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Conduct and Competence Committee

Substantive Hearing

20 February – 3 March 2017, 5- 6 June 2017

Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ

Name of registrant: Ms Erzsebet Kari NMC Pin: 87E0787E Parts of the register: RN3, Registered nurse (sub part 1) RN4, Registered Nurse (sub part 2) Mental Health (5 February 2000) Mental Health (25 July 1989) Area of registered address: England Type of Case: Misconduct Panel Members: Matthew Fiander - Lay (Chair)

Marian Robertson - Registrant member Linda Stone - Lay member

Legal Assessor: John Bromley-Davenport QC Panel Secretary: John Barker/ Lucy Eames Nursing & Midwifery Council: Represented by Paul Andrews,

Counsel instructed on behalf of the Nursing and Midwifery Council Regulatory Legal Team.

Ms Kari: Not present or represented, but took

part via telephone link. Facts proved by way of admission: 1.1 and 2 (in its entirety) Facts proved: 1.3, 1.4 Facts not proved: 1.2 Fitness to practise: Impaired Outcome: Caution Order, 5 years Interim Order: N/A

Page 2 of 26

This case is linked with that of another registrant, Registrant B.

Service of Notice of Hearing

The panel was informed at the start of this hearing that Ms Kari was not in

attendance and was not represented in her absence.

The panel was informed that the notice of this hearing was sent to Ms Kari on 17

November 2016 by recorded delivery and first class post to her address on the

register.

The panel accepted the legal assessor’s advice that a notice of hearing should be 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

Page 3 of 26

The panel was satisfied that a notice of this hearing was sent to Ms Kari on 17

November 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.

Decision on whether to proceed in Ms Kari’s absence

Mr Andrews, on behalf of the NMC, submitted that it was in the interests of the public

and of public protection to proceed in Ms Kari’s absence. He referred the panel to a

letter from Ms Kari’s legal representatives dated 17 February 2017 in which they

stated:

“I have received instructions from my client that she will not be

represented and nor will she be able to attend the hearing which is due to

commence on the 20th February….My client does wish for the Tribunal to

consider a bundle of documents”.

In light of this communication from Ms Kari’s legal representatives, Mr Andrews

submitted that it was clear she did not intend to attend the hearing. He highlighted

the fact that neither Ms Kari nor her legal representatives had made an application to

adjourn proceedings, but had submitted a significant amount of paperwork

addressing the charges.

Mr Andrews 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 Andrews stated that the panel can reasonably come to the conclusion that

Ms Kari 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 Ms Kari’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.

Page 4 of 26

The panel was satisfied that notice had been served in compliance and accordance

with the Rules and that Ms Kari was aware of today’s hearing. It had regard to the

communication from her legal representatives, namely that Ms Kari would not be

attending the hearing and would not be represented in her absence, nor would they

be making an application to adjourn the hearing. The panel considered this

communication to demonstrate that Ms Kari had voluntarily absented herself from

the hearing. However, the panel decided to contact Ms Kari through an NMC case

officer to ensure she was aware that she could take part in the hearing via a

telephone link. Ms Kari indicated to the panel that she was content for the hearing to

proceed without her being present, but that she would like to give oral evidence by

telephone once the NMC had closed its case. The panel acquiesced to this request

and decided to proceed in Ms Kari’s absence, but contact her later in the week in

order for her to give her oral evidence. The panel considered there to be a clear

public interest in dealing with this case expeditiously. It noted the age of the

allegations and it was in the interests of public protection that it be heard without

further delay. The panel considered in all the circumstances of this case that any

prejudice to Ms Kari was outweighed by the public interest considerations.

Accordingly the panel decided to proceed in Ms Kari’s absence.

Charges

That you, a Registered Nurse, whilst employed by Care UK at the Hollins Park Care

Home ("the Home") as the Assistant Manager:

1. Having been made aware of the following allegation/s of abuse, did not, within

24 hours, ensure a referral was made to Cheshire East Council Social

Services Adult Protection Team ("Safeguarding"):

1.1 Staff Member 7 pulled Resident A, in approximately August 2013

1.2 Staff Member 7 slapped Resident A, on an unknown date

1.3 Staff Member 1 and/or 11 locked Resident A in a room, on an unknown

date

1.4 Staff Member 7 pushed Resident A onto a bed, on an unknown date.

Page 5 of 26

2. In regard to Resident B:

2.1 During November 2013, on one or more occasions, failed to ensure

that the GP’s advice regarding the insulin prescribed for Resident B

was documented in Resident B’s care plan.

