Nursing and Midwifery Council: Fitness to Practise Committee Substantive Hearing 2 4 May Part(s) of the register: RN2 Adult nurse (level 2)

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 2 4 May 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Christopher Roy Allen 78K0021E Part(s) of the register: RN2 Adult nurse (level 2) 5 July 1981 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mr Allen: Nursing and Midwifery Council: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: Nottinghamshire Misconduct Catrin Davies (Chair, Lay member) Susan Ellerby (Lay member) Sally Underwood (Registrant member) Sean Hammond Vicki Watts Not present or represented Represented by Ruth Alabaster, Case Presenter Charge 1 in its entirety None Impaired Suspension order 12 months Interim suspension order 18 months 1

2 Charges as read: That you, a registered nurse; 1. On 5 August 2017 you; 1.1 Slapped Resident A across the face [PROVED] 1.2 Grabbed Resident A by the throat [PROVED] AND in light of the above, your fitness to practise is impaired by reason of your misconduct. 2

3 Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Mr Allen was not in attendance and that written notice of this hearing had been sent to Mr Allen s registered address by recorded delivery and first class post on 27 March The notice letter provided details of the allegations, the time, dates and venue of the hearing and, amongst other things, information about Mr Allen s right to attend, be represented and call evidence, as well as the panel s power to proceed in his absence. Ms Alabaster on behalf of the Nursing and Midwifery Council (NMC) referred the panel to a bundle of documents (Exhibit 1) which included correspondence between the NMC and Mr Allen. Ms Alabaster informed the panel that in an from Mr Allen dated 2 April 2018, he indicated that he no longer had a permanent address and requested to be contacted by as his preferred method of communication. Ms Alabaster informed the panel that notice of this hearing had been sent to Mr Allen by secure . Ms Alabaster submitted that in light of this the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Mr Allen has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. The panel bore in mind that the rules do not require delivery and that it is the responsibility of any registrant to maintain an effective and up-to-date registered address. 3

4 Decision on proceeding in the absence of the Registrant: The panel next considered whether it should proceed in the absence of Mr Allen. The panel had regard to Rule 21 (2) which states: (2) Where the registrant fails to attend and is not represented at the hearing, the Committee (a) (b) (c) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or may adjourn the hearing and issue directions. Ms Alabaster referred the panel to Exhibit 1 which included correspondence between Mr Allen and the NMC. Ms Alabaster referred to an from Mr Allen dated 9 April 2018 in which he stated that he would not be attending the hearing and that he would like to be removed from the register. Ms Alabaster submitted that Mr Allen had also provided a document dated and signed 15 April 2018 in which also stated that he was aware the hearing was taking place on 2 4 May Ms Alabaster informed the panel that on 16 April 2018, an NMC case officer sent an to Mr Allen informing him that he may be entitled to financial assistance with travel and accommodation to which the NMC had received no response. Ms Alabaster submitted that there was one NMC witness due to attend this hearing today. Ms Alabaster informed the panel that since an from Mr Allen on 9 April 2018 in which he indicated that he would not be attending this hearing there has been no further engagement from him. She said that attempts were made last week and again the morning of this hearing to contact Mr Allen by and telephone and that there had been no response from him. 4

5 Ms Alabaster invited the panel to proceed in the absence of Mr Allen. She submitted that it is fair, appropriate and proportionate to proceed in his absence for the following reasons: There is nothing to suggest that an adjournment would secure Mr Allen s attendance at a future date. There is a strong public interest in the expeditious disposal of the case. There is a witness due to attend this hearing today. The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is not absolute and is one that should be exercised with the utmost care and caution as referred to in the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5. The panel further noted the case of R (on the application of Raheem) v Nursing and Midwifery Council [2010] EWHC 2549 (Admin) and the ruling of Mr Justice Holman that:...reference by committees or tribunals such as this, or indeed judges, to exercising the discretion to proceed in the person's absence "with the utmost caution" is much more than mere lip service to a phrase used by Lord Bingham of Cornhill. If it is the law that in this sort of situation a committee or tribunal should exercise its discretion "with the utmost care and caution", it is extremely important that the committee or tribunal in question demonstrates by its language (even though, of course, it need not use those precise words) that it appreciates that the discretion which it is exercising is one that requires to be exercised with that degree of care and caution. The panel further took into account the case of GMC v Adeogba/Visvardis [2016] [EWCA] Civ 162 which confirmed the approach to be adopted by the regulator when responding to registrants who have not engaged and that the decision in terms of Rule 21 must be guided by the overarching objective of the NMC of protecting the public. 5

