Conduct and Competence Committee Substantive Hearing January 2014

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1 Conduct and Competence Committee Substantive Hearing January 2014 Nursing and Midwifery Council, Temple Court, 13a Cathedral Road, Cardiff, CF11 9HA Name of Registrant: NMC PIN: Alexander Makati 03G0519O Part(s) of the register: Registered Nurse sub part 1 Mental Health Nursing Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Representation: Nursing and Midwifery Council: Facts proved: England Misconduct Cheryl Beach (Chair/Lay member) Corinna Kershaw (Lay member) Kathryn Bergmanski (Registrant member) Juliet Gibbon Katherine Plunkett Mr Makati was not present or represented Represented by David Collins, Case Presenter, instructed by NMC Regulatory Legal Team 1(a), (b), (c), (d), (e), (f), (g), (h) and (i), 2(a) and (b), 4 (in relation to 2) Facts not proved: 3 Fitness to practise: Sanction: Interim Order: Impaired Striking-off order Interim suspension order 18 months 1

2 Decision on service of notice of hearing The panel was informed at the start of this hearing that Mr Makati was not in attendance. Notice of this hearing was sent to Mr Makati on 1 October 2013 by recorded delivery and first class post to his address on the register. The panel was satisfied that notice had been served, as advised by the legal assessor, in compliance and accordance with Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) ( the Rules ). 11. (2) The notice of hearing shall be sent to the registrant (b) in every case, no later than 28 days before the date fixed for the hearing. 34. (1) Any notice of hearing required to be served upon the registrant shall be delivered by sending it by a postal service or other delivery service in which delivery or receipt is recorded to, (a) [her] address in the register Proceeding in absence The panel then considered whether to hear the case in the absence of Mr Makati. The panel heard the submissions made by Mr Collins on behalf of the Nursing and Midwifery Council (NMC) and accepted the advice of the legal assessor. The panel took into account the from Mr Makati to the NMC dated 23 November 2013 in which he expressed that he did not wish to engage with the NMC proceedings. The panel further noted that two witnesses for the NMC were in attendance, and another witness for the NMC had been scheduled to give evidence by telephone. Any delay would cause inconvenience to these witnesses and may have a detrimental effect on their memory of events. Mr Makati had been sent notice of today s hearing and had subsequently communicated with the NMC. The panel was therefore satisfied that he was aware of today s hearing and it was of the view that he had voluntarily absented himself from today s hearing. Mr Makati has not requested an adjournment and the panel had no reason to believe that an adjournment would result in his attendance at a later date. Having weighed the interests of Mr Makati with those of the NMC and the public interest in an expeditious disposal of this hearing the panel has determined to proceed in his absence. Details of charges That you, a registered nurse: 1. Whilst employed as a nurse at Woodfold Nursing Home, Colwyn Bay, Conwy: 2

3 (a) During the night shift of May 2012 failed to attend to Resident A in response to requests to do so by Resident A; (b) During the night shift of May 2012 failed to assist Resident B when asked to do so by Resident B; (c) At around 07:50 on 20 April 2012 failed to obtain a second signature for the administration of the controlled drug Fentanyl to Resident C; (d) At around 07:00 on 8 May 2012 failed to administer and/or document the administration of risidronate to Resident B; (e) At around 07:00 on 10 April 2012 failed to administer and/or document the administration of alendronic acid to Resident D; (f) At around 07:00 on 1 May 2012 failed to administer and/or document the administration of alendronic acid to Resident D; (g) At around 07:00 on 8 May 2012 failed to administer and/or document the administration of alendronic acid to Resident D; (h) At around 07:00 on 15 May 2012 failed to administer and/or document the administration of alendronic acid to Resident D; (i) On one or more occasions on or between May 2012 failed to ensure that Patient E was appropriately repositioned and/or that an appropriate record was made in the repositioning schedule; 2. Failed to include the following information within the application form that you submitted to European Care Homes, in or around June 2012; (a) Your previous employment by the Woodfold Nursing Home; (b) That your employment at Woodfold Nursing Home had been terminated; 3. Whilst employed as a nurse by European Care Homes and working at Canterbury House, Denbighshire (Canterbury House): (a) Did not promptly inform your employer that the NMC was investigating allegations regarding your fitness to practise; 4. Your conduct at (2) and/or (3) above was dishonest; And in light of the above your fitness to practise is impaired by reason of your misconduct. Background The charges arose while Mr Makati was employed as a registered nurse at Woodfold Nursing Home ( the Home ). Mr Makati commenced employment with the Home on 27 January The Home Manager, Mrs 1, conducted a first probationary review with Mr Makati on 28 March Concerns were raised at that meeting in relation to his ability to administer and record the administration of medication, to manage infection control, and to update his care plans. Concerns were also raised in relation to his team working skills. As a result of that meeting Mr Makati s probationary period was extended by a further eight weeks to end on 17 June It was alleged that while Mr Makati was on duty as the nurse in charge on the night shift of May 2012, he did not respond to Resident A who had been shouting out for assistance because her call bell was not connected. It was alleged that a 3