2.2 On or about 26 November 2013, upon discovering that Resident B's

blood glucose level was in excess of 30 mmol:

i. Failed to test for ketones in Resident B’s urine;

ii. Failed to escalate, as soon as practicable, Resident B’s

condition to a doctor

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

misconduct.

Admissions

At the outset of the hearing Mr Andrews informed the panel that in her response to

charges form as well as in the various documents she has submitted, Ms Kari admits

the factual allegations of charges 1.1, 1.4 and 2.

When Ms Kari gave oral evidence she indicated that she did not admit the facts of

charge 1.4, if it related to a separate occasion and event to that set out in charge 1.1.

Mr Andrews made it clear that the NMC position was that these two charges related

to entirely separate occasions. To ensure the hearing was fair the panel decided that

it would make its own determination in relation to charge 1.4.

Accordingly the panel found charges 1.1 and 2 proved by way of admission.

Background

Ms Kari was employed by Care UK and, until approximately 30 May 2014, as the

Deputy Manager of the Hollins Park Care Home ("the Home"). Her overall position

involved overseeing clinical aspects of care at the Home including care plan

documentation, risk assessments and medication.

Page 6 of 26

During the course of an inspection by the Care Quality Commission ("CQC"),

completed by Ms 11 on 1 October 2013, a number of allegations of cases of abuse

came to light involving members of staff at the Home and residents in their care.

Allegations were brought to Ms 11's attention by a number of members of staff at the

Home. It was alleged that certain members of staff had physically abused vulnerable

residents, including those suffering with dementia. It was further alleged that

residents had been locked within their rooms.

Further investigations revealed that the alleged abuse, which appears to have taken

place during 2013, had not been the subject of referral(s) to Cheshire East Council

Social Services Adult Protection Team ("Safeguarding"). The concern was therefore

that allegations of abuse by members of staff were not referred to Safeguarding.

As part of the Care UK response to the alleged abuse, an investigation into Ms Kari’s

conduct was completed by Ms 8, Manager of another Home operated by Care UK.

As part of her investigation, Ms 8 particularly examined the care given to Resident B

and the management of her blood glucose level and diabetes condition.

It is alleged that on 26 and 29 November 2013, whilst Ms Kari was responsible for

Resident B's care, her blood glucose level was such as to require a referral of her

condition to be made to a doctor. It is alleged that such a referral was not completed

by Ms Kari meaning that medical attention was not provided when necessary,

causing an increase in risk of hyperglycaemia and ketoacidosis a potentially life

threatening condition.

In addition to the investigations involving allegations of abuse, and the management

of Resident B's care, the NMC investigation has also considered the care delivered

to Resident A, who resided at the Home between 18 April 2013 and 3 October 2013.

Resident A was admitted to the Home suffering from multiple disabling conditions

including Dementia.

Over the course of Resident A's time at the Home, she sustained a number of falls

culminating, in what was diagnosed at hospital on 3 October 2013 as a fractured

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skull. Upon her discharge from hospital on 30 October 2013, Resident A was placed

at another Nursing Home, where she remained until her death the following year.

At the Inquest into her death the Coroner's findings did not extend to a finding of

neglect on the part of Home staff.

Determination and reasons on the finding of facts

In reaching its decision on the allegations, the panel has taken account of all the

evidence in this case and the submissions of the NMC and Ms Kari.

The panel has taken into account 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 found proved if the panel is satisfied that it was

more likely than not that the incidents occurred. The panel accepted the advice of

the legal assessor.

The legal assessor reminded the panel of Rule 31. To be admissible the evidence

must pass the test of relevance and fairness. The fact that evidence is hearsay and

cannot be tested by cross examination goes to the weight to be given to such

evidence.

The legal assessor also explained the significance of varying degrees of hearsay

present in this case. There was direct first hand hearsay, for example from Ms 13 to

Ms 5; there was second hand hearsay originating for example from Mr 14 and

reported to Ms 5 by Ms 13; it was important to recognise such evidence for what it

was and to attach no more weight to it than was fair in all the circumstances.

