Nursing and Midwifery Council Fitness to Practise Committee … · 2018. 7. 25. · Represented by Tom Orpin-Massey; Alistair Kennedy . Registrant: Present (except for days 1, 3)

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Nursing and Midwifery Council Fitness to Practise Committee

Substantive Hearing

12 March 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ.

15-16 March 2018, 19-23 March and 26-29 March 2018 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH

Resumed 10-12 July 2018 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH

Name of registrant: Mr Stewart Latimer Whyte NMC PIN: 91H0511S Part(s) of the register: Registered Nurse – Sub Part 1 Mental Health Nursing - 22 October 1994

Area of Registered Address: Scotland

Type of Case: Misconduct

Panel Members: John Penhale (Chair & Lay member) June Robertson (Lay member)

Alice Clarke (Registrant member)

Legal assessor: Nigel Pascoe

Panel Secretary: Calvin Ngwenya; Ian Dennehey; Julia Wanless

Nursing and Midwifery Council: Represented by Tom Orpin-Massey; Alistair Kennedy

Registrant: Present (except for days 1, 3) and represented

by Ms Heather McMahon, instructed by the Royal College of Nursing (RCN)

No case to answer: charge 5 (in its entirety)

No evidence offered: 1.8 and 2.5

Facts proved by admission: 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 2.1, 2.2, 2.3, 2.4, 2.6 and 2.7.

Facts proved: N/A

Fitness to practise: Impaired

Sanction: 5 year Caution Order

Interim Order: N/A

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Details of charge as amended:

That you, whilst employed by Orchard Care Homes as the Area Operations Manager for

Fairfield Manor Care Home (“Fairfield Manor”) and Woodlands Care Home

(“Woodlands”), Broadstairs, Kent:

1. Between October 2013 and August 2014, failed to ensure that Woodlands was

compliant with the following regulations:

1.1. Regulation 9 of the Health and Social Care Act 2008 (Regulated Activities)

Regulations 2010 – Care and welfare of service users; - admitted

1.2. Regulation 10 of the Health and Social Care Act 2008 (Regulated

Activities) Regulations 2010 – Assessing and monitoring the quality of

service provision; - admitted


Activities) Regulations 2010 – Cleanliness and infection control; - admitted


Activities) Regulations 2010 – Management of medicines; - admitted


Activities) Regulations 2010 – Records; - admitted


Activities) Regulations 2010 – Staffing; - admitted


Activities) Regulations 2010 – Supporting workers; - admitted

1.8. Regulation 18 of the CQC (Registration) Regulations 2009 – Notification of

other incidents. - No evidence offered

2. Between October 2013 and August 2014, failed to ensure that Fairfield Manor

was compliant with the following regulations:


Regulation 2010 – Care and welfare of service users; - admitted

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Activities) Regulation 2010 – Assessing and monitoring the quality of

service provision; - admitted


Activities) Regulation 2010 – Safeguarding people who use services from

abuse; - admitted


Activities) Regulation 2010– Management of medicines; - admitted

2.5. Regulation 18 of the Care Quality Commission (Registration) Regulations

2009 – Notification of other incidents; - No evidence offered


Activities) Regulation 2010 – Records; - admitted


Activities) Regulation 2010 – Staffing. - admitted

3. In the alternative to Charges 1.1 and 2.1, between October 2013 and July 2014

failed to address concerns that were raised by the Home Manager of Fairfield

Manor and Woodlands that Agency nurses were not completing residents’ care

plans; - charged in the alternative, therefore not required to be considered

4. In the alternative to Charges 1.6 and 2.7, failed to address concerns in relation to

the staff at Fairfield Manor and / or Woodlands which were raised in emails sent

by the Home Manager on the following dates: - charged in the alternative, therefore not required to be considered

a. 20 March 2014;

b. 28 March 2014;

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c. 31 March 2014;

d. 5 April 2014;

e. 14 April 2014;

f. 13 May 2014;

g. 23 May 2014;

h. 10 June 2014;

i. 26 June 2014.

5. In the alternative to charges 1 and 2, failed to take action to address the concerns

that were raised in internal monthly audits:

At Fairfield Manor, on the following dates:

a) 17 October 2013;

b) 13 January 2014;

c) 25 March 2014;

d) 14 April 2014;

e) 13 May 2014.

No case to answer

At Woodlands, on the following dates:

a) 14 January 2014;

b) 3 February 2014;

c) 5 March 2014;

d) 2 April 2014;

e) 12 May 2014;

f) 23 June 2014.

No case to answer

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

misconduct.

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Application to proceed in private under Rule 19:

Ms McMahon, on your behalf, invited the panel to proceed in private under Rule 19. She

submitted that she had an application to make which would involve the disclosure of

private information about your health.

Neither Mr Orpin-Massey, representing the NMC, nor Registrant C, representing

himself, opposed the application.

The panel heard and accepted the advice of the legal assessor, that while Rule 19(1)

provides, as a starting point, that hearings shall be conducted in public, Rule 19(3)

states that the panel may hold hearings partly or wholly in private if it is satisfied that

this is justified by the interests of any party or by the public interest.

The panel concluded that it was appropriate to proceed in private when considering

information about your health on the basis that your right to confidentiality outweighed

the public interest in the entirety of the hearing taking place in public.

Application to postpone/adjourn:

Ms McMahon applied for a postponement or adjournment under the provision of Rule

32, which states:

(1) The Chair of the Practice Committee may, of her own motion, or upon the

application of a party, postpone any hearing of which notice has been given

under these Rules before the hearing begins.

(2) A Practice Committee considering an allegation may, of its own motion or upon

the application of a party, adjourn the proceedings at any stage, provided that

(a) no injustice is caused to the parties; and

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(b) the decision is made after hearing representations from the parties (where

present) and taking advice from the legal assessor.

(3) Where the proceedings have been adjourned, the Practice Committee shall, as

soon as practicable, notify the parties of the date, time and venue of the resumed

hearing.

(4) In considering whether or not to grant a request for postponement or

adjournment, the Chair or Practice Committee shall, amongst other matters, have

regard to

(a) the public interest in the expeditious disposal of the case;

(b) the potential inconvenience caused to a party or any witnesses to be

called by that party; and

(c) fairness to the registrant.

Ms McMahon submitted that on one interpretation of the Rules the application was for

postponement and was directed to the panel’s Chairman under Rule 32 (1) since the

adjournment under Rule 32 (2) related to a panel considering an allegation and because

the panel was not yet considering an allegation, the charges not having been read.

However Ms McMahon indicated that she would not seek to challenge the panel if it

decided to consider her application under Rule 32 (2).

Ms McMahon referred the panel to information regarding your health and submitted that

it was clear that you were not able to attend the hearing in London. You had been

requesting to have the hearing in Edinburgh as long ago as October 2017. You were

resident in Glasgow and the NMC had offered to facilitate your participation by Webex

(video link) from its Edinburgh Office. However, this was insufficient to secure your

proper engagement with the proceedings. Ms McMahon asserted that you were entitled

to be able to engage effectively with your legal representatives during the proceedings,

which were complex and that this could not be done satisfactorily without you being

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present in the same room as those representatives to give specific instructions as

matters arose. The charges were disputed and there was a bundle of some 600 pages,

there were three registrants and a number of witnesses. It was usual for witnesses,

especially in response to questions, to introduce oral evidence which was not contained

within their statements. In these circumstances, it would be hard to follow the evidence

remotely. [PRIVATE]. For these reasons, a postponement or adjournment of the

current hearing was sought in order for the case to resume at the earliest opportunity in

Edinburgh. Ms McMahon submitted that this was appropriate and would not cause any

unfairness. Although the charges dated back to October 2013, there was no live public

protection issue and no interim order was in force. A further modest delay would not be

likely to seriously undermine the quality of evidence. The charges would be likely to be

determined on the basis of documentation and this was not a case in which the ability of

witnesses to recall details would be particularly relevant. Witnesses could attend to give

evidence by Webex if they were unable to attend a hearing venue in Edinburgh.

Registrant C supported the application for the hearing to take place in Edinburgh,

stating that it would be more convenient for travel reasons for him and in light of the

information he had now heard about your health.

Mr Orpin-Massey opposed the application. He submitted that the NMC had sought to be

as accommodating as possible in making reasonable adjustments in response to your

needs. [PRIVATE] There were 4 witnesses due to attend who would be inconvenienced

by a further delay. There was a public interest in resolving the charges in the case

which were already of some age. The technology could address your needs to engage

both with the hearing and with your representatives.

The panel accepted the advice of the Legal assessor and had regard to the factors

which he indicated it should consider. He stated that although it was regrettable that the

application was made on the first day of this substantive hearing, it was a legitimate

application to make and the panel should not dismiss it because it was perceived to be

“late”. He also stated that even if the application more properly fell under the provisions

of Rule 32 (1), because the charges had not yet been read, it would be artificial, all

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three members of the panel being present, if the Chairman chose not to consult his

colleagues as to their views in relation to the application.

Having established through the panel secretary that the NMC was able and willing to

accommodate the hearing relocating to Edinburgh the panel decided to adjourn the

hearing until Thursday 15 March 2018 and to resume at 09:30am that day at the NMC’s

hearing centre in Edinburgh where the remainder of the case will be heard.

