mr Jeffs referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311

which defines misconduct as a word of general effect, involving some act or omission

which falls short of what would be proper in the circumstances.

He then moved on to the issue of impairment, and addressed the panel on the need to

have regard to protecting the public and the wider public interest. This included the

need to declare and maintain proper standards and maintain public confidence in the

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profession and in the NMC as a regulatory body. Mr Jeffs referred the panel to a

number of cases including Council for Healthcare Regulatory Excellence v (1) Nursing

and Midwifery Council (2) Grant [2011] EWHC 927 (Admin).

Mr Imoh, on your behalf reminded the panel that you have undertaken a course which

included elements of conflict resolution and that you have also abstained from alcohol

since you were convicted of your second drink driving offence. Mr Imoh also reminded

the panel of the personal circumstances at the time of the incident to which charge one

related. He explained that these issues clouded your judgement at the time and

submitted that you are not an aggressive person. He submitted that you committed the

assault for which you received the Police caution as a result of an emotional reaction to

the acute pain from your eye injury and the extent of your facial bleeding.

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

number of cases which are relevant including: Roylance, Grant and Cohen v GMC

[2008] EWHC 581 (Admin).

Decision on misconduct

In considering this issue, the panel had regard to the 2008 and 2015 Codes.

The panel, in reaching its decision, had regard to the public interest and accepted that

there was no burden or standard of proof at this stage and exercised its own

professional judgement.

The panel was of the view that your actions did fall significantly short of the standards

expected of a registered nurse, and that your actions amounted to a breach of both

Codes. Specifically, in respect of the 2008 Code:

From the preamble:

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“The people in your care must be able to trust you with their health and wellbeing

To justify that trust, you must:

• make the care of people your first concern, treating them as individuals and

respecting their dignity

• provide a high standard of practice and care at all times

• provide a high standard of practice and care at all times

As a professional, you are personally accountable for actions and omissions in your

practice, and must always be able to justify your decisions.

You must always act lawfully, whether those laws relate to your professional practice or

personal life.”

Numbered paragraphs:

“1. You must treat people as individuals and respect their dignity.

3. You must treat people kindly and considerately.

50 You must inform the NMC if you have been cautioned, charged or found guilty of a

criminal offence.

61 You must uphold the reputation of your profession at all times.”

And in respect of the 2015 Code:

“1 Treat people as individuals and uphold their dignity 1.1 treat people with kindness, respect and compassion

2 Listen to people and respond to their preferences and concerns 2.6 recognise when people are anxious or in distress and respond compassionately and

politely

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19 Be aware of, and reduce as far as possible, any potential for harm associated with your practice 20 Uphold the reputation of your profession at all times

20.1 keep to and uphold the standards and values set out in the Code

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

discrimination, bullying or harassment

20.3 be aware at all times of how your behaviour can affect and influence the behaviour

of other people

20.4 keep to the laws of the country in which you are practising

20.5 treat people in a way that does not take advantage of their vulnerability or cause

them upset or distress

23 Cooperate with all investigations and audits

23.2 tell both us and any employers as soon as you can about any caution or charge

against you …”

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

finding of misconduct. The panel accepted that, in this case, the incidents that led to the

breaches of the above parts of the Codes occurred whilst you were working during a

stressful time in your life. However, the panel determined that you, as an experienced

Registered Mental Health Nurse, should have been able to act in a professional manner

and to implement coping strategies to allow you to function appropriately in the

workplace. The panel also noted that there was a period of time between the incidents

which should have allowed you to reflect on the earlier incident and to develop

appropriate strategies to prevent any repetition.

The panel found that the facts of charges 1, 3, 4, 5, 8 and 9 did fall seriously short of the

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standards expected of a registered nurse and amounted to misconduct. The panel was

satisfied that your conduct in respect of each of these charges would be viewed as

deplorable by fellow registered nurses.

With regard to your convictions for drink driving and your caution for assaulting a

patient, the panel had no doubt that such convictions and such a caution were

sufficiently serious as to impair a registered nurse’s fitness to practice.

