nursing and midwifery council fitness to practise ......2020/01/21 · the home provides nursing...

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Nursing and Midwifery Council

Fitness to Practise Committee

Substantive Hearing

3 - 14 June 2019

19 - 23 August 2019

16 - 20 September 2019

21 - 29 October 2019

21 - 31 January 2020

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

Name of registrant: Kay Marie Harris NMC PIN: 96I0831E

Part(s) of the register: Sub Part 1

RNA: Adult nurse (23 September 1999)

RM: Midwife (1 April 2002)

RHV: Health visitor/V100: Community

practitioner nurse prescriber (20 September

2003)

Area of Registered Address: England Type of Case: Misconduct Panel Members: Janet Leonard (Chair, Registrant member)

Susan Tokley (Registrant member)

Claire Corrigan (Lay member)

Legal Assessor: Paul Hester Panel Secretary: Catherine Acevedo (3 - 14 June 2019)

Roshani Wanigasinghe (from 19 August 2019

until the duration of the hearing)

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Mrs Harris: Present and represented by Jennifer Agyekum,

instructed by the Royal College of Nursing

Nursing and Midwifery Council: Represented by Laura Gouldthorpe, Case

Presenter (3 - 14 June 2019) (20 - 30 August

2019), Helen Guest (19 August 2019 and from

22 October 2019 until the duration of the

hearing)

No case to answer: 1a (i), 1a (v) (a), 1a (v) (b), 1a (v) (c), 1a (vi)

(a), 1a (vi) (b), 1b (i), 1c (i), 1c (ii), 1c (iii), 1d

(i), 1d (ii), 1e (i), 1f (i), 1f (ii), 1g, 1h (i), 1h (ii),

1h (iii), 1h (iv), 1i (i), 1i (ii), 1i (iii) solely in

relation to 7/9/2016, 1i (v), 1i (vi), 1j (i), 1k, 1m

(i), 1m (ii), 1n (i), 1n (ii), 2c (i), 2c (ii), 2d (i), 2e,

2f, 3c, 3e, 3g, 4b (i), 4e (i), 4f (i), 4f (ii), 4f (iii),

4f (iv) and 5.

Facts proved: 1i (iii) in respect of clothing on 13/12/16, 1i (iii)

in respect of clothing and bedding on 30/12/16,

1i (iii) in respect of bedding on 16/1/17, 1i (iv)

in its entirety, 1i (vii), 1j (ii), 1l (i), 1n (iii), 2a, 2b

in its entirety, 2d (ii), 3b, 3d (i), 3d (ii), 3d (iii),

3d (iv), 4b (ii), 4c and 6a.

Facts not proved: 1a (ii), 1a (iii), 1a (iv), 1e (ii), 1i (iii) in respect of

bedding on 13/12/16, 1i (iii) in respect of

clothing or bedding on 23/12/16, 1i (iii) in

respect of clothing on 16/1/17, 1i (viii), 1l (ii), 1l

(iii), 3a, 3f, 3(h) and 3(i), 4a (i) and (ii), 4a (iii)

and (iv), 4d (i) and 4f (v).

Fitness to practise: Impaired

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Sanction: Conditions of practice order - 9 months Interim Order: Conditions of practice order - 9 months

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Details of (original) charges

That you, a registered nurse whilst working as the registered manager of the Willows

Care Centre (The Home) in Margate, Kent, from approximately 1 September 2016:

1) Failed to ensure that residents received an adequate standard of care in that

a) You failed to ensure that residents’ nutritional and/or dietary needs were

adequately met in that

i) Resident A was not made the subject of a prompt referral to a

dietician following a significant weight loss

ii) Resident B was not made the subject of a prompt referral to a

dietician following a significant weight loss

iii) Resident B had not been receiving his prescribed high calorie

drinks

iv) Some residents were not being served meals at appropriate times

v) Some residents were being served food which was inappropriate

for their needs

vi) Some residents were not being supported to eat independently

b) You failed to ensure that all residents received adequate dental care

c) You failed to ensure that the mental health needs of all residents were

being met

d) You failed to ensure that mental capacity assessments had been

undertaken and/or documented in respect of residents’ capacity to make

specific decisions

e) You failed to ensure that all residents’ spiritual needs were being met

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f) You failed to ensure that all residents’ emotional needs were being met

g) You failed to ensure that the residents’ “This is Me” document was

available to be read and used by staff in their care of residents

h) You failed to ensure that staff referred to and treated the residents and

their families with respect

i) In respect of Resident A you failed to ensure that

i) He received personal care in respect of washing/shaving/hair

brushing on 7/9/16, 23/12/16 and 4/1/17

ii) His dentures were inserted at the start of the day, on 23/12/16

iii) He was provided with clean clothing and/or clean bedding as

appropriate on 7/9/16, 13/12/16, 23/12/16, 30/12/16 and 16/1/17

iv) He was provided with a pressure cushion which was necessary for

his comfort on 7/9/16 and 25/12/16

v) His wound was dressed on 23/12/16

vi) He was referred to a doctor following concerns that he might be

suffering from an eye infection on or around 30/12/16

vii) He was provided with clean bedroom furniture on 30/12/16

viii) He was provided with a clean tub of sudocrem

j) You failed to ensure that all staff engaged appropriately with residents

k) You failed to ensure that residents, relatives and/or other health care

professionals were involved in care planning

l) You failed to ensure adequate staffing levels to meet residents needs

and/or meet residents needs promptly

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m) You failed to ensure that all residents were provided with opportunities to

participate in appropriate daytime activities

n) You failed to ensure that regular checks were made on all areas of service

to make sure that residents received good quality care

2) Failed to ensure that medication was being safely managed and/or administered

in that

a) You failed to put in place an effective system designed to ensure that

medication was being stored at the correct temperature

b) You failed to put in place an effective system to ensure that residents’

medication was always in stock as required

c) You failed to ensure that residents were administered medication as and

when prescribed

d) You failed to ensure that residents were given medication in a way which

did not risk affecting its efficaciousness

e) You failed to ensure that staff were provided with guidance in respect of

“when required” medication should be prescribed

f) You failed to operate an adequate system to ensure that covert

administration of medication only took place in appropriate circumstances

3) Failed to ensure that staff employed at the Home were suitable and/or

appropriately trained and/or informed for their role in that

a) DBS checks had not been completed for all staff

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b) No risk assessments had been completed and/or documented in respect

of members of staff with convictions working in the Home

c) You failed to take up offers of support and/or training from visiting

professionals

d) Not all members of staff had been trained on

i) restraining residents in a safe way

ii) keeping people safe from abuse

iii) fire safety

iv) The principles of the Mental Capacity Act 2005

e) Untrained healthcare assistants were being asked to check the

administration of controlled drugs by trained nurses

f) An adequate process for the induction of new staff was not in place

g) An adequate system for ensuring team meetings was not in place

h) An adequate system for ensuring that staff were supported in their role

was not in place

i) An adequate system of supervision and/or clinical supervision for staff was

not in place

4) Failed to ensure that adequate record keeping was being maintained in that

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a) You failed to ensure that there was documented planned care for an

unknown resident following their return from hospital after suffering a head

injury

b) You failed to ensure that Individual resident’s care plans provided

guidance as to how a resident could be moved safely

c) You failed to ensure that Resident C’s MAR chart had been correctly

updated for a period of approximately 3 months in respect of prescribed

lorazepam

d) You failed to ensure that care plans contained sufficient detail concerning

the management of particular medical conditions

e) You failed to ensure that care plans contained adequate information

concerning a resident’s needs and preferences

f) You failed to ensure that one resident’s care plan contained information

about supporting that resident when experiencing hallucinations

g) You failed to ensure that care plans were adequate, accurate and

complete on or around 17 January 2017

5) Failed to ensure that a system was in place to effectively investigate and/or

manage concerns and/or complaints

6) Failed to ensure that a system was in place concerning the notification of

incidents to CQC in that

a) you failed to ensure adequately and/or prompt notification of significant

events which had occurred in the Home, to the CQC

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

misconduct.

Background

On 15 March 2017 the Nursing and Midwifery Council (NMC) received a referral about

your fitness to practice from the Operations Manager at Premiere Care Homes.

You first came onto the NMC register in 1999. You accepted the post of Manager at The

Willows Care Home (“the Home”), on 4 July 2016.

The Home provides nursing care for up to 40 elderly people with dementia or a mental

health condition. At the relevant time, there was approximately 37 residents in the

Home.

Before you were employed at the Home, between January and July 2016 there were

allegedly a number of whistleblowing complaints. When you started working at the

Home, you were allegedly made aware of the complaints and given a fixed period of

time to improve the Home.

Between July and December 2016 allegedly further complaints were received relating to

your management of the Home by the Care Quality Commission (CQC) from external

authorities and relatives of residents at the Home. Some of the alleged complaints were

anonymous.

On 26 October 2016 the local Authority held a safeguarding meeting, highlighting the

concerns that had been raised.

On 17 and 18 January 2017 the CQC carried out an unannounced inspection at the

Home and failings were identified which form the basis of the allegations set out in the

charges.

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Broadly, the alleged failings which are reflected in the charges concern five areas of

your practice as a manager:

i) A failure to ensure that residents received an adequate standard of care

ii) A failure to ensure that medication was being safely managed

iii) A failure to ensure that all staff employed were suitable and appropriately trained

inducted

iv) A failure to ensure that adequate record keeping was being maintained and;

v) A failure to ensure that there were systems in place to raise concerns particularly

in relation to significant events and investigate complaints.

Decision and reasons on the NMC application to amend the charge

The panel heard an application made by Ms Gouldthorpe, on behalf of the NMC, to

amend the wording of the preamble to all of the charges.

The proposed amendment to the preamble to all of the charges was put by Ms

Gouldthorpe in the alternative. Firstly, to change “registered manager” to “manager”. It

was submitted by Ms Gouldthorpe that the proposed amendment would provide clarity

and more accurately reflect the evidence. In the alternative, Ms Gouldthorpe submitted

that the preamble could be amended to read “That you , a registered nurse whilst

working as the manager of the Willows Care Centre (“The Home”) in Margate, Kent,

between 1 September 2016 and 9 November 2016 and as the registered manager from

10 November 2016:”

Current preamble to the charges:

“That you, a registered nurse whilst working as the registered manager of the Willows

Care Centre (“The Home”) in Margate, Kent, from approximately 1 September 2016:”

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Proposed amendment to the preamble to the charges:

“That you, a registered nurse whilst working as the manager of the Willows Care Centre

(“The Home”) in Margate, Kent, from approximately 1 September 2016:”

Or in the alternative:

“That you , a registered nurse whilst working as the manager of the Willows Care

Centre (“The Home”) in Margate, Kent, between 1 September 2016 and 9 November

2016 and as the registered manager from 10 November 2016:”

Ms Gouldthorpe submitted that the NMC received new information on 16 May 2019 as

to your status within the Home. This new information is a certificate which shows that

you were the registered manager of the Home from 10 November 2016. Ms

Gouldthorpe submitted that the proposed amendments, which include the alternative

proposal, are not material changes and would not create any prejudice to you. She

submitted that the charges as presently drafted allege substantial failures by you and

that your role at the time was ‘not of consequence’.

Ms Agyekum, on your behalf, submitted that amendment of the charges is the exception

and not the rule. She submitted that the merits of the case and fairness dictate that any

amendment to the charges should not be allowed at this late stage of the proceedings.

Ms Agyekum informed the panel that you were referred to the NMC in March 2017 and

that the NMC have had two years to formulate the charges. She submitted that there is

a significant difference between being a registered manager and being in any other

managerial role within a care home.

The panel accepted the advice of the legal assessor that Rule 28 of the Rules states:

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28. (1) At any stage before making its findings of fact, in accordance with rule

24(5) or (11), the Investigating Committee (where the allegation relates to a

fraudulent or incorrect entry in the register) or the Fitness to Practise Committee,

may amend

(a) the charge set out in the notice of hearing; or

(b) the facts set out in the charge, on which the allegation is based,

unless, having regard to the merits of the case and the fairness of the

proceedings, the required amendment cannot be made without injustice.

(2) Before making any amendment under paragraph (1), the Committee shall

consider any representations from the parties on this issue.

The panel carefully considered the merits of your case and whether any unfairness

would result if an amendment to the preamble was made. The panel kept in mind that

no injustice should flow from any amendment to the charges.

The panel noted that the proposed amendments, which are put in the alternative by the

NMC, are to the preamble to all of the charges. This means that any amendment will

reflect upon each and every charge and sub-charge within the schedule of charges.

The panel considered the first proposed amendment to delete the word “registered” so

that the preamble would read that you were working at all times as a manager. The

panel noted that Ms Gouldthorpe submitted that the NMC has documentary evidence in

the form of a certificate to show that you were the registered manager of the Home from

10 November 2016. The panel decided that this proposed amendment would not

accurately reflect the evidence which the NMC will seek to rely upon as you were the

registered manager rather than a manager. Accordingly, the panel rejected this

proposed amendment.

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The panel went on to consider the proposed amendment in the alternative. The panel

noted that this reflects the recent information that the NMC has obtained regarding you

becoming the registered manager on 10 November 2016. The panel carefully

considered whether this amendment would create any injustice to you. The panel

acknowledged that the NMC has had a significant period of time to perfect the schedule

of charges. However, the panel, on the merits of the case, could find no prejudice or

injustice in allowing this amendment which would accurately reflect the evidence to be

relied upon by the NMC. The panel found that this proposed amendment may

potentially be of benefit to your case in that there must or should have been a registered

manager on the Home as between 1 September 2016 and 9 November 2016 when you

were a mere manager.

The panel decided to further amend the proposed alternative amendment by adding “or”

to the preamble as follows:

“That you, a registered nurse whilst working as the manager of the Willows Care Centre

(“The Home”) in Margate, Kent, between 1 September 2016 and 9 November 2016

and/or as the registered manager from 10 November 2016:”

The amended preamble will now cover the possibility of any of the charges spanning

both managerial roles and time periods.

In allowing the NMC’s application to amend the preamble, the panel will allow you

ample time to give instructions to your representative which should meet any possible

prejudice.

Objection to the charges under Rule 24 of the Rules

After the amended charges had been read but before any response to those amended

charges from you, Ms Agyekum, on your behalf, raised an objection based upon the

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particularity of the amended charges 1a (iv, v, vi), 1b, 1c, 1d, 1e, 1f, 1h, 1j, 1l, 1m, 2b,

2c, 2d, 3b, 4a, 4b, 4d, 4e, 4f and 4g.

Ms Agyekum’s objection to the amended charges was based on there being a lack of

specificity as to the NMC’s case and consequent vagueness. Ms Agyekum submitted

that the amended charges, as framed, do not provide sufficient information for you to

know with reasonable clarity the case that you have to meet. Ms Agyekum submitted

that in respect of a number of the charges there is no detail in relation to the dates of

the alleged failures, the identity of the residents and/or staff under consideration, the

medications referred to and what specific action or inaction on your part amounts to

misconduct. Ms Agyekum submitted that this lack of specificity and consequent

vagueness within the amended charges does not allow you to understand what is being

alleged.

Ms Agyekum submitted that this lack of particularity and consequent vagueness leads

to a significant unfairness to you in these proceedings. Ms Agyekum cited the case of

The Queen on the application of Philip Wheeler the Assistant Commissioner House of

Metropolitan Police [2008] EWHC 439 (Admin) and submitted that the charges should

be sufficiently particularised well before the hearing so that you know what is alleged

both in terms of what you allegedly failed to do and in what respects you allegedly

failed.

Ms Agyekum took the panel to emails from the Royal College of Nursing (RCN) to the

Nursing and Midwifery Council (NMC) on 7 January 2019 and 3 May 2019 in which the

RCN raised concerns about the sufficient particularisation of the charges. She

submitted, that the RCN did not receive any reply from the NMC and therefore listed

your case for a preliminary meeting which took place on 9 May 2019.

Ms Agyekum drew the panel’s attention to the decision of the Chair of the preliminary

meeting who directed that “…for the charges to be more carefully particularised by

16:00 on 20 May 2019”.

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Ms Agyekum took the panel to a letter from the NMC to the RCN on 20 May 2019 which

sought to comply with the direction made at the preliminary meeting on 9 May 2019.

She submitted that the NMC’s response did not comply with the direction at the

preliminary meeting and that there remains a distinct lack of particulars in respect of the

charges objected to. Ms Agyekum submitted that the NMC has been provided with

ample time and opportunity to rectify the unfairness due to the vagueness of the

charges and it has not done so. As a result, Ms Agyekum submitted that no fair hearing

can go ahead in respect of the amended charges. Furthermore, she submitted that the

requirement for a fair hearing outweighs any public interest in the amended charges at

this hearing.

In light of her submissions, Ms Agyekum lastly submitted that these charges should be

permanently stayed on the basis of abuse of process.

Ms Gouldthorpe, on behalf of the NMC, submitted that the original charges were sent to

you on 28 February 2019. She submitted that after the preliminary meeting the NMC

sought to obtain further evidence so that it could fully particularise the charges. Ms

Gouldthorpe submitted that the NMC has obtained various information which is

contained within Exhibit 3 pages 65-97. In particular, Ms Gouldthorpe took the panel to

a document within Exhibit 3 ‘Additional information re CQC inspection of The Willows

January 2019’.

Ms Gouldthorpe submitted that the charges are based upon the Care Quality

Commission (CQC) inspection which occurred at the Home on 17 – 18 January 2017.

She submitted that the CQC do not retain their papers relating to an inspection and that

the NMC has therefore, until recent receipt of new information, been unable to provide

the names of any of the residents beyond residents A and B. However, she submitted

that from the CQC inspection it is clear what was witnessed by the inspectors over 17 –

18 January 2017. Ms Gouldthorpe submitted that you have allegedly failed to ensure

that certain systems and checks were in place in the Home.

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Ms Gouldthorpe took the panel to the case of The Queen on the Application of Sarah

Johnson, Lynette Maggs v The Professional Conduct Committee on the Nursing and

Midwifery Council [2008] EWHC 885 (Admin) and pointed out the two stage test to be

applied when considering whether the NMC has provided sufficient information to

enable you, with reasonable clarity, to understand the case that you have to meet and

whether you knew enough about the charges to enable you to prepare your defence.

Ms Gouldthorpe then took the panel through each of the charges objected to by you

separately and made submissions as to where the panel could find sufficient details of

the charges. Ms Gouldthorpe took the panel to the ‘Additional information re CQC

inspection of The Willows January 2019’; passages from the CQC report which is not

presently before the panel; various passages from the written statements of certain

NMC witnesses; documents such as the staff rotas and hand written notes made by two

of the NMC’s witnesses. In doing so, Ms Gouldthorpe submitted that there is sufficient

particularity within the present amended charges for you to know, with reasonable

clarity the case which you have to meet and that you know enough about the charges

so as to prepare your defence.

Ms Gouldthorpe submitted that if the panel is not satisfied that there is sufficient

specificity within the amended charges then the NMC can now particularise the charges

by reference to the new information which it has obtained within Exhibit 3 pages 65-97.

In any event, Ms Gouldthorpe submitted that the public interest is engaged and that it

outweighs the requirement for a fair hearing to take place.

The panel accepted the advice of the legal assessor. In giving his advice he referred the

panel to Rule 24 (3) of the Nursing and Midwifery Council (Fitness to Practise) Rules

2004 (the Rules); Article 6 and 6 (3) of the European Convention on the Protection of

Human Rights and Fundamental Freedoms; Wheeler; Johnson and Maggs; Thaker v

Solicitors Regulation Authority [2011] EWHC 660 (Admin) and Connelly v Director of

Public Prosecutions [1964] AC 1254.

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The panel noted the emails from the RCN to the NMC on 7 January 2019 and 3 May

2019 requesting particularisation of the charges. The RCN did not receive any

meaningful reply from the NMC and therefore listed your case for a preliminary meeting.

Following the preliminary meeting on 9 May 2019, the NMC wrote a letter dated 20 May

2019 to the RCN in seeking to comply with the direction made “…for the charges to be

more carefully particularised…”. In that letter the NMC wrote:

“I regret to say that I am unable, at the present time, to give the detailed

particulars as to which residents are under consideration but can confirm that the

allegations arise from the unannounced inspection on 17 and 18 January 2017.

In order to assist further we have contacted Ms 1 to provide resident names and

dates”.

The NMC within the letter of 20 May 2019 then sought to address the elements of

charge 1(m). The panel noted that the letter failed to further particularise any of the

charges objected to by you save for some elements of charge 1(m).

The panel noted the extensive and detailed submissions made by Ms Gouldthorpe in

response to your objections. In particular the panel noted that the NMC placed

significant reliance upon recently obtained information within Exhibit 3 pages 65-79.

Specifically, the panel noted that the NMC sought to particularise a significant number

of the amended charges subject to this application by reference to the document

entitled ‘Additional information re CQC inspection of The Willows January 2019’. Ms

Gouldthorpe quoted from this document extensively when seeking to elucidate the

amended charges. The panel had regard to the fact that this document was obtained by

the NMC after the preliminary meeting of 9 May 2019 and was only received by the

RCN on 31 May 2019 and to Ms Agyekum and you on the first day of this hearing (3

June 2019).

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The panel noted that Ms Gouldthorpe’s submissions did provide some details to each of

the amended charges subject to this application. These details included specific dates

and times; identification of some residents and some staff; and what specific actions or

omissions on your part allegedly amount to misconduct.

In accepting the advice of the legal assessor, the panel noted that the charges should

be sufficiently particularised well before the hearing for you to know what is alleged both

in respect of what you allegedly failed to do and in what respects you failed

(paraphrasing paragraphs 1.6 - 1.7 Wheeler). The panel also applied the two-stage test

in Johnson and Maggs at paragraph 102 of the judgement which is as follows:

“Firstly, whether the challenges in the circumstances of the case provided

sufficient information to enable those charged to know, with reasonable clarity

the case they have to meet. Secondly, whether they know enough about the

charges to enable them to prepare their defences. The second stage of the test

is: if the first stage is not satisfied whether the only remedy is a stay. It is not

disputed that the test that… should apply was whether, in all the circumstances,

the claimant should be able to understand the nature and cause of the

accusation.”