In reaching this decision the panel had regard to the fact that this should secure your

attendance and full engagement in the hearing. Registrant C made clear that he would

prefer a hearing in Edinburgh and explained his reasons for that preference. Registrant

B is not present or attending the hearing in any event and will therefore not be

inconvenienced or disadvantaged by any change of hearing venue.

Witnesses who are due to attend to give evidence can do so by Webex from the NMC’s

hearing centre in Stratford, which is where they are currently scheduled to attend, albeit

that the specific dates of their attendance may need to be revised. The panel can make

good use of the time between today and Thursday by reading the hearing bundle which

runs to approximately 600 pages. Resuming on 15 March 2018 also allows both

Counsel and the panel’s legal assessor to discharge any other professional and/or

personal commitments they may have on 13 and 14 March 2018 which require their

presence in London. The public interest in making expeditious progress with a case

and avoiding additional unwarranted delay is satisfied and hearing time is not wasted

unnecessarily.

Hearing Resumes on 15 March 2018 at NMC, 114-116 George Street, Edinburgh, EH2 4LH: Decision and reasons on application to amend the charge:

The panel heard an application made by Mr Orpin-Massey, on behalf of the NMC, to

amend the wording of the charge 2.1, which is identical in the case against you,

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Registrant B and Registrant C. The proposed amendment was to correct a

typographical error by inserting the digit ‘8’ in the title date of the Health and Social Care

Act 2008…” A further amendment was proposed in respect of charges against

Registrant B, to correct the spelling of the word ‘manager’ in the stem of charge 4 as

well as changing the date in charge 4.2 from 13 April 2014 to 13 May 2014. Mr Orpin-

Massey submitted that the application was being made in good faith and would provide

clarity and more accurately reflect the NMC’s evidence.

Ms McMahon on your behalf did not oppose the application.

The panel heard and accepted the advice of the legal assessor.

The panel was of the view that such amendments, as applied for, were in the interest of

justice. The panel was satisfied that there would be no prejudice to you and no injustice

would be caused to either party by the proposed amendments being allowed. It was

therefore appropriate to allow the amendments, as applied for, to ensure clarity and

accuracy.

Decision and reasons on application to amend the charge:

Mr Orpin-Massey made an application to amend the wording of the stem of charge 1 in

relation to Registrant C. The proposed amendment was to replace the words “registered

person” with the words “nominated individual”. Mr Orpin-Massey submitted that on

review of the evidence, including Registrant C’s job description, his CV and the

provisions of the Health and Social Care Act 2008, it was clear that the designation of

Registrant C as the ‘registered person’ was inaccurate. Registrant C’s position was

“Head of Care & Compliance/Nominated Individual…”

Mr Orpin-Massey told the panel that Registrant C had been informed of the NMC’s

intention to amend the charge and his views had been sought about the proposed

amendment. In his response to the NMC in an email dated 19 March 2018, Registrant C

stated: “I don`t have a problem with the change…” Mr Orpin-Massey therefore

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submitted that the proposed amendments could be made without prejudice and would

provide clarity and accurately reflect Registrant C’s job title.


The panel took into account the Registrant C’s response to the proposed amendment

and noted that he did not object to this application. The panel was of the view that the

amendment, as applied for, was necessary to ensure clarity and accurately reflect the

evidence. The panel was satisfied that there would be no prejudice to Registrant C by

the proposed amendments being allowed.

Charges:

This case has been considered in accordance with the provisions of the Nursing and

Midwifery Council (Fitness to Practise) Rules 2004, as amended, (‘the Rules’) and the

Nursing and Midwifery Order 2001. Your case has been joined with that of two other

registrants, namely:

• Registrant B.

• Registrant C.

Details of charge as amended:

That you, whilst employed by Orchard Care Homes as the Area Operations Manager for

Fairfield Manor Care Home (“Fairfield Manor”) and Woodlands Care Home

(“Woodlands”), Broadstairs, Kent:




Regulations 2010 – Care and welfare of service users;

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service provision;


Activities) Regulations 2010 – Cleanliness and infection control;


Activities) Regulations 2010 – Management of medicines;


Activities) Regulations 2010 – Records;


Activities) Regulations 2010 – Staffing;


Activities) Regulations 2010 – Supporting workers;

5.8. Regulation 18 of the CQC (Registration) Regulations 2009 – Notification of

other incidents.




Regulation 2010 – Care and welfare of service users;



service provision;



abuse;


Activities) Regulation 2010– Management of medicines;

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6.5. Regulation 18 of the Care Quality Commission (Registration) Regulations

2009 – Notification of other incidents;


Activities) Regulation 2010 – Records;


Activities) Regulation 2010 – Staffing.

7. In the alternative to Charges 1.1 and 2.1, between October 2013 and July 2014

failed to address concerns that were raised by the Home Manager of Fairfield

Manor and Woodlands that Agency nurses were not completing residents’ care

plans;

8. In the alternative to Charges 1.6 and 2.7, failed to address concerns in relation to

the staff at Fairfield Manor and / or Woodlands which were raised in emails sent

by the Home Manager on the following dates:

j. 20 March 2014;

k. 28 March 2014;

l. 31 March 2014;

m. 5 April 2014;

n. 14 April 2014;

o. 13 May 2014;

p. 23 May 2014;

q. 10 June 2014;

r. 26 June 2014.

5. In the alternative to charges 1 and 2, failed to take action to address the concerns

that were raised in internal monthly audits:

At Fairfield Manor, on the following dates:

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f) 17 October 2013;

g) 13 January 2014;

h) 25 March 2014;

i) 14 April 2014;

j) 13 May 2014.

At Woodlands, on the following dates:

g) 14 January 2014;

h) 3 February 2014;

i) 5 March 2014;

j) 2 April 2014;

k) 12 May 2014;

l) 23 June 2014.

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

misconduct.

Decision and Reasons on application pursuant to Rule 31: Prior to making the substantive application in relation to Rule 31, Mr Orpin-Massey and

Ms McMahon addressed the panel on the preliminary issue of whether the panel should

have sight of the witnesses’ statements which are subject of the application before

making a determination on their admissibility.

Mr Orpin-Massey on behalf of the NMC made submissions in favour of the panel having

sight of the witnesses’ statements on the basis that it would assist it in determining

whether they are admissible. Ms McMahon on your behalf, opposed the NMC’s

approach on the basis that it would be unfair, notwithstanding their relevance, for the

panel to consider the contents of the statements prior to making its decision. She noted

that the panel is already aware of the nature of the witnesses’ evidence and to which

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charges it related. Therefore, it was not necessary or desirable for the panel to have

sight of them at this point.


Although the panel was of the view that it would have been helpful and desirable to

have sight of the witness statements prior to making its decision, it decided against

doing so. In reaching its decision, the panel considered that it already had a reasonable

understanding of the nature of the witnesses’ evidence and which allegations it related

to as outlined by Mr Orpin-Massey in his opening summary. In balancing the

helpfulness of having sight of the statements against fairness to the registrants, the

panel determined, out of abundance of caution, not to read the witness statements prior

to making its decision on admissibility.

Following the panel’s preliminary decision in relation to the Rule 31 application, both Mr

Orpin-Massey and Ms McMahon helpfully provided the panel with written skeleton

arguments and authorities in respect of the application.

In summary, Mr Orpin-Massey made an application to allow the statements of Ms 1

(Home Manager) and Ms 2 (Care Quality Commission Inspector) into evidence. He

informed the panel that the NMC had secured the availability of both Ms 1 and Ms 2 to

give evidence before the three-day adjournment of the hearing on day 1 when the

hearing was moved from London to Edinburgh. Mr Orpin-Massey submitted that as a

consequence of the delay to the start of these proceedings, neither witness is now

available to give evidence, either by Webex or by coming to Edinburgh in person and

both witnesses have made it clear to the NMC that they cannot be available within this

hearing’s allocated timeframe. He submitted that in these circumstances, the NMC seek

to adduce the statements they have made in these proceedings as hearsay evidence

given that the two witnesses have been resolute about their non-availability.

Mr Orpin-Massey referred the panel to the provisions of Rule 31 and the case of

Ogbonna v Nursing and Midwifery Council [2010] EWCA Civ 1216, with regards to the

question of fairness in adducing hearsay evidence.

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Mr Orpin-Massey outlined the relevance of Ms 1 and Ms 2’s evidence and explained the

reasons for their non-attendance, noting that the NMC had made extensive efforts to

secure the attendance of the witnesses on the three previous occasions that this

hearing had been listed. However, the two witnesses have decided they cannot be

available because of the latest adjournment.

Mr Orpin-Massey submitted that hearsay evidence is admissible in these proceedings

and the witness statements of Ms 1 and Ms 2 are undeniably relevant to the matters in

issue in this case. With regards fairness, Mr Orpin-Massey submitted that it would not

be unfair to admit these statements because the hearsay evidence is in the form of

signed statements of truth. He further submitted that the panel can correct any prejudice

to the three registrants in not being able to cross-examine the witnesses in the weight

they give to the hearsay evidence when making their determinations on the factual

allegations. Mr Orpin-Massey submitted that the unavailability of the witnesses

prejudices the NMC as well as the registrants as it harms the NMC’s prospects of

proving its case. Therefore, it would be unfair to the NMC to exclude these statements

in circumstances where it has done all it can to secure the attendance of the witnesses.