The legal assessor further advised that the panel should have regard to the

judgment of Mitting J in the case of Turner & White v NMC [2014] EWHC 520

(Admin), particularly in relation to anonymous hearsay such as that contained in

paragraph e(ii) of the statement of Ms 11 (ex.7, p.68). Each case is fact specific and

there is no requirement to exclude anonymous hearsay as a matter of principle. It is

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necessary, however, to exercise particular caution before placing reliance on

anonymous hearsay. The reason for this is that not only is there no chance to

challenge the evidence by cross examination, but the registrant is unable to meet the

evidence with anything more than bare denial. The anonymity prevents the registrant

from advancing any informed case as to why a particular witness might have a

hostile reason or motive for giving the evidence, or to make other enquiries which

might undermine the anonymous hearsay.

As with all aspects of hearsay evidence it was important for the panel to exercise

great care and to consider in each instance whether the hearsay is supported in

whole or in part by other evidence.

The panel should also ask itself what, if any, steps have been taken to identify and

secure the attendance of the hearsay witnesses. If the NMC had made all

reasonable efforts to afford the opportunity to cross examine the witness without

success, then the application to admit hearsay would have a stronger basis. The

concept of fairness as set out in Rule 31(1) includes the conduct of the parties and

their approach to producing evidence, per Pill J in NMC v Ogbonna [2010] EWCA

Civ. 1216.

The legal assessor also advised the panel to bear in mind that Ms Kari was of good

character; had many years’ experience of nursing; and had produced references as

to her character and her nursing skills. This was important in two respects: (1) the

good character of Ms Kari is important when the panel considers her credibility as a

witness; (2) her character and references were also important in assisting the panel

to determine whether it was likely that she would do any of the things alleged against

her.

That you, a Registered Nurse, whilst employed by Care UK at the Hollins Park Care

Home ("the Home") as the Assistant Manager:

1. Having been made aware of the following allegation/s of abuse, did not, within

24 hours, ensure a referral was made to Cheshire East Council Social

Services Adult Protection Team ("Safeguarding"):

Page 9 of 26

1.1 Staff Member 7 pulled Resident A, in approximately August 2013 –

found proved by way of admission

1.2 Staff Member 7 slapped Resident A, on an unknown date – found not

proved

The panel noted the witness statement of Ms 5 who said:

“On [date unknown] I was working on the ground floor with [Ms 13], Senior

Nurse. [Mr 14] came downstairs to speak with [Ms 13] in private regarding

an incident that he had witnessed. I am aware that [Mr 14] told [Ms 13]

that he had seen Staff Member 7 slap Resident A. [Mr 14] explained that

Staff Member 7 had slapped Resident A between her wrist and her elbow.

I am aware of this incident because I had to go upstairs and work with

Staff Member 7; and [Mr 14] was moved downstairs. I was then asked to

take over from [Mr 14] upstairs.

[Ms Kari] was working with [Ms 13] that evening, so [Ms 13] waited for [Ms

Kari] to start her shift and then told her of the allegations. [Ms Kari]

instantly dismissed the allegation and called [Mr 14] a liar. [Ms 13] was

very upset the evening after the incident as she explained to me that she

had informed [Ms Kari] and she had not believed [Mr 14’s] allegation. [Ms

Kari] told [Ms 13] that [Mr 14] was lying. As far as I am aware there was

not an investigation into this allegation, and there were no statements

requested by the Management team.

…Neither Safeguarding not the Care Quality Commission were informed

of this incident. I did not find out for certain that this allegation was not

reported to Local Authority Safeguarding unit until September 2013…”

(ex.7, p.16, para.5-7)

The panel also had regard to the witness statement of Ms 11:

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“I then spoke to [Mr 14], Carer, who had observed Staff member 7 slap