In applying the first limb of the test in Johnson and Maggs, the panel found that

amended charges 1(a)iv, 1(a)v, 1(a)vi, 1(b), 1(c), 1(d), 1(e), 1(f), 1 (h), 1(j), 1(l), 1(m),

2(b), 2(c), 2(d), 4(a), 4(b), 4(d), 4(e) and 4(f) are not sufficiently particularised so as to

enable you to know, with reasonable clarity, the case that you have to meet. In reaching

this decision the panel noted that you have through your representatives sought

clarification of the charges and listed this matter for a preliminary meeting. The panel

found that the NMC’s letter dated 20 May 2019 was an insufficient reply and that the

NMC has only supplied some particularisation on the second day of this hearing,

through Ms Gouldthorpe’s submissions, following your application. The particularisation

submitted by Ms Gouldthorpe appears to supply some material details including specific

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dates and times; identification of some residents and some staff; and what specific

actions or omissions on your part allegedly amount to misconduct.

In light of the nature and extent of the information provided by Ms Gouldthorpe’s

submissions and largely based upon new information recently received by the NMC, the

panel found that the above mentioned amended charges do not provide sufficient

information to allow a full and fair response from you. In these circumstances the panel

went on to consider whether this situation can be cured by further amendment.

The panel determined that the NMC ought to be afforded a further opportunity to

consider amendment of the amended charges by further particularisation. Given Ms

Gouldthorpe’s extensive submissions and reference there in to evidential sources, this

exercise is capable of being done within a short time. Thereafter, you must be afforded

time to properly consider and prepare your defence. In coming to this conclusion, the

panel noted that these are serious allegations relating to wide ranging systemic failures

concerning elderly and vulnerable residents at the Home when you were either the

manager and/or the registered manager.

The panel found that amended charges 3(b) and 4(g), as presently drafted, to be

sufficiently particularised. The panel found charge 3 (b) to be clear as it alleges that you

failed to ensure that staff employed at the Home were suitable and/or appropriately

trained and/or informed for their role in that no risk assessments had been completed

and/or documented in respect of members of staff with convictions working in the

Home. Likewise, the panel decided that charge 4(g) was unambiguous in that it alleges

that you failed to ensure that adequate record keeping was being maintained in that you

failed to ensure that care plans were adequate, accurate and complete on or around a

specific date.

Your application is for the amended charges to be permanently stayed on the basis of

an abuse of process. The panel has found that the present lack of particularisation may

be resolved by further amendment of the amended charges and that, any consequent

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unfairness, may be addressed by an adjournment. Consequently, the panel determined

that the application for a stay is premature.

Decision and reasons on the NMC application to re-amend the charges

The panel heard an application made by Ms Gouldthorpe to further amend the amended

charges following the panel’s decision under Rule 24 of the Rules to allow the NMC a

further opportunity to consider the particularisation to the charges.

Ms Gouldthorpe provided a draft copy of the proposed re-amendments to the amended

charges. She submitted that the proposed re-amendments are more specific. She

submitted that the proposed re-amendments are both ‘extensive’ and ‘late in the day’.

Ms Gouldthorpe submitted that whilst the proposed re-amendments are extensive and

at a late stage of the proceedings they ought nevertheless to be allowed in the public

interest. She submitted that the allegations include systemic failures within the Home

and involved elderly residents. She submitted that by allowing you an adjournment any

injustice can be addressed.

Ms Agyekum submitted that any re-amendment should only be allowed if there is no

injustice. She submitted that the proposed re-amendments are extensive in that they

refer to five residents that have only been identified in the last few days. These further

residents were only mentioned in the new information obtained by the NMC which was

received by the RCN on 31 May 2019 and by Ms Agyekum and you on the first day of

this hearing (3 June 2019).

Ms Agyekum submitted that the NMC could have particularised the schedule of charges

well in advance of this hearing. She submitted that the proposed re-amendments relate

to matters which occurred over two years ago and that it is therefore unfair for you to

respond to the significant proposed changes to the schedule of charges. She submitted

in the circumstances of this case, including the NMC’s failure to fully particularise the

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allegations at an earlier stage, that this creates unfairness to you. Lastly, Ms Agyekum

submitted that it is not in the public interest to re-amend the charges.

The panel accepted the advice of the legal assessor that Rule 28 of the Rules states:

28. (1) At any stage before making its findings of fact, in accordance with rule

24(5) or (11), the Investigating Committee (where the allegation relates to a

fraudulent or incorrect entry in the register) or the Fitness to Practise Committee,

may amend

(a) the charge set out in the notice of hearing; or

(b) the facts set out in the charge, on which the allegation is based,

unless, having regard to the merits of the case and the fairness of the

proceedings, the required amendment cannot be made without injustice.

(2) Before making any amendment under paragraph (1), the Committee shall

consider any representations from the parties on this issue.

The panel carefully considered the merits of the case and whether any unfairness would

result if any re-amendments to the amended charges was made. The panel kept in mind

that no injustice should flow from any re-amendment to the charges.

The panel carefully considered the draft copy of the proposed re-amendments provided

by Ms Gouldthorpe.

The panel noted the history of this case. The RCN, on your behalf, made requests in

writing of the NMC for particularisation of the charges on 7 January 2019 and 3 May

2019. As no meaningful reply was received, the RCN listed your case for a preliminary

meeting which took place on 9 May 2019. The Chair at that preliminary meeting made a

direction that “…for the charges to be more carefully particularised by 16:00 on 20 May

22

2019”. Thereafter and recently, the NMC received further information which the RCN

received on 31 May 2019 and then Ms Agyekum and you received on the first day of

this hearing (3 June 2019).

The panel considered the nature and extent of the proposed re-amendments to the

amended charges. The panel found that the proposed changes are extensive. They

relate to a significant number of charges and now provide detailed particulars. The

panel noted that the proposed re-amendments now encompass five further residents

being Residents D, E, F, G and H. These residents have only been identified recently

following the NMC’s receipt of the new information. The panel acknowledge that the

nature and extent of the proposed further changes may, in isolation to other

considerations, cause unfairness to you.

The panel considered the stage of which has been reached in this hearing. The panel

has heard no live evidence from the witnesses. The panel noted that the NMC propose

to call eight witnesses. The panel noted and acknowledged that further delay may have

an effect upon the ability of witnesses to recall events. However, the panel noted that

over two years has elapsed since these allegations.

The panel bore in mind that its primary consideration must be the protection of the

public and to address the wider public interest. The panel has already noted in its

decision that these are serious allegations relating to wide ranging systemic failures

concerning elderly and possibly vulnerable residents at the Home when you were either

the manager and/or registered manager.

The panel found this application to be finely balanced. In considering and balancing the

merits of the case which include the public interest and unfairness or injustice to you,

the panel decided to allow the NMC’s application to re-amend the amended charges in

its entirety. In doing so, the panel acknowledge that this may create some unfairness to

you which, in the panel’s view, can be properly resolved by allowing you sufficient time

to fully consider and prepare your case in light of the re-amendments. In this regard,

23

whilst acknowledging that over two years have elapsed since these allegations you

were present at the Home on 17 and 18 January 2017 when the CQC inspectors

visited.

Schedule of re-amended charges

That you, a registered nurse whilst working as the manager of the Willows Care Centre


and/or as the registered manager from 10 November 2016:




i) Resident A was not made the subject of a prompt referral to a dietician

following a significant weight loss

[No case to answer]

ii) Resident B was not made the subject of a prompt referral to a dietician


[This charge is found NOT proved]

iii) Resident B had not been receiving his prescribed high calorie drinks


iv) Some residents were not being served meals at appropriate times in that

a) On a date between 17 and 18 January 2017 Resident D was seen to eat

breakfast at 11:00 and was offered lunch at 12:30


24

b) On a date between 17 and 18 January 2017 Resident E was seen to eat

her breakfast at 11:15 and was offered lunch at 12:30


v) Some residents were being served food which was inappropriate for their

needs in that;

a) On 14 January 2017 Resident A was given 2 weetabix when they required

a low fibre diet [No case to answer]

b) On 13 January 2017 Resident A was provided with Juice when he was not

allowed juice [No case to answer]

c) On a date between 17 and 18 January 2017 a resident with a wheat

intolerance was fed cereal for breakfast [No case to answer]

vi) Some residents were not being supported to eat independently in that

a) On a date between 17 and 18 January 2017 at 16.40 Resident F was

seen to attempt to eat an uncut jacket potato from a bowl with a spoon

[No case to answer]

b) On a date between 17 and 18 January 2017 staff were seen to cut food

up for residents but not offered further support

[No case to answer]

b) You failed to ensure that residents received adequate dental care in that

i) There was no system in place at the home to ensure that residents saw a

dentist [No case to answer]

25

c) You failed to ensure that the mental health needs of residents were being met in

that;

i) Staff has not received training in mental health [No case to answer]

ii) No Registered Mental Health Nurse had been employed at the home

[No case to answer]

iii) Resident C’s care plan did not provide guidance to staff about the support

Resident C required when experiencing hallucinations. [No case to answer]

d) You failed to ensure that mental capacity assessments had been undertaken

and/or documented in respect of residents’ capacity to make specific decisions in

that;

i) There was no mental capacity assessment undertaken and/or documented

for Resident C who had dementia [No case to answer]

ii) There was no assessment of Resident B’s mental capacity undertaken and/or

documented to make a decision on moving from the service. [No case to

answer]

e) You failed to ensure that residents’ spiritual needs were being met in that;

i) Resident H was not offered a diet which took account of the practices of their

religion [No case to answer]

ii) There was no care plan in place to ensure that Resident E received prayers

at the end of her life in accordance with the practice of her religion


26

f) You failed to ensure that residents’ emotional needs were being met in that;

i) Resident C was not provided with any equipment to listen enabling him to

music [No case to answer]

ii) Resident C was discouraged from singing. [No case to answer]

g) You failed to ensure that the residents’ “This is Me” document was available to

be read and used by staff in their care of residents

[No case to answer]

h) You failed to ensure that staff referred to and treated the residents and their

families with respect in that;

i) On a date between 17 and 18 January 2017 staff referred to residents who

needed support with their meals as ‘feeds’ [No case to answer]

ii) On a date between 17 and 18 January 2017 staff referred to residents who

needed support to change position as ‘turns’ [No case to answer]

iii) On a date between 17 and 18 January 2017 staff referred to tasks involving

residents as ‘lounges, turns and fluid run’. [No case to answer]

iv) On a date between 17 and 18 January 2017 residents were left wearing

tabards between breakfast and lunch [No case to answer]

i) In respect of Resident A you failed to ensure that;

i) He received personal care in respect of washing/shaving/hair brushing on

7/9/16, 23/12/16 and 4/1/17 [No case to answer]

27


[No case to answer]

iii) He was provided with clean clothing and/or clean bedding as appropriate on

7/9/16, 13/12/16, 23/12/16, 30/12/16 and 16/1/17

[No case to answer solely in relation to 7/9/16];

[This charge is NOT proved in respect of bedding on 13/12/16];

[This charge is NOT proved in respect of clothing or bedding on

23/12/16];

[This charge is proved in respect of clothing on 13/12/16];

[This charge is proved in respect of clothing and bedding on 30/12/16];

[This charge is proved in respect of bedding on 16/1/17].

iv) He was provided with a pressure cushion which was necessary for his

comfort on 7/9/16 and 25/12/16

[This charge is proved]


[No case to answer]

vi) He was referred to a doctor following concerns that he might be suffering from

an eye infection on or around 30/12/16

[No case to answer]

vii) He was provided with clean bedroom furniture on 30/12/16

[This charge is found proved]

viii) He was provided with a clean tub of sudocrem


28

j) You failed to ensure that staff engaged appropriately with residents in that

i) Between 17 and 18 January 2017 staff were seen to walk through communal

areas and not engage with residents.

[No case to answer]

ii) Between 17 and 18 January 2017 an unidentified staff member dragged an

unidentified resident by her wrists without verbally encouraging her to walk.




[No case to answer]

l) You failed to ensure adequate staffing levels to meet residents’ needs and/or

meet residents’ needs promptly in that

i) On 17 January 2017 there was one nurse on duty in the morning


ii) On 17 January 2017 there were 8 members of care staff on duty


iii) On 16 January 2017 there were 7 members of care staff on duty



participate in appropriate daytime activities in that

i) Between 17 January 2017 and 18 January 2017 Activities Staff were

supporting residents to eat and drink and were not supporting residents to

take part in activities.

[No case to answer]

29

ii) Between 17 and 18 January 2017 the activities plan was not being followed

[No case to answer]

n) You failed to ensure that regular checks were made on the following areas to

make sure that residents received good quality care

i) Medications [No case to answer]

ii) Care Plans [No case to answer]

iii) Fluids [This charge is found proved]

2) Failed to ensure that medication was being safely managed and/or administered in

that

a) You failed to put in place an effective system designed to ensure that medication

was being stored at the correct temperature


b) You failed to put in place an effective system to ensure that residents’ medication

was always in stock as required in that

i) on the following dates Zopiclone 3.75mg was out of stock and as a result was

not administered to an unidentified resident

a) 4 January 2017 [This charge is found proved]

b) 5 January 2017 [This charge is found proved]

c) 10 January 2017 [This charge is found proved]

d) 11 January 2017 [This charge is found proved]

e) 14 January 2017 [This charge is found proved]

ii) On the following dates Perindopril was out of stock and as a result was not

administered to an unidentified resident

a) 31 December 2016 [This charge is found proved]

30



d) 3 January 2017 [This charge is found proved]

iii) On 10 January 2017 Memantine 20mg was out of stock and as a result

was not administered to an unidentified resident


iv) On the following dates Citalopram 20mg was out of stock and as a result

was not administered to an unidentified resident on

a) 15 January 2017 [This charge is found proved]



c) You failed to ensure that residents were administered medication as and when

prescribed in that:

i) There was no ‘when required PRN’ policy in place

[No case to answer]

ii) An unidentified resident was prescribed one or two paracetamol to be

taken four times a day when required but there was no records to state

why he needed it and/or how many tablets to administer.

[No case to answer]

d) You failed to ensure that residents were given medication in a way which did

not risk affecting its efficaciousness in that;

i) Between 17 and 18 January 2017 Resident C was administered drugs in a

yogurt [No case to answer]

31

ii) Between 17 and 18 January 2017an unidentified resident was

administered drugs in a yogurt [This charge is found proved]

e) You failed to ensure that staff were provided with guidance in respect of “when

required” medication should be prescribed

[No case to answer]

f) You failed to operate an adequate system to ensure that covert administration

of medication only took place in appropriate circumstances

[No case to answer]

3) Failed to ensure that staff employed at the Home were suitable and/or appropriately

trained and/or informed for their role in that



b) No risk assessments had been completed and/or documented in respect of

members of staff with convictions working in the Home


c) You failed to take up offers of support and/or training from visiting

professionals [No case to answer]


i. restraining residents in a safe way [This charge is found proved]

ii. keeping people safe from abuse [This charge is found proved]

iii. fire safety [This charge is found proved]

iv. The principles of the Mental Capacity Act 2005


32

e) Untrained healthcare assistants were being asked to check the administration

of controlled drugs by trained nurses [No case to answer]



g) An adequate system for ensuring team meetings was not in place [No case

to answer]

h) An adequate system for ensuring that staff were supported in their role was

not in place [This charge is found NOT proved]

i) An adequate system of supervision and/or clinical supervision for staff was

not in place [This charge is found NOT proved]

4) Failed to ensure that adequate record keeping was being maintained in that;

a) You failed to ensure that there was documented planned care for Resident C

following their return from hospital on or around 16 January 2017 after suffering a

head injury in that;

i) No guidance had been provided to staff at handover about Resident C’s care

and treatment


ii) Staff were unable to say when Resident C had returned from the hospital


iii) Regular checks had not been planned or completed for Resident C


33

iv) Staff were not aware of any signs or symptoms that may have indicated that

Resident C would require further treatment.


b) You failed to ensure that Individual resident’s care plans provided guidance as to

how a Resident could be moved safely in that;

i) Between 17 and 18 January 2017 an unknown resident was moved from a

wheelchair to an armchair in a toilet sling which was incorrect.

[No case to answer]

ii) There was no information in the unknown residents care plan as to how to

move the resident.


c) You failed to ensure that Resident C’s MAR chart had been correctly updated for

a period of approximately 3 months in respect of prescribed lorazepam


d) You failed to ensure that care plans contained sufficient detail concerning the

management of particular medical conditions in that

i) There was no guidance in Resident C’s care plan as to how to support

Resident C with his renal failure


e) You failed to ensure that care plans contained adequate information concerning

a resident’s needs and preferences

34

i) No care plans had been written with residents and families that contained

information on residents’ particular needs and preferences in relation to their

care. [No case to answer]

f) You failed to ensure that care plans were adequate, accurate and complete on or

around 17 January 2017 in that

i) No checks had been completed on care plans [No case to answer]

ii) Risk assessments had not been applied whilst considering what care a

resident will require [No case to answer

iii) Decisions about residents treatment and care delivery were not recorded

[No case to answer]

iv) Daily care had been recorded in multiple sites [No case to answer]

v) On 30 December 2016 at 1030 Resident A’s daily record stated that Resident

A had been checked on an hourly basis when he had not.


5) Failed to ensure that a system was in place to effectively investigate and/or manage

concerns and/or complaints [No case to answer]

6) Failed to ensure that a system was in place concerning the notification of incidents

to CQC in that

a) you failed to ensure adequately and/or prompt notification of significant events

which had occurred in the Home, to the CQC


35

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

misconduct.

Decision and reasons on application pursuant to Rule 31 in respect of

admissibility of evidence

The panel heard three applications made by Ms Gouldthorpe under Rule 31 of the

Rules to admit four separate documents.

First application

The first application concerned a copy of the meeting minutes for safeguarding (case

conference) on 26 October 2016.

Ms Gouldthorpe submitted that a report written by Ms 2 (Commissioning Officer for

Thanet and Kent County Council) was read out to those present at a safeguarding

meeting held on 26 October 2016 by Ms 3. Ms 2 who was the sole author of the report

but not present at that meeting following a visit by Ms 3 and her to the Home.

Ms Gouldthorpe submitted that whilst they both witnessed some of the matters referred

to in Ms 3’s written statement, Ms 2 had witnessed other matters which are not

mentioned in Ms 3’s statement. However, Ms 3 had limited records in relation to her visit

and Ms Gouldthorpe submitted that the safeguarding minutes should be admissible to

assist Ms 3 in giving her evidence. Ms Gouldthorpe submitted that this would assist Ms

3’s recollection, when giving evidence, of her visit to the Home and is admissible as it

will act as an aide memoire.

In answer to panel questions Ms Gouldthorpe then submitted that the safeguarding

minutes could be admitted into evidence in part by redacting hearsay evidence in

relation to Ms 2’s report.

36

Ms Agyekum opposed the NMC’s application. She submitted that the NMC have not

obtained a statement from Ms 2 nor does the NMC seek to rely upon her as a witness.

Ms Agyekum submitted that the NMC has known of the safeguarding minutes and the

named attendees, including Ms 2, at the case conference meeting on 26 October 2016

for some time. She submitted that they have not attempted to contact Ms 2 and offered

no good reason as to why it has not been provided.

Ms Agyekum submitted that you will not be able to test the evidence within the

safeguarding minutes as Ms 2 is not being called as a witness. She submitted that this

would be unfair and that it would be improper for Ms 3 to rely upon the safeguarding

minutes when she is not the author of the minutes and has made a detailed statement

to the NMC relating to her visit to the Home.

The panel heard and 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 as set out in the

cases of NMC v Ogbonna [2010] EWCA Civ 1216, R (on the application of Bonhoeffer)

v GMC [2011] EWHC 1585 (Admin), Thorneycroft v Nursing and Midwifery Council

[2014] EWHC 1565 (Admin) and El Karout v NMC [2019] EWHC 28 (Admin).

The panel had regard to R (on the application of Bonhoeffer) v GMC [2011] EWHC

1585 (Admin) which states:

[44] Prima facie, the arguments for affording the Claimant the opportunity to

cross-examine Witness A are in my view formidable. The Claimant is an

extremely eminent consultant paediatric cardiologist of international repute. The

allegations against him could hardly be more serious. They involve allegations of

sexual misconduct, the abuse of young boys and young men and the abuse of a

position of trust. If proved, they would have a potentially devastating effect on his

37

career, reputation and financial position. Not only is the evidence of Witness A

the sole evidence against the Claimant in support of most of the allegations

against him… Thus, not only is this a classic case of one person's word against

another…. It is hard to imagine circumstances in which the ability to cross-

examine the uncorroborated allegations of a single witness would assume a

greater importance to a professional man faced with such serious allegations.

[45] It is axiomatic that the ability to cross-examine in such circumstances is

capable of being a very significant advantage. It enables the accuser to be

probed on matters going to credit and his motives to be explored. It is no less

axiomatic that in resolving direct conflicts of evidence as to whether misconduct

occurred the impression made on the tribunal of fact by the protagonists on either

side and by their demeanour when giving oral testimony is often capable of

assuming great and sometimes critical importance.

…

[47] In relation to those charges that relate to what the Claimant is alleged to

have done to Witness A, as distinct from what is alleged to have been done to

the other alleged victims, there are no other witnesses to the alleged conduct

whom the Claimant could either call or cross-examine as a means of challenging

Witness A's account.

‘[48] Nor in my judgment is the unfairness to the Claimant mitigated by the fact

that the GMC's reliance on Witness A's hearsay evidence weakens the case

against him or that the case against him may fail. The nature of the unfairness

complained of is that the admission of evidence in the form of hearsay

statements which could have been but will not be tested in cross-examination

may lead to the charges against the Claimant being found by the FTPP to be

correct, whereas if it were adduced in the form of oral testimony and tested in

cross-examination it might be found to be incorrect or at least not accepted as

probably correct. Such a result either is or is not unfair. If it is, it does not cease

38

to be unfair merely because the admission of the hearsay evidence may lead to a

different result’.

The panel also had regard to Thorneycroft v Nursing and Midwifery Council [2014]

EWHC 1565 (Admin) which states:

[45] For the purposes of this appeal, the relevant principles which emerge from

the authorities are these:

1.1.The admission of the statement of an absent witness should not be regarded

as a routine matter. The FTP rules require the Panel to consider the issue of

fairness before admitting the evidence.

1.2. The fact that the absence of the witness can be reflected in the weight to be

attached to their evidence is a factor to weigh in the balance, but it will not always

be a sufficient answer to the objection to admissibility.

1.3. The existence or otherwise of a good and cogent reason for the non-

attendance of the witness is an important factor. However, the absence of a good

reason does not automatically result in the exclusion of the evidence.