Mr Orpin-Massey reminded the panel of the NMC’s duty to protect patients and uphold

public confidence in the professions it regulates. He also reminded the panel of its duty

of enquiry and of fairly admitting any evidence that would assist it in determining these

serious allegations.

Ms McMahon on your behalf opposed the application on the basis that it would be

profoundly unfair to you to admit the witness statements of Ms 1 and Ms 2, in their

entirety. She referred the panel to the provisions of Rule 31 in relation to relevance and

fairness and contended that the “fairness” requirement is not satisfied. Ms McMahon

referred the panel to the principles in the cases of Ogbonna; R (Bonhoeffer) v GMC

[2011] EWHC 1585; and Thorneycroft v NMC [2014] EWHC 1565 (Admin) in relation

to the factors it should take into account when determining the question of fairness in

admitting hearsay evidence.

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With regards to the witness statements of Ms 2, Ms McMahon submitted that her

evidence that you were represented as being in charge of the homes in the absence of

Ms 1, was roundly disputed by you. She further noted that Ms 2’s evidence is the sole or

decisive evidence in relation to the allegation that you were responsible for breaches of

the various CQC regulations. With regards to the witness statements of Ms 1, Ms

McMahon submitted that the evidence of the concerns she allegedly raised with you

regarding the completion of care plans and staffing, and your alleged failure to respond

to them, is strongly disputed. She further noted that the NMC seeks to rely on certain

emails that Ms 1 exhibits which are disputed, as you do not accept that: (i) that these

emails are a complete copy of all relevant correspondence; (ii) that they are themselves

complete and/or (iii) they establish the point the NMC seeks to make. Ms McMahon

submitted that Ms 1’s evidence is the sole or decisive evidence against you in relation to

charges 3 and 4 and is an important component of the evidence on charge 5.

With regards to Ms 1’s non-attendance, Ms McMahon submitted that it appears that Ms

1 has become frustrated with what she perceives as delays in this case and has

subsequently disengaged due to personal inconvenience and frustration. However, if

she is still a Home Manager, then she has professional duties and responsibilities to

assist a professional regulator.

Ms McMahon submitted that the panel should refuse to admit the evidence of both Ms 1

and Ms 2 as it is profoundly unfair to admit such evidence. She submitted that you face

serious charges which, if found proved, could well end your career. The evidence of Ms

2, which you strongly dispute, is the sole or decisive evidence on the central question

on charges 1 and 2 and there is no independent means of testing the reliability of Ms 1

account. Similarly, the evidence of Ms 1, which is also strongly disputed, is the sole or

decisive evidence on charges 3 and 4 and is an important component of the evidence

on charge 5 and there is no independent means of testing its reliability. The emails that

Ms 1 exhibits are not accepted as complete and the veracity of Ms 1’s account cannot

properly be tested against such a partial and patently self-serving collection of email

correspondence. She further noted that it appears from Ms 1’s email of 8 March 2018

that she bears considerable animosity towards you.

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Ms McMahon submitted that in these circumstances, you would suffer significant

prejudice by not being able to cross-examine these witnesses and the prejudice is so

great that their evidence should be excluded. She submitted there is prejudice to you in

not being able to cross examine the witnesses which cannot be properly addressed by

the weight which the panel attaches to their hearsay evidence. The criterion of fairness

in Rule 31 is relevant to whether a statement should be admitted at all.

Ms McMahon acknowledged the NMC’s efforts to secure the attendance of Ms 1 and

Ms 2. However, she submitted that such efforts have been beset by miscommunication

and the NMC has not done all it can to facilitate the attendance of the witnesses,

because the witnesses have lost patience with apparent miscommunications and

delays. In any event, the NMC’s efforts to secure the attendance of the witnesses is

only a factor to be weighed in the balance. She further noted that both Ms 1 and Ms 2

were reluctant to give evidence in any event. She submitted that most of the factors

point in favour of refusing the application and the balance is tipped decisively in your

favour. She therefore invited the panel to refuse the application.

The panel heard and accepted the legal assessor’s advice on the issues it should take

into consideration in respect of this application. He advised that the evidence must be

relevant and fair, for it to be read. The panel has a discretion which must be exercised

fairly with those factors in mind and weighing carefully the specific representations

made by each side. The legal assessor referred the panel to the principles in the cases

of Ogbonna; Bonhoeffer and the latest authority of Thorneycroft v NMC [2014] EWHC

156 (Admin), particularly paragraph 56 which states:

“The decision to admit the witness statements despite their absence required the Panel

to perform careful balancing exercise. In my judgment, it was essential in the context of

the present case for the Panel to take the following matters into account:

(i) whether the statements were the sole or decisive evidence in support of the

charges;

(ii) the nature and extent of the challenge to the contents of the statements;

(iii) whether there was any suggestion that the witnesses had reasons to

fabricate their allegations;

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(iv) the seriousness of the charge, taking into account the impact which adverse

findings might have on the Appellant's career;

(v) whether there was a good reason for the non-attendance of the witnesses;

(vi) whether the Respondent had taken reasonable steps to secure their

attendance; and

(vi) the fact that the Appellant did not have prior notice that the witness

statements were to be read..”

Rule 31(1) states:

“Upon receiving the advice of the legal assessor, and subject only to the requirements

of relevance and fairness, a Practice Committee considering an allegation may admit

oral, documentary or other evidence, whether or not such evidence would be admissible

in civil proceedings (in the appropriate Court in that part of the United Kingdom in which

the hearing takes place).”

The panel first considered the question of relevance. The panel noted that witness

statements of Ms 1 and Ms 2 had been prepared for use in these proceedings and there

was no dispute between the parties in respect of relevance.

The panel considered whether you would be disadvantaged by the change in the NMC’s

position of moving from reliance upon the live testimony of Ms 1 and Ms 2 to that of their

written statements.

The panel first considered Ms 1’s statements. Ms 1 had attended the hearing in person

on day 2 but after your application to change the hearing venue from London to

Edinburgh, the panel noted that Ms 1 had since made it clear to the NMC that she no

longer intended to give evidence due to being “messed around” by the NMC in relation

to these proceedings. It noted that Ms 1 had made herself available on the previous

three occasions that this case was listed for a hearing. However, due to the three

adjournments of these proceedings, she had become frustrated and subsequently

disengaged due to the stress and inconvenience caused by these proceedings.

Furthermore, she was unable to attend owing to work commitments. The panel was

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satisfied that there was a good reason for Ms 1’s non-attendance and that the NMC had

made all reasonable efforts to secure Ms 1’s attendance, including adducing her

evidence via Webex.

The panel considered that Ms 1’s evidence was not the sole or decisive evidence in

support of charges 1, 2 and 5, there was some documentary evidence in the form of

emails sent to you and evidence from Ms 2 which could corroborate Ms 1’s accounts.

However, it appeared at this stage to be the sole or decisive evidence in relation to

charges 3 and 4. The panel also took into account that you strongly dispute Ms 1’s

evidence, but it had no evidence, at this stage, to suggest that Ms 1 had fabricated her

account or that she bore any animosity towards you at the time of the allegations. The

panel considered that the allegations against you are very serious and could potentially

have an adverse impact on your professional career. However, in the panel’s

judgement, Ms 1’s evidence was significant in documentary terms rather than as

evidence of behaviour. The panel noted its duty in playing a proactive role in making

sure that any case before it is properly presented and that the relevant evidence is

placed before it. In the panel’s view, Ms 1’s evidence would assist it in fully exploring the

issues it has to determine.

The panel bore in mind that adducing Ms 1’s evidence in this way could cause you

prejudice but it considered that the unfairness in this regard worked both ways in that

the NMC was deprived, as was the panel, from reliance upon the live evidence of Ms 1

and the opportunity of questioning and probing her testimony. Furthermore, as an

experienced professional panel, it would give what it deemed appropriate weight once it

had heard and evaluated all the evidence before it and after hearing submissions. In

this way any prejudice to you would be addressed. The panel was of the view that it was

in all parties’ interest and also the public interest in the issues being explored fully and

properly which supported the admission of Ms 1’s evidence into the proceedings to

assist the panel in undertaking its role appropriately.

The panel next considered Ms 2’s statements. The panel noted that Ms 2 was no longer

able to give live evidence in the time allocated for this hearing. The panel considered

that Ms 2 had made herself available on the previous three occasions that this case was

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listed for a hearing. However, due to the three adjournments of these proceedings, she

was no longer in a position to attend due to her care, personal and work commitments.

Particularly in the light of her significant care commitments, the panel was satisfied that

Ms 2 had a good reason for non-attendance and that the NMC had made all reasonable

efforts to secure her attendance, including adducing her evidence via Webex.

The panel did not consider that Ms 2’s evidence was the sole or decisive evidence in

support of the charges, save for charge 6. The panel noted that you strongly dispute

Ms 2’s evidence as highlighted in Ms McMahon’s submissions, but it had no evidence,

at this stage, to suggest that Ms 2 had fabricated her account. To the contrary, Ms 2

had previously drafted favourable reports in relation to the homes. The panel

considered the seriousness of the allegations against you and the potential adverse

impact on your professional career. However, in the panel’s judgement, Ms 2’s evidence

was potentially significant and the panel noted its duty in playing a proactive role in

making sure that any case before it is properly presented and that the relevant evidence

is placed before it. In the panel’s view, Ms 2’s evidence is potentially significant in fully

exploring the issues it has to determine.