4 member of the day staff, Mrs 2, who came on duty in the morning heard Resident A calling out for assistance and attended to her. Mr Makati allegedly denied hearing Resident A despite being in the medicines room which was closer to Resident A s room than the staff room from where Mrs 2 heard her. It was alleged that while Mr Makati was on duty as the nurse in charge on the night shift of May 2012, he initially refused to reposition Resident B in the bed when the resident requested him to do so. It was further alleged that Mr Makati made several omissions in his documentation and/or administration of medication between 10 April 2012 and 15 May 2012, which were discovered during a routine check of the Medication Administration Record (MAR) charts by Mrs 1. It was alleged that on 20 April 2012 Mr Makati had failed to obtain a witness signature for the administration of the controlled drug Fentanyl to Resident C. It was alleged that on 10 April, 1 May, 8 May and 15 May he failed to administer and/or failed to document the administration of medication in relation to two of the residents. It was also alleged that on several occasions between 10 and 15 May 2012 Mr Makati failed to ensure that Resident E was repositioned regularly, or failed to document that she had been repositioned in the repositioning schedule. Resident E required repositioning every 1-2 hours due to pressure sores. A second probationary review meeting was held on 22 May 2012 following which Mr Makati s employment at the Home was terminated on the grounds of an unsuccessful probationary period. Following his dismissal from the Home, Mr Makati applied for a position at Canterbury House, part of the European Care Homes Group. It was alleged that Mr Makati did not declare on his application form that he had previously been employed by the Woodfold Nursing Home and that his employment there had been terminated. It was further alleged that, whilst working at Canterbury House, he did not promptly inform his employer that the NMC was investigating allegations regarding his fitness to practise, following a referral by the Woodfold Nursing Home. Decision on facts In reaching its decisions on the facts, the panel considered all the oral and documentary evidence adduced in this case together with the submissions made by Mr Collins, on behalf of the NMC. The panel heard from the following witnesses on behalf of the NMC: Mrs 1, Home Manager Mrs 2, Deputy Home Manager Mr 3, Manager of Canterbury House and Acting General Manager for North Wales for the European Care Homes Group The panel found all three witnesses to be clear and credible in their evidence. The panel heard and accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This 4

5 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 drew no adverse inference from the non-attendance of Mr Makati. The panel considered each charge separately and made the following findings: Charge 1(a) (a) During the night shift of May 2012 failed to attend to Resident A in response to requests to do so by Resident A This charge is found proved. The panel heard evidence from Mrs 2 that she arrived at the Home on the morning of 12 May and, when she was stood in the staff room she heard Resident A shouting for assistance. Mrs 2 told the panel that she walked past the treatment room, where Mr Makati was standing, to Resident A s room. Mrs 2 told the panel that Resident A had been very distressed, which was out of character, and had stated that she had been calling for two hours. Because she had not been attended to she had been incontinent. The panel heard evidence from Mrs 1 that, when questioned regarding this incident, Mr Makati claimed that he had not heard Resident A calling. The panel concluded that, on the balance of probabilities, Mr Makati had heard Resident A calling, as her call for assistance was heard by Mrs 2 who was in a room further away than Mr Makati. The panel also concluded that it was more likely than not that Resident A had been calling for assistance for some time, given the distressed state she was in when Mrs 2 attended to her and given the fact that she had been incontinent. The panel considered that Mr Makati, as the sole registered nurse on duty on that shift, had a duty of care to the residents which included attending to them promptly when they called for assistance. The panel found that Mr Makati failed in that duty and accordingly charge 1(a) was found proved. Charge 1(b) (b) During the night shift of May 2012 failed to assist Resident B when asked to do so by Resident B This charge is found proved. The panel had regard to the report of Resident B which was recorded by a Care Assistant at the Home and signed by Resident B. This report gave an account of how Resident B had asked the nurse in charge, which was Mr Makati, to move her up the bed as she was uncomfortable, and that Mr Makati had initially refused. This report is supported by a letter of complaint written by another Care Assistant, who witnessed the incident. Again, Mr Makati, as a registered nurse, had a duty of care to the residents which included responding to their reasonable requests to be made comfortable in their 5

