Legal Assessor: Graeme Sampson (March 2015) John Donnelly (June 2015)

Transcription

1 Conduct and Competence Committee Substantive Hearing 2 5 March 2015 Nursing and Midwifery Council, 61 Aldwych, London, WC2B 4AE Resumed 29 June 2015 Medical Practitioners Tribunal Service, 7 th Floor, St James s Buildings, 79 Oxford Street, Manchester, M1 6FQ Name of Registrant: Daniel French NMC PIN: 06D0057E Part(s) of the register: Registered Nurse Sub Part 1 Adult Nursing June 2006 Area of Registered Address: Type of Case: Panel Members: England Misconduct John Crawley (Chair/Lay member) Franklyn Baker (Lay member) Pepsi Takawira (Registrant member) Legal Assessor: Graeme Sampson (March 2015) John Donnelly (June 2015) Panel Secretary: Nicola Moreton on 2 March 2015 Hannah Procter on 3-5 March 2015 Richard Webb on 29 June 2015 Mr French: Not present and not represented on 2, 4 and 5 March 2015 and on 29 June 2015 Peter Melleney, Counsel, appointed by NMC to cross-examine witnesses, present on 2 and 3 March 2015 Nursing and Midwifery Council: Represented by Tom Cockroft (March 2015) and Rory Mulchrone, Counsel, instructed by NMC Regulatory Legal Team Facts proved: Facts not proved: All None Page 1 of 30

2 Fitness to practise: Sanction: Interim order: Impaired Striking Off Order 18 Month Interim Suspension Order Page 2 of 30

3 Decision on service of notice of hearing The panel was informed at the start of this hearing that Mr French was not in attendance, nor was he represented in his absence. Mr Melleney informed the panel that he had been appointed special counsel, under rule 23 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) ( the Rules ), by the NMC for the sole purpose of the cross examination of two NMC witnesses and did not otherwise represent Mr French. Notice of this hearing was sent to Mr French on 28 January 2015 by recorded delivery and first class post to his address as recorded on the register. Information had been received that Mr French was in fact no longer at the address recorded on the register and a further notice of hearing was sent to the new address on 11 February The panel accepted the advice of the legal assessor who reminded the panel that the onus was on Mr French to keep his registered address up to date. He advised that the notice sent on the 28 January 2015 was sent to the address recorded on the register for Mr French and was in compliance with The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) ( the Rules ). The panel was satisfied, in all the circumstances, that notice had been served in accordance with Rules 11 and 34 of the Rules. Proceeding in absence Day one of the hearing The panel then considered whether to proceed in the absence of Mr French. The panel heard the submissions made by Mr Cockcroft on behalf of the Nursing and Midwifery Council (NMC). Mr Cockroft outlined the communications between the NMC and Mr French to date. He informed the panel that Mr French, in an sent on 1 March 2015 at 22:10 had stated that he had got the wrong date for the start of the hearing, however he could attend one of the other days if the NMC could cover his train fare. Page 3 of 30

4 An was sent to Mr French by the NMC case officer this morning, 2 March 2015, asking Mr French to provide the previously requested information regarding his financial position in order that travel and accommodation might be arranged. The NMC case officer also contacted Mr French by telephone this morning, 2 March During this conversation Mr French confirmed that he is not available by telephone as he is working and would not be able to send the required information until later this evening. Mr French stated that he would not be able to attend on day two and would be looking to attend on day three of the hearing. Mr Cockroft informed the panel that four witnesses, called on behalf of the NMC, were in attendance on day one and that Colleague B was only available to attend in person on that day. Colleague B had confirmed that she would be available via telephone on day two. Mr Cockroft submitted that any delay would inconvenience the witnesses and invited the panel to proceed in Mr French s absence or to consider adjourning the hearing until 09:30 tomorrow, 3 March 2015 to give Mr French an opportunity to attend. Mr Cockroft informed the panel that he had left a message on Mr French s voic advising him of the potential for the panel to proceed in his absence if he did not attend tomorrow. The panel heard and accepted the advice of the legal assessor who reminded the panel, in addition to the other considerations, that Mr Melleney would be unable to cross examine the witnesses without receiving instructions from Mr French. The panel was mindful that a decision to proceed in a registrant s absence was a discretion that must be exercised with the utmost care and caution. In deciding whether to proceed in the absence of Mr French or whether to adjourn the hearing until day two, the panel weighed its responsibilities for public protection and the expeditious disposal of the case with Mr French s right to attend the hearing and in particular whether it would be fair to proceed in his absence. Page 4 of 30