Resident A. [Mr 14] said that he reported this incident to [Ms 13],

Registered Nurse, who then informed [Registrant B]. [Mr 14] was then

interviewed by [Registrant B] regarding this incident and he told me that

he felt intimidated by [Registrant B] and was made to feel racist for raising

the allegation. [Mr 14] informed me that [Registrant B] had asked him

whether he had a problem with Staff Member 7 because of the colour of

his skin. He also stated that he felt worried for his job and therefore

agreed to retract his statement. When I questioned [Registrant B]

regarding this incident she stated the [Mr 14] had agreed to retract his

statement because Resident A was ‘flailing her arms around’ and that

Staff Member 7 was trying to support her. Despite this, there was still an

allegation of abuse made against Staff Member 7 and the CQC and

Safeguarding should have been notified, but they were not. [Registrant B]

should have notified the CQC and Safeguarding of this incident

immediately.” (ex.7, p.66, para.v)

Thus, there is nothing in the account Mr 14 gave to Ms 11, which suggests that he

had made Registrant A aware.

Ms Kari told the panel that this incident was not reported to her and therefore there

was nothing to report to Safeguarding or the CQC.

The panel also heard oral evidence from Ms 5 who said that she saw Ms 13 very

upset in the evening after Ms 13 had reported Mr 14’s concerns to Ms Kari. Ms 5 told

the panel that Ms 13 was crying because Ms Kari had not believed Mr 14’s allegation

that Staff Member 7 had abused Resident A. The panel recognised that Ms 5 was

not a direct witness to either the alleged abuse of Resident A, or to Ms 13’s alleged

reporting to Ms Kari. Therefore her evidence was to be treated as hearsay.

The panel considered Ms 5 to be credible with no motivation to fabricate her

encounter with Ms 13. However, the panel concluded that Ms 5 was not in a position

to evaluate whether Staff Member 7 had actually slapped Resident A and,

importantly, she could not give any evidence as to what Ms 13 reported to Ms Kari.

Page 11 of 26

The panel noted that there was no direct evidence as to what Ms 13 reported to Ms

Kari.

Evaluating the hearsay evidence, the panel was not satisfied that it was of sufficient

quality to find that Ms Kari was told that Staff Member 7 had slapped Resident A.

The panel accepts that Ms 13 may have told Ms Kari something, Ms 5 certainly

believed that she did, but the panel could not be satisfied that what she told Ms Kari

was that Mr 14 had witnessed Staff Member 7 slap Resident A.

The panel had to weigh the unsatisfactory hearsay evidence with Ms Kari’s

vehement denial that she was told that Staff Member 7 had slapped Resident A. The

panel could not be satisfied on the balance of probabilities that the incident was

reported to Ms Kari. It found that she was not aware of the allegation. Accordingly

the panel found charge 1.2 not proved.

1.3 Staff Member 1 and/or 11 locked Resident A in a room, on an unknown

date – found proved

Ms 3 told the panel that resident’s rooms at the Home tended to be locked (when no

one is in them) during the day after a spate of “things going missing”. Residents

could access their rooms if they asked a member of staff for a key.

The panel had regard to the statement of Ms 5:

“On 13 August 2013 [Mr 15] reported to me that he had witnessed Staff

member 11 Carer, and Staff Member 1, Registered Nurse, leave Resident

A’s bedroom and then lock the door. [Mr 15] was working on the first

floor of the Home on this night, and I was on the ground floor. I was in

Resident L's bedroom assisting her with personal care, when I

heard some commotion coming from the first floor. The commotion

was coming from the room above, which was Resident A's bedroom.

[Mr 15] came downstairs to speak to me shortly after I had heard this

commotion, and stated that he had seen Staff Member 1 lock Resident

A's bedroom door. I reported this incident to [Ms 16], Registered

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Nurse, who advised me to check the computer for any reports of

fighting between the residents'. Sometimes if the residents' had been

fighting, two members of staff would take the resident into their bedroom

and use calming techniques.

After [Mr 15] had reported this incident to me, I went upstairs to check

whether Resident A's bedroom door was locked. This was approximately

30 minutes after [Mr 15] had reported the incident to me. As I was

walking towards Resident A’s bedroom door, Staff Member 11 ran

towards me and told me that the door was locked. I checked the handle

and the bedroom door was locked. I unlocked Resident A's bedroom door,

and I walked into her bedroom. Resident A was clearly upset and

distressed as she had been incontinent of urine, and had opened her

wardrobe and emptied it over the floor. I then attended to Resident A's

personal care by changing her incontinence pad and nightwear. However,

she did not have any clean nightwear in her bedroom, so I asked Staff

Member 11 to get this for me from the laundry room. [Mr 15] was in the

corridor outside of Resident A's bedroom when I asked Staff Member 11

to get Resident A some clean nightwear from the laundry room. [Mr 15]

informed me that he had seen Staff Member 11 locking two other

bedroom doors on her way to the laundry room. One of these bedrooms

was Resident B and the other was Resident M”. (ex.7, p.18, para.12)

And

“After this incident I was ignored by several members of staff for months”

You told the panel that this incident was not reported to you and therefore there was

nothing to report to Safeguarding.