6 The panel considered that there was nothing to suggest that, were it to adjourn the hearing to a later date, there was any greater likelihood that Mr Allen would attend. It considered that an adjournment would serve no useful purpose. The panel determined that Mr Allen has chosen voluntarily to absent himself from the hearing. The panel therefore decided that it could proceed without any significant risk of unfairness to Mr Allen. The panel considered that there was a strong public interest in the expeditious disposal of the case which arose out of events alleged in August 2017 and that a witness was due to give oral evidence at this hearing today and would be inconvenienced if this matter were to adjourn. Furthermore, the panel determined that Mr Allen has not engaged with the NMC since 15 April In his on 9 April 2018, he stated that he would not be attending the hearing and that he wanted to be removed from the register. There is some disadvantage to Mr Allen in proceeding in his absence. Although the evidence upon which the NMC relies has been sent to him via , he has made no response to the allegations. He will not be able to challenge the evidence relied upon by the NMC and will not be able to give evidence on his own behalf. However, in the panel s judgment, this can be mitigated. The panel can make allowance for the fact that the NMC s evidence will not be tested by cross examination and, of its own volition, can explore any inconsistencies in the evidence which it identifies. Furthermore, the limited disadvantage is the consequence of Mr Allen s decision to absent himself from the hearing, waive his rights to attend and/or be represented, and to not provide evidence or make submissions on his own behalf. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mr Allen. The panel will draw no adverse inference from Mr Allen s absence in its findings of fact. 6

7 Decision and reasons on application pursuant to Rule 31 (i) Ms Alabaster made an application for the hearsay evidence of Ms 1 to be admitted into evidence. Ms Alabaster informed the panel that Ms 1 had undertaken the investigation into the allegations at the Home. Ms Alabaster submitted that Ms 1 s evidence was relevant as it mainly covered administrative matters and exhibited documents pertaining to the local level investigation that she carried out. Ms Alabaster submitted that the statement and exhibits of Ms 1 were not controversial and that the NMC had made a decision prior to this hearing that it would not be proportionate to call Ms 1 as a witness, as the vast majority of the documents were not likely to be contested. With regards to relevance, Ms Alabaster submitted that Ms 1 s statement and exhibits were undoubtedly relevant as they contained an account from Mr Allen as to what happened during the shift on 5 August With regards to fairness, Ms Alabaster informed the panel that on 12 March 2017, the NMC wrote to Mr Allen to his address on WISER informing him that the NMC were not intending to call Ms 1 to give evidence and that no response was received from Mr Allen. Ms Alabaster submitted that there is one inconsistency within Ms 1 s account and Mr Allen s account in that Mr Allen has stated in the papers that the Home was understaffed and that this was in contrast to paragraph 7 of Ms 1 s statement in which she states that there was no evidence to suggest there were staff shortages on the day in question. Ms Alabaster submitted that Ms 1 s evidence regarding staffing levels was not the sole and decisive evidence and that it provided context and background to the charges. She invited the panel to attach as much weight to this evidence as it deemed necessary, considering that this evidence cannot be tested. The panel accepted the legal assessor s advice on the issues it should take into consideration in respect of this application. This included that Rule 31 of the Rules provides that, so far as it is fair and relevant, a panel may accept evidence in a range of forms and circumstances, whether or not it is admissible in civil proceedings. The legal assessor also referred the panel to the relevant considerations identified below as set out in the case of Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin): 7