1.4. Where such evidence is the sole or decisive evidence in relation to the

charges, the decision whether or not to admit it requires the Panel to make a

careful assessment, weighing up the competing factors. To do so, the Panel

must consider the issues in the case, the other evidence which is to be called

and the potential consequences of admitting the evidence. The Panel must be

satisfied either that the evidence is demonstrably or alternatively that there will be

some means of testing its reliability.

From the authorities of Ogbonna, Bonhoeffer, and Thorneycroft the panel took into

consideration the various principles derived from these cases.

39

The panel was mindful at the outset that the admission of the safeguarding minutes,

which were created by an absent potential witness, into evidence should not be routine

and that relevance and fairness are the guiding factors. Furthermore, the panel was

mindful that it is not enough to say that it can simply judge what weight to put on

hearsay evidence, and that it should therefore be admitted.

The panel firstly considered whether the safeguarding minutes are relevant to the

charges. The panel found that the safeguarding minutes are clearly relevant to the

allegations.

The panel went on to consider whether it would be fair to admit this document into

evidence.

The panel considered whether there are good and cogent reasons for the non-

attendance of Ms 2 as a witness at this hearing. The panel noted that the NMC have

known of her existence and role for some time but have made no attempt to contact her.

The panel could find no good or cogent reason provided by Ms Gouldthorpe in her

submissions for the non-attendance of Ms 2 who appears to provide evidence which

may, in some respects, be capable of supporting Ms 3’s evidence.

Having made its finding in respect of there being no good and cogent reason for the

non-attendance of Ms 2, the panel noted that this is not decisive, but an important factor

to take into account along with the other factors from the legal authorities concerning

the admissibility of hearsay evidence.

The panel next considered whether this evidence is the sole or decisive evidence in

relation to the serious allegations which, if proved, could have “a potentially devastating

effect on [the registrants] career, reputation and financial position” (Bonhoeffer). The

panel noted that there is no written statement from Ms 2 exhibiting the safeguarding

minutes. Consequently, this is not an application for admitting a signed statement of an

40

absent witness but is further and significantly removed as it is an application to admit, in

isolation, a document created by a potential witness who was known to exist by the

NMC prior to this hearing. Whilst there may be some evidence which is capable of

supporting the safeguarding minutes in Ms 3’s statement, the panel reminded itself that

this is a document which it is considering and not a signed statement with a declaration

of truth. The panel found that whilst the safeguarding minutes are not the sole and

decisive evidence in relation to charges 1(c) i – iii, 1(l) i - iii and 4 (f) i – v, they cannot

be challenged by cross examination as the author is not being called as a witness. In all

the circumstances the panel decided, in the absence of the safeguarding minutes being

demonstrably reliable, that it would be unfair to admit them. In this regard, the panel

noted that the safeguarding minutes and the evidence of Ms 3 is strongly contested by

you.

The panel considered whether the safeguarding minutes could be admitted as an aide

memoire to assist Ms 3 in giving evidence. Whilst Ms 3 visited the Home with Ms 2, she

was not the author of the safeguarding minutes and there is no suggestion that she read

them at or near the time of their creation, nor is there any suggestion or record that she

counter-signed them as being accurate.

The panel, having carefully considered and applied all of the factors from the above

legal authorities, decided that it would be unfair to admit part of the safeguarding

minutes into evidence.

In coming to this conclusion, the panel gave careful consideration to the cases of

Professional Standards Authority v (1) Nursing and Midwifery Council and (2) Jozi

[2015] EWHC in 764 (Admin) and Council for the Regulation of Health Care

Professionals v General Medical Council and Ruscillo, [2004] EWCA Civ 1356. It was

held in these regulatory cases that tribunals should play a more proactive role than a

judge presiding over a criminal trial in making sure that a case is properly presented and

that the relevant evidence is placed before it. Furthermore, these two cases held that a

41

tribunal is under a duty to intervene and request for evidence where it takes the view

that the evidence before it is insufficient.

The panel noted that it has the power under Rule 32 to adjourn this hearing and direct

that further steps be taken in relation to the potential evidence of Ms 2. In this regard,

the panel is aware that it is possible to apply to the High Court for a witness summons

to secure the attendance of witnesses. The panel noted that in respect of the charges

1(c) i – iii, 1 (l) i – iii and 4 (f) i – v to which the safeguarding minutes may potentially

speak, the NMC may rely upon Ms 3’s evidence in relation to charges 1(c) i – iii and 4

(f) i - v and upon Ms 3 and Ms 1 in relation to charge 1(l). Whilst the panel has

acknowledged that the charges are serious allegations in respect of elderly and possibly

vulnerable residents, it decided, in all the circumstances above, that it would

nevertheless be disproportionate to take further steps in securing the attendance of Ms

2.

Second application

Ms Gouldthorpe made an application for the CQC report dated 6 March 2017 to be

admitted in evidence. Ms Gouldthorpe informed the panel as to the structure of the

report and listed the areas (whether the service is safe; effective; caring; responsive;

and well led) of the Home which the inspectors investigated. She told the panel that

ratings are provided in relation to each of these five areas and then the Home is given

an overall rating. Ms Gouldthorpe submitted that the report contains identifiable

summaries of what was inspected and then there are separate findings. She told the

panel that the finding of the CQC investigation would be removed

Ms Gouldthorpe submitted that the CQC report comprises of what the inspectors saw

and read at the Home and conversations they had with staff, residents and family

members. She submitted that Ms 1 was one of the inspectors and the author of the

report. She submitted that a significant part of the report is contained within the

statement of Ms 1. Consequently, the report is admissible.

42

Ms Agyekum objected to the admission of the CQC report as evidence. She referred the

panel to Enemuwe and NMC [2015] EWHC 2081 (Admin) and took the panel to a

number of paragraphs within that judgement. In particular, Ms Agyekum relied upon

paragraph 79 of the judgement in Enemuwe where the court stated “…that normally the

findings of fact made at some earlier investigation by another panel or another person

are not admissible in proceedings before this Committee”. Ms Agyekum submitted that

by admitting the report the panel would be usurping its function which is to

independently find facts in respect of the charges which are largely based upon the

report.

Ms Agyekum submitted that the NMC seeks to distinguish outcomes from findings, yet

the whole of the CQC report is a conclusion of the inspection findings. She submitted

that the CQC report was compiled from the observations of more than one inspector.

She submitted that it is impossible to discern which passages in the report relate to the

specific observations of each inspector. Accordingly, she submitted that there is

hearsay and anonymous hearsay within the report. In these circumstances, she

submitted that the report is not admissible as evidence.

The panel heard and accepted the legal assessor’s advice. He referred the panel to

Enemuwe and repeated his earlier advice as to Rule 31 of the Rules and hearsay.

The panel carefully read the CQC report dated 6 March 2017. The panel noted that the

first section of the report is headed “Summary of findings”. The second section gives

background to the inspection but is headed “Detailed findings”. Thereafter, each of the

five areas considered within the report is headed “Our findings”. Having read the report,

the panel noted that there was no section within the report which had reference to the

actual evidence that the inspectors saw, read and then considered. In these

circumstances, the panel found that the report contains no discussion but only made

findings of fact and is therefore, on the authority of Enemuwe, not admissible in

evidence before this panel.

43

The panel went on to consider the question of hearsay. The panel noted from Ms 1’s

statement (paragraph 4) that she was assisted with the inspection by Ms 4 (Medicines

Inspector), a named dual registered mental health nurse and registered nurse, and an

unnamed ‘expert’. The panel read the report but was unable to discern which inspector

was responsible for which sections or passages of the report. In these circumstances,

the panel found that this is a composite document which is likely to contain hearsay and

anonymous hearsay. As to the hearsay content from the named dual registered nurse,

the panel was not provided with any good and cogent reason by the NMC as to why she

has not been contacted by the NMC and a witness statement taken. In any event, even

if this potential witness was secured there appears to be some input into the report

which is not discernible from the unnamed ‘expert’.

In light of the above reasons and the fact that Ms 1 and Ms 4 have provided written

statements to the NMC and will attend to give evidence at this hearing, the panel

determined not to admit the CQC report.

In coming to this conclusion, the panel again gave careful consideration to the cases of

Professional Standards Authority v (1) Nursing and Midwifery Council and (2) Jozi

[2015] EWHC in 764 (Admin) and Council for the Regulation of Health Care

Professionals v General Medical Council and Ruscillo, [2004] EWCA Civ 1356.

The panel noted that it has the power under Rule 32 to adjourn this hearing and direct

that further steps be taken in relation to the potential evidence of the named dual

registered nurse as to her recollection and specific input into the report. In this regard,

the panel is aware that it is possible to apply to the High Court for a witness summons

to secure the attendance of witnesses. Whilst the panel acknowledge that the charges

are serious allegations in respect of elderly and possibly vulnerable residents, it

decided, in all the circumstances above, that it would be disproportionate to take further

steps in securing the attendance of the named dual registered nurse. In any event, even

if the NMC was to secure a witness statement from the named dual registered nurse,

44

this would leave the question of the extent and nature of the input into the report by the

unidentified ‘expert’.

In making its decision, the panel has read the CQC report. As a professional panel, it

will put the report out of its mind when considering each stage of these proceedings.

Third application

Ms Gouldthorpe made an application to admit Ms 4’s hand written notes when she

inspected the Home on 18 January 2017 and a typed response by her to an NMC

request made on 20 May 2019. She also made an application to admit Ms 1’s additional

information supplied to the NMC following a request of her by the NMC on 20 May

2019.

Ms Gouldthorpe submitted that Ms 4’s hand written notes on 18 January 2017 were

made at the time of the inspection. As they were a contemporaneous set of notes Ms

Gouldthorpe submitted that they were admissible. In respect of the typed response to

the NMC request on 20 May 2019, Ms Gouldthorpe submitted, that it is based upon Ms

4’s recollection of the visit to the Home. Accordingly, Ms Gouldthorpe submitted that this

document is admissible.

Ms Gouldthorpe submitted that Ms 1’s additional information is admissible as is it based

upon her recollections of the visit to the Home.

Ms Agyekum objected to the admission of all three documents.

Ms Agyekum referred the panel to Rule 31 (8) of the Rules which states:

(8) Where a party has –

a) failed to comply with any direction for service of evidence given at a

preliminary meeting under rule 18, including service of expert reports;

45

b) shown no good cause for failure to comply with the directions given;

and

c) seeks to adduce such evidence at the hearing,

a Practice Committee may refuse to allow that party to admit the evidence

in question.

Ms Agyekum submitted that the NMC served these three documents upon the RCN on

31 May 2019 and that she and you only had sight of them on the first day of the hearing

(3 June 2018). She referred the panel to the fact that there was a clear direction made

at the preliminary meeting on 9 May 2019 for the NMC to carefully particularise the

charges. She submitted that this was not done by the deadline of 16:00 on 20 May 2019

and was only finally achieved on day four of this hearing. In light of these circumstances

and Rule 31 (8) of the Rules, she submitted, that it would be unfair at this late stage of

the proceedings to admit these documents.

Ms Agyekum submitted that the three documents contain hearsay. She took the panel

to each of the documents and submitted where there were passages of hearsay.

The panel heard and accepted the advice of the legal assessor which referred to Rules

31 and 32 (8) of the Rules and to the hearsay advice which was given earlier.

The panel firstly read and considered the notes of Ms 4. These notes are hand written

and dated 18 January 2017. The CQC inspection was on 17 – 18 January 2017. As

such, the notes, subject to any examination of Ms 4, appear to have been made

contemporaneously to the time of the CQC inspection. The panel carefully read the

content of the notes and noted that whilst some entries written by her are potentially

ambiguous as to whether she directly observed the event entered, it could not, at this

stage, discern by extrapolation, any apparent hearsay as to what others exclusively saw

and heard. Ms 4 is to attend this hearing to give evidence and she can be examined as

to what she specifically saw and read at the Home. If, as a result of examination, some

46

of the entries within the notes become arguably hearsay then the panel can hear further

submissions from the parties and thereafter take a view as to the status of the evidence.

In these circumstances, the panel concluded that the hand written notes of Ms 4 are

admissible.

The panel next considered the response of Ms 4 to the NMC’s request of 20 May 2019.

The panel carefully read the additional information provided by her and could not find

any apparent hearsay concerning what others may have exclusively seen and read. For

the reasons given in the preceding paragraph, Ms 4 will be a witness and the panel can

review the question of hearsay in light of her answers to any examination. Accordingly,

the panel found that this additional information is admissible.

The panel lastly considered the additional information provided by Ms 1 to the NMC

following a request on 20 May 2019. The panel was provided with an agreed redacted

copy of this document. Having read the un-redacted content of the document, the panel

is satisfied that all of the apparent hearsay has been removed from the agreed redacted

copy. Again, and for the reasons in relation to the admission of Ms 4’s handwritten

notes and additional information, the panel is satisfied that as Ms 1 will attend and give

evidence at this hearing she can be examined as to what she actually saw and heard

during the inspection of the Home and any ambiguity as to who specifically made any

observation can be resolved. Likewise, if as a result of questions from the parties and

the panel it becomes clear that there is reference to matters within this document which

go beyond Ms 1’s direct observations then the panel will hear submissions from the

parties and take a view. Accordingly, the panel concluded that the additional information

provided my Ms 1 is admissible.

The panel carefully considered the submission of Ms Agyekum and Rule 31 (8) of the

Rules. The panel noted that Rule 31 (8) of the Rules is framed in so that even if

conditions a, b and c apply, a panel does not necessarily have to refuse to allow a party

to admit the particular evidence. Rule 31 (8) is framed in terms of a panel ‘may refuse’

the admission of such evidence. Whilst the panel noted that conditions a, b and c of

47

Rule 31 (8) of the Rules are satisfied in that the NMC has failed to comply with the

direction made on 9 May 2019 and that the three documents could have been provided

at an earlier stage, it decided that the three documents are nevertheless admissible. In

this regard, the panel noted that these allegations involve systemic failings involving

elderly and possibly vulnerable residents. Furthermore, the panel concluded that any

prejudice or injustice in admitting these three documents can be fairly addressed by

allowing you sufficient time to consider and prepare your defence. In these

circumstances, the panel found that whilst these documents have been served outside

of the directed time, it will allow into evidence all three documents.

In admitting Ms 1’s additional information the panel will proceed with the agreed

redacted copy of this document and put the redacted content of the original copy out of

its mind for the further stages of this hearing

Application by you for an adjournment

The panel heard submissions made by Ms Agyekum for an adjournment so that she can

take instructions from you and to prepare your defence following the re-amendment of

the charges and the panel’s rulings on admissibility of evidence. Ms Agyekum submitted

that she is likely to be in a position to resume this hearing on Tuesday 11 June 2019.

Ms Gouldthorpe submitted that it is in the public interest that there is an expeditious

disposal of this case. However, she submitted that you are applying for a relatively short

adjournment following the re-amendment of the charges and the panel’s rulings as to

admissibility of evidence. She submitted that there is potential inconvenience to the

witnesses to be called by the NMC but by careful re-scheduling of the witnesses she is

hopeful that the NMC’s case can be heard and completed next week. She submitted

that in fairness to you an adjournment should, in all the circumstances and history of

this case, be granted.

48

The panel accepted the advice of the legal assessor who referred to Rule 32 of the

Rules.

The panel gave careful consideration to Rule 34 (4) of the Rules which states:

(4) in considering whether or not to grant a request for postponement or adjournment,

the Chair or Practice Committee shall, amongst other matters, have regard to –

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

(b) the potential inconvenience cause to a party or any witnesses to be called by

that party; and

(c) fairness to the registrant.

The panel firstly had regard to the public interest in the expeditious disposal of your

case. The adjournment applied for by you is for approximately a day and a half which

the panel regard, in all the circumstances of your case, as a short and highly necessary

adjournment for you to properly prepare your defence.

The panel acknowledged that potential inconvenience may be caused to the NMC

witnesses. However, the panel noted that with careful re-scheduling there appears to be

a prospect of hearing from all of the NMC witnesses next week. In this regard, two

witnesses who may only be available for next Monday could, without prejudice to proper

consideration of any application by the NMC and you response, be received by video

link.

The panel lastly considered fairness to you. Given the late service of the additional

evidence by the NMC upon you and the consequent re-amendment of the charges the

panel found that it would be manifestly unfair to reject your application for an

adjournment. In this regard, the panel had regard to its earlier decisions where it has

acknowledged that the re-amendment of the charges was ‘extensive’ and that ‘…you

must be afforded time to properly consider and prepare your defence’.

49

In light of the above reasons, the panel granted an adjournment to Tuesday 11 June

2019 at 09:30.

Decision and reasons on an application made by you pursuant to Rule 31 of the

Rules in respect of admissibility of evidence

The panel heard an application made by you under Rule 31 of the Rules to admit a

presently redacted passage in the Adult Protection Case Conference minutes on 26

January 2017.

Ms Agyekum submitted that the redacted passage is admissible as Ms 5 in her oral

evidence stated that she received text messages from Residents A’s key worker.

Ms Gouldthorpe objected to your application and submitted that the redacted passage is

double hearsay in that unidentified staff members told the Home and that unidentified

persons within the Home have then told Ms 7 about the exchange of texts between

Residents A’s key worker and Ms 5. Ms Gouldthorpe submitted that it would be unfair to

admit this passage as the NMC cannot examine the source of this information.

The panel heard and accepted the legal assessor’s advice.

The panel noted that, in isolation the redacted passage contains hearsay. However, the

panel has heard evidence from Ms 5 who said that she received two texts from

Resident A’s key worker. In evidence, Ms 5 mentioned the general topic of these texts

and said that as a consequence of receiving them she turned her phone off as she ‘did

not want contact of that sort’. In this regard, the panel noted that the redacted passage

refers to Resident A’s key worker exchanging ‘inappropriate texts’ with Ms 5.

In the circumstances of Ms 5’s evidence, the panel found that the redacted passage is

not the sole and decisive evidence in relation to whether Resident A’s key worker was

50

exchanging texts with Ms 5. In coming to this conclusion, the panel noted that Ms

Gouldthorpe can examine Ms 7 about the redacted passage and it can carefully

consider Ms 7’s answers and ascribe any evidential weight, if appropriate, to them.

In admitting the redacted passage, the panel noted that the submission as to

admissibility made by each party did not address the first and last sentences. As there

were no submissions about these sentences, and the panel of its own volition could find

no good reason to find them inadmissible, it admitted the redacted passage in its

entirety.

Decision and reasons on the NMC’s application to admit Ms 9’s evidence by video

link

Ms Gouldthorpe made an application on behalf of the NMC for Ms 9‘s evidence to be

admitted by video link.

Ms Gouldthorpe drew the panel’s attention to Rule 31 of the Rules which she submitted

allows the panel to admit video link evidence subject to satisfying the requirements of

relevance and fairness. She told the panel that Ms 9 was warned to give evidence last

week and subsequently de-warned. Ms Gouldthorpe informed the panel that Ms 9 who

is due to give evidence tomorrow will be unavailable as she will be ‘covering for the

Home’. Furthermore, Ms Gouldthorpe told the panel that Ms 9 in unavailable on the

following day as she is committed to attending a longstanding and important work

meeting.

Ms Gouldthorpe submitted that Ms 9’s statement and documents have been sent to her

and that there has been a successful video link test. Ms Gouldthorpe acknowledged that

this hearing is going part-heard and that if the panel wished to hear Ms 9 in person then

she can be called at the resumed hearing.

51

Ms Agyekum made no formal objections to the NMC’s application. She submitted that

Ms 9 does provide important background information which includes the staffing of the

Home. Ms Agyekum drew the panel’s attention to the fact that Ms 9 produces a

substantial number of exhibits.

The panel heard and accepted the advice of the legal assessor. He referred the panel to

Rules 22 and 31 of the Rules and to Polanski v Conde Nast Publications Limited [2005]

UKHL 10.

The panel firstly considered whether Ms 9’s evidence is relevant and determined that it

is clearly relevant to the charges and provides potentially important background

information.

The panel next considered whether it would be fair to admit Ms 9’s evidence by video

link. In this respect, the panel noted the following passage from Polanski;

“Thomas LJ said that in his recent experience as a trial judge, giving evidence by

VCF [video conferencing facility] is a ‘readily acceptable alternative’ if there is

sufficient reason for departing from the normal rule that witnesses give evidence

in person before the court”.

The panel noted that Ms 9 is unable to attend in person over the next two days as she

has work commitments. She is due to give evidence tomorrow when she is covering at

the Home. Ms 9 is presently timetabled to give her evidence over approximately half a

day.

The panel considered the nature and extent of Ms 9’s evidence. Whilst her statement is

short she produces 33 exhibits which run to over 600 pages. The panel noted that these

exhibits cover considerable background in relation to staff duties, induction, human

resources, processes and other systems and organisational matters. In the context of

the case so far, the panel found that Ms 9 may provide important evidence to the

52

charges and to the background generally. The panel noted that each party has ‘about

one hour’ in examination and cross-examination of Ms 9. The panel, for its part, is likely

to have some questions of the witness. Together with any breaks, the panel noted that

Ms 9 is likely to be giving evidence for a significant period of time. This hearing will be

part-heard and the panel noted that it would be entirely unsatisfactory if Ms 9, with a

timetabled slot of approximately half a day, went part-heard to later this year. In these

circumstances, the panel decided that given the potential nature and extent of Ms 9’s

evidence she needs to have an opportunity to apply her full attention when giving

evidence and that she should give it on one day.

The panel acknowledged that there is the need for the expeditious disposal of a case.

However, in the circumstances of this case, the panel decided that it would be unfair to

the parties and Ms 9 to receive her evidence by video link. As this hearing is going part-

heard, there is an opportunity to hear Ms 9’s potentially extensive evidence in person.

Ms 9 will have no distractions and can be assisted, if necessary, to navigate the

substantial number of exhibits to her statement. This will enable the panel to receive Ms

9’s evidence in the best way.

In light of the panel rejecting the NMC’s application and the likely length of Ms 9’s

evidence, the panel suggests that she is allocated a full day slot in the resuming

timetable.

This hearing was resumed on 19 August 2019 until 23 August 2019.

Decision and reasons on the NMC’s application to admit evidence in relation to

Ms 9

Ms Guest on behalf of the NMC, indicated that she was to make an application to admit

a supplementary statement of Ms 9 together with three documentary exhibits. Ms Guest

suggested that the panel should read Ms 9’s supplementary statement and exhibits

before she made her application.