The panel bore in mind that adducing Ms 2’s evidence in this way could cause you

prejudice but it considered that the unfairness in this regard worked both ways in that

the NMC was deprived, as was the panel, from reliance upon the live evidence of Ms 2

and the opportunity of questioning and probing her testimony. Furthermore, as an

experienced professional panel, it would give what it deemed appropriate weight once it

had heard and evaluated all the evidence before it and after hearing submissions. In

this way any prejudice to you would be addressed. The panel was of the view that it was

in all parties’ interest and also the public interest in the issues being explored fully and

properly which supported the admission of Ms 2’s evidence into the proceedings to

assist the panel in undertaking its role appropriately.

In these circumstances, the panel came to the view that it would be fair and relevant to

admit into evidence the written statements of Ms 1 and Ms 2.

Page 21 of 54

Decision and Reasons on Application of no case to answer:

The panel considered an application by Ms McMahon on your behalf that there is no

case to answer in respect of all the charges against you. Ms McMahon helpfully

provided the panel with a written skeleton argument of her submissions in respect of

this application. She made the application under Rule 24 (7) of the Rules. This rule

states:

24 (7) Except where all the facts have been admitted and found proved under

paragraph (5), at the close of the Council’s case, and –

(i) either upon the application of the registrant …

the Committee may hear submissions from the parties as to whether sufficient

evidence has been presented to find the facts proved and shall make a

determination as to whether the registrant has a case to answer.

In relation to this application Ms McMahon referred the panel to the principles set out in

the case of R v Galbraith [1981] 1 WLR 103. Ms McMahon invited the panel to consider

each charge individually. Ms McMahon took the panel through each individual charge

and outlined how the evidence presented by the NMC was either tenuous, inconsistent

with other evidence or contradictory. Ms McMahon submitted that taking the NMC’s

evidence at its highest in relation to all of the charges, a panel properly directed, could

not properly find the charges proved.

With regard to charges 1 and 2 Ms McMahon notes that the NMC asserts that you were

personally responsible for ensuring effective management at the homes and had a duty

to ensure the homes were compliant with the relevant regulations. However, the

evidence of Mr 4 (Commercial Director of Orchard Care Homes) was that you had a

duty within Orchard to ensure compliance with the regulations in relation to the homes,

but you did not have any legal duty to the CQC. Ms 2’s evidence was that there was a

breach of duty to ensure compliance with the CQC regulations, but she did not assert

that you were responsible for it, at least prior to Ms 1 going on sick leave. Ms McMahon

Page 22 of 54

noted that there is some tenuous evidence from Ms 2 that you were responsible for the

homes, and thus for compliance with the regulations, from end of June 2014. However,

the evidence is inherently weak, because it is untested, inconsistent with other evidence

and it’s not supported by contemporaneous documents.

With regard to charges 3 and 4, Ms McMahon submitted that the sole evidence in

support of those charges came from Ms 1. Ms McMahon submitted that Ms 1’s

evidence in relation to the non-completion of residents’ care plans by agency nurses

was contradictory. Ms 1 was not an independent witness, appears to have had ‘an axe

to grind’ and sought to blame you and others and exonerate herself. Furthermore, Ms

1’s evidence has not been tested in cross-examination and there is no documentary

evidence that Ms 1 raised any concerns with you or that she was made a scapegoat.

Ms McMahon submitted that in these circumstances, the weight that can be safely

placed on Ms 1’s evidence is vanishingly slight. Ms 1’s evidence, taken at its highest,

was tenuous, untested and where it could be tested, it was contradicted by

documentary evidence. Therefore, no weight could reliably be placed on Ms 1’s

evidence.

With regard to charge 5, that you failed to take action to address concerns that were

raised in internal monthly audits, Ms McMahon noted that the principal evidence in

relation to the charge comes from Mr 4. Mr 4’s evidence was that you did take action to

address the concerns raised in the internal monthly audits. In particular: you deployed

three project managers to the homes (Fairfield and Woodlands) to try to address

concerns raised in monthly audits; you sought and obtained an increase in the rates of

pay offered at the homes in an attempt to recruit staff; and you proposed closing at least

one of the homes at a monthly operating Board meeting. Ms McMahon submitted that

Ms 1’s evidence does not address the central question of what actions you took to

address the concerns raised in the monthly audits. In the light of Mr 4’s clear and un-

contradicted evidence, there is no other evidence on which a panel, properly directed,

could find charge 5 proved.

Page 23 of 54

Ms McMahon submitted that the NMC has not presented sufficient evidence to find any

of the charges proved, so you therefore have no case to answer in respect of each of

them.

Mr Orpin-Massey, on behalf of the NMC, opposed the application on the grounds that

the panel has been presented with sufficient evidence on which it could potentially find

the charges proved. He agreed with the application of the principles set out in the case

of Galbraith and that where a failing is alleged, the panel would need to establish a duty.

Mr Orpin-Massey stated that it is accepted that you were not the registered manager or

the nominated individual by CQC requirements. However, the NMC’s case was that as

part of the senior management structure in your role as the Operations Manager, you

had a shared duty, and by extension, responsibility and accountability for CQC

regulatory compliance. Mr Orpin-Massey submitted that regulatory compliance was a

core and central part of your role because without compliance there would have been

no business. He submitted that there was no one person to blame for the compliance

failures, but you had shared responsibility and accountability, hence the referrals

against Registrant B and Registrant C.

Mr Orpin-Massey submitted that your active involvement in compliance issues, including

attending Board meetings, meetings with Kent Council and CQC inspections,

establishes a prima-facie case of your direct accountability for CQC compliance. He

further submitted that following Ms 1’s absence from 30 June 2014, there was no

registered manager at the homes and noted Mr 4’s evidence that in Ms 1’s absence you

would have stepped in to provide cover. Mr Orpin-Massey also noted Ms 2’s evidence

that throughout the process of the CQC inspections both you and Registrant B stated on

numerous occasions that you were in charge and accountable for the care provided at

the homes. There was further evidence from Mr 4 that Operations Managers and

Project Managers had the responsibility of ensuring compliance and that the standards

in relation to the framework of regulated activities were met. Mr 4 also stated that as

Operations Manager you had significant budgetary control and several Project

Managers at your disposal which you could use as you saw fit to address any regulatory

concerns and ensure compliance with CQC standards. Mr Orpin-Massey submitted that

Page 24 of 54

it was clear from Mr 4’s evidence that internal and CQC compliance were one and the

same thing. Therefore you did have a duty to ensure compliance with CQC regulations.

Mr Orpin-Massey addressed the panel on the individual charges and outlined how

sufficient evidence had been adduced thus far, from Ms 1, Ms 2, Mr 3 and Mr 4, such

that a panel, properly directed, could find the charges proved.

The panel heard and accepted the advice of the legal assessor who referred it to the

provisions of Rule 24(7) and the principles contained in the case of Galbraith.

In reaching its decision, the panel took account of the submissions of Ms McMahon, on

your behalf and the submissions of Mr Orpin-Massey, on behalf of the NMC.

The panel has made an initial assessment of all the evidence that had been presented

to it at this stage. The panel was solely considering whether sufficient evidence had

been presented at this stage, such that, a properly directed panel might possibly find the

facts of the charges against you proved and whether you had a case to answer. The

panel was not determining whether the facts had been found proved.

The panel addressed each of the charges and considered the evidence that has been

presented in support of them.

The panel first considered charges 1 and 2, which are essentially the same charge but

deal with allegations of compliance failures at Woodlands Care Home and Fairfield

Manor Care Home, respectively. The panel noted that there appears to be no dispute

between the parties that there were breaches of CQC regulations at the homes as

outlined in the charges. However, your position is that you did not have a duty for

compliance with CQC regulations. The panel therefore had to consider whether

sufficient evidence has been adduced thus far, to establish that you had a duty that the

homes were compliant with CQC regulations.

The panel noted that you were neither the Registered Manager (RM) nor Nominated

Individual (NI) in relation to the homes. The panel noted the evidence that Registrant C,

Page 25 of 54

who was the NI for Orchard Care Homes (Orchard) had regulatory responsibility for

over 120 homes, and that you as Operations Manager (OM) reported to him, in respect

of regulatory concerns in the homes within your “patch”. In the panel’s view, this was

indicative of your shared responsibility and accountability for CQC regulatory

compliance. The panel considered that as an AM, a crucial part of your role would have

been CQC regulatory compliance, which in itself was central to the business of Orchard,

because without compliance the homes would not have had a licence to operate.

Indeed, the panel noted evidence of your active involvement in regulatory matters in

relation to the homes. By way of example, it noted documentary evidence that you were

present at the meeting with Kent County Council which was held to give “Orchard

Homes the opportunity to put plans and actions in place to prevent the home from being

subject to closure, number restrictions or other action.”

The panel noted that as OM you attended Orchard Board meetings where you rightly

sought to raise issues of regulatory compliance at the homes. The panel had regard to

Mr 4’s evidence which it found to be clear. The panel bore in mind the position which Mr

4 held and now holds in respect of each registrant. The panel noted Mr 4’s evidence

that as OM you had significant budgetary control and several project managers who

were at your disposal to address any regulatory concerns and ensure compliance with

CQC standards. The panel also noted evidence of the measures you took to address

and rectify the regulatory concerns at the homes, based on the oral evidence of Mr 4. In

the panel’s judgement, your actions implied that you had a duty, as part of your role, to

ensure compliance with CQC regulation.