8 The panel gave the application in regard to the admission of Ms 1 s statement and exhibits serious consideration. The panel noted that Ms 1 s statement had been prepared in anticipation of being used in these proceedings, was signed and dated by her and contained the paragraph This statement, consisting of 1 page, is true to the best of my information, knowledge and belief. The panel considered whether Mr Allen would be disadvantaged by the admission of the statement and exhibits into evidence. The panel considered that Mr Allen had been sent a copy of Ms 1 s statement and exhibits and was provided with notice on 12 March 2018 that the NMC did not intend to call her to give oral evidence. The panel considered that Ms 1 s statement and exhibits would assist the panel as it exhibits the two accounts provided by Mr Allen regarding his actions on 5 August Further, as the panel has already determined Mr Allen had chosen voluntarily to absent himself from these proceedings, he would not be in a position to cross examine this witness even if she were in attendance. The panel considered that there was also public interest in the issues being explored fully which supported the admission of this evidence into the proceedings. The panel considered that the statement and exhibits of Ms 1 provided context and background to the charges as she undertook the internal investigation which was conducted within a month of the incident, whilst information was fresh in the witnesses minds. In these circumstances, the panel determined that it would be fair and relevant to accept into evidence the statement and exhibit of Ms 1 but would give what it deemed appropriate weight once the panel had heard and evaluated all the evidence before it. 8

9 Background The background to the allegations was outlined by Ms Alabaster as follows: Mr Allen was referred to the NMC by Heritage Care UK on 15 August The charges relate to when Mr Allen was employed as a registered nurse at Devonshire Avenue, Care Home (the Home). Mr Allen commenced employment at the Home on 14 November It is alleged that on 5 August 2018, Mr Allen slapped Resident A across the face and grabbed his throat. Resident A was a vulnerable and dependant individual due to his complex health needs, Resident A was wheelchair bound and required a hoist to be moved. It is alleged that on 5 August 2018 Mr Allen was the only nurse on duty working with three Health Care Assistants. At the time of the events, Ms 2 was working at the Home as an Agency health care assistant and alleges that on the date in question she witnessed Resident A hitting Mr Allen on his chest and his shoulders and that despite Mr Allen asking Resident A to stop, it continued. Ms 2 alleges that she then saw Mr Allen, through the glass panel of Resident A s room, slap Resident A and grab him by the throat. Ms 2 reported her concerns to Ms 1 when she was next on shift and an investigation commenced. 9

10 [Day 2 3 May 2018] On day two of this hearing and before the panel handed down its decision on facts, Ms Alabaster addressed the panel on a matter that had come to her attention whilst the panel were in camera deliberating the facts. Ms Alabaster informed the panel that she had located correspondence which she considered should be put before the panel so as to ensure transparency. Ms Alabaster provided the panel with a copy of correspondence between the NMC and the LD Scheme Manager of the Home dated 9 February Ms Alabaster drew the panel s attention to the context of the information which concerns an enquiry to obtain information from Ms 1. During that enquiry the NMC asked whether or not the Home could confirm whether Mr Allen had received PMVA or deescalation training. Ms Alabaster informed the panel that the response from the Scheme Manager on 9 February 2018 was that Mr Allen had not received any PMVA or de-escalation training whilst employed at the Home. Ms Alabaster said that the goes on to state that Patient A did have a detailed behavioural care plan outlining action to be taken. Ms Alabaster submitted that the NMC s position is that the first part of this information regarding training may become a pertinent consideration at the impairment stage. With regard to the second part of the regarding the existence of a care plan, she submitted that the panel may consider that details of the care plan may be pertinent. Ms Alabaster confirmed that that the NMC had never had sight of the care plan. Ms Alabaster submitted it was highly unlikely that any care plan would document that slapping a patient or grabbing them by throat was an acceptable course of action. Ms Alabaster submitted that the NMC were not seeking to obtain the care plan but that in the interests of fairness to Mr Allen who was not in attendance in the hearing, it was important for the issue to be raised and aired in front of the panel. 10

11 Ms Alabaster submitted that if the information had been in her possession at the outset of this case, it would have been provided to the panel in order to set out background and context. The NMC, however, placed no reliance on the information and in the interests of fairness applied for the correspondence to be adduced as evidence. The panel accepted the advice of the legal assessor. The panel had regard to the submissions of Ms Alabaster and considered that it was information relevant to the background of this case. Furthermore in the particular circumstances of this case, the panel considered it was fair and relevant to admit the evidence particularly as Mr Allen was not present or represented at this hearing. 11