53

Ms Agyekum objected to the panel reading the supplementary statement and exhibits

prior to the making of the NMC application, as to do could potentially be “prejudicial” to

your case.

The panel accepted the advice of the legal assessor.

The panel decided to read Ms 9’s supplementary statement and exhibits prior to the

NMC making its application. In coming to this decision, the panel found that it would

need to read the supplementary statement and exhibits so as to fully understand the

application and its bearing in the context of this hearing to date. The panel noted that it

is professional tribunal and will be able to totally discount any material read for the

purpose of this application if it decides that Ms 9’s supplementary statement and

exhibits are inadmissible.

Ms Guest submitted that Ms 9’s supplementary statement and the first two exhibits

relate to the stem of the charges and are therefore central to this case. She reminded

the panel that the stem to the charges has been amended during this hearing and

submitted that the first two exhibits, namely an email from Ms 9 to the NMC dated 12

August 2019 and a CQC certificate dated 10 November 2016, confirm the particulars of

the amended stem to the charges.

As to the third exhibit produced by Ms 9, namely an email from Ms 9 to the NMC dated

12 August 2019, Ms Guest summited that this was relevant in that it provided names of

staff in relation to charge 3a.

Following panel questions, Ms Guest informed the panel that Ms 9’s supplementary

statement is dated 12 August 2019 and was sent to your representatives at the RCN on

Friday 16 August 2019.

54

Ms Agyekum accepted that the information within Ms 9’s supplementary statement and

exhibits were relevant. She submitted, however, that it would be unfair to admit this

material. She submitted that you were referred to the NMC two years ago and that Ms

9’s supplementary statement is dated 12 August 2019 and was only sent to the RCN

last Friday after 5 pm. She submitted that this is too late in these proceedings and

deprives you of the opportunity to give proper instructions and fully defend yourself. In

these circumstances, Ms Agyekum submitted that it would be unfair to admit Ms 9’s

supplementary statement and exhibits.

The panel heard and 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 panel firstly considered Ms 9’s supplementary statement and first two exhibits in

respect of the amended stem to the charges. The panel found paragraph 4 of the

supplementary statement irrelevant to the charges

The panel carefully read the email from Ms 9 to the NMC dated 12 August 2019 and the

CQC certificate dated 10 November 2016 and found that both documentary exhibits

were relevant in that they are capable of reflecting the dates within the amended stem

to the charges. Accordingly, the panel found that this material is relevant.

The panel went onto consider whether it would be fair to admit this material in evidence.

The panel noted that it has amended the stem to the charges during this hearing and, at

that stage, it gave careful consideration to the merits of the case and the fairness of

proceedings when deciding whether the amendment to the stem could be made without

injustice to the NMC and you. The panel noted that in making its decision to amend the

stem to the charges that it “…may potentially be of benefit to your case…” Accordingly,

the panel could find no unfairness in admitting the supplementary statement with

55

paragraph 4 redacted and the first two exhibits to Ms 9’s supplementary statement as

they are merely capable of reflecting the dates in the amended stem to the charges.

In admitting the first two exhibits to Ms 9’s supplementary statement, the panel will

carefully consider the amended stem to the charges in light of all of the evidence it

hears and reads during this hearing when deliberating upon facts and at any

consequent stage.

The panel next considered the third exhibit to Ms 9’s supplementary statement, namely

the employment details for some staff members relating to DBS checks together with

paragraph 5 of the supplementary witness statements.

The panel considered relevance and found this material to be relevant.

However, although the panel found the third exhibit to Ms 9’s supplementary statement

and paragraph of that statement to relevant, it nevertheless went on to consider

fairness. The panel noted that you were referred to the NMC some two years ago and

that the NMC seek to admit this material on day 10 of this substantive hearing. The

panel found having considered the nature and extent of this material and the late stage

of this hearing that it would be prejudicial to you if this material was admitted into

evidence. Accordingly, the panel found that it would be unfair to admit this material into

evidence.

In light of the panel’s decision, it admitted Ms 9’s supplementary statement in respect of

paragraphs 1, 2, 3, 6a and 6b and the first two exhibits. In respect of the supplementary

witness statement, paragraph 4 is inadmissible as it is irrelevant. In addition in the first

exhibit the third sentence within the main paragraph of the email dated 12 August 2019

is not admissible for the same reason. In respect of paragraph 5 of the supplementary

witness statement, this is not admitted as although relevant, it would be unfair to do so

at this late stage as it would be prejudicial to you.

56

Decision and reasons on an application of no case to answer

Ms Agyekum made an application, on your behalf, that there is no case to answer in

respect of all of the charges. This application was made under Rule 24 (7) of the Rules.

This rule states:

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

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

(i) either upon the application of the registrant, or …

(ii) of its own volition…

the Committee may hear submissions from the parties as to whether

sufficient evidence has been presented to find the facts proved and shall

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

The panel took account of the written and oral submissions made by Ms Agyekum, on

your behalf, and by Ms Gouldthorpe, on behalf of the NMC. The panel had careful

regard to the oral evidence of all of the witnesses it heard from. The panel also had

careful regard to all of the documentary evidence before it.

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

The legal assessor advised the panel that the NMC has brought these proceedings and

it is for the NMC to prove its case. You are not required to disprove the allegations and

no useful purpose would be served in continuing these proceedings if the panel is

satisfied that, on the basis of the case which has been put before it in respect of each

charge, there is no real prospect of the NMC discharging that burden of proof. He

advised that at this stage, the panel needs to decide whether the evidence that the

NMC has put before it on all, or at least the key, elements of each separate charge is

sufficient to satisfy the panel that there may be a case to answer and could justify

57

proceeding further. He referred the panel to the test laid down by Lord Lane CJ in the

case of R v Galbraith. In relation to proceedings before this panel, that test is as follows:

1. If there is no evidence against the registrant to support a particular charge

then the case must be stopped in respect of that particular charge.

2. The more difficult situation is when there is some evidence but it is of a

tenuous nature, in that it is:

i. inherently weak or vague, or

ii. inconsistent with other evidence

and the panel considers, taking the NMC’s evidence at its highest, that it

could not properly find the charge to be proved on the balance of

probabilities, then the case must be stopped as far as that particular charge is

concerned. However, where the NMC’s evidence is such that its strength or

weakness depends on the view to be taken of a witness’ reliability, or other

matters which are generally speaking within the province of the panel as

judges of the facts, and where on one possible view of the facts, there is

evidence on which the panel could properly come to the conclusion that a

particular charge is proved, then the case should proceed.

In reaching its decision, the panel carefully reviewed all of the evidence and applied the

test in R v Galbraith to each charge separately. The panel carefully considered the

quality of the evidence looking at its strengths such as clarity, any supporting evidence,

and what reasonable inferences may be drawn and; its weakness such as lack of

reliability, inconsistency within and with other evidence, vagueness and whether it is

unable to meet a reasoned as opposed to fanciful argument. The panel reminded itself,

in accordance with the legal advice given by the legal assessor, that in regulatory

proceedings the panel should ask itself the question ‘is there any evidence upon which

a properly directed panel could find the alleged facts proved?’ If the answer is ‘Yes, it

could’, not that it would, then the panel should proceed to hear your case receiving

evidence from you and any supporting witnesses or material.

58

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

no case to answer in respect of charges 1a (i), 1a (v) (a), 1a (v) (b), 1a (v) (c), 1a (vi)

(a), 1a (vi) (b), 1b (i), 1c (i), 1c (ii), 1c (iii), 1d (i), 1d (ii), 1e (i), 1f (i), 1f (ii), 1g, 1h (i), 1h

(ii), 1h (iii), 1h (iv), 1i (i), 1i (ii), 1i (iii) solely in relation to 7/9/2016, 1i (v), 1i (vi), 1j (i), 1k,

1m (i), 1m (ii), 1n (i), 1n (ii), 2c (i), 2c (ii), 2d (i), 2e, 2f, 3c, 3e, 3g, 4b (i), 4e (i), 4f (i), 4f

(ii), 4f (iii), 4f (iv) and 5.

The stem to all of the charges reads:

That you, a registered nurse whilst working as the manager of the Willows Care Centre


and/or as the registered manager from 10 November 2016:

Charge 1a (i)




i) Resident A was not made the subject of a prompt referral to a dietician


No case to answer

In respect of charge 1a (i), the panel noted the Malnutrition Universal Screen Tool

(MUST) Review Form which shows that Resident A’s weight was 59.4 kg on 21

November 2016 and 51.7 kg on 2 December 2016 and likewise on 3 January 2017. The

panel accept that this was a significant loss of weight, being 7.7 kg and more than 10%

of Resident A’s body weight. The panel also noted on the MUST review form that it was

recorded on 2 December 2016 that Resident A had “lost weight, refer to dietician.”

59

The panel had regard to the evidence of Ms 8, an assistant practitioner for dietetics who

stated that Resident A was seen by a dietician in March 2016 but subsequently was

recorded as deceased by another service and was therefore removed from the

dietician’s system.

The panel noted an entry dated 3 January 2017 made by the clinical nutritionist and

dietitian in Resident A’s records stating that Resident A was losing weight from 57kg to

51.7 kg. The note went on to record that Resident A had recently been in hospital with

anaemia and had consequently not been reviewed by the clinical nutritionist and

dietitian. The panel noted from Resident A’s records that he was in hospital between 13

to 21 December 2016.

The panel noted the wording of this charge and that Resident A was not allegedly made

the subject of a prompt referral to a dietician following a significant weight loss. In

relation to the question of promptness, the panel noted on the MUST screening tool that

under the management guidelines if there is no improvement when screening a

resident’s weight score after one month, a resident should be referred to the GP for high

calorie supplements and that if there is still no improvement after a further month then

the resident should be referred to a dietician via the GP.

From the above evidence, the panel noted that someone within the Home had recorded

Resident A’s significant loss of weight and that he needed to be referred to a dietician.

Thereafter, it appears that Resident A was admitted to hospital, returning to the Home

on 21 December 2016. The Christmas and New Year period then intervened and it

appears that the dietician service failed to pick Resident A up on their system earlier

however the clinical nutrition and dietetics nurse carried out a nurse consultation on 9

January 2017 in the Home. In these circumstances, the panel concluded that the case

against you in respect of this charge is weak. In particular, it appears that the

promptness of any action was within the time period recommended within the MUST

screening tool.

60

Accordingly, the panel determined that there is no case to answer in respect of charge

1a (i) under the second limb of Galbraith as the evidence is tenuous in that it is

inherently weak.

Charge 1a (ii)






Case to answer

The panel noted Ms 8’s evidence that the Community Dietetics Services first received a

referral concerning Resident B from a named registered nurse on 28 December 2016.

The panel noted from Resident B’s notes that it was recorded on 25 January 2017 that

he had “19% weight loss in less than 3 months.” Resident B’s recorded weight in

October 2016 was 71kg; 53kg on 13 December 2016 and 57kg on 22 December 2016.

It was also noted in Resident B’s notes that his MUST weight score on 25 January 2017

was “2+” which placed him at high risk.

The panel had regard to the MUST screening tool management guidelines which are

referred to in charge 1a (i) above. The panel noted that the weight loss was over a

period of less than 3 months but more than 2 months for action recommended within the

management guidelines.

61

The panel noted an entry within the minutes from an Adult Protection Meeting of Kent

Count Council social services on 26 January 2017 when the following was recorded

“weight on admission 17/10/16 - 71.1kg, 17/11/16. Weighed – 57.6kg No action taken.

13/12/16. Weighed – 53.2kg no action taken. Referral not sent to dietician until

28/12/2016. Was supposed to 2 Aymes shakes a day. No evidence that [Resident B]

has had these”.

The panel decided that, taking the NMC’s evidence at its highest, that this charge

should proceed.

Accordingly, the panel determined that there is a case to answer in respect of charge 1a

(ii).

Charge 1a (iii)




iii) Resident B had not been receiving his prescribed high calorie drinks

Case to answer

The panel carefully considered the evidence adduced by the NMC in respect of this

charge.

The panel carefully reviewed the MAR charts before it. The MAR charts relate to the

period 26 December 2016 to 22 January 2017. The panel could find no evidence of high

calorie drinks being prescribed during this period. However, there is reference to

Resident B having high calorie drinks appears within his notes on 25 January 2017

62

when the dietician recorded that he had consumed “Aymes shake” and to “Continue

fortijuce [sic] x 2 as prescribed by GP”.

The panel took account of Ms 1’s evidence in that she was able to ascertain that

Resident B was prescribed high calorie drinks because she “found the information

recorded in his care notes”. In her oral evidence, Ms 1 states that she had spoken to the

kitchen staff and those responsible for serving meals at the Home and that they said

that they had no knowledge of Resident B being prescribed high calorie drinks. Ms 1

could not identify these members of staff and the panel has not heard or read any such

supporting evidence.


should proceed.


(iii).

Charge 1a (iv)









63

Case to answer

The panel noted the oral evidence from Ms 1 that she directly saw residents being

brought down late and being given and eating breakfast at about 11 am. Further Ms 1

stated in her oral evidence that she saw the same residents being offered lunch very

shortly afterwards at around mid-day.

The panel noted that Ms 1 did not refer to these alleged incidents in her written

statement to the NMC. Furthermore, the panel noted that Ms 6 said in her oral evidence

that there were no set meal times. However, the panel decided, taking the NMC’s case

at its highest, that there is sufficient evidence from Ms 1 to proceed with this charge in

respect of charge 1a (iv) (a) and (b).


should proceed.


(iv) (a) and (b).

Charge 1a (v)(a)





needs in that;

a) On 14 January 2017 Resident A was given 2 Weetabix when they

required a low fibre diet

64

No case to answer

The panel noted that Ms 1’s evidence was that “We saw records that showed on

14/01/17 he had been give [sic] 2 Weetabix…”. Ms 1 stated in her oral evidence that

she personally saw Resident A’s records. The panel was not provided with the records

which Ms 1 said she had seen.

As the panel was not provided with any record of Resident A being given 2 Weetabix on

14 January 2017, the panel considered other available documentation relating to

Resident A’s food intake. The panel noted that in the eating and drinking section of

Resident A’s care plan, it is stated that “Resident A requires a low fiber [sic] diet as high

fiber [sic] cause [sic] him a lose bowel movement”. Further into the eating and drinking

sections of Resident A’s care plan it is stated that “ …he requires a diet low in fiber [sic]

due to his Crohn disease; he is not allowed …oat…”. The panel also considered

Resident A’s notes and an entry made by the clinical nutritionist and dietician on 9

January 2017. Within that entry, the dietician noted that Resident A’s diet should be low

in fibre for Crohns disease. Further on into the dietician’s entry, the panel noted that

“Yesterday” (8 January 2017), Resident A ate all of his Weetabix.

The panel noted that whilst Resident A was not allowed oats there is no mention within

his care plan that he was not to eat any wheat based food or Weetabix. What is clear

from Resident A’s care plan and notes is that he was on a low fibre diet. In relation to

Resident A eating Weetabix, Ms 8, Assistant Practitioner for Dietetics, stated in her oral

evidence that she had no concern about Resident A consuming Weetabix.

The allegation is that Resident A was given two Weetabix. The question is whether this

amount of Weetabix crosses the threshold of a low fibre diet. The panel decided that

this charge is not capable of being proved as it does not appear inappropriate for

Resident A to occasionally have two Weetabix.

65


1a (v)(a).

Charge 1a (v)(b)





needs in that;

b) On 13 January 2017 Resident A was provided with Juice when he was not

allowed juice

No case to answer

The panel noted Ms 1’s evidence that “We saw records that showed on…13/01/2017 he

was give [sic] juice throughout the day”. Ms 1 stated in her oral evidence that she

personally saw Resident A’s records. The panel was not provided with the records

which Ms 1 said she had seen.

The panel noted the oral evidence of Ms 5, Resident A’s family member, who said that

“…concentrated orange juice would make my husband very ill, it would make him have

severe diarrhoea and abdominal pain, but squash, the carers would make it in different

strengths. So sometimes it would be more diluted than others. But it didn’t matter, even

a little bit of squash could upset my husband.”

66

As the panel was not provided with any record of Resident A being given orange juice

on 13 January 2017, the panel considered other available documentation relating to

Resident A’s fluid intake. The panel noted that in the eating and drinking section of

Resident A’s care plan, it is stated that “… he is not allowed fruit juice…” The panel also

considered Resident A’s food and fluid chart for 13 January 2017. This chart shows that

700ml of “juice” was offered to Resident A during that day. The panel further considered

Resident A’s notes and noted that the clinical nutritionist and dietician recorded “Juice”

as being part of his intake on 7 January 2017. In relation to Resident A consuming juice,

Ms 8, Assistant Practitioner for Dietetics, stated in her oral evidence that she had no

concern about Resident A having juice.

Having considered all of the evidence relating to this charge, the panel decided that the

evidence is tenuous in nature in that it is inconsistent. Whilst Ms 5 and Ms 1 provided

evidence that Resident A was not to have juice, the evidence of Ms 8 and Resident A’s

documentation was to the contrary.


1a (v)(b) under the second limb of Galbraith.

Charge 1a (v)(c)





needs in that;

c) On a date between 17 and 18 January 2017 a resident with a wheat

intolerance was fed cereal for breakfast

67

No case to answer

The panel noted Ms 1’s oral evidence that she saw a resident eating cereal. Ms 1 told

the panel that she confirmed the cereal was not wheat free. She went on to say that the

wheat intolerance was clearly written in the resident’s care plans and that the kitchen

staff and those serving had information regarding residents.

The panel noted that in Ms 1’s January 2017 CQC notes, she made no mention of this

observation and neither was this observation included in her NMC written statement.

The panel was not provided with any specific evidence to identify the resident and no

documentation to verify that there was a wheat intolerance regarding that resident.

The panel considered Ms 1’s evidence to lack specificity as to which resident this

charge involves and that it would be unfair for you to answer this charge.

Accordingly, the panel determined that the evidence in relation to this charge is

inherently vague and that there is no case to answer in respect of charge 1a (v)(c),

under the second limb of Galbraith.

Charge 1a (vi)(a)




vi) Some residents were not being supported to eat independently in that;

a) On a date between 17 and 18 January 2017 at 16:40 Resident F was

seen to attempt to eat an uncut jacket potato from a bowl with a spoon

68

No case to answer

The panel noted that Ms 1 made no reference to this incident in her written witness

statement, but gave oral evidence that she observed Resident F struggling to eat a

jacket potato with cheese from a bowl with a spoon. She stated that the food had not

been cut up and that Resident F was unable to cut the potato with the spoon.

The panel received no evidence as to Resident F’s dependency levels. In particular, the

panel was not informed as to the level of support Resident F required when eating.

Furthermore, the panel was not told as to who provided the spoon to Resident F. It

noted that Ms 1 observed Resident F for about five minutes and did not see what

happened to Resident F thereafter.

In the above circumstances, the panel found that there is insufficient evidence to

continue this charge as the evidence is inherently weak and vague.


1a (vi)(a) under the second limb of Galbraith.

Charge 1a (vi)(b)




vi) Some residents were not being supported to eat independently in that

b) On a date between 17 and 18 January 2017 staff were seen to cut food

up for residents but not offered further support

69

No case to answer

The panel have not been provided with any evidence relating to the unidentified

residents in this charge, nor, any information about their needs and requirements when

eating.

The panel noted that the NMC in its written submission make no comment in relation to

this charge and leaves it to the panel’s discretion.

In the above circumstances, the panel found that there is insufficient evidence to

continue this charge as there is no evidence against you to support this charge.


1a (vi)(b) under the first limb of Galbraith.

Charge 1b (i)


b) You failed to ensure that residents received adequate dental care in that

i) There was no system in place at the home to ensure that residents saw a

dentist

No case to answer

The panel noted the minutes from the Adult Protection Meeting of Kent Country Council

social services on 26 January 2017, where Ms 1 stated that “No one at the home has

seen a dentist”.

The panel noted Ms 1’s oral evidence where she recounted a single conversation with a

resident’s relative who stated that the resident had to have her teeth removed,

70

presumably by a dentist, because of bad oral hygiene. Ms 1 went on to say that she did

not corroborate the account that she was told by the resident’s relative as she did not

look at the resident’s notes or records. The panel noted that this passage of Ms 1’s

evidence is anonymous hearsay which was not tested or verified.

The panel noted Ms 6’s oral evidence that if a resident had oral health needs or needed

to see a dentist, the Home and nurses would liaise with the residents’ relatives.

Furthermore, she stated that the community dentist would visit the residents’ when

needed.

The panel noted Ms 9’s evidence that there was a system in place so that key workers

could ensure that all residents saw a dentist when needed.

The panel found, that the evidence supporting this charge is tenuous in that it is

inherently weak, vague and inconsistent with other corroborated evidence.

In light of this, the panel determined that there is no case to answer in respect of charge

1b (i) under the second limb of Galbraith.

Charge 1c (i)


c) You failed to ensure that the mental health needs of residents were being met in

that;

i) Staff had not received training in mental health

No case to answer

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The panel noted the oral evidence from Ms 1, the Home took in residents with dementia

and with mental health needs. Ms 1 stated that because of these residents that all staff

needed to have mental health training.

The panel carefully considered the Home’s training matrix. It noted that the staff were

required to have dementia training every three years; mental capacity act training every

three years, deprivation of liberty training every three years and challenging behaviour

training yearly. The panel decided that the dementia and challenging behaviour training

are relevant programmes to enable staff at the Home to meet the mental health needs

of the residents. The panel found that mental capacity act and deprivation of liberty

training was not relevant to this specific charge.

The panel noted from the training matrix that by the time of the CQC inspection 59% of

the staff at the Home had received training in dementia and 55% in challenging

behaviour.

The panel noted the wording of this charge which is absolute in that staff had not

received training in mental health. It is clear from the Home’s training matrix that over

half of the staff received relevant training in dementia and challenging behaviour. This

evidence is clearly inconsistent with the allegation.


1c (i) under the second limb of Galbraith.

Charge 1c (ii)


c) You failed to ensure that the mental health needs of residents were being met

in that;

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ii) No Registered Mental Health Nurse had been employed at the home

No case to answer

The panel noted Ms 1’s evidence that there was no member of staff employed at the

Home who had responsibility for “leading mental health matters at the home.”