It was Ms 5’s evidence that she was told by Mr 15 that Staff Members 1 and 11 had

locked Resident A in her bedroom. Upon hearing this Ms 5 told the panel that she

went to check on the veracity of Mr 15’s claim and found Resident A locked in her

bedroom in a state of distress.

Page 13 of 26

Ms 5 also said that Staff Member 11 told her, whilst she was en route to the room,

that Resident A’s bedroom door was locked. During her oral evidence Ms 5 said that

it was her opinion that Resident A’s bedroom door was locked for at least 30

minutes. The panel noted that in her interview during the Home’s internal

investigation she said the door was only locked for 10 minutes. The panel did not

consider the discrepancy between 10 and 30 minutes to undermine Ms 5’s

credibility. It has been several years since this incident and the subsequent

investigation. The panel concluded that Resident A was locked in her bedroom for a

period of between 10 to 30 minutes.

The panel noted that Ms 5 said during her oral evidence that locking a bedroom door

whilst a resident was inside was a deprivation of their liberty and put the resident at

serious risk of harm, for example in the event of a fire.

Having dealt with this incident Ms 5 told the panel that she made a point of coming in

to the Home on 15 August 2013, which was her day off, to attend the night meeting,

so that she could inform Ms Kari in person of what she had witnessed. When

determining this charge the panel preferred Ms 5’s direct evidence regarding this

incident to Ms Kari’s denial that she was told about Staff Members 1 and 11 locking

Resident A in her bedroom. It considered Ms 5’s account to have been detailed and

it stood up to scrutiny when she was cross examined.

Having found that Ms 5 did report this incident to Ms Kari, thereby making her aware

of an incident of abuse, the panel concluded that it was Ms Kari’s responsibility to

ensure that a referral was made to Safeguarding. Ms Kari was the Deputy Home

Manager and it was her responsibility to report allegations of abuse, as she accepted

in her oral evidence. Accordingly the panel found charge 1.3 proved.

1.4 Staff Member 7 pushed Resident A onto a bed, on an unknown date –

found proved

In her written statement Ms 5 states:

Page 14 of 26

“[Ms 17] stated that she had heard Resident A in distress, as she was

working in the next room. [Ms 17] stated that she walked into Resident A’s

room and witnessed Staff Member 7 push Resident A onto her bed. [Ms

17] said that when she did this he looked upset with Resident A and

agitated, and Resident A was visibly upset as a result of the push”.

The panel accepted the evidence of Ms 11 to the effect that Ms 17 informed her on 1

October 2013 of this incident.

Further, the panel accepted the evidence of Ms 8. She said “[Ms 17] informed me

that she had witnessed Staff Member 7 ‘put his hand on [Resident A’s] chest and

[push] her back onto the bed’”.

Whilst the panel did not receive evidence from Ms 17 it had careful regard to the

evidence of Ms 8 who conducted an investigation interview with Ms 17. Ms 8 had

considerable experience in investigating allegations both in the private care home

sector and the NHS where she held the positon of modern matron. The panel placed

some weight on Ms 8’s assessment of Ms 17 in the investigation interview, who she

assessed as plausible and consistent. Taken together the panel is satisfied that it

could rely upon the account Ms 17 gave to others.