5 The panel noted that Mr French had known of the dates of this hearing for some time but had not appeared to make the necessary arrangements to facilitate his attendance. The panel was mindful that a witness, Colleague B, was only available to attend in person on day one and only available via telephone for a limited time on day two and therefore if the hearing did not proceed on day one then her evidence could not be heard in person. The panel also bore in mind that should the hearing proceed on day one and Colleagues A and B were to give evidence then this would put Mr French at a considerable disadvantage as the witness evidence could not be cross examined by Mr Melleney, who has yet to receive instructions. Having weighed the interests of Mr French with those of the NMC and the potential inconvenience to the witnesses in attendance the panel determined to adjourn the hearing until day two. The panel concluded that this course would allow Mr French a final opportunity to attend the hearing, present his case and provide any instructions regarding his case to Mr Melleney so as to enable effective cross examination of the two witnesses. The panel directed that this decision be communicated to Mr French. Charges That you, a Registered Nurse, whilst employed between 3 March 2006 and 17 February 2014 by West Sussex Hospitals NHS Foundation Trust ( the Trust ) at Worthing Hospital, West Sussex ( the Hospital ): 1. Behaved inappropriately towards Colleague A in that you: 1.1 On an unknown date in 2008, in the utility room on East Brook Ward at the Hospital said to Colleague A words to the effect of You can t leave until you give me a cuddle ; Page 5 of 30

6 1.2 On one or more unknown occasions between 2010 and 2013, pinched and/or slapped Colleague A s bottom; 1.3 On one or more occasions between 2010 and 2013, deliberately invaded Colleague A s personal space and brushed her breasts when walking past her; 1.4 On an unknown date in 2012 said words to the effect of show me your tits instead to Colleague A 2. Behaved inappropriately towards Colleague B on 17 November 2013 in that: 2.1 You implied to Colleague B that you wanted to see her breasts whilst present on Ditchling Ward; 2.2 You asked Colleague B to show you her breasts by saying words to the effect of: If you want to get em out, then I would like to see them Go on show me, if you show me yours, I ll show you mine Go on show me, it doesn t matter that you re married 2.3 Made comments to Colleague B regarding her breasts, saying words to the effect of: It was just a joke but I can t help it because your boobs are so big I don t understand how your boobs are so big if they are not real 2.4 Made comments to Colleague B about your marital sex life, stating that that your wife liked you to urinate on her during sexual intercourse. 3. Your conduct described in the following paragraphs was sexually motivated: Page 6 of 30

7 On 4 August 2013, in the presence of members of the public, made inappropriate comments in that you: 4.1 Stated that you no longer wished to have sex with your wife; 4.2 Stated that you wished to have an extra marital affair with a colleague; 4.3 Used the word bloody loudly And in light of the above, your fitness to practise is impaired by reason of your misconduct Application under rule 22(2) witness anonymity Mr Cockroft made an application under rule 22(2) that any details which may identify either Colleague A or Colleague B should not be revealed in public. Given the sensitive nature of the allegations, Mr Cockroft submitted that it would be unfair to identify Colleague A or B and that no prejudice would be caused to Mr French as he already knew the identities in question. Mr French did not oppose the application. The panel allowed Mr Cockroft s application and directed that the identities of Colleague A and Colleague B should not be revealed in public. Page 7 of 30

8 Application for telephone evidence Mr Cockroft, on the third day of the hearing, made an application for the evidence of Ms 3 to be given via telephone. He read an from Ms 3 to the panel setting out the reasons why she was not in attendance, having been present on both preceding days and ready to give her evidence, but not called. The panel heard and accepted the advice of the legal assessor, who urged the panel to consider the application carefully in light of Mr French s absence. The panel was mindful that Mr French had confirmed at the close of proceedings on the second day that he would not be in attendance for the remainder of the scheduled hearing due to financial constraints. He had confirmed that he was happy for the hearing to proceed in his absence. Mr French had provided the questions he wished to be asked of Ms 3 in an , which was made available to the panel so that it could understand the points on which he challenged her evidence and why. The panel was satisfied that, in Mr French s absence, there would be little if any prejudice caused to him by Ms 3 giving her evidence via telephone. She would still be able to answer questions from the panel and the NMC s case presenter. The panel therefore allowed the application. Background Mr French had been employed throughout his nursing career at Worthing Hospital. He qualified in 2006, and had worked on Eastbrook ward until early 2013, when he was transferred to work on another ward. Page 8 of 30

9 An investigation into allegations about Mr French s behaviour being inappropriate commenced in early The investigation was conducted by Ms 1, a senior nurse who had not worked with Mr French. Ms 1 held a number of investigatory interviews with staff members who had complained about Mr French as well as with Mr French himself. In May 2013, Mr French worked on the Ditchling Ward, which was a seasonal ward designed to meet increased demands during winter. As such, it was closed between June and September. Between June 2013 and September 2013, Mr French worked on Durrington Ward. During this time, the allegations in charge 4 arose. Mr French returned to work on Ditchling Ward in November Soon after, the allegations in charge 2 arose. Ms 1 conducted further investigation interviews into these allegations. Evidence The panel heard oral evidence in person from the following witnesses in support of the NMC s case: Colleague A, a healthcare assistant who worked with Mr French on Eastbrook ward; Ms 1, the investigating officer; Ms 2, a staff nurse who worked on Ditchling ward; The panel heard oral evidence via telephone from the following witnesses in support of the NMC s case: Colleague B, a healthcare assistant who worked on Ditchling ward; Ms 3, a Deputy Sister on Durrington ward. Page 9 of 30