6 beds. The panel found that Mr Makati failed in that duty and accordingly charge 1(b) was found proved. Charge 1(c) (c) At around 07:50 on 20 April 2012 failed to obtain a second signature for the administration of the controlled drug Fentanyl to Resident C This charge was found proved. The panel heard evidence from Mrs 1 that it was Home policy that two staff members sign for the administration of controlled drugs. As Mr Makati was the sole nurse on duty during the night shifts, it would have been his responsibility to ask a Care Assistant on duty to witness and sign for the administration of controlled drugs. The panel had regard to the controlled drug register for Resident C which clearly shows Mr Makati s as the only signature for the administration of Fentanyl on 20 April The panel found that Mr Makati failed in his duty to follow Home policy and appropriately record the administration of a controlled drug. Accordingly, charge 1(c) was found proved. Charge 1(d) (d) At around 07:00 on 8 May 2012 failed to administer and/or document the administration of risidronate to Resident B This charge is found proved. The panel took into account the duty rota which shows that Mr Makati was the registered nurse on duty at 07:00 on 8 May The MAR chart for Resident B shows a blank space on 8 May 2012 corresponding to the administration of Risidronate. Had the Risidronate been administered as prescribed, Mr Makati should have signed the MAR chart in this space. Therefore, Mr Makati had either not administered the Risidronate, or had administered the Risidronate but not documented it. The panel heard evidence from Mrs 1 that medication remained in the blister pack at the end of the month and it is therefore more likely than not that Mr Makati did not administer this medication. The panel found that Mr Makati failed in his duty to administer medication as prescribed and accordingly charge 1(d) was found proved. Charges 1(e) and 1(f) (e) At around 07:00 on 10 April 2012 failed to administer and/or document the administration of alendronic acid to Resident D; (f) At around 07:00 on 1 May 2012 failed to administer and/or document the administration of alendronic acid to Resident D; 6

7 These charges are found proved. The panel had regard to the duty rota which shows that Mr Makati was on duty at 07:00 on 10 April 2012 and 1 May The MAR chart for Resident D shows blank spaces corresponding to the administration of Alendronic acid on these days. Therefore, Mr Makati had either not administered the Alendronic acid, or had administered the Alendronic acid but not documented it. The panel heard evidence from Mrs 1 that the medication remained in the blister pack at the end of the month and it is therefore more likely than not that Mr Makati did not administer this medication on both occasions. The panel found that Mr Makati failed in his duty to administer medication as prescribed and accordingly charges 1(e) and (f) were found proved. Charge 1(g) and 1(h) (g) At around 07:00 on 8 May 2012 failed to administer and/or document the administration of alendronic acid to Resident D; (h) At around 07:00 on 15 May 2012 failed to administer and/or document the administration of alendronic acid to Resident D; These charges were found proved. The panel had regard to the duty rota which shows that Mr Makati was on duty at 07:00 on 8 and 15 May The MAR chart for Resident D shows blank spaces corresponding to the administration of medication on these days. The panel was not assisted by the poor photocopying of the MAR chart which did not show which medication was to be administered. However, the panel heard evidence from Mrs 1, who exhibited the MAR chart, that this referred to Alendronic acid. The blank spaces corresponding to the medication on these occasions show that Mr Makati had either not administered the Alendronic acid, or had administered the Alendronic acid but not documented it. Again, the panel heard evidence from Mrs 1 that the medication remained in the blister pack at the end of the month and it is therefore more likely than not that Mr Makati did not administer this medication on both occasions. The panel found that Mr Makati failed in his duty to administer medication as prescribed and accordingly charges 1(g) and (h) were found proved. Charge 1(i) (i) On one or more occasions on or between May 2012 failed to ensure that Patient E was appropriately repositioned and/or that an appropriate record was made in the repositioning schedule This charge is found proved. The panel heard evidence from Mrs 2 that Resident E required repositioning every 1-2 hours due to pressure sores. This requirement was clearly written in red ink on 7