The panel had regard to the fact that Ms 6 was employed at the Home until the

beginning of September 2016 and that she was a registered mental health nurse. Ms 6

in her oral evidence stated that there were other mental health nurses and a consultant

psychiatrist who visited the Home regularly including a quarterly clinic and when

needed. This was confirmed by Ms 9 in her oral evidence.

The panel noted that the previous interim manager was a mental health nurse who

reverted to being a trainer within the Home when you were appointed manager.

The panel noted the wording of this charge in that it makes no reference to there being

a registered mental health nurse who had responsibility for leading mental health

matters at the Home. The charge is simple in that it alleges that no registered mental

health nurse had been employed at the Home. The panel found that there was clear

evidence to show that Ms 6 and the previous interim manager were employed at the

Home during the relevant period. Ms 6 and the previous interim manager were both

Registered Mental Health nurses.

In light of the information above, the panel determined that the evidence relied on by the

NMC to support this charge is inherently inconsistent with what is alleged.

Accordingly, there is no case to answer in respect of charge 1c (ii) under the second

limb of Galbraith.

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Charge 1c (iii)


c) You failed to ensure that the mental health needs of residents were being met

in that;

iii) Resident C’s care plan did not provide guidance to staff about the

support Resident C required when experiencing hallucinations.

No case to answer

The panel noted Ms 1’s evidence where she stated that she saw Resident C’s care plan

which recorded on 9 November 2016 that he was “exhibiting aggressive behaviours

occasionally due to his psychotic mental states but mainly settled. Visual and auditory

hallucinations.” Ms 1 also stated that the guidance to the staff was to “observe changes

in behaviour” and “identify triggers”. Ms 1 said that there was no guidance on how to

support Resident C through the hallucinations.

The panel had regard to Resident C’s care plan which notes his aggressive behaviour,

psychotic mental state and that he suffered from visual and auditory hallucinations.

Within the care plan and under the section, care and support to be provided, there are

five points of guidance to staff to assist them when Resident C was experiencing

hallucinations. The guidance covers identification of triggers, risk assessment, the need

to respond to Resident C when he is chatting and that he is to be placed on one to one

supervision if he is unsettled. The panel considers this evidences guidance to staff

about supporting Resident C when experiencing hallucinations.

The panel has not heard any expert evidence concerning Resident C’s hallucinations,

save that Ms 1 had spoken to unidentified staff who described his behaviour as “more

akin to dementia symptoms”. The panel noted that this charge is drafted in terms of a

74

failure and that there is no specific evidence before it to establish the exact duty upon

you in respect of Resident C and the hallucinations.

In light of the above evidence and circumstances, the panel determined that there is no

case to answer in respect of charge 1c (iii) as the evidence relied on by the NMC to

support this charge is inherently inconsistent with what is alleged.

Accordingly, there is no case to answer in respect of charge 1c (iii) under the second

limb of Galbraith.

Charge 1d (i)




that;

i) There was no mental capacity assessment undertaken and/or documented

for Resident C who had dementia

No case to answer

The panel had regard to the evidence of Ms 1 who stated in her NMC witness statement

dated 10 August 2018 “We found that staff did not follow the principles of the MCA 2005

in assessing residents’ capacity to make specific decisions, no assessments had been

undertaken. A discussion should be had between healthcare professionals, staff and

relatives to discuss whether decisions should be made on a resident’s behalf whilst

considering if it is in their best interests”. However, in Ms 1’s additional written

information concerning the CQC inspection at the Home in January 2017 that is the

typed document reflecting her hand written contemporaneous notes made on the days

75

of inspection. This information is expansive on a number of issues, however it is silent

so far as mental capacity assessments been undertaken or documented in respect of

Resident C.

The panel also had regard to Ms 3’s oral evidence where she told the panel that, “There

were more MCA being done. I don’t recall the detail of what those assessments would

have been about. There was an improvement, but I could not – I have got nothing

written to evidence that that was an improvement.”

The panel noted the evidence of Ms 6 and Ms 9 that the mental health nurses and the

mental health consultant would visit residents when needed. The panel had particular

regard to Ms 6’s report that was completed following a review of Resident C’s notes. In

this report, Ms 6, a Registered Mental Health nurse, did not mention the need for a

Mental Capacity Assessment for Resident C. The panel bore in mind that Ms 6 was a

registered Mental Health Nurse and it was noteworthy that this conclusion was made by

her particularly in relation to the wording of the charge.

The panel also had further regard to the part of the care plan of Resident C where

Resident C’s mental health and behaviour needs were assessed and documented. Care

and support needs in relation to Resident C’s mental health and behaviour needs were

also documented and in no part of that assessment, completed on 6 November 2016,

was a requirement for a MCA assessed as needed.

The panel noted the NMC’s written submission in which it made no comment in relation

to this charge and left it to the panel’s discretion.

The panel therefore determined that it was not provided with any evidence to indicate

that a mental capacity assessment was required.

In the above circumstances, the panel found that there is insufficient evidence to make

a finding on this charge as there is no evidence against you.

76


1a (vi) (b) under the first limb of Galbraith.

Charge 1d (ii)




that;

ii) There was no assessment of Resident B’s mental capacity undertaken and/or

documented to make a decision on moving from the service.

No case to answer

The panel had regard to the Decision Support Tool (DST) for NHS Continuing

Healthcare extensive assessment documentation dated 24 June 2016. The panel

reasonably inferred that the NHS Continuing Healthcare assessor did not identify the

necessity for a mental capacity assessment to be undertaken.

The panel had further regard to the fact that 4 Registered General nurses and a

Registered Mental nurse had verified and signed Resident B’s updated Decision

Support Tool assessment documentation for NHS continuing Healthcare form on 10

August 2016.

The panel also took account of the cognition section of the Decision Support Tool for

NHS continuing Healthcare, in which there is clear recording that “Resident B is

orientated to person and recognises his daughter when she visits and is aware that he

is in hospital but not which hospital and is not orientated to time…he has always been a

77

very articulate gentlemen and has always been keen to keep on top of current affairs

but his cognitive ability had been affected to the point that he no longer has any

understanding of current issues”. The panel noted that below these records it states that

“MOCHA assessment completed by OT’s- Score 13/30”. It was clear to the panel that

an assessment Resident B’s mental capacity had been undertaken and had also been

documented.

The panel noted the wording of this charge and the phrase “on moving from the

service”. The panel carefully considered the evidence but could find nothing to support

that part of the charge.

The panel noted the NMC’s written submission in which it made no comment in relation

to this charge and left it to the panel’s discretion.

In light of the above evidence and circumstances, the panel determined that there is no

case to answer in respect of charge 1d (ii) as the evidence relied on by the NMC to

support this charge is inherently inconsistent with what is alleged.

Accordingly, there is no case to answer in respect of charge 1d (ii) under the second

limb of Galbraith.

Charge 1e (i)



i) Resident H was not offered a diet which took account of the practices of

their religion

No case to answer

78

The panel had regard to the minutes from the Adult Protection Meeting 26 January

2017, in which Ms 1 had recounted a conversation with the resident’s relative who

stated that the resident was a Seventh Day Adventist which means that she does not

eat pork or shellfish. In the same document, Naomi Hill, Safeguarding Adult

Coordinator, had stated that the “home are [sic] confused as the list they were given

said no pork but she can have pork stuffing.”

The panel had regard to the Additional information re CQC inspection of the Willows

January 2017 (January 2017 CQC notes) in which Ms 1 documented that a family

member told her that Resident H was not offered a diet which reflected her religion.

However, in her oral evidence she told the panel that she did not check Resident H’s

record. The panel noted that it had not been presented with any further evidence such

as food charts for Resident H, or any information of the types of food that resident H

was offered. Therefore the panel was of the view that this evidence is anonymous

hearsay which cannot be tested or verified.

The panel took account of the NMC’s written submission in which it made no comment

in relation to this charge and left it to the panel’s discretion.

Therefore, the panel found, that the evidence supporting this charge is tenuous in that it

is inherently weak, vague and inconsistent.

Accordingly, the panel determined that there was no case to answer in respect of

charge 1e (i) under the second limb of Galbraith.

Charge 1e (ii)



79



Case to answer

The panel was of the view that there is sufficient evidence at this stage to support and

decided that charge 1e (ii) should proceed.

The panel had particular regard to the document January 2017 CQC notes. The

document stated, “…Resident E was visited by her vicar on 18/1/19, she was an active

member of the church and her religion had always been important to her. The vicar

stated that based on her previous preferences he believed that she would want prayers

to be said with her at the end of her life. I discussed this with Kaye Harris who did not

know about Resident E [sic] religious needs or her spiritual needs at the end of her life. I

asked KH if there were spiritual care plans for anyone living at the service she told me

there were several people with spiritual needs but no one had a care plan.”

The panel did note that there was evidence that care staff did talk to the families of the

residents on a regular basis concerning their care and general wellbeing. However, in

relation to this specific charge, the panel could not find any specific documentation

within Resident E’s care plan to ensure that Resident E received prayers at the end of

her life in accordance with her religion.


should proceed. What weight the panel gives to any evidence before it remains to be

determined at the conclusion of all the evidence.

Accordingly, the panel determined that there is a case to answer in respect of charge 1e

(ii).

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Charge 1f (i)



i) Resident C was not provided with any equipment to listen enabling him to

music

No case to answer

The panel took account of the document January 2017 CQC notes. The panel noted

that Ms 1 documented, “Staff told us resident C became tearful at times whilst listening

to music. I asked staff what music resident C liked and they did not know and told me

they had not asked his family. I asked if they thought that his emotional response

maybe because of happy memories, staff said they had not considered this.”

The panel took account of the oral evidence of Ms 1 who told the panel that she

checked Resident C’s “This is Me” documentation and wasn’t clear which type of music

Resident C liked to listen to. She did agree that there was equipment available to listen

to music in the communal lounge but did not go to check Resident C’s room. The panel

also heard the evidence of Ms 9 who confirmed that all residents had radios in their

rooms and there was a CD player in each of the three lounges along with a TV.

Taking this information into account, the panel was of the view that it was clear that

equipment had been made available to Resident C.

The panel further took account of the NMC’s written submission in which it made no

comment in relation to this charge and left it to the panel’s discretion.

81

Accordingly, the panel determined that there was no case to answer in relation to

charge 1f (i) under the second limb of Galbraith.

Charge 1f (ii)



ii) Resident C was discouraged from singing.

No case to answer

The NMC sought, in relation to this charge to rely upon the information contained within

the January 2017 CQC notes which state, “Resident A told us that he liked to listen to

music and sing.” This information clearly relates to Resident A. This charge relates

solely to Resident C being discouraged from singing. The panel was not presented with

any evidence whatsoever in relation to Resident C to support this charge.


charge 1f (ii) under the first limb of Galbraith.

Charge 1g


g) You failed to ensure that the residents’ “This is Me” document was available to

be read and used by staff in their care of residents

No case to answer

The panel noted the wording of this charge. This charge is drafted in terms of a failure.

Consequently, it is for the NMC to establish that there was a clear duty upon you to

82

ensure that the residents’ “This is Me” documents were available to be read and used

by the staff in the care of residents. The evidence of Ms 1 was that these documents,

which contained sensitive information, were kept in a locked office. However, there was

no evidence before the panel that the documents were not accessible to staff.

The panel found that the NMC has not discharged its burden of proof in that, at this

stage, it has provided no evidence whatsoever to establish such a duty upon you.


1g under the first limb of Galbraith.

Charge 1h (i) (ii) and (iii)




i) On a date between 17 and 18 January 2017 staff referred to residents who

needed support with their meals as ‘feeds’

ii) On date between 17 and 18 January 2017 staff referred to residents who

needed support to change position as ‘turns’

iii) On date between 17 and 18 January 2017 staff referred to tasks involving

residents as ‘lounges, turns and fluid run’.

No case to answer

The panel considered charges h (i) (ii) and (iii) together.

The panel had regard to the January 2017 CQC notes in which Ms 1 wrote that “…

there was a disrespectful culture with in [sic] the staff team, Staff described people who

needed support with their meals as ‘feeds’ and people who needed support to change

their position as ‘turns’. One staff member told us they were allocated tasks each

83

morning including “Lounges, turns and fluid run”. This culture had not been challenged

by KH”. In her oral evidence Ms 1 stated that a member of staff at the Home said the

above phrases directly to her during the inspection.

The panel had regard to a letter dated 9 October 2016 from Ms 5 to you in which she

criticised the culture within the Home prior to your appointment as Manager. In that

letter Ms 5 wrote “Personally, I welcome the changes you have made and continue to

make. Particularly in the area of staffing I note a great improvement in the general

atmosphere of the home because the new staff seem friendly and willing to learn.”

Further on, Ms 5 wrote “… from what I glean from the relatives’ meetings [you] have

made serious attempts to stamp out any unprofessional behaviour”. The panel also

noted the oral evidence of Ms 5 where she stated that you had initiated monthly

relatives’ meetings and had made changes within the Home.

The panel had regard to the oral evidence of Ms 9 who spoke of a bad culture amongst

some members of the staff and that you were taking active steps to change this. The

panel noted that Ms 9 in cross examination accepted that you were trying to implement

a “culture change” within the Home and, specifically, “… trying to stamp out that bad

culture”. Ms 9 accepted that you were “making improvements” in the Home. In response

to questions from the panel Ms 9 stated “Kay was the right person for us when we

appointed Kay. She had the right vision. It was problematic when she first started and

we would have expected probably the first three to four months for those problems to be

ironed out – which they were. Kay did make a difference there.” Ms 9 told the panel that

you had dismissed a number of members of staff whilst addressing cultural and

behavioural problems within the Home.

The panel also had regard to the oral evidence of Ms 6 who told the panel that you

began to make changes when you arrived at the Home but that your changes “were not

particularly well received because, as in any circumstances, people are not very

amenable to change”.

84

The panel noted the stem to these three sub charges which is drafted in terms of you

failing to ensure that something occurred. The stem alleges that you “failed to ensure

that staff referred to and treated the residents and their families with respect in that”.

Whilst the panel noted that the alleged words in these three sub charges were relayed

directly to Ms 1 by a member of staff, the panel noted that there was significant

evidence to show that you were seeking to make and actually making changes to the

culture within the Home and the behaviour of the staff. Consequently, the panel found

the evidence in relation to these three sub charges to be tenuous in nature in that there

is clear inconsistency between Ms 1’s evidence and that of Ms 5 and Ms 9.


charge 1h (i) (ii) (iii) under the second limb of Galbraith as the evidence is tenuous in

that it is inconsistent.

Charge 1h (iv)




iv) On a date between 17 and 18 January 2017 residents were left wearing

tabards between breakfast and lunch

No case to answer

The panel carefully reviewed the evidence and transcripts of this hearing but could find

no evidence to support this charge. The panel could find no mention in the evidence of

tabards or any like garments.

85

The panel noted that the NMC in its written submissions makes no comment in respect

of this charge and leaves the matter to the panel’s discretion.

In the above circumstances, the panel found that there is no evidence to support this

charge.


1h (iv) under the first limb of Galbraith.

Charge 1i (i)



i) He received personal care in respect of washing/shaving/hair brushing on

7/9/16, 23/12/16 and 4/1/17

No case to answer

The panel noted the NMC’s written submissions which state that Resident A’s care

notes “indicate for each day [that] the personal care was completed.”

The panel considered the evidence in relation to 7 September 2016. The panel does not

have any documentary information before it in relation to this date. The panel noted that

Ms 5 in cross examination stated that she was present when a named nurse asked a

carer why Resident A’s personal care had not been done. Ms 5 accepted that the carer

said that Resident A had been offered a shave but had refused.

The panel considered the evidence in relation to 23 December 2016. The panel noted

the hand written note made by Ms 5 which states “I arrived at 11.40 am. No evidence of

86

personal care. I alerted senior carer… and duty nurse … [Senior carer] told me his care

had been done. I replied it hadn’t and explained. Carers… came in to check. They did

not attempt personal care because they told me that they were not working on that

floor.” Further on, Ms 5 wrote in her notes for 23 December 2016 that “I requested

Resident A have a bed bath which was given at 2.40…” the panel had regard to the

photographs of Resident A taken by Ms 5 on 23 December 2016.

The panel considered the evidence in relation to 4 January 2017. The panel had regard

to Resident A’s daily report sheet for that date which reads “Resident A was given a bed

bath this morning”.

The evidence in respect of 23 December 2016 and 4 January 2017 is that Resident A

was given a bed bath on each occasion. In respect of 7 September 2016, the evidence

is that Resident A refused a shave. Consequently, the panel decided that the evidence

is tenuous as there is evidence to support the fact that Resident A received personal

care on the two latter dates and was offered personal care, but refused, on 7

September 2016.

The panel noted the NMC’s written submission that the charge as presently drafted may

not address the mischief in that personal care was not completed in a timely manner

rather than not being done at all. The panel was mindful of its discretionary powers

under PSA V NMC and Jozi [2015] EWCH 764 (Admin) to amend this charge in line

with any admitted evidence if it chooses to do so. In this regard, the panel noted that the

present schedule of charges have been amended and re-amended by the NMC during

this hearing. The panel decided that it would be unfair at this stage of the hearing (the

NMC having closed its case) to further amend this charge. Having regard to the

schedule of charges as a whole, the panel determined that Charge 1i (i) is not so

serious as to merit the panel’s intervention under Jozi and that other charges

adequately reflect the seriousness of your alleged misconduct.

The panel decided that the evidence adduced by the NMC is tenuous in that it is

87

inherently weak.


charge 1i (i) under the second limb of Galbraith.

Charge 1i (ii)




No case to answer

The panel noted the written note made by Ms 5 on 23 December 2016 that “I spoke to

Carer … regarding [Resident A’s] dentures not being in. She said he’s had cornflakes

and toast. I said it wasn’t recorded on his diet sheet and he would have been unable to

eat.” The panel had sight of Resident A’s food and fluid chart for the 23 December

2016, a contemporaneous document where at 10 am, a carer had documented that

Resident A drank 200 ml of fluid and ate a 100% of his breakfast consisting of

cornflakes and toast.

The panel noted the stem to charge 1i (ii) which alleges that you failed to ensure that

Resident A’s dentures were inserted at the start of the day on 23 December 2016. The

panel could find no evidence before it as to why this allegation would lead to an

inadequate standard of care or how this demonstrated a failure by you. Consequently,

the panel decided that, taking the NMC’s evidence at its highest, it cannot properly find

this charge proved.

Accordingly, the panel determined that the case must be stopped in respect of charge 1i

(ii), under the second limb of Galbraith.

88

Charge 1i (iii)




7/9/16, 13/12/16, 23/12/16, 30/12/16 and 16/1/17

No case to answer; 7/9/2016

Case to answer: 13/12/2016; 23/12/2016; 30/12/2016 and 16/01/2017

The panel had regard to the written statement of Ms 5 which gives her account of

events on the five dates in question. The panel also took into account the handwritten

notes made by Ms 5 on 23 December 2016 and the photographs taken by her on 13, 23

and 30 December 2016. The panel also noted the oral evidence from Ms 5 in which she

confirmed that on occasion her husband was in unclean clothing and/or left without

clean bedding until she raised concerns with staff.

The panel had regard to the stem of this charge which alleges that you failed to ensure

that there was a system in place so that residents were provided with clean clothing

and/or clean bedding as appropriate.

The panel noted the oral evidence of Ms 6. Whilst she was only employed at the Home

until 7 September 2016, she was able to give evidence that the Home was cleaned on a

daily basis by the housekeeping staff and assumed that bedding was changed daily.

This daily basis of cleaning and housekeeping was corroborated by Ms 9. Further, Ms 9

stated that staff were expected to follow policies and procedures and carry out care as

necessary.

89

The panel considered the evidence in relation to 7 September 2016. The panel has not

been provided with any care records for this date. The panel noted in respect of 7

September 2016 that Ms 5, in her written statement, only states that she was informed

that her husband did not want a shave when a nurse challenged a carer as to why

Resident A had not received any personal care that morning. Ms 5 made no comment

concerning the provision of clean clothing and/or clean bedding for 7 September 2016 in

her written statement nor did she make any complaint about this aspect of her

husband’s care during the course of her oral evidence. Consequently, the panel could

find no evidence against you to support this particular date.


the entry for this date in Resident A’s daily reports sheet which reads “Resident A was

assisted up and with all personal care …” The panel had regard to the fact that this is

the day that Resident A was admitted to hospital. Ms 5 confirmed in her oral evidence

that she received a telephone call from the Home to tell her that her husband was being

taken to the hospital. Further, in her oral evidence, she stated that as a result of the

Home’s telephone call she went from her home directly to the hospital and had not

attended the Home that day. As a result of Ms 5 going directly to the hospital, she

cannot comment upon whether the staff did provide Resident A with clean clothing

and/or clean bedding at the Home. The panel noted that Ms 5 accepted during her oral

evidence that she would not be able to say what care had been provided or how quickly

her husband had been prepared by the staff at the Home so as to admit him to hospital.

The panel noted the photographs provided by Ms 5 which allegedly show a dirty slipper

and marked zip-up blue gilet. Whilst noting Ms 5’s oral evidence as to her husband’s

clothing being dirty, the panel was concerned as to the poor quality of the photographs

and the fact that she saw her husband and took the photographs at the hospital rather

than the Home. This is in the context of Resident A being in a deteriorating state of

health and then being transported and admitted to hospital.

90

Whilst the above evidence concerning 13 December 2016 is contradictory, the panel

had regard to the first stem of this charge which alleges that you failed to ensure that

residents received an adequate standard of care. The panel acknowledged that, at this

stage, there is some evidence to suggest that there was a system in place. This charge

alleges that there was an inadequate standard of care being provided under that

system. In these circumstances, the panel determined that the NMC’s evidence, taken

at its highest, is sufficient at this stage for this charge to proceed in relation to 13

December 2016.


Ms 5’s written statement that her husband was wearing “a soiled tee-shirt” and “wearing

stained clothes”.

The panel considered the photographs taken by Ms 5 on 23 December 2016 which

show him wearing a blue tartan dressing gown. This is the only identifiable piece of

clothing. The photographs do not show Resident A in a soiled T-shirt or wearing any

stained clothing. The only item in the photographs which shows a stain appears to be

on a piece of white gauze which was probably used to wipe Resident A. This is not

clothing. There is no photographic evidence as to the state or otherwise of Resident A’s

bedding.