10 The panel also heard oral evidence via telephone from Mr French. In making its decision on facts, the panel took into account all the evidence in this case as well as the submissions of Mr Cockcroft, on behalf of the NMC, and of Mr French. The panel heard and accepted the advice of the legal assessor. The panel was mindful that the burden is on the NMC to prove the facts on the balance of probabilities. This means that for any fact or event to be found proved the panel must be satisfied that it is more likely than not to have occurred. The panel considered the evidence on each of the charges separately. The panel found all the NMC witnesses to be credible and consistent in their evidence. Mr French alleged that Colleague A and Colleague B had conspired together to make allegations against him. He said that he had heard Colleague B speak to Colleague A via telephone whilst he was present on the ward. In support of his contention, Mr French advanced the fact that Colleague A and Colleague B were friends on Facebook. It was put to both Colleague A and Colleague B by Mr Melleney, on behalf of Mr French, that they had conspired in making their allegations. Both witnesses denied that they had, stating that they had only met each other on the first day of the hearing in the witness room, and had only become friends on Facebook thereafter. The panel carefully considered whether there was any credible evidence that Colleague A and Colleague B had colluded in their evidence. The panel found Colleague A to be an honest and persuasive witness. She had, for example, readily conceded that inappropriate behaviour, not attributable to Mr French, had occurred on the ward. Colleague A s complaints about Mr French were made repeatedly over a period of some years to successive managers on the ward, describing a consistent pattern of behaviour towards her as reflected in the charges. In the minutes Page 10 of 30

11 of the disciplinary hearing held on 17 February 2014, it is recorded that Colleague A explained that everyone will make cheeky comments in general but [Mr French] aims it at you. Her account at the hearing was consistent with the record of her investigatory interview with Ms 1 on 28 March Colleague A told the panel that no further action was taken as a result of her complaints until the investigation in 2013 and that she had felt that she had not been not taken seriously. Mr French alleged that Colleague A s motive to make false allegations about him was because he had complained about the quality of her work to the ward manager several times. Colleague A was asked by the panel whether she had known that Mr French had complained about her and whether the ward manager had ever raised concerns. She replied that only a very minor concern had in fact been raised and on only one occasion. The panel found Colleague B credible and consistent in her evidence. That evidence was limited largely to the events of 17 November Her evidence was corroborated by that of Ms 2, whose evidence was that she had found Colleague B in a state of acute distress, in Mr French s company. In her witness statement Ms 2 gave details of what Colleague B had told her of Mr French s behaviour and comments that day and the panel was satisfied that this was consistent with the substance of the matters alleged in the charges. The panel found Ms 3 a credible and consistent witness. She gave evidence in relation to charge 4. That charge was partially admitted by Mr French. Where his evidence differed from Ms 3 s, the panel had confidence in preferring her account. The panel did not accept that Colleague A and Colleague B had conspired together to make allegations against Mr French. They were both credible witnesses who gave unequivocal denials as to the suggestion that they had colluded in making false allegations. Furthermore, there was no evidence that Mr French had raised this during Trust s investigation; the first mention of it was at this hearing. The panel was therefore satisfied that Colleague A and Colleague B s evidence was reliable. Page 11 of 30

12 Regarding Mr French s evidence, the panel noted that he had made some limited concessions about inappropriate behaviour on his part at the Hospital. In particular, in the notes from the investigatory interview held on 20 September 2013, which Mr French signed as being an accurate record, it was recorded that Mr French was asked by Ms 1 to expand on his comment in the previous meeting where he said he would have a little flirt. [Mr French] said this was harmless and nothing formal like asking someone for sex. The panel was also provided with a copy of a supplementary statement made by Mr French dated 10 November 2013 in which he listed a number of examples of other staff members behaviour with the explanation that this accounts just a few of the points I felt relevant to include to back up that flirty and inappropriate behaviour is present on the ward and that I am not the only person involved. Further, in respect of charge 4, whilst Mr French made no formal admission to the items of the charge, he did accept in his evidence that the overall content of the conversation he had initiated at the nursing station was inappropriate. In his evidence to the panel, Mr French denied all the charges. He stated that many of the statements he was alleged to have made, or actions he was alleged to have carried out, did not happen. He also stated that there was a culture on Eastbrook ward of inappropriate behaviour. The panel did not accept that, to the extent this may have been the case, it excused any inappropriate behaviour by Mr French. The panel found Mr French s evidence lacked credibility and did not support his denials of the charges. He accepted that he had behaved inappropriately on occasions towards his colleagues. However, He lacked any understanding into why this was wrong. He was of the opinion that the fact that other members of staff may also have behaved inappropriately exonerated him. He failed to understand that this could not be the case. Decision on facts Charge 1.1 proved Page 12 of 30