12 Decision on the findings on facts and reasons: In reaching its decisions on the facts, the panel considered all the evidence adduced in this case together with the submissions made by Ms Alabaster. The panel read and considered all the written evidence before it and heard oral evidence from one NMC witness. The panel also considered and gave appropriate weight to the witness statement and exhibits of Ms 1 dated 22 February The panel accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the panel is satisfied that it was more likely than not that the incidents occurred as alleged. The panel has drawn no adverse inference from the non-attendance of Mr Allen. The panel heard evidence from Ms 2 called on behalf of the NMC: Ms 2 worked at the Home as an agency Health Care Assistant (HCA) and had worked there since June Ms 2 approximated that she had worked around 8 shifts at the Home prior to the incident on 5 August 2017 and that she had worked with Mr Allen during some of those shifts. The panel found Ms 2 to be a credible witness. She made fair and balanced concessions about things that she could not remember. In her description of the incident, she was robust and unshakeable in that she saw Mr Allen slap Resident A and grab him by the throat. She accepted, when it was put to her, the suggestion that Resident A had bitten Mr Allen and that she had not put that in her witness statement. The panel considered that Ms 2 did her best at all times to assist the panel. She did not appear to bear Mr Allen any ill will and said that there had never been any issues 12

13 when she had worked with him before the incident. The panel considered that Ms 2 came across as an honest and reliable witness. The panel then went on to consider charge 1 and made the following findings. That you, a registered nurse; 1. On 5 August 2017 you; 1.1 Slapped Resident A across the face 1.2 Grabbed Resident A by the throat This charge is found proved. Ms 2 described Resident A as being a very vulnerable resident who was disabled had learning difficulties and that he could not do anything for himself including feeding, changing or talking. Ms 2 said that Resident A had no mobility and required the use of a wheelchair and a hoist if he needed to be moved. She said that he would shake his head if he did not like something or would say yeah or point if he wanted something. Ms 2 said that on the afternoon of 5 August 2017 she went into Resident A s room to give him some taster food. Ms 2 said that when she went into see Resident A he was fine and that he was laughing with her. Ms 2 said that on the shift on 5 August 2017, there were three HCA s and one registered nurse, Mr Allen. Ms 2 recalled that as she left Patient A s room, Mr Allen entered in order to attend to Resident A s PEG feed. Ms 2 explained that the Home had doors that reacted to sound and that if a resident was being loud, the doors would close. Ms 2 said that whilst Mr Allen was in with Resident A, Resident A was being quite vocal and that as a result, the doors automatically closed. Ms 2 described being outside of the room just as the doors closed and that she was looking through the glass panel of the door when she saw Resident A hitting Mr Allen on the chest and on his shoulders near his head. Ms 2 said that it looked as though Resident A was hitting Mr Allen hard and that Mr Allen was asking Resident A to stop. Ms 2 told the panel that she then saw Mr Allen slap Resident A across the face and grab him by the throat. Ms 2 said that she was shocked at what she had seen and that she hesitated before entering the room. Ms 2 said that she had a clear view from where she was standing and that the light was off in the corridor but on in the room where Patient A and Mr 13

14 Allen were. She described Mr Allen as being stooped down by the side of Resident A s wheelchair. Ms 2 said that when she entered the room, Mr Allen had told her that Resident A had said he wouldn t allow Mr Allen to feed him. Ms 2 said that she suggested that Mr Allen leave the room and he did so. She remained in the room and reassured Resident A, that it would be ok. She described Resident A as being visibly shocked and that he had a red mark on his left cheek and another red mark on his chest. Ms 2 said that she then went to speak to Mr Allen who was in the medical room and that she told him she had seen him slap Resident A and put his hand around his throat. Ms 2 said that Mr Allen looked shocked that she had seen this and that he said he didn t mean to and apologised to her. Ms Allen told the panel that she was clear in that she told Mr Allen it was not her that he needed to apologise to. Ms 2 said that she knew she had to report the incident she had witnessed to the management but that she was concerned that as she was an agency nurse she would not be believed. However, she said that she realised that she needed to do so and reported her concerns to Ms 1 a few days later when she was next on shift. The panel had regard to Mr Allen s typed statement for the internal investigation dated 8 August 2017, the undated interview minutes and the handwritten investigation interview notes dated 4 September In Mr Allen s typed statement, he states I had given most of his medication when he became aggressive towards me by holding my arm pulling it away from his feeding tube and digging his finger nails into my left forearm drawing blood. Mr Allen goes on to state that at no point did he hold Resident A around his neck and that he tapped Resident A on the side of his head which was a thing that he and Resident A used to do as a game in that Resident A would tap Mr Allen and Mr Allen would tap Resident A and that Resident A would laugh. The panel preferred the evidence of Ms 2 on this matter, her demonstration to the panel of what she said she witnessed was convincing. The panel was also provided with a photograph of where Ms 2 was standing whilst looking into the room. The 14