The panel took account of Ms 17’s witness statement taken by Ms 8 during the

Home’s internal investigation:

“[Ms 17] could hear [Resident A] shouting, this was unusual for her, I was

in the room next door and I looked in, he put her legs on the bed, she tried

to sit forward and he [Staff Member 7] put his hand on her chest and

pushed her back onto the bed”. (ex.8, p.106, para.2)

During the Home’s internal investigation Ms 8 spoke to Ms 5 who was also present

on the night in question. Ms 5 told Ms 8 that Ms 17 came to her to ask for advice

having “seen [Staff Member 7] pushing [Resident A] in her seat. He was not using

calming techniques. It was in [Resident A’s] room at the time”. Ms 5 sought advice

and then herself advised Ms 17 to write a statement about what she had seen. Once

Page 15 of 26

Ms 17 had done that, Ms 5 read the statement and saw her post the statement under

the Home Manager’s office door. In addition, Ms 17 spoke to Ms Kari on the

telephone, informing her about what she saw. In her oral evidence Ms Kari accepted

that she had spoken to Ms 17 about this incident, although she believed that it was

she who called Ms 17.

The panel reminded itself that at the outset of this hearing Ms Kari made an

admission to this charge. It is the NMC’s position that this incident occurred on a

separate day to charge 1.1. However, the panel accepted the evidence of Ms 8 that

these incidents occurred on the same day. Ms Kari supported this view.

Having heard all the evidence, the panel considered this incident to have occurred

on the same day as 1.1. Staff Member 7 allegedly pulled Resident A (charge 1.1)

down a corridor, then pushed her into bed (charge 1.4). The panel considered these

to be two separate incidents of alleged abuse during a continuous course of conduct.

The panel concluded that Ms Kari had been informed about this incident. Ms Kari

told the panel that she discussed it by telephone with Ms 17. Having been told about

it she should have reported it to Safeguarding in the same way she has admitted that

she should have reported the allegation of Staff Member 7 pulling Resident A down

the corridor. Accordingly the panel found charge 1.4 proved.

2. In regard to Resident B:

2.1 During November 2013, on one or more occasions, failed to ensure

that the GP’s advice regarding the insulin prescribed for Resident B

was documented in Resident B’s care plan – found proved by way of

admission

2.2 On or about 26 November 2013, upon discovering that Resident B's

blood glucose level was in excess of 30 mmol:

i. Failed to test for ketones in Resident B’s urine – found proved

by way of admission

Page 16 of 26

ii. Failed to escalate, as soon as practicable, Resident B’s

condition to a doctor – found proved by way of admission

Resumed on 5 June 2017

Decision on Service of Notice of Hearing:

The panel was informed at the start of this resumed hearing that Ms Kari was not in

attendance and that written notice of this resumed hearing had been sent to Ms

Kari’s registered address by recorded delivery and by first class post on 20 March

2017. Royal Mail “Track and Trace” documentation confirmed that the notice of

hearing was sent to Ms Kari’s registered address by recorded delivery on that date.

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 Ms Kari’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 on 18 April 2017. Mr Andrews submitted the

NMC had complied with the requirements of Rules 11 and 34 of the Nursing and

Midwifery Council (Fitness to Practise) Rules 2004, as amended (“the Rules”).

The panel accepted the advice of the legal assessor.

In the light of all of the information available, the panel was satisfied that Ms Kari had

been served with notice of this hearing in accordance with the requirements of Rules

11 and 34. It noted that the rules do not require delivery and that it is the

responsibility of any registrant to maintain an effective and up-to-date registered

address.

Decision on proceeding in the absence of the Registrant:

The panel had regard to Rule 21 (2) (b) which states:

Page 17 of 26

“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 Andrews invited the panel to continue in the absence of Ms Kari on the basis that

she had voluntarily absented herself. Mr Andrews submitted that there was no

reason to believe that an adjournment would secure her attendance on some future

occasion. He informed the panel of an email from Ms Kari, dated 4 June 2017, which

said the following:

‘I am unable to attend the hearing or to be presented due to financial difficulties.

I send my apologies for not being available by phone … I therefore request the

hearing continues to go forward. If there are any questions the panel need me to

answer then if you would kindly email me them I will respond as soon as I pick them

up.’

The panel accepted the advice of the legal assessor. The panel noted that its

discretionary power to proceed in the absence of a registrant under the provisions of

Rule 21 is one that should be exercised “with the utmost care and caution”.

The panel has decided to proceed in the absence of Ms Kari. 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. It noted that:

no application for an adjournment has been made by Ms Kari;

there is no reason to suppose that adjourning would secure her attendance at

some future date;

Ms Kari wishes the hearing to proceed;

There is some disadvantage to Ms Kari in proceeding in her absence. However, in

the panel’s judgment, this can be mitigated.