8 Resident E s repositioning schedule. The panel had sight of a copy of this schedule. The panel had regard to the duty rota which shows that Mr Makati was the sole registered nurse on duty on the night shifts of 10, 12 and 15 May On these shifts, Resident E s repositioning schedule documents that she was repositioned much less frequently than every 1-2 hours. The panel could not conclude whether Resident E had been repositioned more regularly or not, but if she had been Mr Makati had not made appropriate records of this in the repositioning schedule. The panel therefore found that Mr Makati had failed in his duty to keep clear and accurate records and accordingly charge 1(i) was found proved. Charge 2 (a) and 2(b) 2. Failed to include the following information within the application form that you submitted to European Care Homes, in or around June 2012; (a) Your previous employment by the Woodfold Nursing Home; (b) That your employment at Woodfold Nursing Home had been terminated; These charges are found proved. The panel had regard to Mr Makati s application form for employment with the European Care Homes Group, exhibited by Mr 3. In section 3 of that application form Mr Makati was clearly asked to give details of his present or last employer, and he gave details of his present employer (at that time), a nursing agency. In section 4 Mr Makati was then clearly asked to give details of previous employment, accounting for any gaps in his employment history. Mr Makati did not disclose his employment at Woodfold Home in that section, as required. Mr Makati had signed a declaration in the application form stating that the information provided was accurate and complete and that he understood that he would be liable for dismissal if he provided false information. As Mr Makati did not disclose his employment with the Home on that application form, he accordingly did not disclose that the employment had been terminated. The panel found that Mr Makati was under a duty to disclose his previous employment at the Home and how it was terminated on the application form when clearly requested to do so, particularly in the light of his signature declaring the application form to be accurate and complete. Accordingly charge 2 was found proved. Charge 3 3. Whilst employed as a nurse by European Care Homes and working at Canterbury House, Denbighshire (Canterbury House): (a) Did not promptly inform your employer that the NMC was investigating allegations regarding your fitness to practise; 8

9 This charge is found not proved. The panel had regard to the letter dated 6 November 2012 from the NMC to Mr Makati informing him that the NMC were investigating concerns regarding his fitness to practise. This letter was sent by first class post and the panel considered it to be a reasonable assumption that Mr Makati may have received this letter on the 8 November The panel had regard to a second letter dated 20 November 2012 from the NMC to Mr Makati giving notice of an interim order hearing. The panel heard evidence from Mr 3 that he first became aware of the NMC investigation when Mr Makati showed him this second letter on 22 November The panel took into account paragraph 51 of the NMC code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ) which places a duty on registrants to inform their employer of any NMC investigation, but which does not specify that such disclosure must be prompt. The panel also took into account that the letter dated 6 November 2012 to Mr Makati specified that he must return information regarding his employment to the NMC by 4 December The panel concluded that Mr Makati informed his employer of the NMC investigation within less than two weeks of his being notified of it. The panel did not consider this to be an undue delay. Accordingly, charge 3 was found not proved. Charge 4 2. Your conduct at (2) and/or (3) above was dishonest; This charge is found proved in relation to charge 2. As charge 3 was found not proved the panel solely considered whether Mr Makati s actions in relation to charge 2 were dishonest. The panel applied the combined objective and subjective test for dishonesty as described in R v Ghosh [1982] QB 105. It is firstly an objective test - whether according to the ordinary standards of reasonable and honest people Mr Makati s actions were dishonest. If they were not dishonest by those standards, that is the end of the matter and the allegation is not proved. If Mr Makati s actions were dishonest by those standards then secondly, a subjective test is applied - the panel has to consider whether he must have known that what he was doing was, by those standards, dishonest. The panel concluded that not disclosing recent previous employment on an application form which he declared to be accurate and complete, would be considered dishonest by the ordinary standards of reasonable and honest people. 9