The panel also noted the evidence in the September 2014 CQC inspection report, for

the July/August 2014 inspections that: “There was a project manager in place and we

were told the operations manager visited, although we were not told how often this

happened. We were told that they were overseeing the home.” The panel also noted Ms

2’s evidence, albeit disputed, that throughout the process of the CQC inspections, you

said to her on numerous occasions that you were in charge and accountable for the

care provided at the homes. The panel concluded that in the light of your role as OM

and what that role entailed, it seemed implausible that you would be absolved of your

regulatory responsibility and accountability by virtue of not being a CQC RM or NI.

Page 26 of 54

Taking all of the above into account, the panel concluded that it has been presented

with sufficient evidence to support charges 1 and 2 at this stage and, as such, it was not

prepared, based on the evidence before it, to accede to an application of no case to

answer. What weight the panel gives to any hearsay evidence remains to be

determined at the conclusion of all the evidence.

The panel next considered charge 3. It took into account the documentary and witness

statement evidence of Ms 1. It noted Ms 1’s evidence that she had raised concerns with

you and Registrant B about the insufficiency of the care plans at the homes. Ms 1’s

evidence seems to be corroborated by evidence of emails which were allegedly sent to

you. In an email dated 10 June 2014, Ms 1 wrote: “I am aware that we are highly

dependent on agency usage, but again I am also aware that our care plans and other

areas of the care provision are declining.” In an email allegedly sent to you on 11 June

2014, Ms 1 wrote: “I am struggling to keep up to date with the Care plans etc etc and I

am mindful that our inspection at Fairfield will be in July.”

The panel noted further evidence of incomplete care plans in the CQC inspection report

for 3 July 2014, where it is stated that: “This service was not safe. Care plans lacked

detail and were incomplete so staff may not have guidance they need to give the right

support.” The panel has not found any evidence so far to contradict the assertion that

you failed to address concerns that were raised by Ms 1 in relation to care plans.

Accordingly, the panel was of the view that, taking account of all the evidence before it,

it has been presented with sufficient evidence to support charge 3 at this stage and, as

such, it was not prepared to accede to an application of no case to answer.

With regard to charge 4, the panel took into account the documentary and witness

statement evidence of Ms 1. Again, it noted Ms 1’s evidence that she had raised

concerns with you and Registrant B about staffing levels at the homes. Ms 1’s evidence

seems to be corroborated by evidence of emails which were allegedly sent to you and

to a large extent by CQC inspection reports. In an email dated 31 March 2014, Ms 1

wrote: “Not so good news, the nurse we recruited for the night post at

Woodlands…promptly left on Saturday, saying it was too hard work.” The panel noted

Page 27 of 54

further evidence of staffing concerns in the CQC inspection report for July/August 2014,

where it is stated that: “…visitors and staff gave us serious concern with regard to the

staffing levels and whether people were being cared for safely.” The reports further

note: “People were not safe because the provider had not ensured there were sufficient

numbers of suitable staff at the home.”

The panel further noted that similar concerns about staffing levels had been highlighted

in Orchard’s own internal audits. Taking account of all the evidence before it, the panel

concluded that it had been presented with sufficient evidence to support charge 4 at this

stage and, as such, it was not prepared to accede to an application of no case to

answer.

The panel next considered charge 5. With regard to charge 5, the panel took into

account the evidence from Mr 4. Mr 4’s evidence was that you did take action to

address the concerns raised in internal monthly audits, albeit that those concerns may

not have been resolved.

Taking into account Mr 4’s evidence, the panel concluded that the assertion that you

failed to take action was inconsistent with the evidence it had heard.

The panel was therefore of the view that, taking account of all the evidence before it,

there was no prospect that a properly directed panel could possibly find the facts of

charge 5 proved. It therefore found that you have no case to answer in respect of

charge 5.

Background: The allegations arose whilst you were employed as Operations Manager for Orchard

Care Homes Limited (“Orchard”), a private provider of care who had control over some

120 care homes in the UK. You took up your post around November 2013 and were

tasked with providing management support to a number of Orchard care homes in the

Page 28 of 54

south of England, including Fairfield Nursing Home, Kent (“Fairfield”) and Woodlands

Nursing Home, Kent (“Woodlands”).

Orchard took control of Fairfield and Woodland, which were previously operated by

another private provider, Southern Cross, in October 2013. While being two separate

homes they were next door to one another. Fairfield accommodated elderly nursing

care residents and had a capacity of approximately 30. Woodlands accommodated a

wider range of residents in terms of their dependency levels and had a capacity of 33.

The Home Manager at Fairfield from June 2012 was Ms 1 and shortly after this Ms 1

became the manager of both homes.

Prior to Orchard’s takeover, the homes had had some problems and both had been

under restrictions imposed by the Care Quality Commission (“CQC”), preventing them

from taking in new residents. However, significant improvements were made during

2012 and following CQC inspections of Fairfield on 27 March and 8 August 2012, and of

Woodlands on 29 March, 18 October 2012, and 13 June 2013, both homes were found

to be compliant with relevant standards. From May 2013 both homes were considered

compliant by the CQC and the restrictions on new residents joining was lifted.

It is alleged that following the takeover of the two homes by Orchard in October 2013

there was a marked decline and deterioration in the care afforded to their residents as a

direct consequence of poor collective management by you, Registrant B (Project

Manager for Fairfield and Woodlands) and Registrant C (Head of Care and Nominated

Individual for Orchard).

It is alleged that Ms 1 had raised repeated concerns with senior management, including

you, Registrant B and Registrant C, about a range of serious issues including staffing

levels and the complexity of newly introduced care plans. Ms 1 alleged that the new

care plans, which were checklist care plans as opposed to handwritten documents were

inadequate in detailing risk assessments and residents’ washing and feeding

preferences. She also noted that there were often discrepancies in the way the care

plans were interpreted by different members of staff and that agency nurses who

worked at the homes rarely completed the care plans due to their complexity. Ms 1

Page 29 of 54

alleged that this meant she had to complete the care plans herself, which gave her less

time to ensure the effective running of the homes from a managerial perspective. Ms 1

alleged that despite raising these issues, her concerns were not addressed or properly

acted upon and she was not properly supported. It is alleged that you, Registrant B and

Registrant C were all well aware of the poor state of affairs at both Woodlands and

Fairfield in 2014. Ms 1 went off sick from 30 June 2014. On her return she was

suspended from her position as Registered Manager of the Homes in July 2014, as a

result of issues identified in Orchard’s internal monthly audits and incidents relating to

medication errors.

During the time of Ms 1’s absence the CQC carried out unannounced inspections in

July and August 2014, which highlighted significant failings at the homes. The

inspections were undertaken by Ms 2, CQC inspector in the Adult Social Care team.

Following her inspections of the homes in July 2014 and August 2014, Ms 2 completed

inspection reports in which a number of observations were made of Fairfield and

Woodlands as failing care homes. Specific concerns were identified, particularly in

relation to:

• accident reporting system;

• failure to appropriately risk assess residents’ needs;

• inadequate staffing;

• maladministration of medication;

• Record keeping;

• Cleanliness and infection control;

• inadequate care plans that did not meet the individual needs of residents;

• a lack of clinical supervision and leadership;

• lack of activities for residents, and;

• inadequate quality control and auditing system.

Ms 2 alleged that during her inspections of the homes, you and Registrant B told her, on

numerous occasions that you were in charge and that you were accountable for the

care provided at the homes. The CQC inspection categorised the matters, as

particularised in the charges against you, Registrant B and Registrant C as neglect and

made a safeguarding referral to Kent County Council Safeguarding Team (“the

Page 30 of 54

Council”). There were also allegations that a whistle-blower raised concerns to the

CQC.

The Council conducted safeguarding meetings over the course of August 2014 which

resulted in both Fairfield and Woodlands being closed between August 2014 and

September 2014, for failing to provide a safe environment for the residents as

evidenced in the CQC inspection report of August 2014. In the light of your involvement

and that of Registrant B and Registrant C, in the alleged failings regarding operations at

Fairfield and Woodlands, the Safeguarding Adult Coordinator, Mr 3, referred you,

Registrant B, and Registrant C to the NMC.

Admissions:

Following the conclusion of your evidence, Ms McMahon submitted that you wished to

make admissions to charges 1 and 2, with the exception of sub charges 1.8 and 2.5,

relating to your failures under Regulation 18 of the CQC Regulations 2009 – Notification

of other incidents, at Woodlands and Fairfield, respectively. Ms McMahon submitted

that the admissions were on the basis that you accepted the evidence that you had a

shared duty and responsibility, as has now emerged to be the NMC’s case against you.

Mr Orpin-Massey submitted that if the panel is to find charges 1 and 2 proved by way of

your admissions, it would not be necessary for it to make a determination on charges 3

and 4, as they are charged in the alternative.

In light of the above, the panel found charges 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 2.1, 2.2,

2.3, 2.4, 2.6 and 2.7 proved by way of your admissions. Having found charges 1.1, 1.6,

2.1 and 2.7 proved, the panel decided that it was not necessary to make a

determination on charges 3 and 4, which are drafted in the alternative.