13 On an unknown date in 2008, in the utility room on East Brook Ward at the Hospital said to Colleague A words to the effect of You can t leave until you give me a cuddle The panel found Colleague A s account of the incident to be detailed and credible. Colleague A described how, on a date in March 2008 soon after she began working at the Hospital, she had entered the ward s utility room, which had shelving on either side with a narrow corridor in between. She stated that it had only one window and door and was very claustrophobic in nature. Colleague A had entered the room to get a razor to help a patient shave. After she had entered, Mr French also entered. They were the only two people in the room and the door, a wooden fire door that closes automatically, was shut. Colleague A described how, once she had obtained the razor, she walked towards the door but Mr French did not move out of the way. It is at this point that Colleague A stated that Mr French said you can t leave until you give me a cuddle or words to that effect. Colleague A stated that she felt very uncomfortable and she was restricted in a small room in a narrow space with a much taller and broader person than [herself]. The panel also took account of the notes of the investigatory interview held on 9 May 2013, which were signed by Mr French as being accurate. In those notes, it is recorded that Mr French, when asked if he had hugged staff members, explained that he is quite a huggy person. [He] added that if he was feeling down he would ask someone for a hug. In addition, Mr French accepted at his disciplinary hearing that he could possibly be overbearing when he cuddled Colleague A and confirmed that she is small whereas he is big. The panel was satisfied that it was more likely than not that Mr French had said the words as set out in the charge, or words very similar to those. The panel considered that this constituted inappropriate behaviour as it had made Colleague A feel tearful and very uncomfortable. The panel therefore found this charge proved. Page 13 of 30

14 Charge 1.2 proved On one or more unknown occasions between 2010 and 2013, pinched and/or slapped Colleague A s bottom Colleague A told the panel there were numerous occasions over the years when she had worked with Mr French when he had pinched or slapped her bottom. In the notes of Colleague A s investigatory meeting with Ms 1 on 28 March 2013, it was recorded that Colleague A had stated that Mr French would pinch and slap her bottom. The panel found this charge proved, on the basis that Colleague A s evidence was consistent and credible. That although she could not give specific details, including dates, as to the occasions on which this behaviour occurred, her evidence reported a habitual pattern of behaviour on Mr French s part that was consistent with her other allegations and those of Colleague B. The panel considered that this behaviour was inappropriate. Such physical contact with a colleague should not occur in the workplace. The panel therefore found this charge proved. Charge 1.3 proved On one or more occasions between 2010 and 2013, deliberately invaded Colleague A s personal space and brushed her breasts when walking past her Colleague A told the panel on a large number of occasions, which happened too regularly for me to be able to give a specific date as an example, Mr French would deliberately brush his body past me when on the ward or at any part of the Hospital Where it would happen in a corridor, Mr French would deliberately walk over to the side that I was walking on, and even though the corridor would allow comfortably for two people to walk past without making any contact he would deliberately walk close to me in my personal space, so that he could brush his body against my breasts. It was Page 14 of 30

15 extremely uncomfortable and even though I told Mr French that he should get out of my personal space and pointed out to him that he had touched my breasts, it did not stop Mr French from then doing the same thing again and again and again. For the reasons previously described, the panel found Colleague A s account to be reliable and that Mr French s behaviour was inappropriate. It had made Colleague A feel extremely uncomfortable and she described how intimated she had felt. The panel also found that Mr French s behaviour had been deliberate. Colleague A was clear in her evidence that his brushing against her breasts as he walked past was not as a result of their being in a confined space in which some bodily contact was unavoidable but that he had purposefully walked close to her in order to do so. The panel therefore found this charge proved. Charge 1.4 proved On an unknown date in 2012 said words to the effect of show me your tits instead to Colleague A Colleague A told the panel that there was one occasion on which she was in the staff room alone when Mr French entered and began talking to her. She said he had asked her for a cuddle as he was feeling depressed and that when she refused he replied with words along lines of show me your tits instead. The notes of Colleague A s investigatory meeting with Ms 1 on 28 March 2013 record Colleague A s complaint that Mr French had asked her for a cuddle and that he had said show me your tits then. The panel, for the reasons set out previously, found that Colleague A s account was credible and consistent and that Mr French s behaviour was inappropriate. The panel found that this allegation reflected his habitual behaviour towards younger female staff. The panel therefore found this charge proved. Page 15 of 30