15 panel considered that Ms 2 s statement provided as part of the internal investigation was written a matter of days after the incident and was largely consistent with her evidence at the investigatory meeting and her oral evidence at this hearing. The panel accepted Ms 2 s sequence of events. It was satisfied that on the balance of probabilities, that Mr Allen slapped Resident A face and grabbed him by the throat as a reaction to Patient A having hit Mr Allen several times on the arm and head and Patient A having bitten Mr Allen. The panel had regard to Mr Allen s account in that he was injured during the course of this incident as Resident A had dug his nails into his forearm drawing blood. However, Ms 2 was asked if she had seen any blood or other injuries to Mr Allen to which she replied she had not and the panel was not provided with any documentary evidence that Mr Allen was injured or that it was reported to anyone. The panel concluded that, on the balance of probabilities, Mr Allen slapped Patient A and grabbed his throat. Accordingly, the panel found charges 1.1 and 1.2 PROVED. 15

16 Submission on misconduct and impairment Having announced its finding on the facts, the panel then moved on to consider whether the facts found proved amount to misconduct and, if so, whether Mr Allen s fitness to practise is currently impaired. Whilst there is no statutory definition, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel heard submissions from Ms Alabaster, on behalf of the NMC. Ms Alabaster referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. In this respect, she submitted that the panel must determine whether Mr Allen s acts or omissions represent serious departures from, or a serious falling short of, the standards expected of Mr Allen as a registered nurse. Ms Alabaster reminded the panel that Mr Allen up until this incident had an unblemished nursing career of over 30 years. Ms Alabaster submitted that it was not in dispute that Resident A did not always comply with requirements and was known to lash out when he did not want certain treatments. Ms Alabaster reminded the panel of the evidence of Ms 2 in that she had witnessed Resident A hitting Mr Allen. Ms Alabaster submitted that it was the NMC s position that Mr Allen should have walked away as a way of de-escalating the situation and that Mr Allen should not have allowed himself to harm a person he was caring for. Ms Alabaster invited the panel to take the view that Mr Allen s actions amount to a breach of The Code: Professional standards of practice and behaviour for nurses and midwives (2015) ( the Code ) and directed the panel to specific paragraphs and identified where, in the NMC s view, Mr Allen s actions amounted to misconduct. Ms Alabaster then moved on to the issue of impairment, and addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards and maintain public confidence in the profession and in the NMC as a regulatory body. She referred the 16

17 panel to the cases of Meadow v GMC [2007] QB 462 (Admin) and Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). The panel accepted the advice of the legal assessor which included reference to a number of judgments which are relevant, these included: Cheatle v GMC [2009] EWHC 645 (Admin), Nandi v GMC [2004] EWHC 2317 (Admin), Cohen v GMC [2008] EWHC 581 (Admin) and Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Decision on misconduct and impairment The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, Mr Allen s fitness to practise is currently impaired as a result of that misconduct. 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. In determining whether the facts found proved amounted to misconduct the panel had regard to the terms of the Code. The panel was of the view that Mr Allen s actions did fall significantly short of the standards expected of a registered nurse, and that his actions amounted to a breach of the following sections of the Code: 1 Treat people as individuals and uphold their dignity To achieve this, you must: 1.1 treat people with kindness, respect and compassion 1.5 respect and uphold people s human rights 2 Listen to people and respond to their preferences and concerns To achieve this, you must: 17

18 2.6 recognise when people are anxious or in distress and respond compassionately and politely. 13. Recognise and work within the limits of your competence To achieve this, you must: 13.4 take account of your own personal safety as well as the safety of people in your care. 20 Uphold the reputation of your profession at all times To achieve this, you must: 20.5 treat people in a way that does not take advantage of their vulnerability or cause them upset or distress The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. The panel considered that the charge in this case formed part of one incident and therefore considered whether the charge as a whole amounted to misconduct. The panel considered that Resident A was particularly vulnerable. He was unable to move without the aid of a hoist, unable to speak and was wholly dependent upon the care he received. The panel had regard to the evidence of Ms 2 in that she had witnessed Resident A hitting Mr Allen. However, the panel did not consider that Mr Allen s actions in slapping Resident A and grabbing him by the throat were acceptable in any circumstances. The panel considered that slapping and grabbing a vulnerable resident by the throat were violent and inappropriate acts, and in doing so, Mr Allen failed to treat Resident A with dignity and respect. The panel bore in mind the evidence of Ms 2 who described how shocked she was at what she had witnessed, and that Resident A was visibly shocked, subdued and had red marks on his cheek and his chest. The panel was of the view that Mr Allen s action in respect of Resident A would be viewed by fellow members of the profession as deplorable. The panel determined that this incident as a whole fell far short of the conduct standards expected of a registered nurse, and amounted to serious misconduct. 18