Whilst the above evidence concerning 23 December 2016 is contradictory, the panel

had regard to the first stem of this charge which alleges that you failed to ensure that

residents received an adequate standard of care. The panel acknowledged that, at this

stage, there is some evidence to suggest that there was a system in place. This charge

alleges that there was an inadequate standard of care being provided under that

system. In these circumstances, the panel determined that the NMC’s evidence, taken

at its highest, is sufficient, at this stage, for this charge to proceed in relation to 23

December 2016.

91

The panel considered the evidence in relation to 30 December 2016. Ms 5 in her written

statement, stated that when she visited her husband in his bedroom “he was lying on an

unclean blue pressure mattress with no bedding. I noticed a white sticky patch on the

mattress.” In examination in chief, Ms 5 said that she asked one of the carers where his

bedding was. Ms 5 stated that the carer said “that they were changing his bedding”.

Further, in examination in chief, Ms 5 stated that to “the best of my memory, later on,

they [the carers] came round with some bedding”. Ms 5 makes no complaint concerning

the state of Resident A’s clothing.

The panel considered Resident A’s daily report sheet for 30 December 2016 and whilst

such reporting does not usually include entries concerning clothing and/or bedding, the

panel noted that there are two separate entries at 3:30 and 17:00 stating that Resident

A was assisted with or provided with personal care.

In light of the evidence in respect of 30 December 2016, the panel determined that there

is sufficient evidence for the case to proceed as the first stem of this charge alleges that

you failed to ensure that residents received an adequate standard of care and this

includes, in the panel’s view, changing the bedding in a timely manner.

The panel considered the evidence in relation to 16 January 2017. The panel noted the

written statement of Ms 5 in which she states that she visited her husband during the

morning on 16 January 2017 and noticed that he “was sleepy and I noticed that he must

have vomited as there was vomit on his pillow”. The panel noted a photograph taken by

Ms 5 which shows a yellow stain on the corner of a pillow. Ms 5 said in her oral

evidence that she spoke to a named carer about the unclean pillow and that “Eventually

it was changed, yes”.

The panel had sight of Resident A’s daily report sheet which reads that he “was

assisted with full personal care” and that there were “no concerns at this time”.

92

In light of the above evidence, the panel noted that whilst there is some evidence to

suggest there was a system in place to change the bedding, it had regard to the first

stem of this charge which alleges that you failed to ensure that residents received an

adequate standard of care. In the panel’s view, adequacy of standard of care includes

providing care in a timely manner.

In light of the evidence in respect of 16 January 2017 the panel determined that there is

a case to answer in respect of that date.

For the above reasons, the panel decided that there is no case to answer in respect of

7/9/16 and a case to answer in respect of 13/12/16, 23/12/16, 30/12/16 and 16/1/17.

Charge 1i (iv)


I) In respect of Resident A you failed to ensure that;

iv) He was provided with a pressure cushion which was necessary for his comfort

on 7/9/16 and 25/12/16

Case to answer

The panel considered the evidence in relation to 7 September 2016. The panel noted

that in Resident A’s care plan (skin integrity) in the care and support to be provided

section there is an entry which reads “When sitting in lounge always sat [sic] on a blue

pressure relieving cushion.” The panel had regard to Ms 5’s written statement where

she stated that “The home did not provide me with a pressure cushion as they advised

me that my husband’s cushion had gone missing”. The panel also took into account

Resident A’s condition and in particular the photographs which were taken by Ms 5.

Whilst these photographs relate to 13, 23 and 30 December 2016 which is over three

93

months after 7 September 2016, the panel decided, taking the NMC’s case at its

highest, that there is evidence which, on one possible view of the facts, it could properly

come to the conclusion that this charge is capable of proof.

The panel considered the evidence in relation to 25 December 2016. Ms 5, in her oral

evidence stated that when she visited her husband on 25 December 2016, he was not

sitting on a pressure cushion. The panel noted that this is reflected in Resident A’s daily

report sheet which at 18:00 states that he was in the third lounge “comfortably sitting on

the chair”. There is no mention of a pressure cushion in respect of the two separate

entries for 25 December 2016. In light of the above evidence, the panel decided that the

evidence, taken at its highest is not tenuous.

Accordingly, the panel determined that there is a case to answer in respect of charge 1i

(iv) in respect of 7 September 2016 and 25 December 2016.

Charge 1i (v)




No case to answer

The panel considered the evidence in relation to 23 December 2016 and any wound

that required dressing. Ms 5 in her written statement stated that during the afternoon

she “noticed that my husband had an exposed skin tear on his thigh and

this should have been dressed”. The panel considered this evidence with the near

contemporaneous handwritten notes made by Ms 5 dated 23 December 2016. The

panel noted that Ms 5 makes no comment concerning her husband having an exposed

94

skin tear to his thigh which required dressing. The panel considered this to be an

inconsistency between the handwritten notes and the oral evidence of Ms 5. The panel

did note that Ms 5 recorded in her notes that “I requested Resident A have a bed bath

which was given at 2.40 by …. They [the carers] witnessed me taking photos.” In the

circumstance of Resident A having a bed bath, he would have been bathed without a

dressing and hence the photographs clearly show that he has no dressing on his thigh.

The panel noted Resident A’s daily report sheet in which an entry at 18:30 records

“dressings done”. The panel also took into account Resident A’s body map for 21 and

23 December 2016 which records “skin tear, inner leg, near knee on right leg”. The

body map records that this was treated with a dressing. The panel also had regard to

Resident A’s ongoing wound assessment form for 23 December 2016 which records a

wound on the left leg. Within that document there is a record of a dressing being

changed on 23 December 2016 to “a small area on left inner thigh outer lower leg”.

In light of the above evidence, the panel decided that the NMC’s evidence, taken at its

highest is tenuous in that it is inherently weak and inconsistent.


charge 1i (v) under the second limb of Galbraith.

Charge 1i (vi)



vi) He was referred to a doctor following concerns that he might be suffering from

an eye infection on or around 30/12/16

95

No case to answer

The panel noted that Ms 5 in her written statement stated “My husband had developed

what I considered to be an eye infection since he had come out of hospital on 21

December 2016.” In cross examination, Ms 5 stated “I’m not medically qualified but I

worked in a hospital as a medical social worker. I have said earlier that I can’t be certain

that it was an eye infection. All I am saying is that it didn’t look normal, it looked like an

eye infection because of the matter around his eyes. But the point I would like to make

is that whether it was an eye infection or not, my husband’s eyes should not have

looked like that…”

Ms 5 stated in her written statement that she told a carer that a nurse was needed to

review her husband’s eyes. In her oral evidence, Ms 5 confirmed that a nurse looked at

Resident A’s eyes, assessed them and that the nurse said it was not an eye infection. In

her near contemporaneous hand written notes, the panel noted that Ms 5 asked for a

nurse to assess her husband and that the “Nurse … felt he didn’t have an eye infection”.

The panel reviewed Resident A’s notes and it appears from several entries on or around

30 December 2016 that he was subject to hourly checks. Nothing is noted in Resident

A’s daily report sheets to show that he had an eye infection or a suspected eye

infection.

The panel had regard to the Adult Protection Case Conference minutes on 26 January

2017 and noted that whilst several aspects of Resident A’s health were discussed, there

is no mention of Resident A having an eye infection.

The panel noted that the NMC in its written submissions makes no further comments in

respect of this charge and leaves it the discretion of the panel.

In light of the above evidence, the panel was of the view that there was no evidence to

support the allegation that Resident A had an eye infection on 30 December 2016.

96


charge 1i (vi).

Charge 1i (vii)



(vii) He was provided with clean bedroom furniture on 30/12/16

Case to answer

The panel noted that Ms 5 in her written statement stated “… that I was unable to sit

next to his bedside as the chair had [faeces] on it”. This is supported by two

photographs of alleged [faeces] on an arm of a chair. The panel noted that Ms 5 made

no mention of [faeces] on the bedroom furniture in her near contemporaneous

handwritten notes for 30 December 2016.

The panel had sight of the photographs taken by Ms 5 on 30 December 2016 titled

“photo of faeces on arm of chair.”

The panel decided, taking the NMC’s evidence at its highest, that this charge should

proceed.

Accordingly, the panel determined that there is a case to answer in respect of charge 1i (vii).

Charge 1i (viii)


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(viii) He was provided with a clean tub of sudocrem

Case to answer

The panel noted that in Resident A’s care plan (skin integrity) in the care and support to

be provided section there is an entry which reads “Proshield spray and gel to be use

[sic] for all continence care and sudocream on sore areas.” However, the panel noted

Ms 5 in her oral evidence stated that sudocrem was not a prescribed treatment for

Resident A but was something that she bought for him.

In light of the above evidence, it appears that sudocrem was part of Resident A’s care

regimen and that Ms 5 saw a dirty tub of sudocrem by his bedside. In these

circumstances, the panel decided that, taking the NMC’s case at its highest, that there

is sufficient evidence, at this stage, for this charge to proceed.

Accordingly, the panel determined that there is a case to answer in respect of charge 1i

(viii).

Charge 1j (i)



(i) Between 17 and 18 January 2017 staff were seen to walk through communal

areas and not engage with residents.

No case to answer

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The panel noted that Ms 1 in her January 2017 CQC notes states that she observed

staff walking through communal areas where residents were and that the staff did not

interact or acknowledge the residents in any way. The panel noted that Ms 1 was

unable to provide any names of the staff concerned or the identities of the residents.

Further, she did not specify in which communal areas this is alleged to have occurred.

In this regard, the panel noted that there are three separate communal lounges within

the Home. Furthermore, the panel noted that Ms 1 could not state whether the members

of staff were on their way to urgent matters or to assist other residents. She could not

say what the staff were engaged in when they allegedly failed to engage with the

residents. In these circumstances, the panel decided, at this stage and in its

professional view, that the evidence in support of this charge, taken at its highest, is

inherently weak and vague. Accordingly, a properly directed panel could not find this

charge proved.


charge 1j (i) under the second limb of Galbraith.

Charge 1j (ii)



(ii) Between 17 and 18 January 2017 an unidentified staff member dragged an


Case to answer

The panel noted that Ms 1 in her written statement stated “… we observed one staff

member walking with a resident and pulling them by the wrist. The resident was

reluctant to walk and appeared anxious. The staff member continued to pull the

99

resident’s wrist. We would expect that the staff member encourage and prompt the

person to walk with them”. In her oral evidence, Ms 1 stated that she actually saw a

resident being pulled by the wrist without any verbal encouragement to walk.

The panel noted that in her submissions, Ms Agyekum does not at this stage seek to go

behind the alleged facts and relies upon your attempts to stamp out the bad culture

within the staff.

The panel decided, taking the NMC’s evidence at its highest, that this charge should

proceed.

Accordingly, the panel determined that there is a case to answer in respect of charge 1j (ii).

Charge 1k




No case to answer

The panel noted the evidence from Ms 1 that she spoke to staff and families who both

said that families were not involved in care planning. Ms 1 said that she saw no

evidence in care plans that families had actually been involved in planning. She also

stated that care plans were not person centred.

The panel noted the cross examination of Ms 1 where she said that she checked the

‘This is me’ document in relation to Resident C. She accepted that this document

recorded the particular needs and preferences in relation to a residents’ care. She

100

expected there to be an entry concerning the music genres and preferences of

residents.

The panel noted the evidence of Ms 6 who stated that there were multi-professional

meetings at the Home involving the mental health team, GP’s, the hospice and mental

health services.

The panel had regard to the evidence of Ms 9 who stated that there were multi-agency

meetings and that various professionals regularly attended the Home and were involved

in care planning.

The panel reviewed the documentation before it and found numerous examples of

relatives’ health care professionals being involved in care planning. For example the

medication care plan for Resident C dated 6 November 2016 reads “Resident C does

not have the capacity or insight or to understand the benefits of covert medication for

his physical health and mental health. Resident C has been assessed as requiring to

have his medication covertly due to increasingly resistant to take his prescribed

medication and frequently spitting it out. Resident C’s wife is aware that he has his

medication given to him covertly.” Another resident’s medication is documented as

having the dispensing pharmacists amending the resident’s MAR charts to reflect a

change to PRN medication.

Resident A’s file shows that his wife was consulted in relation to his capacity

assessment and that an independent Mental Capacity advocate was involved. The

Home’s file in relation Resident A has an index which shows that there is a section

within the file for family communication records and this includes a communication

sheet for family members.

The panel noted that Ms 5 in cross examination accepted that there were monthly

meetings for residents’ family members to raise any concerns. Ms 5 stated that she

101

attended these monthly meetings in October and November 2016.

In light of the conflicting evidence between on the one hand Ms 1 and on the other hand

Ms 6 and Ms 9; and the documentary evidence; and Ms 5, the panel determined that

the evidence is tenuous in that it is inherently weak and inconsistent.


charge 1k under the second limb of Galbraith.

Charge 1L


L) You failed to ensure adequate staffing levels to meet residents’ needs and/or





Case to answer

The panel noted that the Home consisted of 37 residents over two floors. Ms 1’s

evidence was that she spoke to you and that you stated that staffing should comprise of

two team leader (nurses) and ten care staff on each day shift.

The panel noted that in the Safeguarding minutes on 26 October 2016, you told the

meeting that you had increased that to four team leaders on each day shift. The panel

also noted the duty rotas at the Home which were produced by Ms 9. These rotas for 17

and 18 January 2017 appear to show that there were not enough team leaders and care

staff on duty for those days. Ms 1 said that she spoke to staff at the Home who said that

102

residents would get up late because “that’s how long it took to get them up.” The panel

noted that it is possible for it to infer from this that more staff were therefore needed. Ms

1 also stated that staff had told her that often only one nurse was on duty on a shift.

Whilst Ms 3 stated that there are no statutory requirements for staffing numbers in care

homes, the panel decided that, taking the NMC’s evidence at its highest, that this

charge should proceed.

Accordingly, the panel determined that there is a case to answer in respect of charge 1L

(i) (ii) and (iii).

Charge 1m



participate in appropriate daytime activities in that

i) Between 17 January 2017 and 18 January 2017 Activities Staff were

supporting residents to eat and drink and were not supporting residents to take

part in activities.

ii) Between 17 and 18 January 2017 the activities plan was not being followed

No case to answer

The panel noted the evidence from Ms 1 that during the two days of the CQC inspection

she saw activities staff assisting staff to eat and drink but not providing any actual

activities or supporting residents to take part in activities. At the Adult Protection Case

Conference 26 January 2017, Ms 1 told the meeting that activities were “very poor” and

that “On the second day of inspection, there was a second activities lady who was

painting nails and did a lady’s makeup. Upon speaking to the lady she would like to get

103

her makeup done every day but the home do this as an activity and not part of everyday

personal care which for a lady can be a basic part of her routine.”

The panel could find no evidence before it that there is a requirement to provide

activities every day. The panel noted the evidence of Ms 3 who stated that there were

activities and that there was an activities co-ordinator. Ms 3 stated that the activities co-

ordinator provided “stimulation for residents”. The panel also noted the evidence from

Ms 6 and Ms 9 who confirmed the evidence of Ms 3 in that there was an activities co-

ordinator and further an activities rota at the Home.

The panel noted that the evidence as between on the one hand Ms 1 and the other

hand Ms 3 and Ms 6 was inconsistent. In these circumstances, the panel decided that

the evidence is tenuous in that it is inconsistent and therefore inherently weak.

In light of this, the panel determined that there was no case to answer in respect of

charge 1m in its entirety under the second limb of Galbraith.

Charge 1n (i)




i) Medications

No case to answer

The panel noted Ms 1’s evidence in her January 2017 CQC notes which reads “I asked

KH what checks and audits she completed on the service to ensure it was operating to

a good standard and people’s needs were met. She told me, she planned to introduce a

104

new audit system but had not done this at the time of the inspection. I asked what

checks were completed on medicines and KH told me that she relied on checks

completed by the local pharmacy and no checks were completed by herself of other

staff. Pharmacy checks had not been completed regularly. We would expect checks to

be completed, daily, weekly and monthly to check specific areas are managed safely

and any errors are identified and addressed.”

The panel had regard to Ms 4’s evidence. Ms 4 accepted that her evidence was “vague”

because she took part in the CQC inspection “a long time ago” and that since that time

she has inspected about 50 other care homes. Ms 4 in her oral evidence stated that

“CAS alerts” were sent to the Home Manager who then “discussed them with the lead

nurse for action if necessary.” Ms 4 told the panel that there were Medicines Health

Care Regulations Authority (MHRA) alerts which were put into a specific folder in the

Home. This folder was then signed to say whether a lead nurse had actioned the alert.

The panel noted that within Ms 4’s CQC hand written contemporaneous notes that

“MHRA and CAS alerts folder seen and signed etc.” Ms 4 also told the panel that the

controlled drugs were checked. These checks included the balances which were done

daily and witnessed.

The panel noted the evidence of Ms 6 who said that the night nurse did the monthly

medication check and also that the pharmacist would come in every month to oversee

medicines managements generally. Ms 6 said that the pharmacist would also check and

deliver the MAR charts. She said that the pharmacist would read the MAR charts, talk to

whoever was on the shift and work out what had changed since the previous week or

cycle. If medications were low, which was unlikely, the local pharmacy would be

contacted and could deliver the medication. Ms 6 also confirmed that there was a

monthly medication audit which was discussed at the monthly nurses’ meetings.

The panel noted the evidence of Ms 9. She said that the pharmacist would conduct

regular monthly audits, assess staff competencies and there had even been a request

by you for the pharmacist to come to the Home at the weekend.

105

The panel had regard to the evidence of Ms 1 where she said that acceptable audits of

medication must take place internally in accordance with regulation 17 of the Health and

Social Care Act 2008. However, the panel has not been provided with any detail of

regulation 17 of the Health and Social Care Act 2008, updated in 2014, setting out any

of the following: a) duties as to the required frequency of medication checks and b)

whether any such medication checks can be carried out by either a pharmacist or a

nurse and c) that any such medication checks must only be completed internally to the

Home.

The panel decided that the NMC’s evidence to support the charge is inherently weak.

Further, the panel was of the view that the evidence which is contrary to this charge is

weighty.


charge 1n (i) under the second limb of Galbraith.

Charge 1n (ii)




ii) Care Plans

No case to answer

The panel noted the evidence of Ms 1 in her January 2017 CQC notes that “A care plan

audit had been completed on “some” care plans, KH did not have a system in place to

check regularly check [sic] that everyone [sic] care plans were always up to date and

accurate.” Ms 1 told the panel in her oral evidence that she found no evidence of any

106

audits having taken place in relation to care plans in the Home. She said nothing was

provided to her when she asked during the inspection or subsequently when the checks

and balances on the report were made. Ms 1 stated that it was the manager’s statutory

responsibility to conduct regular audits and not to rely on audits by others.

The panel noted Ms 9’ oral evidence that the completion of care plans would be

delegated but quality assurance audits would be done. She said that there were such

audits in place at the relevant time and that she was overseeing these audits completed

by you.

The panel noted Ms 6’s oral evidence that the care plans were reviewed by the nurses

“every calendar month”. She said that the monthly reviews were mainly carried out by

the night staff.

The panel reviewed the care plans within the documentation provided to it and noted

that they were reviewed on a monthly basis. For example, Resident A’s care plan dated

16 November 2016 was reviewed on 21 December 2016 and 24 January 2017.

Resident B’s care plan was reviewed and evaluated on 13 October, 13 November, 13

December, 28 December 2016 and 19 January 2017.

The panel found that this constitutes evidence of regular care plan checks to ensure the

residents received an adequate standard of care.



weighty.


charge 1n (ii) under the second limb of Galbraith.

107

Charge 1n (iii)




iii) Fluids

Case to answer

The panel noted Ms 1’s evidence in her January 2017 CQC notes that “A new fluid audit

had been devised in December 2016 but had not been put into operation to check that

people were being supported to drink enough each day to maintain good health. The

last audit had been completed in May 2016.”

The panel noted the oral evidence of Ms 3 who was unable to say whether there were

individual food and fluid charts for the residents and relied upon what was said in the

minutes of the safeguarding meeting.

The panel reviewed the documentation before it and noted that a number of the

reconciliations within the fluid charts failed to state a balance. Further, the panel noted

that a number of fluid charts were filled in but had not been checked.


should proceed.

Accordingly, the panel determined that there is a case to answer in respect of charge 1n (iii).

108

Charge 2a


that



Case to answer

The panel noted Ms 4’s written statement where she states “During the inspection, I

noticed that some medicines (I do not recall which ones) were stored in a medicines

fridge and the temperature was too high on occasions. The fridge was recorded as

having a maximum temperature of 10.9 on 9 occasions from 9 January 2017 to 18

January 2017. The temperature was consistently at 10.9 degrees Celsius and I would

have expected it to have been 2 to 8 Celsius. Action had not been taken to make sure

that these medicines were stored at the correct temperature and the nurses that I spoke

to did not know how to reset the thermometer.” Ms 4’s statement is supported by the

hand written contemporaneous notes which she made during the CQC inspection. In

those notes she wrote “Fridge temperatures monitored daily but going above range” and

“Nurses are unsure as to how to reset thermometer”.

The panel noted that Ms 4 was unable to identify what medicines had been stored in the

fridge on any specific dates.


should proceed.

Accordingly, the panel determined that there is a case to answer in respect of charge 2a.

109

Charge 2b


that

b) You failed to put in place an effective system to ensure that residents’ medication

was always in stock as required in that



a) 4 January 2017

b) 5 January 2017

c) 10 January 2017

d) 11 January 2017

e) 14 January 2017



d) 31 December 2016

e) 1 January 2017

f) 2 January 2017

g) 3 January 2017

iii) On 10 January 2017 Memantine 20mg was out of stock and as a result was


iv) On the following dates Citalopram 20mg was out of stock and as a result was

not administered to an unidentified resident on

a) 15 January 2017

b) 16 January 2017

c) 18 January 2017

110

Case to answer

The panel noted the written statement of Ms 4 which states “Effective systems were not

in place to order residents’ medicines from the pharmacy, and as a result, some

residents have not received these medicines as they were out of stock. These included

medicines for the treatment of high blood pressure, depression and Alzheimer’s

disease. Zopiclone 3.75 mg for insomnia was not given as there was no stock for the

person on 4/1/17, 5/1/17, 10/1/17, 11/1/17 and 14/1/17… perindopril for hypertension

was not given on 31/12/16, 1/1/17, 2/1/17, 3/1/17. Memantine for dementia was not

given on 10/1/17. Citalopram for depression/anxiety was not given on 15/1/17, 16/1/17

and 18/1/7.” This evidence was supported by Ms 4’s handwritten contemporaneous

notes made during the CQC Inspection. In her oral evidence, Ms 4 said that “… you

expect them to have some kind of prompting system that flags up when people are

running low. Some people use also used [sic] countdown sheets so that they are very

aware of how many medicines somebody has left for the month.” She stated that there

was no such system in place at the Home at the time of the CQC inspection.