16 Charge 2.1 proved You implied to Colleague B that you wanted to see her breasts whilst present on Ditchling Ward Colleague B told the panel that on 17 November 2013, she wore a scrub top to work as her normal uniform was stuck in her broken washing machine. Mr French told her that she should not be wearing a scrub top and that she should take it off. Colleague B related a number of verbal exchanges which occurred between her and Mr French, on several occasions throughout the course of the shift, which left her in no doubt that he wanted her to expose her breasts. The panel had a copy of a handwritten statement signed by Colleague B and dated 22 November In that statement, she reported that he said take the top off. I asked what else I would wear. He said nothing so he could see my boobs. The panel had no reason to doubt Colleague B s account. The panel therefore found this charge proved. Charge proved You asked Colleague B to show you her breasts by saying words to the effect of: If you want to get em out, then I would like to see them Go on show me, if you show me yours, I ll show you mine Go on show me, it doesn t matter that you re married Colleague B told the panel that Mr French had continually harassed her about her top and breasts throughout the rest of the shift on 17 November Colleague B described a conversation she had with Mr French whilst they were alone in the office. Mr French stood in the doorway to the office and had asked if she was ok and said that he had not meant to upset her earlier, which Colleague B understood to be a reference to their earlier conversation about her wearing the scrub top. Colleague B stated that Mr French continued the conversation from the doorway, saying If you want Page 16 of 30

17 to get em out, then I would like to see them, which she interpreted as an expressed desire to see her breasts. Mr French, after she had said no, entered the room and came closer to her, within a foot or so, saying Go on show me, if you show me yours, I ll show you mine and Go on show me, it doesn t matter that you re married. After this conversation had taken place, Ms 2 entered the room and Mr French left. Ms 2 told the panel that Colleague B told her what had happened and that she was close to tears and upset. The panel found Colleague B s evidence, corroborated in substance by Ms 2 s evidence, to be credible and consistent. It therefore found this charge proved in all its parts. Charge proved Made comments to Colleague B regarding her breasts, saying words to the effect of: It was just a joke but I can t help it because your boobs are so big I don t understand how your boobs are so big if they are not real Colleague B told the panel that later in the afternoon of 17 November 2013, Mr French cornered her in the utility room on the ward and apologised for his earlier comments, saying that he was only joking. He asked her if she was going to report him, to which Colleague B said she would not if he stopped and left her alone. Colleague B told the panel that Mr French then said It was just a joke but I can t help it because your boobs are so big. I don t understand how your boobs are so big if they are not real. For the reasons previously stated, the panel found Colleague B s evidence to be credible. It had no reason to doubt her account and therefore found this charge proved. Page 17 of 30

18 Charge 2.4 proved Made comments to Colleague B about your marital sex life, stating that that your wife liked you to urinate on her during sexual intercourse. Colleague B told the panel that still later on the shift, Mr French spoke about his sex life with his wife and stated that his wife liked him to urinate on her during sexual intercourse. Colleague B said that these comments were made in her and an agency nurse s presence, although no patients were present. For the reasons previously stated, the panel found Colleague B s evidence to be credible. It had no reason to doubt her account. Furthermore, the panel considered that this particularly graphic comment was unlikely to have been fabricated. The panel therefore found this charge proved. Charge 3 proved in all its parts Your conduct described in the following paragraphs was sexually motivated: The panel first considered whether Mr French s conduct with Colleague A had been sexually motivated. It was clear from Colleague A s evidence that she believed that Mr Page 18 of 30

19 French was sexually attracted to her and that his actions were designed to gain him sexual gratification and/or the opportunity for sexual interaction with Colleague A. She stated that Mr French concentrated any physical contact towards my breasts and bottom, which I consider to be areas of the body deliberately targeted by Mr French for his own personal gratification. Mr French denied that he was attracted to Colleague A. The panel rejected that denial given the clear evidence of his sexualised behaviour towards the two young female colleagues. In this regard, the panel took account of Mr French s comments at his disciplinary hearing that he did not recall whether or not he had mentioned a one-night stand to Colleague A. The panel found that these words fortified its decision to find this charge proved. On the basis of evidence of Colleague A s evidence, which it has accepted in its entirety, concerning Mr French s inappropriate behaviour, the panel was entirely satisfied that this was sexually motivated. In regard to Colleague B, the panel noted that all Mr French s comments contained references to her breasts and his desire to see them. The panel noted that his conduct to her showed a similar pattern as his conduct towards Colleague A, in that both were young women, who Mr French cornered in isolated parts of the ward and made inappropriate, sexualised comments to. On the basis of evidence of Colleague B s evidence, which it has accepted in its entirety, concerning Mr French s inappropriate behaviour, the panel was entirely satisfied that this was sexually motivated in that it was designed to gain him sexual gratification and/or the opportunity for sexual interaction with Colleague B. The panel therefore found this charge proved in all its parts. Charge proved Page 19 of 30