19 Decision on impairment The panel next went on to decide if as a result of this misconduct Mr Allen s fitness to practise is currently impaired. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision. In paragraph 74 she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but 19

20 in my view the test would be equally applicable to other practitioners governed by different regulatory schemes. Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. The panel considered that Mr Allen put a patient at unwarranted risk of harm, brought the profession into disrepute and breached fundamental tenets of the profession. The panel went on to consider whether Mr Allen was liable to put patients at unwarranted risk of harm, bring the profession into disrepute and breach fundamental tenets of the profession in the future. In doing so, the panel considered 20

21 whether there was sufficient evidence of insight, remorse and remediation on Mr Allen s part. In relation to insight, the panel has received no information from Mr Allen that he has demonstrated an understanding of the seriousness of his actions. The panel therefore considered that Mr Allen has provided no evidence of insight. In relation to remorse, the panel has no information before it as to whether Mr Allen has made any attempt to apologise to Resident A for his actions. The panel therefore determined that there was no evidence that Mr Allen had demonstrated any remorse for his actions. The panel had regard to Ms 2 s evidence in that at the time of the event, Mr Allen apologised to her and that she was explicit in telling him it was Resident A he needed to apologise to. However, the panel had no information as to whether Mr Allen did, in fact, apologise to Resident A. In relation to remediation, the panel considered that Mr Allen s conduct was capable of being remedied. However, given Mr Allen s lack of insight and remorse, the panel did not consider that there was evidence of any attempt made by Mr Allen to remedy his actions. The panel has not been provided with any information that Mr Allen has reflected on his conduct and he has not provided anything to demonstrate how he would behave differently if faced with such a situation in the future. The panel therefore concluded that there was no evidence of remediation on Mr Allen s part. In a case where a healthcare professional has remediated and meaningfully reflected, it could be reasonably found that the risk of repetition of the misconduct is greatly reduced. Given that the panel has determined that Mr Allen has not demonstrated any insight or remediation, the panel was not satisfied that Mr Allen had taken any steps to minimise the risk of repetition and thus reduce the risk of harm to those in his care. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold/protect the wider public interest, which includes promoting and maintaining public confidence in the nursing profession and upholding the proper 21

22 professional standards for members of the profession. The panel determined that, in this case, a finding of impairment on public interest grounds is required. The panel considered that Mr Allen s actions had damaged the reputation of the nursing profession, and that a finding of impairment on public interest grounds was necessary to send a message that such conduct, namely behaving violently towards a patient, was wholly unacceptable. Having regard to all of the above, the panel was satisfied that Mr Allen s fitness to practise is currently impaired. Determination on sanction: The panel has considered this case very carefully and has decided to make a suspension order for a period of 12 months. The effect of this order is that the NMC register will show that Mr Allen s registration has been suspended. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case. It had regard to the submissions of Ms Alabaster. Ms Alabaster outlined what the NMC considered to be the aggravating and mitigating factors in this case. She referred the panel to the NMC Sanctions Guidance ( SG ) and informed the panel that the NMC s sanction bid was for a striking off order, but that ultimately sanction is a matter for the panel s independent judgment. The panel accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the SG. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel first considered what it deemed to be the aggravating and mitigating factors in this case and determined the following: Aggravating factors: 22