Decision on impairment The panel next went on to decide whether by reason of your misconduct and/or your

convictions and/or your caution your fitness to practise is currently impaired.

Nurses occupy a position of privilege and trust in society and are expected at all times

to be professional and to maintain professional boundaries. Patients and their families

must be able to trust nurses with their lives and the lives of their loved ones. To justify

that trust, nurses must be honest and open and act with integrity. They must make sure

that their conduct at all times justifies both their patients’ and the public’s trust in the

profession. In this regard the panel considered the judgement of Mrs Justice Cox in the

case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74

she said:

In determining whether a practitioner’s fitness to practise is impaired by

reason of misconduct, the relevant panel should generally consider not

only whether the practitioner continues to present a risk to members of the

public in his or her current role, but also whether the need to uphold

proper professional standards and public confidence in the profession

would be undermined if a finding of impairment were not made in the

particular circumstances.

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Mrs Justice Cox went on to say in Paragraph 76:

I would also add the following observations in this case having heard

submissions, principally from Ms McDonald, as to the helpful and

comprehensive approach to determining this issue formulated by

Dame Janet Smith in her Fifth Report from Shipman, referred to above.

At paragraph 25.67 she identified the following as an appropriate test for

panels considering impairment of a doctor’s fitness to practise, but in my

view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

Do our findings of fact in respect of the doctor’s misconduct,

deficient professional performance, adverse health, conviction,

caution or determination show that his/her fitness to practise is

impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to

put a patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the

medical profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach

one of the fundamental tenets of the medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act

dishonestly in the future.

The panel finds all four parts of the above test to be engaged, with regard to both the

past and your liability in the future.

Regarding remorse, insight and remediation, the panel considered your written

reflection and your oral evidence that you had reflected upon the incidents and the

panel’s findings of fact.

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The panel was unimpressed by your written reflection. You informed the panel that the

date of this document was 10 March 2017, which was the last day of the first part of this

hearing and the date on which the panel handed down its findings of facts. It was then

established that you had originally provided the NMC with this reflection on 16

December 2016 in its current form, save for the later insertion by you in handwriting of

the word “personal” before “development” on the third page. You confirmed that you had

reviewed this written reflection following the findings of fact on 10 March 2017, and that,

with the addition noted above, it still represented your current reflection on what were

now facts found proved.

To the extent to which your written reflection purports to consist of reflection on the

incidents to which the charges relate, it signally fails to demonstrate convincingly that

you have sincerely reflected on the causes of those incidents or that you have

understood or accepted your personal responsibility and culpability for their occurrence.

On the contrary, your reflection is disturbing in that you persist in blaming others for

your behaviour and seek to minimise and excuse your wrongdoing. You continue to

qualify your purported acceptance of any responsibility for your behaviour towards

Patient A by asserting that “I was the victim of abuse from an unprovoked service user

when I was talking to my colleague …” With regard to your responsibility for assaulting

Patient B by punching him twice in the face, you preface your reflection on this incident

with, “Although I am the one who was beaten unprovoked …” This insistence that you

were the victim undermines the sincerity of your expression of regret for reacting

emotionally due to “acute pain and the way the blood was gassing [sic] from my face.”

You appear to believe that Patient A’s and Patient B’s culpability for abusing and

assaulting you was no less than your culpability for behaving aggressively towards

Patient A and assaulting Patient B. You seem unable to understand that Patient A and

Patient B were vulnerable patients in your care and that your reactions to their

behaviour were wholly inexcusable.

29

At one point, when questioned during the course of your evidence as to how you would

feel if Patient B had been a family member or friend of yours, rather than demonstrating

insight into why your actions were wrong, you explained that you would be sympathetic

to the nurse’s actions.

Whilst there was some evidence of remorse on your part, including the distress which

was apparent to the panel on a number of occasions while you were giving your

evidence, the panel was not confident that the origins of this was remorse for the wrong

you had done to Patients A and B, or for the impact of your behaviour on the profession,

as opposed to feeling sorry for yourself for any detrimental consequences which these

proceedings may have on you.