Whilst Ms 4 was unable to identify the patients in respect of these medicines and could

not confirm whether she looked at their respective care plans, the panel decided, in light

of the above evidence, that this charge should proceed.

Accordingly, the panel determined that there is a case to answer in respect of charge 2b

(i) (ii) (iii) (iv) to proceed.

Charge 2c (i)


that

111


prescribed in that:

i) There was no ‘when required PRN’ policy in place

No case to answer

The panel had regard to the cross examination of Ms 4 and whether she

comprehensively read the medications policy at the Home. When specifically asked if

there was a PRN policy within the medications policy, Ms 4 said “I haven’t recorded that

but I would imagine so. I can’t say for certain. I didn’t take a whole copy of the

medicines policy. Sometimes they can be like 100 pages long so usually on inspection I

have a look through what the expectations are and … yeah, I can’t really say”.

The panel noted the oral evidence of Ms 9 who stated that there was a covert

medication policy and PRN policy in the medication care plans.

The panel noted the oral evidence of Ms 6 who said “I think there was a separate PRN

policy, because each PRN medication had to have a PRN protocol written for it”. She

went on to say that this could be found in each residents’ care plan and that “It backed

onto their medication care plan”.

The panel reviewed the documentation before it and noted that within residents’ care

plans there was a PRN Medication Plan. For example, there were PRN Medication

Plans for Resident A in respect of Diazepam and Paracetamol.

In light of the above evidence, the panel decided that the evidence to support the

charge is contradictory and, taken at its highest, is inherently weak.


charge 2c (i) under the second limb of Galbraith.

112

Charge 2c (ii)


that


prescribed in that:

ii) An unidentified resident was prescribed one or two paracetamol to be taken

four times a day when required but there was no records to state why he

needed it and/or how many tablets to administer.

No case to answer

The panel noted Ms 4’s written statement where she stated “One of the residents had

been prescribed one or two paracetamols to be taken four times a day “when required”

but there was nothing within the resident’s records that stated why they needed it. This

information should have been recorded within the resident’s records”.

The panel had regard to the stem of this charge which alleges that you failed to ensure

that residents were administered medication as and when prescribed. The panel noted

that the NMC has provided no evidence to establish a duty that a nurse must record the

reason why he/she administered a medicine when the medicine concerned is an ‘over

the counter’ medicine. In the panel’s professional view there is no such duty when a

nurse administers paracetamol.

In light of the above evidence and view, the panel decided that this charge is not

capable of being proved.

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charge 2c (ii) under the first limb of Galbraith.

Charge 2d (i)


that

d) You failed to ensure that residents were given medication in a way which did not

risk affecting its efficaciousness in that;

i) Between 17 and 18 January 2017 Resident C was administered drugs in a

yogurt

No case to answer

The panel noted the evidence of Ms 1 in the Adult Protection Case Conference Minutes

on 26 January 2017 that “The meds are given to the patients in yogurt. There is one pot

of yogurt for the entire home this is used on the morning drugs round and then left out

until the afternoon meds round. There was one lady in the middle of eating her fish pie

who was stopped to receive her medication in yogurt and then carried on eating her fish

pie.”

The panel noted the evidence of Ms 4. In her written statement she stated “One

resident’s tablet had been crushed and given to them in a yogurt, however, dairy

products reduce the absorption of the medicine and there was a risk that it would not be

effective”

The panel noted that charge 2d (i) specifies that Resident C was administered drugs in

a yogurt. The panel has been provided with no evidence to show that Resident C was in

fact administered drugs in a yogurt. Further, the NMC has not provided any evidence

114

identifying the medication in question nor any general evidence about the

efficaciousness of administering the particular medication in a dairy product.

In light of the above evidence and the specificity of charge 2d (i), the panel decided that

there is, at this stage, insufficient evidence to continue this charge.


2d (i) under the first limb of Galbraith.

Charge 2d (ii)


that



ii) Between 17 and 18 January 2017 an unidentified resident was administered

drugs in a yogurt

Case to answer

The panel considered the two passages of evidence set out in the first two paragraphs

of its decision in relation to charge 2d (i) above.

Whilst charge 2d (ii) does not require the identification of the resident, it does require

the NMC to prove that the effectiveness of the particular drug administered to the

unidentified resident was compromised by being given with yogurt. The panel had

regard to the oral evidence of Ms 4 who said in her evidence in chief to a question

concerning dairy products and medication effectiveness “In this instance I think the

115

medicine we are referring to here was an iron tablet. Iron tablets are best not taken with

milk containing products because it affects the absorption.”

The panel decided that taking the NMC’s evidence at its highest, that this charge should

proceed.

Accordingly, the panel determined that there is a case to answer in respect of charge 2d

(ii).

Charge 2e


that

e) You failed to ensure that staff were provided with guidance in respect of “when

required” medication should be prescribed

No case to answer

The panel noted Ms 4’s written statement in which she stated “Some residents’ were

prescribed medication such as pain relief “when required” (“PRN”). Guidance has not

been provided to staff about the “when required” medicines should be prescribed. I

would have expected guidance to have been given to staff to confirm when the

medicine should be offered, how residents might request the medication or the

minimum time needed between doses.” The panel also noted that Ms 4 in her

handwritten contemporaneous notes wrote “no PRN protocol”. In her oral evidence she

explained that the PRN protocol is guidance that enables nurses to know when to give a

medicine that is given on a ‘when required’ basis.

The panel noted Ms 4’s written statement in which she stated “Some residents were

prescribed medication such as pain relief “when required” (“PRN”). Guidance had not

116

been provided to staff about the “when required” medicines should be prescribed [sic]. I

would have expected guidance to have been given to staff to confirm when the

medicine should be offered, how residents’ might request the medication or the

minimum time needed between doses.”

The panel noted the oral evidence of Ms 6 who said “I think there was a separate PRN

policy, because each PRN medication had to have a PRN protocol written for it”. She

went on to say that this could be found in each residents’ care plan and that “It backed

onto their medication care plan”.

The panel reviewed the documentation before it and noted that within residents’ care

plans there was a PRN Medication Plan. For example, there were PRN Medication

Plans for Resident A in respect of Diazepam and Paracetamol.

In light of the above evidence, the panel decided that the evidence to support this

charge is inherently weak to the extent that a properly direct panel could not find this

charge proved.


charge 2e under the second limb of Galbraith.

Charge 2f


that

f) You failed to operate an adequate system to ensure that covert administration of

medication only took place in appropriate circumstances

No case to answer

117

The panel noted the written statement of Ms 4 and the section entitled “Covert

Medication Administration”. In her oral evidence Ms 4 said that the giving of covert

medication is not documented at the Home. She stated that in the records that she

reviewed, no pharmacist had been consulted in relation to the administration of covert

medications. Ms 4 also stated that she saw a female resident being given half a

Lorazepam tablet in some yogurt by one of the nurses and that “there was no

assessment for this lady requiring her medicines to be given a disguised form.”

The panel noted that Ms 4 in her oral evidence said that there was an in-date

medications policy in place. She stated that she did not look at the whole of the

medications policy and could not be sure that there was no covert medication guidance.

She went on to say that a nurse confirmed with her that medication and any incidents

regarding medications were discussed at monthly meetings. She also gave evidence

that the nurses at the Home had told her that they had medication training including “CD

training, PRNs, MARS, all the things I’ve listed basically”. Ms 4 accepted in her

evidence that she did not look at all of the records for the residents who required covert

medication. She only looked at a sample. When asked about particular residents, she

could not confirm that she looked at that resident’s records.

The panel noted that Ms 6 in her oral evidence stated that a pharmacist came to the

Home regularly and within the nurses meetings there was discussion about

medications.

The panel noted that Ms 9 said that the pharmacist signed off nurses in respect of

medication administration training. The panel considered that it is reasonable to infer

from this that it would necessarily include convert medications.

The panel noted that there is a new and revised document when using covert

medications at the Home and this, in the panel’s view, appears to evidence the Home’s

involvement and consultation with the pharmacist. This appears to evidence that you

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were trying to put in place an enhanced system in respect of the administration of covert

medication.

In light of the above evidence, the panel decided that the evidence to support this

charge is contradictory and inherently weak to the extent that a properly directed panel

could not find this charge proved.


charge 2f under the second limb of Galbraith.

Charge 3 (a) and (b)






Case to answer

The panel noted the evidence of Ms 1 in which she said that she asked for and

reviewed staff records for staff that had been employed since you became the Home

Manager. Ms 1, in her oral evidence, confirmed the note in her January 2017 CQC

notes that she asked for the DBS checks for three members of staff and that none were

on record. She stated that those members of staff were working without supervision on

17 and 18 January 2017. She said that she spoke to you to confirm what steps had

been taken to supervise these members of staff and she was told by you that no steps

had been taken. Ms 1 stated that it is a legislative requirement for the registered

manager of a home to ensure that staff working have had DBS checks and the

119

appropriate risk assessments have been conducted. She also said that you provided no

rebuttal documentation to the CQC report when it was sent to the Home to address any

issues or inaccuracies therein. Ms 1 said that you knew that one member of staff had

disclosures on his DBS and that there was no risk assessment in relation to those

disclosure and no strategies in place to ensure that he was supervised whilst working.

She said that she spoke to you and that you confirmed that there were no risk

assessments for other members of staff who had disclosures on their DBS.

Whilst the panel noted that there was some conflicting evidence from Ms 9 who stated

that after interviewing all applicants all requests for DBS were sent to the Home’s head

office, the panel decided that there is sufficient evidence for charge 3a and 3b to

proceed. In allowing charge 3a and 3b to proceed, the panel considered that the NMC’s

evidence largely depends on the view to be taken in respect of witness reliability. At this

stage and on one possible view of the facts, there is in the panel’s view evidence on

which it could properly come to the conclusion that this charge is capable of proof.


and 3b.

Charge 3c



c) You failed to take up offers of support and/or training from visiting professionals

No case to answer

The panel noted the evidence of Ms 1 who said that you had not taken up offers of

support. Ms 1 said that you had received offers of support in relation to Mental Capacity

120

Act and Safeguarding. She said these offers came from the local authority and the

Mental Health Nurse who worked for Continuing Care.

The panel noted the evidence from Ms 7 who said that Safeguarding training had been

arranged but was cancelled by you. She went on to say that this training was re-

arranged and that staff were to attend when they were off duty. Ms 7 said that two or

three members of staff attended the training and that it was not effective as a result.

The panel noted the evidence of Ms 6 who said “… staff turnover was exceptionally

high, the attitude to work was different, people didn’t think twice about just not turning

up for a shift, or walking out of a shift”.

The panel noted the evidence of Ms 3 who stated that you had acted on her suggested

training from Kent County Council. She went onto say that she understood that you

were having some difficulty in securing some training for the Home because it was a

private provider.

The panel had regard to your action plan for the Home dated October 2016. It noted

that you and another member of staff attended training for DOLS and Safeguarding on

18 November 2016 and that an external trainer gave training to you and the lead nurse

around DOLS and Safeguarding procedures on 31 October 2016. Further, the action

plan records that there was a training matrix. The panel also noted that there was an e-

mail dated 14 October 2016 with your action plan. This e-mail was from Ms 3 to you. In

that e-mail Ms 3 described a meeting with you as being “positive”. Ms 3 went on to say

in the e-mail that “You should be reassured that many of the points I raised you were

already aware of and are in the process of working out how to resolve and improve

them. I am happy that you use the points I have raised as part of your action plan and

that you will build in completion dates that are achievable and that you can sustain the

progress.”

121



weighty.


charge 3c under the second limb of Galbraith.

Charge 3d





ii) keeping people safe from abuse

iii) fire safety


Case to answer

The panel noted the Home’s Staff Training Matrix 2016 (updated January 2017) (the

Staff Training Matrix) which shows that whilst there were systems for the training of staff

not all members of staff had been trained in respect of restraining residents in a safe

way; keeping people safe from abuse; fire safety; and the principles of the Mental

Capacity Act 2006. In this regard, the panel noted the various pie charts for December

2016 appended to the Staff Training Matrix which quantify the percentage of staff

attending training out of 61 applicable employees at the Home.

In light of the above evidence, the panel decided that there is sufficient evidence at this

stage to proceed with charge 3d.

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Accordingly, the panel determined that there was a case to answer in respect of charge

3d.

Charge 3e



e) Untrained healthcare assistants were being asked to check the administration of

controlled drugs by trained nurses

No case to answer

The panel noted the oral evidence of Ms 4 where she said that she was mistaken about

untrained Health Care Assistants being asked to check the administration of controlled

drugs by trained nurses. She said that she had confused the administration of drugs

with the stock take. Ms 4 agreed that she was in fact witnessing the receipt of

medication from the pharmacy.

The panel noted the NMC’s written submission that it made no positive comment in

relation this charge and left it to the panel’s discretion.

In light of the above, the panel decided that there is no evidence capable of supporting

this charge.

According, the panel determined that there was no case to answer in respect of charge

3e, under the first limb of Galbraith.

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Charge 3f




Case to answer

The panel noted the evidence of Ms 1 who wrote in her January 2017 CQC notes, “No

staff whose records we looked at had completed a competency based induction

process. New staff had been employed by KH as she was also recruiting to staff

vacancies. I spoke with [a member of staff] who was working her second shift at the

service on 17/1/19. I observed that she was not supervised or supported by other staff.

[This member of staff] told me her induction was ‘very vague’ and she was ‘very

confused’ about what she was expected to do. KH told me that [another member of

staff] was her mentor and should have been supporting her. I discussed this with KH

who was not aware [the member of staff] was not being support [sic].” Ms 1 in her oral

evidence stated that she had asked to see the documentation in relation to induction

and supervisions. She said she was not provided with any evidence that these were

taking place.

Whilst some of the above evidence is clearly hearsay and other witnesses (Ms 6 and

Ms 9) gave some evidence that you had introduced inductions, supervisions, shadowing

and mentorship, the panel decided on balance that there is sufficient evidence, at this

stage, for this charge to proceed. In coming to this conclusion, the panel notes that the

issue in this charge is the adequacy of any process which may have been in place. The

panel will consider what weight it will give to the hearsay evidence when finding facts.

Accordingly, the panel determined that there is a case to answer in respect of charge 3f.

124

Charge 3g



g) An adequate system for ensuring team meetings was not in place

No case to answer

The panel noted the evidence of Ms 1 in her January 2017 CQC notes that “… team

meeting were held months [sic] but KH told me that staff attendance was ‘adhoc’ and

she had not put any strategies in place to make sure that all staff attended the

meetings.” In relation to this note made by Ms 1, the panel noted that the word “months”

is in all likelihood means monthly. Ms 1 gave evidence that there were minutes of the

team meetings.

The panel noted the evidence of Ms 6 who said that there were staff meetings,

managers meetings and monthly nurses’ meetings. She added that at the nurses’

meeting there was a partially set agenda and the opportunity for staff to add to the

agenda. The set items included discussion around medication, the medication audits,

any incidents, reviews, and things that had come up in the month. It was Ms 6’s

evidence that these meetings were communicated to staff.

In light of the above evidence, the panel decided that the NMC’s evidence to support

the charge is inherently weak. Further, the panel was of the view that there is a

preponderance of evidence contrary to this charge.


charge 3g, under the second limb of Galbraith.

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Charge 3h



h) An adequate system for ensuring that staff were supported in their role was not in

place

Case to answer

The panel noted the evidence of Ms 1 in her January 2017 CQC notes in that “I

discussed supervisions and clinical supervisions with KH, she told me an effective

system to provider [sic] staff with supervision was not in operation and she had planned

to offer staff 4 weekly group supervisions. [A member of staff] had receive [sic] 1

supervision in 2016 on 6/7/16. [Another member of staff] had receive [sic] 1 supervision

in 2016 on 24/12/16.”

Whilst there is some evidence from Ms 6 and Ms 9 that you had introduced inductions,

supervisions, shadowing and mentorship, the panel decided on balance that there is

sufficient evidence, at this stage, for this charge to proceed. In coming to this

conclusion, the panel note that the issue in this charge is the adequacy of any system

which may have been in place.

Accordingly, the panel determined that there is a case to answer in respect of charge

3h.

Charge 3i



126

i) An adequate system of supervision and/or clinical supervision for staff was not in

place

Case to answer

The panel noted the evidence of Ms 1 in her January 2017 CQC notes in that “I

discussed supervisions and clinical supervisions with KH, she told me an effective

system to provider staff with supervision was not in operation and she had planned to

offer staff 4 weekly group supervisions. [A member of staff] had receive [sic] 1

supervision in 2016 on 6/7/16. [Another member of staff] had receive [sic] 1 supervision

in 2016 on 24/12/16.” Further, Ms 1 in her January 2017 CQC notes wrote “KH told me

when asked that nurses had not received clinical supervision”.

Whilst there is some evidence from Ms 6 and Ms 9 that you had instituted some

supervision sessions at the Home, the panel decided on balance that there is sufficient

evidence, at this stage, for this charge to proceed. In coming to this conclusion, the

panel note that the issue in this charge is the adequacy of any system which may have

been in place.

Accordingly, the panel decided that there is a case to answer in respect of charge 3i.

Charge 4a






and treatment

127





Case to answer

The panel noted the evidence of Ms 1 and her January 2017 CQC notes which state

“Resident C had been taken to hospital following a fall from his wheelchair at 17.30 on

16/1/17. He had a V shaped laceration to his left eyebrow. No guidance to staff had

been provided at the morning handover about Resident C [sic] care and treatment. I

spoke with staff who did not know when Resident C had returned from the hospital and

what, if any, care he should be offered. Regular checks on Resident C had not been

planned or completed. Staff I spoke with did not know if there were any signs or

symptoms that may indicate that Resident C required further treatment”.

In cross examination Ms 1 said that she had not seen who had brought Resident C back

to the Home and she did not witness the handover. She said that she would have

expected there to be records of his return, advice and a plan for how he was going to be

monitored. She added that these matters should have been recorded so that it was

accessible to all of the staff on duty. Ms 1 accepted that Resident C could have been

returned to the Home about 10 minutes before she saw him. She went on to say “… he

could have returned several hours before, but because the records weren’t clear

nobody was able to tell me when he’d returned. The day staff I spoke to weren’t able to

tell me.” Ms 1 said that there was a leaflet from the hospital in Resident C’s care plan.

She described this leaflet as being “like a guidance leaflet” and that “The leaflet was

generalised. It wasn’t specific to him. Care should have been planned for him.” She said

that she did not read the document but “What I did was ask the staff, because it was

important that the staff knew what they were doing. When I asked the staff if there was

any signs that they were supposed to be looking for, any concerns or any worries that

they would have, any care that they were giving to the person that day, any checks that

128

they had to do, they told me they didn’t know. Regardless of what’s in the records, it’s

really important that staff know and staff didn’t know”.

In light of the above evidence, the panel determined that there is sufficient evidence, at

this stage, for this charge to proceed.

Accordingly, the panel found that there is a case to answer in respect of charge 4a (i),

(ii), (iii) and (iv).

Charge 4b (i)




i) Between 17 and 18 January 2017 an unknown resident was moved from a

wheelchair to an armchair in a toilet sling which was incorrect.

No case to answer

The panel noted the evidence of Ms 1. In her written statement dated 10 August 2018,

she stated “We observed one patient, I cannot confirm who, was moved from a

wheelchair into an armchair with a toilet sling. A toilet sling is used to transfer people on

and off the toilet as it offers less support than a standard sling; therefore increasing the

risk of that person falling out of the sling. We asked the healthcare staff why they were

using this sling and they told us that ‘this is the sling I was told to use by the team

leader. It is a full body sling.’ ” At the Adult Protection Case Conference meeting on 26

January 2017 Ms 1 told the meeting “… that when speaking to a member of staff they

said they use a medium sling to move this lady and that even though it had a different

client’s name on it they had been told it was fine to use it.” In her oral evidence, Ms 1

129

did not provide any explanation for the discrepancy between a toilet sling and a medium

sling and said “There was no guidance around what size sling was best for that person”.

The panel noted the NMC’s written submission that the charge as presently drafted may

not address the mischief in that a toilet sling is not used and it was a medium sling. The

panel was mindful of its discretionary powers under PSA V NMC and Jozi [2015] EWCH

764 (Admin) to amend this charge in line with any admitted evidence if it chooses to do

so. The panel decided that this charge cannot be amended by using its discretionary

powers under Jozi. Any amendment would address a material and fundamental

inconsistency in the evidence of Ms 1 who was an eye witness to the alleged incident.

This inconsistency goes to the core of Charge 4b (i) as the mischief is the type of sling

that was used. The panel also noted that the present schedule of charges have been

amended and re-amended by the NMC during this hearing. The panel decided that it

would be unfair at this stage of the hearing (the NMC having closed its case) to further

amend this charge. Having regard to the schedule of charges as a whole, the panel

determined that Charge 4b (i) is not so serious as to merit the panel’s intervention under

Jozi and that other charges adequately reflect the seriousness of your alleged

misconduct.

In light of the above evidence, the panel determined that the NMC’s evidence is

inconsistent and inherently weak.


charge 4b (i), under the second limb of Galbraith.

Charge 4b (ii)


130




move the resident.

Case to answer

The panel noted Ms 1’s evidence in her written statement in that “We checked the

resident’s records as we would have expected to have seen a clear explanation as to

how to move the resident”. In her oral evidence Ms 1 said in cross examination that she

looked through the resident’s moving and handling care plan but “There was no

guidance around what size sling was best for that person”. She went on to say “ There

was no moving and handling plan that said this person needed to be using which piece

of equipment and which sling”.

The panel had regard to the wording of the stem to this charge and determined that

whilst the NMC has not produced any documentary evidence which shows that this

specific resident should have been assessed for moving and handling, it is the panel’s

professional view, at this stage, that all residents in a care home should be fully

assessed in respect of moving and handling.


should proceed.

Accordingly, the panel determined that there is a case to answer in respect of charge 4b

(ii).