Submission on offering no evidence:

Page 31 of 54

The panel considered submissions from Mr Orpin-Massey that the NMC would now not

be adducing evidence in support of charges 1.8 and 2.5 in respect of all of the

registrants. He accepted that there was insufficient evidence to support the allegation in

relation to the registrants’ failure under Regulation 18 of the CQC Regulations 2009 –

Notification of other incidents.

The panel determined to dismiss charges 1.8 and 2.5 in light of the information that the

NMC would not be presenting any evidence to support them.

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 Mr Orpin-Massey, on behalf of the

NMC and those made by Ms McMahon on your behalf.

The panel heard and accepted the advice of the legal assessor. The panel was

reminded 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 was satisfied that it was more likely than not that the incidents

occurred as alleged.

The panel heard oral evidence from two witnesses called on behalf of the NMC:

Mr 3, Safeguarding Coordinator for Adult Social Care at Kent County Council;

Mr 4, who at the time of these matters was Commercial Director of Orchard Care

Homes. The written statements of Ms 1 and Ms 2 were admitted into evidence. The

panel bore in mind that this was hearsay evidence and that it was not confirmed on oath

or tested in cross examination. Where the panel chose to rely on that hearsay evidence

it sought to corroborate it with other oral or documentary evidence. It also bore in mind

that such evidence may carry less weight than live evidence.

The panel also heard oral evidence from you and Registrant C.

Page 32 of 54

The panel began by considering the credibility of the witnesses it heard.

The panel was of the view that Mr 3 was a credible and reliable witness who did his best

to assist. His evidence was straightforward, consistent, balanced and measured.

Mr 4’s is now the Chief Executive of the organisation. With regard to his evidence the

panel bore in mind the position he held and now holds in respect of each registrant. The

panel noted that Mr 4 had only joined Orchard in December 2013, on a consultancy

basis. However, the panel found him to be a credible and reliable witness who also did

his best to assist it.

The panel next considered the credibility of your evidence. It found you to be clear and

credible and you did your best to assist the panel.

The panel next considered the credibility of Registrant C’s evidence. The panel also

found him to be a credible and reliable witness, who did his best to assist.

In the course of its deliberations, the panel considered Ms McMahon’s request that it

should make a detailed assessment of your culpability in the light of the actions you

took to address the regulatory concerns at Woodlands and Fairfield.

The panel appreciated that, although unusual, it may have been helpful to make such

findings as submitted by Ms McMahon and Mr Orpin-Massey. However, the panel

determined to consider issues of culpability or mitigation at a later, if appropriate stage,

not least because Registrant C who is partly engaging with these regulatory

proceedings, has not been afforded the opportunity to make similar comments or

submissions in relation to those matters.

Having found the outstanding charges against you proved by way of your admissions,

the panel went on to consider the charges against Registrant B and Registrant C.

Page 33 of 54

With regard to the specific failure alleged in charge 1, the panel had careful regard to

the contemporaneous records in the CQC inspection report for Woodlands, dated

August 2014.The panel considered that the information in the CQC inspection reports

was detailed, structured and had been recorded contemporaneously by Ms 2 in the

course of her inspections of 3 July and 11 August 2014. It further noted that the

inspection reports were supported to a large extent by other documentary evidence in

addition to the oral evidence the NMC witnesses gave. Consequently, the panel relied

significantly on the information contained in the inspection reports in its findings of facts.

In relation to charge 1.1, the panel noted that the CQC report highlighted that: “People

did not receive care and treatment in line with their care plans…The provider did not

make reasonable adjustments for people in line with their needs for example by

providing specialist equipment that would significantly reduce the risk of injury of harm.”

The panel also noted evidence of emails from Ms 1 highlighting concerns of the ability

to keep up to date with care to plans.

Taking that into account and having considered all of the evidence in respect of this

allegation the panel found charge 1.1 proved on the balance of probabilities.

Charge 1.2:





service provision;

This charge is found proved.

In reaching its decision, the panel had careful regard to the contemporaneous records in

the CQC inspection report for Woodlands, dated August 2014. In relation to charge 1.2,

Page 34 of 54

the panel noted that the CQC report highlighted that: “The provider did not protect

service users, and others who may be at risk, against the risks of inappropriate or

unsafe care treatment, by means of effective operation of systems designed to enable

the provider to regularly assess and monitor the quality of the service provided.”



Charge 1.3:




Activities) Regulations 2010 – Cleanliness and infection control;





service users, staff and visitors from the risk of acquiring infections as there were not

appropriate processes in place for staff to follow…There were not appropriate standards

of cleanliness and hygiene in relation to the premises.”



Charge 1.4:



Page 35 of 54


Activities) Regulations 2010 – Management of medicines;





service users against the risks associated with the unsafe use and management of

medicines...Medicines were not administered in line with people’s prescriptions and

there were inconsistent time gaps between doses…Medicines were not stored

appropriately.”



Charge 1.5:




Activities) Regulations 2010 – Records;




the panel noted that the CQC report highlighted that: “The provider did not ensure that

service users were protected against the risks of unsafe or inappropriate care and

treatment arising from a lack of proper information about them by means of the

maintenance of an accurate record in respect of each service user which included

Page 36 of 54

appropriate information and documents in relation to the care and treatment provided to

each service user.”



Charge 1.6:




Activities) Regulations 2010 – Staffing;




the panel noted that the CQC report highlighted that: “The provider did not take

appropriate steps to ensure that, at all times, there were sufficient numbers of suitably

qualified, skilled and experienced persons employed for the purposes of carrying on the

regulated activity.”

The panel also noted evidence of emails from Ms 1 stating that she was “struggling”

with qualified nurse and care assistants staffing issues.



Charge 1.7:

Page 37 of 54




Activities) Regulations 2010 – Supporting workers;




the panel noted that the CQC report highlighted that: “The provider did not ensure that

persons employed for the purpose of carrying on regulated activity were appropriately

supported in relation to their responsibilities, to enable them to deliver care and

treatment to service users safely and to an appropriate standard. Staff did not receive

regular supervision and appraisal and were not supported with professional

development.”



Charge 2.1:




Regulation 2010 – Care and welfare of service users;

In relation to charge 2.1, the panel noted that the CQC report highlighted that: “The

registered person had failed to take proper steps to ensure that each service user is

protected against the risks of receiving care or treatment that is inappropriate or unsafe,

by means of – (a) The carrying out of an assessment of the needs of the service user;

and (b) The planning and delivery of care and, where appropriate, treatment in such a

Page 38 of 54

way as to – (i) Meet the service user’s individual needs (ii) Ensure the welfare and

safety of the service user….”

The panel also noted evidence of emails from Ms 1 highlighting concerns of the ability

to keep up to date with care to plans.



Charge 2.2:





service provision;


the CQC inspection report for Fairfield, dated August 2014. In relation to charge 2.2, the

panel noted that the CQC report highlighted that: “The registered person had not taken

steps to protect service users, and others…by means of the effective operation of

systems to Regularly assess and monitor the quality of the services and identify, assess

and manage risks relating to the health, welfare and safety of service users and others

who may be at risk from the carrying on of the regulated activity…The registered person

had not had regard to complaints and comments made…The registered person had not

where necessary made changes to the treatment or care provided in order to reflect

information…relating to the analysis of incidents that resulted in, or had the potential to

result in, harm to a service user…”



Page 39 of 54

Charge 2.3:

2. Between October 2013 and August 2014, failed to ensure that Fairfield Manor was




abuse;



panel noted that the CQC report highlighted that: “There was information recorded

about two people in the records that should have been reported as a safeguarding

concern…No one checked the daily notes to ensure people received safe care in

accordance with their needs. This meant that people were at potential risk of harm

because no one knew what was happening to them…Accidents and incidents were not

reported properly and not taken seriously”



Charge 2.4:




Activities) Regulation 2010– Management of medicines;



panel noted that the CQC report highlighted that: “Medicines were not safely

Page 40 of 54

administered…People were at risk of harm because their medicines were not managed

in a safe or appropriate manner. People did not always receive their medicines on time

or in line with the prescriber’s instructions.”



Charge 2.6:




Activities) Regulation 2010 – Records;



panel noted that the CQC report highlighted that: “….appropriate records were not

maintained…Records were not kept securely and could not be located promptly when

needed...When records are missing it means that people’s care cannot be monitored in

order to ensure they are kept safe.”



Charge 2.7:




Activities) Regulation 2010 – Staffing.

Page 41 of 54



panel noted that the CQC report highlighted that: “Visitors were also concerned about

staffing levels. One visitor told us…There is hardly any staff and half the time I don’t

know who they are especially the nurses as it is always agency…They don’t take any

notice of call bells because they haven’t got time.”

The panel also noted evidence of emails from Ms 1 highlighting concerns relating to

staffing levels.



Submissions on misconduct and impairment:

Having announced its finding on all the facts, the panel then moved on to consider

whether the facts found proved amount to misconduct and, if so, whether your fitness to

practise is currently impaired. The NMC has defined fitness to practise as a registrant’s

suitability to remain on the register unrestricted. The panel considered all the

documentary evidence presented at this stage, including two testimonials submitted on

your behalf. The panel took into account the submissions from Mr Orpin-Massey, on

behalf of the NMC and those made by Ms McMahon on your behalf. You gave further

oral evidence to the panel at this stage.