With regard to your reflection on your convictions for drinking and driving, it is of

considerable concern that you continue to seek to excuse your behaviour, claiming that,

“in both incidences, I was in full control of the vehicle. I was driving and was not under

the influence of alcohol.”

With regard to reflection on the panel’s findings of fact, your written reflection is of no

relevance. It pre-dates those findings, and the handwritten addition of the word

“personal” adds nothing of substance to it.

The panel found little, if any, reassurance from your oral evidence that you have

sincerely reflected further on the incidents giving rise to the charges, or on the panel’s

findings of fact. Whilst the panel recognised that it would not be realistic to expect you,

in the light of the panel’s findings, now to admit the facts of the charges you denied, the

panel would have expected some evidence of attempts, at least, on your part, to reflect

on the rationale for the panel’s conclusions, in particular its findings of dishonesty, and

some recognition on your part of the damaging impact which a finding by a panel of

dishonesty against a registered nurse is likely to have on the profession. There was

nothing to suggest that you understood why a failure on the part of a registered nurse to

30

comply with his duty to declare convictions and cautions could be seen as dishonest by

the ordinary standards of reasonable and honest nurses.

In its consideration of what efforts you have made to remediate your deficiencies, the

panel took into account the online courses that you have recently completed and the

reading you have undertaken. However, the panel was not satisfied that you have taken

sufficient steps to undergo in-depth and effective training in conflict resolution, anger

management and dealing with challenging behaviour from potentially violent patients.

The panel was also concerned by your initial claim that you were up to date with your

training. When you were constrained to admit that this was not the case and asked how

you would address this, you told the panel that you would ask your employer to find

suitable training for you, rather than assuring the panel that you would take the initiative

in sourcing suitable training yourself. Once again, you appeared to be attempting to shift

your own responsibilities onto others.

Given your lack of insight and remediation, and your limited remorse, the panel

concluded that there remains a real risk of similar violent or aggressive behaviour

towards patients, and a risk of dishonest conduct on your part in the future.

Accordingly, the panel found that your fitness to practice is currently impaired on the

grounds of the need for public protection.

The panel bore in mind that the overarching objectives of the NMC are to protect,

promote and maintain the health safety and well-being of the public and patients, and to

uphold and protect the wider public interest, which includes promoting and maintaining

public confidence in the nursing and midwifery professions and upholding proper

professional standards for members of those professions. The panel had no doubt that

these objectives would be seriously undermined if a finding of impairment were not

made in the particular circumstances of your case. Accordingly, the panel also found

that your fitness to practise is impaired on the grounds of public interest.

31

Having regard to all of the above, the panel was satisfied that your fitness to practise is

currently impaired by reason of your misconduct, by reason of your convictions and by

reason of your caution.

32

Determination on sanction:

The panel has considered this case very carefully and has decided to make a striking-

off order. It directs the registrar to strike you off the register. The effect of this order is

that the NMC register will show that you have been struck-off the register.

In reaching this decision, the panel has had regard to all the evidence that has been

adduced in this case. The panel heard submissions from Mr Jeffs, on behalf of the NMC

and from Mr Imoh on your behalf. The panel accepted the advice of the legal assessor.

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 aggravating factors in this case to be as follows:

• There was repeated patient harm;

• The patients involved were by their nature vulnerable, as in-patients on an acute

mental health ward, and under your care;

• You were in a position of trust and in a privileged position;

• You were a sign-off mentor for student nurses and, as such, should have been a

positive role model;

• There was repeated dishonesty involving your regulator, designed to avoid or

frustrate the regulatory process;

• Your conduct led to your involvement with the criminal justice system on three

occasions;

• The absence of any meaningful reflection in relation to these incidents and your

lack of insight;

• You have persistently tried to minimise your involvement and your accountability

and to excuse your wrongdoing;

33

• Your actions give rise to significant damage to the reputation of, and public

confidence in, the nursing profession.