10 The panel also concluded that Mr Makati would have known that his actions were so dishonest. The panel heard from Mr 3 that when questioned as to why he had not disclosed his employment at the Home, Mr Makati first stated that he did not consider that he had been gainfully employed as he had been dismissed during his probationary period, despite accepting that he had a contract and had received remuneration. Secondly, that he did not consider that the Home would provide a beneficial reference for him. The panel concluded that this response shows that Mr Makati deliberately and dishonestly omitted the information in order to gain employment. Accordingly, the panel found that Mr Makati s actions in relation to charge 2 were dishonest and this charge was found proved. Determination on misconduct and impairment Having announced its findings on the facts, the panel then moved on to consider firstly whether the facts found proved amount to misconduct and, if so, secondly whether Mr Makati s fitness to practise is currently impaired by reason of the misconduct. Mr Collins provided the panel with references for Mr Makati from Care UK nursing agency dated 28 April 2011, and from A24 Group nursing agency dated 12 December Mr Collins referred the panel to the Code and to the specific paragraphs which he submitted were breached by Mr Makati. In relation to charges 1(a) and 1(b) Mr Makati failed to come to the assistance of vulnerable residents in his care. Mr Collins submitted that this amounted to a breach of a fundamental tenet of the nursing profession, to make the care of others your first concern. In relation to charges 1(c) through to 1(h) Mr Collins submitted that, although no actual patient harm was caused, a failure to administer medication could have serious consequences for residents. Further, he submitted that accurate record keeping is a fundamental aspect of nursing practice. In relation to charge 1(i) Mr Collins submitted that it was vital that this resident be repositioned regularly and the correct recording of such repositioning was important for the collective care of the resident by all staff. In relation to charge 2 and the finding of dishonesty in relation to that charge, Mr Collins submitted that Mr Makati potentially put patients at risk by not disclosing his full employment history to a potential employer. Mr Collins submitted that Mr Makati s actions, either taken individually or collectively, were serious and do amount to misconduct. In relation to current impairment, Mr Collins referred the panel to the approach set out by Dame Janet Smith in the Fifth Shipman Report when deciding whether a registrant s fitness to practise is currently impaired, which was approved by Mrs Justice Cox in the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin). He submitted that the facts found proved are evidence of attitudinal and behavioural problems. The charges in relation to the administration and documentation of medications occurred over a prolonged period of time, despite Mr Makati having recently undergone training on medicines management. Mr 3 gave evidence that some concerns were raised with Mr Makati during his employment at Canterbury House regarding medication administration. The letter of complaint from a Care 10

11 Assistant at the Woodfold Nursing Home states that she did not feel comfortable working with Mr Makati, and considered him to be a danger to the Home and the residents. The reference provided by A24 Group postdates the charges and alludes to a further concern raised by a client regarding Mr Makati s lack of attentiveness to a service user. Mr Collins submitted that Mr Makati has not provided any evidence to this hearing to allay the concerns raised regarding his fitness to practise. Mr Collins submitted that Mr Makati breached fundamental tenets of the nursing profession, and public confidence in the profession must be upheld by a finding of impairment. The panel heard and accepted the advice of the legal assessor who advised the panel that they must adopt a two-stage process in its consideration. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved do amount to misconduct should the panel next consider whether Mr Makati s fitness to practise is currently impaired as a result of that misconduct. The legal assessor referred the panel to the cases of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, General Medical Council v Meadow [2006] EWCA Civ 1390, Cohen v General Medical Council [2008] EWHC 581 Admin and CHRE v NMC and Grant [2011] EWHC 927 (Admin). Decision on whether the facts found proved amount to misconduct The panel 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. When determining whether the facts found proved amount to misconduct the panel first had regard to the terms of the Code in force at that time, namely the May 2008 edition. In relation to charges 1(a) and (b) the panel considered that Residents A and B were vulnerable service users who had legitimate reason to call for the assistance of a nurse. Mr Makati, as the sole nurse on duty, failed to attend to their needs which caused distress to both residents. In relation to charge 1(b) a Care Assistant who witnessed the incident wrote a letter of complaint and described Mr Makati as a danger to the Home and the residents. The panel considered that Mr Makati s actions in relation to these incidents amount to a breach of the following paragraphs of the Code: 1 You must treat people as individuals and respect their dignity 3 You must treat people kindly and considerately 8 You must listen to the people in your care and respond to their concerns and preferences In relation to charge 1 (i) the panel considered that Resident E had specific care needs which had been highlighted in her notes. It was of vital importance to her ongoing care that she was regularly repositioned and that this was accurately recorded. Charge 1(c) amounted to inappropriate record keeping as well as a breach of Home policy and recognised good practice. 11