20 On 4 August 2013, in the presence of members of the public, made inappropriate comments in that you: 4.1 Stated that you no longer wished to have sex with your wife; 4.2 Stated that you wished to have an extra marital affair with a colleague; 4.3 Used the word bloody loudly Ms 3 told the panel that at approximately 4pm on 4 August 2013 she was sat at the nurse s station when Mr French started a conversation with her and another staff nurse. Mr French spoke about his relationship with his wife, stating that he no longer wished to have sex with his wife and that he wished to have an affair with a staff nurse who worked in a different part of the hospital. Ms 3 said that she encouraged Mr French to work on improving his marriage but that he became louder, starting to shout and used the word bloody as an exclamation. Ms 3 said that at this point, a female patient and her mother who had been watching television turned around and looked at them. The nursing station was close to patients bays so that nurses could easily see and hear patients. She inferred from their behaviour that they had heard and reacted to Mr French s inappropriate language. Mr French conceded that the content of his conversation with Ms 3 was inappropriate. He denied that he said he did not wish to have sex with his wife, saying that he had stated that we don t bloody have it anymore. He also stated that he had said that the nurse referred to in charge 4.2 was the one who got away and not that he had wanted an affair with her. He denied that he had said bloody loudly, but did not deny using the word itself. Mr French, in his investigatory interview on 20 September 2013 was asked if there patients around and replied yes there probably were and advised that he is quite loud. Mr French gave inconsistent evidence about this conversation. His evidence as to the time of day it took place changed from it being mealtime with no visitors allowed to it perhaps being visiting time with few visitors present when he was questioned by the panel. Page 20 of 30

21 The panel preferred Ms 3 s account of events, which was consistent and credible. The panel therefore found this charge proved. Consideration of an interim order on adjournment Due to a lack of time, the panel adjourned proceedings after announcing the decision on facts. It invited submissions on whether it needed to consider an interim order. Mr Cockroft informed the panel that Mr French is already subject to an interim suspension order. The hearing resumed on 29 June 2015 Decision on Service of Notice of the Resuming Hearing: The panel was informed at the start of this hearing that Mr French was not in attendance and was not represented. Mr Mulchrone, on behalf of the NMC, informed the panel that notice of this hearing was sent to Mr French on 14 May 2015 by recorded delivery and first class post. This was sent to an address Mr French had provided to the NMC rather than his registered address. The panel heard and accepted the advice of the legal assessor. The legal assessor advised the panel regarding the bundle of documentation in relation to proof of posting. This contained a notice of hearing dated 14 May 2015, a print out of the NMC database (Wiser) showing the registrant s registered address, an extract from the recorded delivery post book and confirmation that the notice of hearing was received and signed for by a person giving the name D FRENCH at the address provided to the NMC by Mr French. Page 21 of 30

22 In the light of this information, the panel was satisfied that notice had been served correctly, in accordance with Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) (The Rules). 11. (2) The notice of hearing shall be sent to the registrant (b) in every case, no later than 28 days before the date fixed for the hearing. 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 (b) where this differs from, and it appears to the Council more likely to reach her at, her last known address, the registrant s last known address. Proceeding in Absence: The panel considered proceeding in the absence of Mr French. The panel heard the submissions made by Mr Mulchrone who submitted that it would appear Mr French has voluntarily absented himself from the hearing and that it was in the public interest that the case is dealt with expeditiously. The panel was provided with information regarding Mr French s correspondence with the NMC prior to the hearing. The panel heard and accepted the advice of the legal assessor. The panel exercised the utmost care and caution in deciding whether or not to proceed in absence. The panel bore in mind that Mr French had been sent notice of today s hearing and concluded that he was, or should be, aware of it. It noted the conversation between Mr French and an NMC case officer on 22 April 2015 in which he indicated that he was unlikely to attend this resuming hearing. The panel noted that Mr French has not requested an adjournment and therefore the panel has no reason to believe that an adjournment would result in Mr French s attendance on a future date. Page 22 of 30

23 The panel was also informed that an NMC case officer had been in contact with Mr French this morning and he had stated that: he [Mr French] was not sure that he received the notice of resuming hearing and may have been under the impression it would take place in September. I explained that the hearing was today and tomorrow and he noted that he is happy for it to go ahead, but said he would submit a statement to me this evening after he finishes work, for the Panel s consideration. The panel was satisfied that Mr French had received the notice of today s hearing, and had no good reason for being confused about the date. The panel noted that it may receive a submission from Mr French in due course but it could not delay its deliberations in the meantime. The panel also noted that the chairman gave specific and clear advice to Mr French at the hearing in March that he should take the opportunity to submit any testimonials or references he wanted to put before the panel in good time before the hearing resumed. In deciding whether to proceed in the absence of Mr French, the panel has borne in mind its responsibilities in relation to the protection of the public and the public interest in the expeditious disposal of the case and its duty to balance those concerns with Mr French s right to a fair hearing. The panel noted that these proceedings first started in March of this year and are ongoing. Taking all of the above into account, and having weighed the interests of Mr French with those of the NMC and the public interest in an expeditious disposal of this case, the panel has determined to proceed in Mr French s absence. Determination 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 French s fitness to practise is currently impaired by reason of that misconduct. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Mr Mulchrone, on behalf of the NMC, submitted that the charges found proved were serious and amounted to breaches of fundamental tenets outlined in the NMC Code. He Page 23 of 30