23 Mr Allen s actions resulted in actual harm to Resident A; Mr Allen has failed to address the seriousness of his actions; Mr Allen has not demonstrated any evidence of insight or targeted remediation; Mr Allen has not demonstrated any evidence of remorse; Mitigating factors: Mr Allen has over 30 years of experience as a nurse with no previous adverse findings against him, including no previous referrals to the NMC. Mr Allen was reacting to physical force from Resident A at the time he was performing a clinical procedure. Resident A was trying to manage the situation and was overheard by Ms 2 telling Resident A to stop as Resident A was hitting Mr Allen and attempting to bite him. The panel had regard to the evidence adduced by the NMC prior to handing down its decision at the facts stage regarding the information that Mr Allen did not receive PMVA or de-escalation training whilst employed at the Home. However, the panel concluded that this information was limited and did not assist the panel in reaching its decision given the particular circumstances of this case. 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 taking no further action would not protect the public and it would not satisfy the wider public interest in this case. The panel next considered whether to impose a caution order, and took into account the SG, 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 Fitness to Practise Committee wishes to mark that the behaviour was unacceptable and must not happen again. 23

24 The panel considered that Mr Allen s misconduct was not at the lower end of the spectrum of impaired fitness to practise and therefore a caution order would be inappropriate in view of the seriousness of the case. The panel decided that imposing a caution order would not protect the public and it would not satisfy the wider public interest in this case. The panel next considered whether to impose a conditions of practice order. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the SG, in particular: Conditions may be appropriate when some or all of the following factors are apparent (this list is not exhaustive): identifiable areas of the nurse or midwife s practice in need of assessment and/or retraining potential and willingness to respond positively to retraining the conditions will protect patients during the period they are in force Mr Allen has provided no evidence to suggest that he has insight into his actions and no evidence that he has attempted to remedy his failings. The panel considered that whilst there may have been conditions that would address public protection there were no workable conditions of practice that would satisfy the public interest in the case. The panel concluded that the placing of conditions on Mr Allen s registration would not adequately address the seriousness of this case and would not satisfy the public interest. 24

25 The panel then went on to consider whether a suspension order would be an appropriate sanction. The panel had regard to the SG. A suspension order is intended to convey a message to the registrant, the profession and the wider public as to the gravity of the unacceptable failings found proved which, in the particular circumstances of a case, fall short of requiring the registrant s name to be permanently removed from the Register. The panel determined that, Mr Allen s actions clearly breached fundamental tenets of the profession, but considered that Mr Allen s misconduct may be capable of remediation. The panel carefully considered the circumstances surrounding the incident, and took into account that Mr Allen s behaviour took place in difficult circumstances, as previously described. This was a single incident in a nursing career spanning some 30 years and there has been no evidence of repetition of such conduct. However, the panel found that Mr Allen s conduct and the use of physical violence was wholly unacceptable. The panel determined that Mr Allen s conduct demands temporary removal from the register on the grounds of both public protection and the wider public interest. In reaching this decision the panel took into consideration the effect such an order would have on Mr Allen however determined that it was a proportionate sanction given the seriousness of the case. The panel determined that a period of 12 months is the appropriate and sufficient length in this case to protect the public and to give Mr Allen an opportunity to remediate, reflect and develop full insight into his failings, in order to satisfy a future panel that he is capable of returning to safe practice. The panel did consider the imposition of a striking off order as Mr Allen s conduct was a serious departure from the standards expected of a registered nurse. However, it considered that this would be disproportionate as a lesser sanction is available that would protect the public and satisfy the public interest. 25

26 At the end of the period of suspension, another panel will review the order. At the review hearing the panel may revoke the order, confirm the order, or it may replace the order with another order. Any future panel may be assisted by: a written reflective piece, using a recognised model, addressing the areas of concern identified by this panel; evidence of any training undertaken by Mr Allen, particularly in respect of deescalation when dealing with challenging and vulnerable patients; up to date references from employers in a paid or unpaid job and in a healthcare setting or otherwise; Mr Allen s engagement with the NMC process and attendance at any review hearing. 26

27 Determination on Interim Order Under Article 31 of the Nursing and Midwifery Order 2001 ( the Order ), the panel considered whether an interim order should be imposed in this case. A panel may only make an interim order if it is satisfied that it is necessary for the protection of the public, and/or is otherwise in the public interest, and/or is in the registrant s own interests. The panel has considered the submissions made by Ms Alabaster, on behalf of the NMC, that an interim order for a period of 18 months should be made on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision to impose a suspension order in reaching the decision to impose an interim order. To do otherwise would be incompatible with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by the suspension order 28 days after Mr Allen is sent the decision of this hearing in writing. That concludes this determination. 27