The panel found the mitigating factors in this case to be as follows:

• There are no previous regulatory findings;

• There is some evidence of external stressors at the time of the incidents

involving Patients A and B;

• You have engaged with these NMC proceedings, attended these hearings and

made some admissions;

• You have demonstrated some remorse.

The panel first considered whether to take no action but concluded that this would be

inappropriate in view of the seriousness of the case. The panel decided that it would be

neither proportionate nor in the public interest to take no further action.

Next, in considering whether a caution order would be appropriate in the circumstances,

the panel took into account the ISG, which states that a caution order may be

appropriate where ‘the case is at the lower end of the spectrum of impaired fitness to

practise and the panel wishes to mark that the behaviour was unacceptable and must

not happen again.’ The panel considered that your impairment was not at the lower end

of the spectrum and that a caution order would be inappropriate in view of the

seriousness of the case. The panel decided that it would be neither proportionate nor in

the public interest to impose a caution order.

The panel next considered whether placing conditions of practice on your registration

would be a sufficient and appropriate response. The panel is mindful that any conditions

imposed must be proportionate, measurable and workable. The panel took into account

the ISG, in particular:

34

Key considerations

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

64.4 Potential and willingness to respond positively to retraining

64.6 Patients will not be put in danger either directly or indirectly as a result of

conditional registration

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 took the view that the repetition of inappropriate responses to vulnerable

patients (Patients A and B), and of dishonesty, increased the seriousness of these

matters. This, together with your lack of insight, demonstrated an attitudinal problem

which has not been resolved. The panel considered that this attitudinal problem hinders

your ability to utilise training opportunities to good effect.

The panel determined that it would not be possible to formulate conditions that would

address external stressors that are bound to occur from time to time or to protect

patients from the risk of harm at such times.

35

Furthermore the panel concluded that the placing of conditions on your registration

would not adequately address the seriousness of this case and would not be sufficient

to uphold the public interest.

The panel next considered whether a suspension order would be an appropriate

sanction.

The panel took into account the ISG, in particular:

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 (this list is not exhaustive):

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 considered that none of these factors were apparent in your case. The issues

giving rise to your impairment involved diverse incidents over a long period of time.

In the light of this conclusion, the panel determined that a suspension order would not

be an appropriate or proportionate sanction.

Finally, in considering whether to make a striking-off order, the panel took note of the

following paragraphs of the ISG:

36

Key considerations 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?

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):

72.1 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 patients 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 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

72.5 Any violent conduct, whether towards members of the public or patients, where the

conduct is such that the public interest can only be satisfied by removal

72.6 Dishonesty, especially where persistent or covered up

72.7 Persistent lack of insight into seriousness of actions or consequences

72.8 Convictions or cautions involving any of the conduct or behaviour set out above

The panel found that all of the factors identified in paragraph 72 applied in your case.

37

Your actions involved significant departures from the standards expected of a registered

nurse, and are fundamentally incompatible with you remaining on the register. The

panel had no doubt that to allow you to continue to practice would seriously undermine

public confidence in the profession and in the NMC as its regulator.

The panel took into account the inevitable financial and professional hardship resulting

from such an order, however the panel was satisfied that your interests were

outweighed by the need to protect the public and uphold the public interest.

Accordingly, the panel concluded that a striking-off order was the appropriate and

proportionate sanction in your case.

38

Determination on Interim Order The panel has considered the submissions made by Mr Jeffs that an interim order

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 took account of the submissions made by

Mr Imoh on your behalf that you have previously been subject to, and fully complied

with, an interim suspension order since its imposition in October 2016.

The panel accepted the advice of the legal assessor.

The panel was satisfied that an interim suspension order is necessary for the protection

of the public and is otherwise in the public interest. The panel had regard to the

seriousness of the facts found proved and the reasons set out in its decision for the

substantive order in reaching the decision to impose an interim order. To do otherwise

would be incompatible with its earlier findings.

The period of this order is for 18 months to allow for the possibility of an appeal to be

made and determined.

If no appeal is made, then the interim order will be replaced by the striking-off order 28

days after you are sent the decision of this hearing in writing.

That concludes this determination.