24 further submitted that Mr French s actions amounted to misconduct, and that his fitness to practise remains impaired by reason of his misconduct. Mr Mulchrone invited the panel to conclude that this is a case where the findings of the panel are so serious that a finding of impairment is required. This is in order to uphold proper standards of conduct and behaviour in the profession. He submitted that public confidence in the profession and public confidence in the regulatory function of the NMC would be undermined if a finding of impairment were not made in the particular circumstances of this case. The panel heard and accepted the advice of the legal assessor. In determining whether or not Mr French s fitness to practise is currently impaired, the panel has borne in mind that this is a two stage process. It first considered whether the facts found proved in this case amount to misconduct and, if so, whether as a result of that misconduct, Mr French s fitness to practise is currently impaired. The panel bore in mind that there is no burden or standard of proof at this stage of the proceedings and that the issue of impairment is a matter for the independent judgement of the panel. In reaching its decision on misconduct, the panel bore in mind its duty to protect the public, to maintain public confidence in the profession and the regulatory process, and to declare and uphold proper standards of behaviour and conduct. On the basis of the oral and documentary evidence the panel has found that Mr French had repeatedly acted in a grossly inappropriate and unprofessional manner toward colleagues. He had done so whilst in a position of responsibility and authority. The panel had heard evidence of a habitual pattern of behaviour on Mr French s part in which he abused his position and acted in a sexually predatory manner toward junior colleagues. His actions were designed to gain sexual gratification and/or the opportunity for sexual interaction with colleagues A and B, both younger female members of staff. The panel found that Mr French s actions fell far below the standards expected of a registered nurse and that he had breached the following fundamental tenets of the nursing profession as set out in the NMC Code, as follows: Page 24 of 30

25 From the preamble: The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must: be open and honest, act with integrity and uphold the reputation of your profession. The paragraphs: 1 You must treat people as individuals and respect their dignity. 24 You must work cooperatively within teams and respect the skills, expertise and contributions of your colleagues. 48 You must demonstrate a personal and professional commitment to equality and diversity. 61 You must uphold the reputation of your profession at all times. The panel was aware that not every act falling short of what would be proper in the circumstances, and not every breach of the Code (2008), would be sufficiently serious that it could properly be described as misconduct. However, the panel has found numerous instances of sexually predatory and offensive behaviour patterns which was sexually motivated and sustained over a significant period of time, particularly as regards to Colleague A. In all the circumstances, and having given careful regard to the context and circumstances of the case, the panel determined that the facts found proved amount to misconduct and that Mr French s actions fell far short of what would be proper in the circumstances. Page 25 of 30

26 The panel then went on to consider whether Mr French s fitness to practise is currently impaired by reason of his serious misconduct. The panel reminded itself that it should consider not only the risk that a registrant poses to members of the public, but also the public interest in upholding proper professional standards and public confidence in the NMC as a regulator, and whether those aims would be undermined if a finding of impairment were not made in the circumstances. The panel considered that Mr French s behaviour has brought the nursing profession into disrepute. The panel had regard to whether Mr French s misconduct is easily remediable, whether it had been remedied and whether it is likely to be repeated. In relation to remediation the panel had little information about Mr French s current circumstances and no evidence that he had taken any relevant steps to remediate the misconduct identified in this case. Far from apologising to his victims he has maintained his innocence and alleged a conspiracy by colleagues A and B to impugn him. The panel found no evidence to support his account. The panel concluded that this denial is indicative of an underlying attitudinal problem. The panel reminded itself of Mr French s evidence in this case which it found lacked credibility and did not support his denials of the charges. He did accept that he behaved inappropriately on occasions towards his colleagues. However, he lacked any understanding into why this was wrong. He was of the opinion that the fact that other members of staff may also have behaved inappropriately exonerated him. He failed to understand that this could not be the case. An NMC telephone note of a conversation between Mr French and an NMC case officer, dated 22 April 2015, records that Mr French stated: that he does not care about the outcome anymore as he knows that he didn t do it. The panel has found that Mr French deliberately and persistently displayed wholly unwelcome sexualised behaviour toward junior female colleagues, causing them great distress. The panel found his comments in the light of the findings of fact made by the panel to be further evidence of Mr French s lack of insight. In the absence of insight or remediation into his misconduct, the panel was clear that Mr French s continued practice as a nurse poses a significant risk of repeated similar Page 26 of 30