12 In relation to charges 1(d) to 1(h) inclusive, the panel considered that these charges show similar omissions in administration of prescribed medication over a period of time, which resulted in Resident B not being administered weekly prescribed medication on one occasion and Resident D not being administered weekly prescribed medication on four occasions. The panel considered that Mr Makati s actions in relation to these charges amount to a breach of the following paragraphs of the Code: 42 You must keep clear and accurate records of the discussions you have, the assessments you make, the treatment and medicines you give, and how effective these have been 43 You must complete records as soon as possible after an event has occurred 45 You must ensure any entries you make in someone s paper records are clearly and legibly signed, dated and timed In relation to charge 2 the panel considered that Mr Makati was applying for employment within the nursing profession, caring for vulnerable service users. His failure to disclose his previous employment, and that his contract had been terminated following an unsuccessful probationary period, showed a lack of understanding of the need for transparency and openness in the profession. It potentially put service users at risk of harm. The panel have found that Mr Makati s actions in this regard were dishonest, which is evidence of an attitudinal problem. The panel concluded that all of the limbs of charge 1 relate to fundamental aspects of nursing practice within a nursing home environment, in which Mr Makati demonstrated numerous failings over a period of time. This was compounded by his subsequent dishonesty in not disclosing this employment on an application form. The panel considered that, collectively, Mr Makati s failings amount to a breach of the Preamble to the Code, and paragraph 61 which states You must uphold the reputation of your profession at all times. The panel concluded that Mr Makati s actions fell far below the standards expected of a registered nurse, and were sufficiently serious to amount to misconduct. Decision on impairment The panel next went on to decide if as a result of this misconduct Mr Makati s fitness to practise is currently impaired. The panel considered the case of Grant and the approach approved by Mrs Justice Cox for panels to consider when deciding whether a practitioner s fitness to practise is currently impaired. The panel concluded that the findings of fact show that Mr Makati s fitness to practise is impaired in that he: - has in the past and is liable in the future to put patients at unwarranted risk of harm; - has in the past brought and is liable in the future to bring the nursing profession into disrepute; 12

13 - has in the past breached and is liable in the future to breach one of the fundamental tenets of the nursing profession; - has in the past and is likely in the future to act dishonestly. Mr Makati has not provided any evidence to the panel to demonstrate any insight into or remorse for his actions. The panel had sight of one positive reference which predates the charges, and one reference which postdates the charges and which alludes to further concerns regarding Mr Makati s practice. Due to the lack of any evidence of remediation, the panel concluded that there remains a risk of repetition of such actions in the future. The panel also considered the judgement of Mrs Justice Cox in the case of Grant In paragraph 74 she said; 74. In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Mr Makati demonstrated a lack of care towards vulnerable patients and failed to act with honesty and integrity. The panel concluded that public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances. Having regard to all of the above, the panel concluded that Mr Makati s fitness to practise is currently impaired by reason of his misconduct. Decision on sanction In reaching its decision on sanction, the panel has considered all the evidence before it including the submissions of Mr Collins on behalf of the NMC. Mr Collins invited the panel to have regard to the NMC s Indicative Sanctions Guidance. He drew the panel s attention to paragraph 39 which states: Dishonesty is particularly serious because it can undermine the trust the public place in the profession. Mr Collins referred the panel to the case of Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin) in which Mr Justice Mitting said: A nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register. A nurse who has acted dishonestly, who does not appear before the Panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct erasure. Mr Collins submitted that the dishonesty in this case was directly related to Mr Makati s clinical practice and had the potential to cause harm to the public by 13