Mr Orpin-Massey submitted that there is no burden or standard of proof at this stage

and the question of misconduct and or impairment is for the panel’s independent

judgement. He referred the panel to the cases of Roylance v General Medical Council

(no. 2) [2000] 1 AC 31, Nandi v General Medical Council [2004] EWHC 2317 (Admin)

and Remedy UK Limited v The General Medical Council [2010] EWHC 1245 (Admin).

He submitted that to amount to misconduct, the acts or omissions must be sufficiently

serious. Mr Orpin-Massey submitted that the misconduct in this case in relation to all

three registrants is as defined in the case of Remedy, involving sufficiently serious

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misconduct in the exercise of professional practice such that it can properly be

described as misconduct going to fitness to practise.

Mr Orpin-Massey highlighted the reasons why the matters found proved in respect of all

three registrants in this case amount to misconduct. He submitted that the CQC

inspection reports for the homes identified very serious failings which placed residents

at risk of harm. Therefore the registrants failed to “provide a high standard of practice

and care at all times”. He submitted that the non-compliance with CQC regulations at

the homes occurred over a protracted period of time of 7 months and none of the

registrants blew the whistle about how grave the problems had become. Mr Orpin-

Massey submitted that the residents suffered considerable distress as a result of the

closure of the homes and Orchard appeared to put profit before residents’ safety. He

submitted that the registrants, as senior managers with responsibility and accountability,

all failed in their roles to ensure regulatory compliance.

Mr Orpin-Massey invited the panel to take the view that the registrants’ actions in

respect of the matters proved amounted to breaches of The Code: Standards of

conduct, performance and ethics for nurses and midwives 2008 (“the Code”),

particularly the requirements of paragraphs 32, 33, 34 and 58.

With regard to the question of impairment, Mr Orpin-Massey referred the panel to the

cases of Cohen v General Medical Council [2008] EWHC 581 (Admin) and General

Medical Council v Meadow [2006] EWCA Civ 1390 (Admin), for the considerations it

should take into account. Mr Orpin-Massey invited the panel to make a finding of

impairment against all three registrants on public interest grounds on the basis of the

failings as outlined in his misconduct submissions. He invited the panel to consider

whether a finding of no impairment might harm the reputation of both the profession and

the regulator in the eyes of an ordinary member of the public, with knowledge of the

relevant facts of the case.

Mr Orpin-Massey submitted that in these circumstances a finding of impairment on the

grounds of the public interest is necessary in order to uphold proper professional

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

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Ms McMahon, on your behalf, submitted that whilst your case arises out of your conduct

as a registered nurse, strictly speaking, it is not a case of clinical misconduct but

operational misconduct. However, it engages the first limb of Cohen. She noted that in

cases concerning alleged misconduct of a clinical nature, the matters to be considered

at the impairment stage will include: the need to protect the public and maintain public

confidence; whether the material errors are easily remediable, have been remedied,

and are highly unlikely to be repeated. However, in cases concerning alleged

misconduct of a non-clinical nature, efforts at remediation will be of less weight,

depending on the gravity of the misconduct. She invited the panel to consider the level

of your insight and remediation and take into account testimonials attesting to your

current skills and fitness to practise.

Ms McMahon submitted that in light of the NMC’s position that there are no public

protection issues in your case, if the panel is to find impairment on public interest

grounds alone, then it has to be clear about its reasons for such a finding.

Ms McMahon submitted that you accepted the NMC’s case on the basis of a shared

responsibility to ensure CQC compliance. However, the evidence from all three

witnesses in this case was that you recognised the issues at the homes and you made

considerable and appropriate efforts to address the concerns, albeit that the objectives

were not achieved. She invited the panel to consider amongst other things, that you

appointed PMs to turn things around at the homes, you sought and secured Board

approval to increase pay rates to deal with staffing issues and proposed the closure of

at least one of the homes. However, despite seeking support through the appropriate

channels, you did not receive the additional support and your efforts were restricted in

their success, not least because you had to seek Board approval for important

decisions. Ms McMahon submitted that as you are not charged with a failure to whistle-

blow, that matter is not relevant at this stage. She invited the panel to consider your

failings in the context of your unblemished nursing career spanning some 24 years and

the difficult circumstances at the homes following transfer. Ms McMahon submitted that

your failings did not seriously fall short of professional conduct or constitute a deplorable

failure. Therefore, the panel should find that there is no misconduct.

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With regard to the question of impairment, Ms McMahon submitted that the failings

which are admitted and relate to a discrete area, are remediable, have been remedied

and are unlikely to be repeated. She referred the panel to your evidence at this stage

and submitted that you have demonstrated full insight and remorse. She noted how you

have changed your practice and how you would act differently if you found yourself in a

similar situation, particularly in relation to whistleblowing. She stated that you have

learned a salutary lesson from your past failings. She referred the panel to positive

testimonials attesting to your leadership and clinical skills, noting that there has been no

repetition of the matters found in your case. Ms McMahon submitted that there is no

need for a finding of impairment on public protection or public interest grounds. She

reminded the panel of the public interest in allowing an otherwise safe nurse to practise

without restriction.

The panel heard and accepted the advice of the legal assessor which included

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

and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) (for the test of impairment of

fitness to practise) and Pillai v GMC [2009] WHL 1948 (Admin).

Decision on misconduct:

When determining whether the facts found proved amount 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 determined that your conduct in respect of the charges found proved,

amounted to breaches of, or a failure to identify adequately breaches of, the following

provisions of the Code:

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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.

28. You must make a referral to another practitioner when it is in the best interests of

someone in your care.

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

be putting someone at risk.

33. You must inform someone in authority if you experience problems that prevent you

working within this code or other nationally agreed standards.

34. You must report your concerns in writing if problems in the environment of care are

putting people at risk.

35. You must deliver care based on the best available evidence or best practice. 58. You must ensure that your professional judgement is not influenced by any

commercial considerations.

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

The panel bore in mind that breaches of the Code do not automatically equate to a

finding of misconduct. However, the panel determined that the charges found proved

were sufficiently serious to amount to misconduct, particularly given the fact that the

misconduct occurred over a long period of time. The CQC inspection reports in July

2014 for both Fairfield and Woodlands homes highlighted very serious and wide ranging

failings which placed vulnerable residents at unwarranted risk of harm. The failures to

ensure compliance with CQC regulatory standards led to poor care being provided to

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residents as outlined in the CQC reports. That poor care led, as a direct consequence,

to the inevitable closure of the two homes, notwithstanding your own efforts to alleviate

the position. These closures, on the evidence, and as a matter of obvious inference,

caused considerable distress to elderly vulnerable residents who had to be relocated to

different homes. As Operations Manager, you had responsibility and accountability for

regulatory compliance, in order to ensure that inadequate practice was addressed and

that risk was appropriately considered. However, you failed to fulfil that aspect of your

role adequately.

The panel acknowledged that you sought to address some of the concerns at the

homes and noted the measures and actions you undertook. It also considered that you

were hampered in your attempts to address the issues at the homes by a Board which

seemed to place profit making before residents’ safety. However, in the panel’s view

registered nurses are personally accountable for their nursing practice and have an

individual responsibility and overriding duty to patient care. As an experienced nurse

you were expected to whistle-blow to protect the residents if you felt that you were being

prevented from ensuring residents’ care and safety. However, you stated that you did

not do so because you feared that you may lose your job. The panel determined that

your failure to escalate the concerns at the homes to another authority fell below what

was expected in the circumstances.

In light of the above, the panel determined that your actions in respect of the charges

found proved fell significantly below the standard required of a registered nurse and

therefore amounted to misconduct.

Decision on impairment: The panel next went on to decide if as a result of this misconduct your fitness to practise

is currently impaired.

The panel had regard to the guidance given in the judgment of Mrs Justice Cox in the

case of Grant. At paragraph 74 of that judgment, she said:

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

reason of misconduct, the relevant panel should generally consider not

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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, quoting from Dame Janet Smith in her

Fifth Shipman Report at 25.67:

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/or is liable in the future to act so as to put

a patient or patients at unwarranted risk of harm;

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 considered that your actions had engaged limbs a, b and c of the test as set

out above. The panel determined that as Operations Manager at Orchard you were

responsible for ensuring regulatory compliance and taking action to address regulatory

concerns. However, your failure to ensure regulatory compliance, which led to a failure

to manage clinical risk, placed residents at the homes at unwarranted risk of harm. The

panel considered that the public place trust and confidence not only in individual nurses

but also in senior managers to hold them to account, and to manage properly clinical

risk. In failing to adhere to these expectations, you brought the profession into

disrepute. By failing to provide a high standard of practice and care at all times, your

actions breached a fundamental tenet of the profession.

The panel considered that the issue it had to determine was that of current impairment.

It therefore considered whether you are liable in future to act in such a way as to place

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patients at unwarranted risk of harm, breach fundamental tenets of the profession or

bring the profession into disrepute. That decision about the risk of repetition in this case

would be informed by consideration of the level of insight and remorse you have

demonstrated and by whether your misconduct has been or is capable of being

remedied. The panel had regard to the oral evidence you gave at this stage.