27 misconduct towards female colleagues. Mr French s misconduct has undermined the trust and confidence the public has in the profession, and a finding of impaired practice is necessary to uphold public confidence in the profession and its professional standards of behaviour. For all the reasons outlined above, the panel has determined that Mr French s fitness to practise is impaired by reason of his misconduct. Decision on Sanction: Having determined Mr French s fitness to practise is currently impaired, the panel considered what sanction, if any, it should impose in relation to his registration. In reaching its decision on sanction, the panel has considered all the evidence that has been placed before it and the submissions of Mr Mulchrone on behalf of the NMC. The panel heard and accepted the advice of the legal assessor. The panel considered Article 29 of the Nursing and Midwifery Council Order (2001). The panel noted that it should consider the following in ascending order: take no action; make a caution order for one to five years; make a conditions of practice order for no more than three years; make a suspension order for a maximum of one year; or make a striking off order. The panel recognised that the purpose of sanctions is not to be punitive, although a sanction may have a punitive effect. In considering the most appropriate sanction to impose, the panel considered the aggravating and mitigating factors. In relation to aggravating factors the panel found the following: Mr French indulged in grossly insulting sexualised behaviour directed toward young female colleagues. This extended over a significant period of time, caused great distress to his colleagues and was repeated despite numerous requests to desist. Mr French has shown no real insight and no remorse for his misconduct. Page 27 of 30

28 In mitigation, the panel noted that Mr French has engaged to some extent with the NMC and this hearing, and has made some admission of fault in relation to his conduct with Ms 2. The panel first considered taking no action. The panel decided that this would be wholly inappropriate due to the serious nature of Mr French s misconduct. The panel next considered a caution order. The panel found that Mr French s misconduct was of a serious nature and was repeated over a sustained period of time. In the circumstances of this case it determined that a caution order was an inappropriate and insufficient sanction. A caution order would not address the need to ensure maintenance of public confidence in the profession and the NMC as its regulator. The panel determined that Mr French s misconduct was not at the lower end of the spectrum of impaired fitness to practise. The panel next considered a conditions of practice order. The panel determined that no conditions specific to the charges and the misconduct in this case could be formulated to address Mr French s actions. The panel was of the view that Mr French has demonstrated deep seated attitudinal problems. It found no identifiable areas of clinical practice to be addressed and monitored and concluded that it would not be possible to formulate appropriate, workable and practicable conditions of practice which would address the nature of his behaviour. The panel was satisfied in all the circumstances that a conditions of practice order would not be an appropriate sanction. The panel next considered whether to impose a suspension order. It had regard to the NMC s Indicative Sanctions Guidance (ISG) and in particular, paragraphs 69.1 to The Indicative Sanctions Guidance makes clear that suspension may be appropriate where the misconduct is a single instance, where a lesser sanction is not sufficient, where the misconduct is not fundamentally incompatible with registration and where the panel is satisfied that the registered nurse or midwife does not pose a significant risk of repeating the behaviour. The ISG states that a suspension order may not be sufficient Page 28 of 30

29 where the misconduct has taken place over a long period of time, where there is a risk of repetition of the misconduct found proved or where there are deep seated attitudinal issues and a lack of insight on the part of the registrant. The panel bore in mind that Mr French s misconduct was not an isolated incident but involved multiple instances over a long period of time. The panel took into account the evidence in this case of deep seated attitudinal issues relating to Mr French s persistent inappropriate, sexually motivated behaviour. The panel considered that Mr French has not demonstrated insight into his behaviour. It was of the view that there is a high risk of his repeating similar misconduct to that identified in this case. The panel bore in mind the potential damage this would cause to public confidence in the profession. Mr French has demonstrated deliberate and harmful behaviour, an abuse of his position and sexually motivated predatory behaviour. By doing so, the panel has concluded that Mr French s conduct is fundamentally incompatible with remaining on the register. The panel had regard to paragraph 75 of the ISG in relation to a Striking-Off Order. The panel determined that public confidence in the profession and the NMC as its regulatory body would be undermined if Mr French were allowed to remain on the NMC s register and it concluded that a suspension order was neither appropriate nor proportionate in the circumstances of this case. The panel concluded that a Striking-off order was the only order that is sufficient to maintain confidence in the profession. To conclude otherwise would significantly undermine the trust that the public is entitled to have in the nursing profession and the NMC as a regulator. Mr French will be notified of the panel s decision in writing. The Striking-off order will come into effect 28 days after the service of the notification of the panel s decision. If Mr French appeals the panel s decision, the order will not take effect until the appeal has been withdrawn or otherwise concluded. Decision on Interim Order: Page 29 of 30

30 The panel considered the submissions made by Mr Mulchrone that an Interim Suspension Order for a period of 18 months should be made to cover any period of appeal and on the grounds that it is necessary in the public interest to declare and uphold proper professional standards of conduct and behaviour. The panel heard and accepted the advice of the legal assessor. The panel is satisfied that an Interim Order is necessary in the public interest. The panel acknowledged that whilst Mr French s misconduct does not relate to his clinical practice, and hence place the public at risk of harm, his behaviour in the workplace nonetheless has seriously undermined confidence in the nursing profession. In reaching the decision to impose an Interim Suspension Order, the panel has had regard to the seriousness of its findings and the reasons set out in its decision for the Striking-off Order. Not to impose such an order would be incompatible with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made then the interim order will be replaced by the Striking-off Order 28 days after Mr French is sent the decision of this hearing in writing. That concludes this hearing. Page 30 of 30