14 preventing Canterbury House from properly assessing his suitability as a registered nurse. Mr Collins submitted that this dishonesty was set against a backdrop of significant and long running clinical concerns. Mr Collins referred the panel to some mitigating factors but submitted that, in the absence of any representations from Mr Makati, a striking-off order would be the appropriate sanction. The panel heard and accepted the advice of the legal assessor. The panel applied the principles of fairness, reasonableness and proportionality, weighing the public interest with Mr Makati s own interests. The public interest includes the protection of the public, the maintenance of public confidence in the professions and the declaring and upholding of proper standards of conduct and behaviour. The panel has taken account of the current Indicative Sanctions Guidance, bearing in mind that the decision on sanction is one for its own independent judgment. The panel recognises that the purpose of a sanction is not to be punitive, although it may have a punitive effect. The panel considered the aggravating factors in this case: the charges relate to Mr Makati s care of vulnerable patients; his dishonesty was directly related to his clinical practice; further concerns were raised by Mr 3 in relation to Mr Makati s medication management and in the reference from A24 Group, dated 12 December 2012, in relation to his care of a service user; he has not admitted any of the charges, demonstrated any insight or remorse, or put forward any mitigation. Although Mr Makati provided no evidence of mitigation, the panel had regard to the mitigating factors as highlighted by Mr Collins: Mr Makati did admit having made a mistake in relation to charge 1(c) in a probationary review meeting at the Home; there is evidence of previous good practice in the reference dated 5 April 2011; and no actual harm was caused to residents by Mr Makati s medication errors. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. It would neither protect the public nor would it be in the public interest to take no further action. The panel next considered 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 of the view that the various instances of misconduct in this case were not at the lower end of the spectrum, and therefore a caution order would not be sufficient to address the seriousness of Mr Makati s misconduct. Further, a caution order would not provide any protection against the risk of repetition. The panel next considered whether placing conditions of practice on Mr Makati s registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel is of the view that there are no practical or workable conditions that could be formulated given the nature of the charges in this case. Although some of the facts found proved raise concerns regarding specific areas of Mr Makati s clinical 14

15 practice which could be addressed through training and supervision, others, such as a failure to attend to residents and dishonesty are evidence of attitudinal problems. The panel therefore concluded that workable conditions could not be formulated to adequately address all areas of concern. Further, Mr Makati indicated in his correspondence with the NMC that he does not intend to practice as a nurse again. The panel therefore concluded that Mr Makati would not comply with any conditions of practice. The panel then went on to consider whether a suspension order would be an appropriate sanction. The panel considered that Mr Makati s conduct did not constitute a single instance of misconduct, but rather repeated instances of misconduct over a period of time. The panel considered that there is evidence of harmful attitudinal problems in that Mr Makati neglected vulnerable residents in his care, and acted dishonestly for his own personal gain. The panel had no evidence that Mr Makati has shown any insight, and the panel found that there is a risk of repetition of his actions. The panel therefore determined that a suspension order is not sufficient to meet the public interest, and would not be a sufficient, appropriate or proportionate sanction. Finally, in looking at a striking-off order the panel took note of the following paragraphs of the Indicative Sanctions Guidance: 74.1 Is striking-off the only sanction which will be sufficient to protect the public interest? 74.2 Is the seriousness of the case incompatible with ongoing registration? 74.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register? 75. This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional, which may involve any of the following 75.1 Serious departure from the relevant professional standards as set out in key standards, guidance and advice 75.2 Doing harm to others or behaving in such a way that could foreseeably result in harm to others 75.6 Dishonesty, especially when persistent or covered up 75.7 Persistent lack of insight into seriousness of actions or consequences The panel concluded that Mr Makati s actions were a significant departure from the standards expected of a registered nurse, and are incompatible with him remaining on the register. The panel was of the view that the findings in this particular case were serious and to allow Mr Makati to remain on the register would undermine public confidence in the profession and the NMC as its regulator. Mr Makati has not appeared before the panel or sent any written representations to satisfy the panel that a striking off order is not necessary in this case. Having regard to all the circumstances, including the effect of Mr Makati s actions in bringing the profession into disrepute by adversely affecting the public s view of how a registered nurse should conduct himself, the panel has concluded that the appropriate and proportionate sanction is that of a striking-off order. Decision on interim order The striking-off order will take effect 28 days from Mr Makati being notified of this decision in writing, unless an appeal is made. 15

16 The panel considered the submissions made by Mr Collins that an interim suspension order should be imposed to cover the interim period before the order takes effect, or the period of any appeal should one be made, on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. The panel heard and accepted the advice of the legal assessor and had regard to the NMC guidance to panels considering whether to make an interim order. In view of the panel s earlier decision that Mr Makati s misconduct is fundamentally incompatible with remaining on the register, the panel was satisfied that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest. In reaching the decision to impose an interim order the panel had regard to the seriousness of the facts found proved and the reasons set out in its decision for the substantive order. To do otherwise would be inconsistent with its earlier findings. The panel therefore imposed an interim suspension order. The period of this order is for 18 months, to allow for the possibility of an appeal to be made and determined. This decision will be confirmed to Mr Makati in writing. That concludes this determination. 16