The panel took into account that you accepted your failings and shortcomings in the

course of these proceedings. The panel had regard to the fact that you have clearly

reflected on your failings and demonstrated insight and genuine remorse in the course

of your oral evidence. You were able to explain how you would act appropriately if faced

with a similar situation in the future. You assured the panel that you would not hesitate

today to whistle-blow if you felt patient safety was being compromised. You now have

the active support of your present line manager in a new post within the care home

environment. You no longer have operational management responsibility for a number

of homes. You are now a care home manager for one home.

The panel took into account that you have been practicing in a similar area of nursing

since August 2017 without any concerns or repetition of the matters found proved. It

noted the positive testimonials submitted on your behalf and one from your current

employer, particularly where it states: “Stewart is an excellent clinician who is dedicated

to people’s care. His vast managerial experience is evident. He has the skills and

knowledge to manage a care home. He is aware of the standards that he is expected to

meet in relation to Health and Social Care Standards and any other legislative

requirements.” The panel was satisfied that you have remediated the shortcomings in

your practice and that these regulatory proceedings have been a salutary lesson for

you. Taking into account all those factors, the panel determined that the likelihood of

repetition of your misconduct is minimal. In the light of these considerations, the panel

determined that a finding of impairment on public protection grounds was not

necessary.

However, the panel went on to consider whether a finding of impairment was necessary

to uphold proper professional standards and public confidence in the profession. The

panel considered that the misconduct in your case was serious and had placed

vulnerable residents at unwarranted risk of harm. The public would expect someone of

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your experience and seniority to have acted appropriately by addressing or escalating

the concerns at the homes and if not, that you would have reported the matter to a

regulator. Therefore anything other than a finding of impairment would not be

appropriate. The panel also determined that the public would rightly deplore the failures

which led to your misconduct, notwithstanding your own efforts to improve the position.

In view of these considerations, the panel determined that a finding of impairment on

public interest grounds was required to mark your behaviour as unacceptable.

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

currently impaired.

Determination on adjourning the hearing:

After formally handing down its determination on misconduct and impairment and

giving the parties sufficient time to consider that determination, the panel decided that it

would be appropriate after considering any other applications, to adjourn the hearing at

this stage before moving on to the next stage of the proceedings. The panel determined

that there would not be sufficient time for it to give proper consideration to the next

stage of these proceedings.

In the panel’s judgement, it cannot ensure a fair and just hearing if it were to continue to

the next stage of these proceedings in the time available.

The panel therefore decided to adjourn the hearing at this stage, prior to embarking on

its consideration of sanction and after it had considered any outstanding applications.

Determination on Interim Order: Mr Kennedy invited the panel to consider whether an interim order should be imposed.

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Ms McMahon submitted that the necessity and threshold for imposing an interim order

has not been met.

The panel accepted the advice of the legal assessor.

The panel had regard to the circumstances of the case and was satisfied that an interim

order was not necessary. The finding of impairment in this case was on public interest

grounds alone. The panel was not satisfied that it was necessary or proportionate to

impose an interim order solely on this ground.

Resumed hearing 10 -12 July 2018. At the resumed hearing, you were present and represented by Ms McMahon.

Determination on sanction: The panel considered this case very carefully and decided to make a Caution Order for

a period of five years. The effect of this order is that your name on the NMC register will

show that you are subject to a caution order and anyone who enquires about your

registration will be informed of this order.

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

adduced in this case.

The panel noted Mr Kennedy’s submission that the decision on sanction is a matter for

the panel taking into account the public interest and the need to act proportionately. He

stated that the NMC’s sanction bid in relation to all of the registrants in this case is

‘suspension with review’. He stated that the registrants were informed of the NMC’s

sanction bid in the notice of hearing. He emphasised that the bid is not binding on the

panel. However, he submitted that all three registrants failed in their duties and the

public interest in this matter requires a sanction to be imposed against all of them.

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Ms McMahon, on your behalf, invited the panel to take no action or to consider imposing

a caution order. She highlighted mitigating factors which could be taken into account at

this stage, including the positive reference form your employer and full engagement with

this process. She emphasised that you have accepted your share of responsibility for

the failings that occurred. You made admissions during the hearing because it became

clear to you that the NMC case was that your responsibility was shared with others. You

have engaged and are grateful for the steps taken by the NMC to enable you to attend

the hearing in Scotland. She disclosed [PRIVATE] and you have been working well as a

home manager. She submitted that if the panel considered a conditions of practice

order was appropriate a condition to confine your practice to being a home manager in

one care home or to not go above the level of home or ward manager in either the

public or private sector may be suitable. She submitted that a more restrictive sanction,

such as a prolonged suspension, would be disproportionate. She submitted that an

order requiring a review would serve no useful purpose given the finding of impairment

was made on public interest alone.

No oral submissions were made on behalf of Registrant B or Registrant C. Neither were

present nor represented at the resumed hearing.

The panel accepted the advice of the legal assessor. The legal assessor advised that

the public interest includes upholding public confidence in the profession and

maintaining the standards expected of a registered nurse. He also advised the panel to

take into account that the regulatory process can sometimes appear to be punitive, but

may also enhance the skills and understanding of a nurse undergoing the process. He

advised that the public interest may therefore also include returning a good nurse to

practise. In relation to the registrants who are not in attendance, the legal assessor

reminded the panel to take account of their written representations.

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. As advised the panel had careful regard to the Sanctions Guidance

(“SG”) published by the NMC. It recognised that the decision on sanction is a matter for

the panel, exercising its own independent judgement.

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The panel found the aggravating factors in this case to include:

- the misconduct occurred over a number of months

- elderly vulnerable residents were placed at unwarranted risk of harm

- the closure of the two homes led to the displacement of all residents and

considerable distress was caused to them as a result

- you were in a senior management position with direct responsibility for ensuring

compliance with the CQC regulations

- you did not whistle blow because you put your own interests, namely fear you

may lose your job, before the interests of the residents.

The panel found the mitigating factors in this case to include:

- your previously long and unblemished career with no previous NMC referrals

- the evidence provided at this hearing that you took considerable steps to address

the concerns, including on three separate occasions recommending that the

Board close the homes. The panel noted that your efforts were hampered by a

Board that appeared to put profit making above resident safety

- [PRIVATE] you engaged and participated with the hearing [PRIVATE]

- you immediately admitted the facts once the NMC case was clarified for you

- you have demonstrated insight into your failings and the panel has assessed

your remorse to be genuine

- you have provided positive testimonials including a recent positive testimonial

from your current employer relating to your role as a home manager.

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 Indicative Sanctions Guidance, which states that a

caution order may be appropriate where ‘the case is at the lower end of the spectrum of

impaired fitness to practise and the panel wishes to mark that the behaviour was

unacceptable and must not happen again.’ The panel was satisfied that you have

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shown insight into your conduct and shared responsibility. The panel also noted your

admissions and genuine remorse. It was persuaded that you would not now hesitate to

blow the whistle if you felt patient safety was being compromised.

The panel also noted the remedial steps you have taken since the events relating to this

referral. You have been employed as a Home Manager with Royal Blind since August

2017 and have provided positive testimonials relevant to your current practice. These

testimonials, from a senior nurse and senior manager, support that you are a good

caring nurse. The testimonial from Head of Care (5 July 2018) set out that you provide a

high level of care and contributed to the positive outcome of a recent two day inspection

from the Health and Social Care partnership. The testimonial from a senior nurse (28

February 2018) describes you as an ‘excellent clinician who is dedicated to older

peoples care’. The testimonial also highlights that you have the skills and knowledge to

manage a care home, are aware of the standards expected in relation to Health and

Social Care standards and other legislative requirements. It is clear to the panel that

you have worked effectively managing a single care home for the past year.

Taking all of the above into account the panel was satisfied that the public may best be

served by enabling you to continue to practice without a more restrictive sanction.

Prior to reaching a final decision the panel considered whether it would be proportionate

to impose a more restrictive sanction and looked at conditions of practice. The panel

noted that you have been working well with your current employer, without restriction,

for an extended period. The panel concluded that no useful purpose would be served by

a conditions of practice order.

The panel further considered that a suspension order would be wholly disproportionate

in your case. It was mindful that the public interest also includes allowing a good nurse

to continue to practice safely and it is clear that this regulatory process has served a

salutary lesson to you. It was further satisfied that a sanction that may require a review

was not necessary as you have already demonstrated full insight and the responsible

steps you have taken towards remediation.

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The panel therefore determined that a caution order is the proportionate sanction in this

case. When considering the length of the order the panel reflected on the aggravating

factors listed above. It determined that nothing less than the maximum period of caution

would suffice in such a serious case. It was mindful that the CQC was required to make

safeguarding referrals for neglect.

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 a period of

five years would be the appropriate and proportionate response. It would mark not only

the importance of maintaining public confidence in the profession, but also send the

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

nurse in a managerial position responsible for ensuring the safety of patients.

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

considerations in this case. For the next five years your employer or any prospective

employer will be on notice that your fitness to practise has been found to be impaired

and that your practice is subject to a restriction.

At the end of this period the note on your entry in the register will be removed. However,

the NMC will keep a record of the panel’s finding that your fitness to practise had been

found impaired. If the NMC receives a further allegation that your 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 to you in writing.

That concludes this hearing.

Documents

Nursing and Midwifery Council Fitness to Practise Committee … · 2018. 7. 25. · Represented by Tom Orpin-Massey; Alistair Kennedy . Registrant: Present (except for days 1, 3)