Page 18 of 26

In these circumstances, the panel has decided that it is fair, appropriate and

proportionate to proceed in the absence of Ms Kari. The panel will draw no adverse

inference from Ms Kari’s absence.

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 Ms

Kari’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.

The panel had sight of an email from Ms Kari, dated 4 June 2017 and her

representative’s letter, dated 6 June 2017.

In his submissions Mr Andrews invited the panel to take the view that Ms Kari’s

actions amounted to a breach of The Code: Standards of conduct, performance and

ethics for nurses and midwives 2008 (the Code). He then directed the panel to

specific paragraphs and identified where, in the NMC’s view, her actions amounted

to misconduct.

Mr Andrews 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 also

referred the panel to the case of R (on the application of Dr. Malcolm Calhaem) v

General Medical Council [2007] EWHC 2606 (Admin).

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

to the cases of Council for Healthcare Regulatory Excellence v (1) Nursing and

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

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Mr Andrews submitted that the allegations are serious involving failings in the care of

two vulnerable residents. He added that there was a high level of trust in Ms Kari to

provide the care needed. Mr Andrews submitted that the panel may be satisfied that

Ms Kari has remediated her actions, however, she has not addressed the impact of

them on the public and the wider nursing profession. He therefore submitted that Ms

Kari demonstrates a lack of insight into her failings.

Ms Kari has told the panel that she is currently working as a nurse and submitted a

number of positive references. She has undertaken training courses and there have

been no further issues with her practice since these incidents.

The panel has accepted the advice of the legal assessor.

The panel adopted a two-stage process in its consideration, as advised. 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, Ms Kari’s fitness to practise is currently

impaired as a result of that misconduct.

Decision on misconduct

When determining whether the facts found proved amounted to misconduct the

panel had regard to the terms of the Code.

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 satisfied that Ms Kari’s actions did fall significantly short of the

standards expected of a registered nurse, and that her actions amounted to a breach

of the Code. Specifically:

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

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To justify that trust, you must:

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

respecting their dignity

• work with others to protect and promote the health and wellbeing of those in your

care, their families and carers, and the wider community

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

• … act with integrity and uphold the reputation of your profession.

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

4 You must act as an advocate for those in your care, helping them to access

relevant health and social care, information and support.

32 You must act without delay if you believe that you, a colleague or anyone else

may be putting someone at risk.

35 You must deliver care based on the best available evidence or best practice.

54 You must act immediately to put matters right if someone in your care has

suffered harm for any reason.

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

Breaches of the Code do not automatically result in a finding of misconduct.

However, the panel considered that charge 2 alone was a serious omission and put

the resident at risk of serious harm. Ms Kari demonstrated a basic failing of care for

a common condition and failed to follow the advice of a GP. Further, in charge 1 the

facts found proved demonstrated an extremely serious departure from what was

required, and expected, of Ms Kari in her role as Deputy Home Manager. Ms Kari

exposed Resident A, an extremely vulnerable resident, to real risk of serious harm.

The panel found that Ms Kari’s actions did fall seriously short of the conduct and

standards expected of a nurse and amounted to misconduct.

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Decision on impairment

The panel next went on to decide if as a result of this misconduct Ms Kari’s 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.

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.

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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. …

The panel finds that limbs a, b and c are engaged.

In its consideration of whether Ms Kari has remedied her practice the panel took into

account that in relation to charge 2 she acknowledged at an early stage that she

lacked appropriate training. It noted that she has since undertaken relevant training

and that there have been no further issues of the kind found proved in this case. In

relation to charge 1, the panel had regard to Ms Kari’s reflective accounts which she

submitted as part of her revalidation as a nurse. The panel was satisfied that Ms Kari

has demonstrated sufficient insight into safeguarding and her duty as nurse. It

considered that Ms Kari has further demonstrated insight into her failings by stating

that she has no intention to return to a managerial position in nursing.

The panel considered that Ms Kari has learned from her omissions and has

demonstrated remediation. The panel took into account that there have been no

other issues with Ms Kari’s practice, apart from these incidents, in a 30 year career

as a nurse. It determined that Ms Kari is unlikely to repeat these matters. The panel

therefore decided that a finding of impairment is not necessary on the grounds of

public protection.

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The overarching objectives of the NMC are to protect, promote and maintain the

health safety and well-being of the public and patients, and to uphold/protect the

wider public interest, which includes promoting and maintaining public confidence in

the nursing and midwifery professions and upholding the proper professional

standards for members of those professions. The panel determined that, in this case,

a finding of impairment on public interest grounds was required. It considered that in

a case with such serious findings as these, a member of the public would be

shocked if no finding of impairment was made. The panel determined that Ms Kari’s

failings were so far across the threshold of what is expected of a nurse that to find no

impairment would undermine the public’s confidence in the profession and in the

NMC as regulator.

Having regard to all of the above, the panel was satisfied that Ms Kari’s fitness to

practise is currently impaired.

Determination on sanction:

The panel considered this case very carefully and decided to make a Caution Order.

The effect of this order is that Ms Kari’s name on the NMC register will show that she

is subject to a caution order and anyone who enquires about her registration will be

informed of this order.

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

adduced and has accepted the advice of the legal assessor. 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 took into account the following aggravating and mitigating factors:

Aggravating

Particularly vulnerable residents were put at real risk of harm

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Failure of basic nursing set out in charge 2

Mitigating

Unblemished career both before and after these incidents

Early admissions on some charges

Number of positive references

Training courses she has undertaken

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 determined that a caution

order was the least restrictive sanction which marks the public interest in this case.

The panel took into account the positive references including one from Ms Kari’s

current Home Manager, who is a Registered Nurse and one from a Clinical Nurse

Specialist, who had worked with Ms Kari for 6 months at the time of writing the

reference, which stated:

“Since starting work with Joanne I have been impressed with her dedication and

professionalism. She seems to have boundless energy which she channels into her

work effectively ensuring high standards of care and safety on her unit which runs

very smoothly. Her documentation and record keeping is of a very high quality and

always up to date.

“Joanne is kind and approachable and she is a great support to her colleagues,

residents and their families and the home management team. Joanne is an assertive

nurse who will fight to ensure her residents receive the best care and attention and

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will never be overlooked due to age nor diagnosis. She genuinely looks beyond the

diagnosis and sees the person. Many of the residents in her care have advanced

dementia and she works hard to ensure they experience a high level of well being.

“Joanne keeps her clinical skills updated and is always very receptive to new ideas

and working practices. Her clinical judgement is sound.”

The panel was aware that there have been no adverse findings in relation to Ms

Kari’s practice either before or since these incidents and the panel has already

concluded that there is little risk of Ms Kari repeating her misconduct.

Whilst Ms Kari had not addressed the panel on her insight, the panel has found the

references to be particularly helpful in this regard. The panel also took into account

Ms Kari’s reflective pieces. Balancing all the information the panel determined that

the case as a whole falls at the lower end of the spectrum of impaired fitness to

practise. However, the panel considered it is necessary to mark that the behaviour

found proved in the decision on facts is unacceptable and must not happen again.

The panel considered whether it would be proportionate to impose a more restrictive

sanction. It determined that conditions of practice would be inappropriate as Ms Kari

has already completed relevant training. The panel therefore considered suspension

but decided that a suspension order would be disproportionate as the public interest

can be addressed through a caution order. It considered that it would be in the public

interest to allow an otherwise good nurse to continue practising.

The panel has decided that a caution order would adequately address the public

interest. For the next 5 years Ms Kari’s employer or any prospective employer will be

on notice that her fitness to practise had been found to be impaired and that her

practice is subject to an order. Having considered the general principles above and

looking at the totality of the findings on the evidence, the panel has determined that

to impose a caution order for the maximum period of 5 years would be the

appropriate and proportionate response. This is the minimum necessary to mark not

only the importance of maintaining public confidence in the profession, but also to

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send the public and the profession a clear message about the standards required of

a registered nurse.

At the end of this period the note on Ms Kari’s entry in the register will be removed.

However, the NMC will keep a record of the panel’s finding that her fitness to

practise had been found impaired. If the NMC receives a further allegation that Ms

Kari’s fitness to practise is impaired, the record of this panel’s finding and decision

will be made available to any practice committee that considers the further

allegation.

This decision will be confirmed in writing.