Charge 4c


131



Case to answer

The panel noted the evidence of Ms 6 who stated in her written statement that she

looked at Resident C’s MAR charts for the period between 31 October 2016 and 23

January 2017 and that “… it is clear that the prescription for Lorazepam on MAR 1 and

MAR 2 states ‘one 3 times a day’ but this has been crossed out and replaced with ‘take

one as required’ (‘PRN’). In relation to MAR 3, this still indicates that 1mg of Lorazepam

should be administered three times a day. Therefore it would appear that staff could

have administered this medication regularly when it should have been given PRN (as

required).”

In her written statement, Ms 6 stated that when she reviewed Resident C’s notes at the

time that “I noticed that a GP had reviewed the prescription on 17/11/16 and changed

the dose from a regular dose to PRN” by a handwritten entry directly on the MAR chart.

The panel had regard to Ms 6’s report around January 2017 that she wrote following her

review of Resident C’s notes and medication. In that report she noted that within

Resident C’s care plans there was a protocol for the use of PRN Lorazepam. In her

conclusion to the report, Ms 6 wrote “… the systems and processes supporting the

change to PRN medication were not adhered to…”. Consequent to her report, Ms 6

asked the dispensing pharmacist to amend the MARs with a typed entry to reflect the

change to PRN as the MARs had only been altered by way of hand written entry which

did not comply with local procedure.

In her oral evidence, Ms 6 said “I think there’s just been a lack of continuity in what’s

been prescribed. Well, not what’s being prescribed, how it’s actually been put on to the

MAR sheets”. The panel noted that the printed dosage of ‘three times a day’ was

132

crossed through on Resident C’s MAR chart and “PRN/ take one as required” was

written in by hand.

The panel reviewed the MARs documentation for Resident C and noted the handwritten

PRN prescribing changes for 29 October 2016 and 26 November 2061 and could see

that they had not been updated by the pharmacist.

In light of the above evidence, the panel decided that charge 4c is capable of proof as

there is sufficient evidence at this stage.


4c.

Charge 4d (i)






Case to answer

The panel noted Ms 1’s evidence. In her January 2017 CQC notes she wrote “Resident

C [sic] records showed that he had renal failure. I looked at his care plans and found

that care had not been planned to support his [sic] with this need.” In her oral evidence

she was asked in cross examination what she would have expected to see in Resident

C’s care plan concerning his renal failure. She said “I would expect to see a care plan

which told staff any signs that the person was deteriorating, any special care and

consideration they had to give the person, any restriction or guidance around fluid

intake, around their output. Just information for staff so they would be able to provide

133

the person’s care in the way that they needed it, and recognise any signs that the

person needs were changing. The majority of the care was given by health care

assistants. So they are not clinically trained, so I would have expected them to have

clear guidance in place of what to look for and then what to do when they saw those

signs. ”

The panel had regard to the Resident C’s care plans before it that appear detailed,

personalised and set out the “care and support to be provided” guidance for the care

staff. None of these care plans refers to the care and support needs of Resident C in

relation to his renal failure.

In light of the above evidence, the panel decided that charge 4d (i) is capable of proof

as there is sufficient evidence at this stage.

Accordingly, the panel determined that there is a case to answer in respect of charge 4d

(i).

Charge 4e (i)


e) You failed to ensure that care plans contained adequate information concerning

a resident’s needs and preferences

i) No care plans had been written with residents and families that contained

information on residents’ particular needs and preferences in relation to their

care.

134

No case to answer

The panel noted Ms 1’s evidence. In her January 2017 CQC notes she wrote

“Everyone’s care plans had not been written with them or their families and did not

contain detailed information about their needs and preferences”.

The panel considered this charge and compared it to charge 1k above. The panel could

not distinguish between these two charges. They appear to be co-terminus. In these

circumstances, the panel found that there is no case to answer for the reasons given in

respect of charge 1k.


charge 4e (i), under the second limb of Galbraith.

Charge 4f (i)




i) No checks had been completed on care plans

No case to answer

The panel noted that the NMC relies upon anonymous hearsay told to Ms 1 from staff at

the Home that no checks were done on care plans to ensure that they were accurate.

This evidence, attracts, in the panel’s view, little or no weight and is therefore inherently

weak.

The panel noted the care plans of Resident A and C. Their care plans include monthly

evaluations and checks. This evidence is contrary to the allegation in Charge 4f (i).

135

The NMC in its written submissions made no positive submission and left this charge to

the panel’s discretion.

In light of the evidence, the panel decided that there is no evidence capable of

supporting this charge.


charge 4f (i), under the first limb of Galbraith.

Charge 4f (ii)




ii) Risk assessments had not been applied whilst considering what care a

resident will require

No case to answer

The panel noted that the NMC has adduced no evidence supporting this charge and

makes no positive argument in its written submissions. The NMC leave it to the panel’s

discretion.

The panel noted that Resident A’s care plan shows that regular reviews and risk

assessments were undertaken.

The panel noted the existence of documents in relation to body maps, skin integrity,

tissue viability, MUST, mobilising and resident handling profiles and wound assessment

forms in respect of various residents. These had all been updated and formed part of

the risk assessment in relation to residents.

136

The panel decided that there was clear evidence that there was an adequate system to

ensure that risk assessments had been applied whilst considering what care a resident

will require.

In light of the above evidence, the panel decided that there is no evidence to support

this charge. The panel determined that there is significant evidence to the contrary.


charge 4f (ii), under the first limb of Galbraith.

Charge 4f (iii)




iii) Decisions about residents treatment and care delivery were not recorded

No case to answer

The panel noted that there is clear evidence that the decisions about resident’s

treatment and care delivery are recorded. The panel reviewed the care documentation

in relation to Residents A, B and C and found an abundance of such decisions being

recorded. For example, Resident A’s extensive care plan shows that regular reviews

were undertaken, risk assessments completed and decisions about care recorded.

The panel noted that the NMC made no positive submissions in respect of this charge.

137




charge 4f (iii), under the first limb of Galbraith.

Charge 4f (iv)




iv) Daily care had been recorded in multiple sites

No case to answer

The panel carefully considered the wording of this charge. The panel is unclear as to

the phrase “multiple sites”. The panel do not know whether the NMC is alleging multiple

sites in the sense of different buildings, different areas of a building or different

documents. The panel could find no evidence to clarify or support this charge.

The panel reviewed Resident A’s care plan and noted that his daily records were

contained within his care plan and therefore recorded in one place.




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charge 4f (iv), under the first limb of Galbraith.

Charge 4f (v)






Case to answer

The panel noted the oral evidence of Ms 5. She said that whilst she was with her

husband on 30 December 2016 there were no hourly checks done, even though they

were recorded. Ms 5 photographed her husband’s daily report sheet which shows the

handwritten entry for 30 December 2016 indicating that hourly checks were given.

In her NMC statement, Ms 5 stated that after her conversation with you about the lack of

her care her husband was receiving, she then “… checked my husband’s daily report

sheet. The report stated that the health care staff had checked my husband on an

hourly basis … the nurses had not checked him on an hourly basis whilst I was there.”

The panel looked at the photograph taken by Ms 5 of her husband’s daily report sheet

and compared this with the daily report sheet for 30 December 2016 in Resident A’s

care notes. The daily report sheet in Resident A’s care notes, as referred to by Ms 5,

indicating that hourly checks were given was made at 3:30 by the night staff. The panel

noted a further entry, made by the day staff that recorded hourly checks were given.

The alleged failure in this charge relates to hourly checks being recorded but that they

were not carried out hourly during the visit of Ms 5.

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In light of the above evidence, the panel decided that charge 4f (v) is capable of proof

as there is sufficient evidence at this stage.

Accordingly, the panel determined that there is a case to answer in respect of charge 4f

(v).

Charge 5

5) Failed to ensure that a system was in place to effectively investigate and/or manage

concerns and/or complaints

No case to answer

The panel noted the Adult Protection Case Conference minutes on 26 January 2017

where Ms 1 told the meeting that she “… spoke to KH about complaints received but

there were no records and KH had no recall of any”.

The panel noted the oral evidence of Ms 5 who confirmed that there were “roughly

monthly” meetings for residents’ family members to raise any concerns. Ms 5 said that

she attended these meetings in October and November 2016.

Ms 9 in her evidence stated that there was a system in place for complaints. She said

that there was a complaints log which was looked at regularly. She also said that there

was a suggestions book in the foyer of the Home and confirmed that there were

relatives’ meetings to air concerns. She added that you had an open door policy

allowing anyone to enter your office and raise a concern.


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charge 5, under the first limb of Galbraith

Charge 6a

6) Failed to ensure that a system was in place concerning the notification of incidents to

CQC in that;



Case to answer

The panel noted the evidence of Ms 1. In her January 2017 CQC notes which she wrote

“Resident C [sic] records showed that on 12/1/17 he had grabbed another person’s

pillow and the person and slapped and punched Resident C. I spoke to KH who said

that she was not aware of this incident so had not reported it to the local safeguarding

authority. Adequate systems had not been put in place so staff understood what

constituted abuse, including vulnerable adult to vulnerable adult abuse and ensure that

it was reported in a timely way.”

In her oral evidence Ms 1 said that a registered manager is under a statutory obligation

to report significant events to the CQC in a timely manner. The length of time is not

prescribed in the legislation. In Ms 1’s view, she said that the length of time that had

passed since the above incident was too long and that you should have reported it to

the CQC. She said that there were no systems in place that would have alerted staff to

tell you, so that you could comply with your statutory obligation.

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The panel noted your statutory notification about an application to deprive a person of

their liberty, your e-mail regarding a safeguarding notification on 29 November 2016, the

statutory frame work which does not specify a period of time to report an incident and

that the alleged assault upon Resident C was some five to six days before the CQC

inspection.

In light of the above evidence, the panel decided that there is a sufficient evidence, at

this stage, which is capable of supporting this charge.


6a.

Application for an adjournment

The panel heard submissions from Ms Agyekum for a short adjournment to allow time

for you to read and understand the panel’s decision on your application of no case to

answer and thereafter to give full instructions to your legal representatives.

Ms Agyekum submitted that you require an adjournment to “about 10 am tomorrow”.

Ms Agyekum referred the panel to Rule 32 of the Rules and submitted that an

adjournment would cause no injustice to the parties. She submitted that in allowing an

adjournment, the public interest in the expeditious disposal of the case would be

addressed by you giving full instructions on the remaining charges and thereby

potentially saving time when you present your case. Ms Agyekum submitted that there

would be no inconvenience caused to the NMC or you if an adjournment was granted.

She submitted that an adjournment should be granted to you to satisfy the requirement

for fairness under Rule 32 (4)(c) of the Rules.

Ms Guest made “no observations” upon the application.

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The panel accepted the advice of the legal assessor who referred to Rule 32 of the

Rules.

The panel gave careful consideration to Rule 32 (2) and (4) of the Rules which states:

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

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

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

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

present) and taking advice from the legal assessor.

(4) in considering whether or not to grant a request for postponement or adjournment,

the Chair or Practice Committee shall, amongst other matters, have regard to –

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

(b) the potential inconvenience cause to a party or any witnesses to be called by

that party; and

(c) fairness to the registrant.

The panel noted that its decision on no case to answer is lengthy, detailed and covers

85 pages. The decision leaves 47 charges extant at the fact finding stage.

The panel considered whether any injustice would be caused to the parties if an

adjournment was granted. The panel could not find any such injustice to either party.

The panel decided that you must be afforded adequate time to properly understand the

decision on no case to answer and for you to give instructions and prepare your case.

In considering whether or not to grant your application for an adjournment, the panel

had regard to the public interest in the expeditious disposal of your case. In this regards,

the panel determined that by granting the adjournment it would potentially enable you to

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save time when you present your case. Given the stage of this hearing, the panel could

find no potential inconvenience to any party or any witnesses to be called if it granted an

adjournment.

The panel determined that it would be fair to grant your application. In coming to this

conclusion, the panel noted the history of these proceedings and the significant re-

amendment of the charges at the outset of this hearing. Further, the panel noted that it

has made a lengthy determination on your no case to answer application and that a

significant number of charges remain at the facts stage. The panel concluded, in the

interest of justice, that you must be given adequate time to properly understand the

remaining charges and to fully prepare your defence.

In light of the above reasons, the panel granted an adjournment to Thursday 24 October

2019 at 10:00.

Decision on the findings on facts and reasons

Agreed Facts

The panel was provided with the following schedule of agreed facts as between the

parties before starting it’s determination of the facts.

“ On 3 May 2019 the RCN requested, by email

1. The notes from your job interview, and all other documentation about her

application;

2. The recruitment policy in force at the time of your recruitment;

3. All notes/minutes from the management meetings

4. All notes/minutes from the monthly team meetings

5. The agendas of the monthly team meetings

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6. Your annual leave record for the entire period of her employment. We

believe the dates were booked on her appointment;

7. Your supervision notes, PDPs, and/or any other record or documentation

relating to your performance and/or management;

8. A copy of your proposed updated care plan template. We believe she put

this forward in September or October 2016;

9. A copy of the business pack you emailed to Ms 1 following the meeting on

26 October 2016;

10. A copy of the new staffing rota you introduced.

Following requests of Premier Care Homes and Ms 1, the NMC supplied the

following to the RCN:

Your job application form (see 1)

A Recruitment and Selection Policy Statement signed by Mr 10 dated

1.10.18 (see 2)

Your annual leave record for the entire period of her employment (see 6)

Information to the effect that Ms 1 had confirmed that you had sent her a

copy of the business pack prior to the CQC inspection but that it was not

actioned. She was unable to locate the document and thought it likely that

it had been destroyed given the passage of time (see 9).”

In reaching its decisions on the facts, the panel took into account all of the oral and

documentary evidence in this case together with the submissions made by Ms Guest,

on behalf of the NMC and those made by Ms Agyekum on your behalf.

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

The panel is 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

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will be proved if the panel was satisfied that it was more likely than not that the incidents

occurred as alleged.

The panel heard oral evidence from eight witnesses tendered on behalf of the NMC. In

addition, the panel heard oral evidence from you.

Witnesses called on behalf of the NMC were:

Ms 1 – a CQC Inspector;

Ms 3 – Clinical Nurse Specialist for Older People in Care Homes, employed by the

Clinical Commissioning Group (CCG);

Ms 4 – a CQC Medicines Inspector;

Ms 5 – Wife of Resident A;

Ms 6 – Mental Health (MH) nurse adviser for the Home;

Ms 7 – Safeguarding Adults Coordinator, employed by the Local Authority;

Ms 8 – Assistant Practitioner for Dietetics;

Ms 9 – Operations Manager for Premier Care Homes.

The panel first considered and made an overall assessment of the credibility and

reliability of all of the witnesses it had heard from, including your evidence. The panel

made allowances for the fact that they were trying to recall events in 2016 and giving

evidence in an unfamiliar environment.

The panel noted that Ms 1 was an experienced CQC inspector. However, the panel also

noted that she was not a registered nurse and appeared to have a superficial

understanding of the detailed role that a nurse would perform in a care home. The panel

found that she had made a number of assumptions concerning certain aspects of the

Home. For example she gave evidence that the residents care records were solely kept

in the manager’s office. However, alternative evidence was available to demonstrate

that care records were available in the residents’ rooms and lounges. As a result, the

panel found Ms 1 to be very guarded and defensive when cross examined and

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questioned by the panel. The panel did not regard her as being obstructive but she had

a black and white way of viewing matters. Consequently, she gave a rigid account of

events and would not be swayed when presented with clear and persuasive counter

evidence. For example, one resident in the Home had dementia, her relatives did not

want to discuss her spiritual needs and the care staff documented this in the care plan.

Her vicar was visiting the Home to say prayers with her as she had been previously a

very active member of his congregation. However, Ms 1 formed the view that staff had

failed to consider the resident’s spiritual needs and this formed the basis of an

allegation in this case, even though she was aware of all of those circumstances. The

panel noted that Ms 1 was, at times, inconsistent in giving evidence as between her

written statement and hand written contemporaneous notes. The panel considered that

these inconsistencies were likely to be due to the passage of time between the CQC

inspection in January 2016 and the making of her NMC statement on 10 August 2018.

The panel also noted that Ms 1, at times, relied on hearsay during the course of her

evidence. The panel found that Ms 1 was calm and collected when giving evidence.

There was no evidence of any personal grievance in respect of you, the staff or the

Home.

Ms 3 was the Clinical Nurse Specialist for Older People in care homes employed by the

CCG. The panel found her helpful in relation to the concerns within the Home when you

first became manager. The panel noted Ms 3’s view as to how these problems would be

solved. The panel found Ms 3 to be very supportive of you and your positive attitude

towards making changes and improvements to the Home. However, the panel noted

that Ms 3 did not document a number of matters. In particular, she was unable to

provide the panel with any minutes of a number of meetings with you. Consequently,

the panel was unable to specifically ascertain as to whether the improvement action

plan for the Home was being fully implemented. In this regard, the panel noted that Ms

3’s recollection of the meetings which she had with you was incomplete. Ms 3 was

unable to say whether her level of concern in respect of the Home’s management had,

at specific times, increased or decreased. The panel found that whilst Ms 3 was helpful

and illuminating about a number of matters, she was unable, given her incomplete

147

recollection, to help the panel unless provided with the relevant documentation. When

provided with the relevant documentation, the panel found that she was reliable and

credible.

Ms 4 was a CQC Medicines Inspector who took part in the CQC inspection of the

Home. The panel noted that Ms 4 was an experienced medicines inspector. The panel

found her to be helpful, credible and reliable. She was willing to accept when she got

things wrong. For example, the checking-in process for Controlled Drugs following

delivery from pharmacy, which she thought was the responsibility of care assistants, but

was in fact the responsibility of the registered nurses. The remit and nature of her

inspection was discrete and narrow. The panel noted that she had to rely on her notes

which were contemporaneous.

Ms 5 was the wife of Resident A. When you first became manager, the panel noted that

Ms 5 was supportive of you and the change of culture which you were trying to

implement at the Home. However, Ms 5’s initial positive view of you and your

management changed. The panel was unclear as to why Ms 5’s view of you and your

management changed. The panel noted that there were a number of issues in the

background which may well have had an influence upon Ms 5’s overall way of viewing

you. These issues involved Ms 5’s husband and the standard of his care at previous

homes, her understandable emotional involvement in her husband’s health and care

and her desire to secure the best possible outcome for him. Consequently and

understandably, this led to Ms 5 being emotional and rigid when giving answers. The

panel noted that Ms 5 had extremely high standards and very definite expectations of

the standard of care which her husband should have received. The panel found Ms 5’s

notes and photographic evidence to be of assistance and her evidence to be credible

and reliable when supported by independent evidence.

Ms 6, was the mental health adviser for the Home and assisted with the provision of

mental health care for the residents at the Home. She provided the panel with a good

picture of the overall operating environment within the Home. In particular, the panel

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found Ms 6 to be helpful and clear on the systems and processes within the Home. Ms

6 worked alongside you and was supportive of the energy and efforts which you were

making in trying to change the Home. The panel noted that she wished to stay and

support you through the implementation of your changes. The panel found Ms 6 to be

helpful, credible and reliable in her evidence.

Ms 7 was the Safeguarding Adult Coordinator employed by the Local Authority. The

panel noted that Ms 7 was limited in the scope of her evidence in that she only focused

on safeguarding processes. She relied on her written notes and was not able to provide

the panel with any additional information beyond these notes. To this extent, she was

helpful, reliable and credible. The panel noted that Ms 7 thought that a short period of 6

months was sufficient to turn the Home around.

Ms 8 was the Assistant Practitioner for Dietetics. The panel noted that Ms 8 was a

technician rather than a registered dietician. To this extent, the panel found Ms 8 did her

best to assist the panel and was helpful in explaining how a resident had been removed

from the Dietetics Service database in error resulting in a service failure to follow up and

review the resident as planned. The panel found Ms 8 to be credible and reliable on

matters upon which she was experienced and qualified.

Ms 9 was the Operations Manager for Premier Care Homes, the organisation that

owned the Home. The panel noted that Ms 9 was not a registered nurse and that her

past experience was in human resources. The panel found Ms 9 was helpful,

informative and detailed on operational matters in the Home. She was clear about the

state of the Home when you became manager and was helpful concerning the changes

which you were seeking to implement. Ms 9 appeared to be supportive of you and a

team player in that she stated that “we all learned a lot” as you changed things within

the Home.

The panel considered that you showed enthusiasm and a genuine wish to improve the

state of the Home. The majority of your evidence was credible. However, there were

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some inconsistencies concerning, for example, the documentation of Resident C’s

Lorazepam. At one instance you said that you knew about the documentation; at

another that you relied upon the staff to properly document matters; then you adopted a

midway position saying that it was partially your responsibility and that of the staff. The

panel noted that, at times, you could not recollect matters given the passage of time

since 2016. The panel considered that, as manager, your evidence that you did not

have any conversation with Ms 1 over the two days of the CQC inspection to be

somewhat implausible. Further, this implausibility was reinforced by your evidence that

you did not seek to have a meeting with Ms 1 at the conclusion of her inspection.

Furthermore, at the end of giving your evidence, in response to panel questions, you

did, in fact, accept that you spoke to Ms 1 during the inspection visit.

The panel therefore considered the evidence that it had heard in relation to each charge

and made the following findings:

Charge 1a (ii)






This charge is found NOT proved.

The panel noted that the observation chart for Resident B’s monthly weight recordings

was signed for by the same person on six occasions between 17 October 2016 and 22

December 2016. The weight entered on 17 October 2016 was 71.1 kg. Two of the dates

appear as blank in respect of weight and the other three entries range between 53.2 kg

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and 57.6 kg. The panel also noted that in Resident B’s referral to the Dietetics Service

and his care records that his weight had stabilised between November 2016 and 19

January 2017 at about 57kg. The person who made the referral and records notes was,

Ms 11, who was not a nurse on the floor but a personal assistant to you.

The panel noted Resident B’s care plan and within the eating and drinking section of

that plan, his assessed needs were that he should be under the care of a dietician and

that he should have a Forti-juice supplement and a food chart. There was an evaluation

on 13 December 2016 that Resident B was losing weight. It was noted that Resident B

was declining any support or assistance and was throwing his food and drink onto the

floor. Shortly thereafter, Resident B was admitted to hospital because of diarrhoea and

vomiting. He lost some weight whilst in hospital and was discharged back to the Home

on 21 December 2016. The panel noted that there was some improvement in Resident

B’s weight by 22 December 2016. Notwithstanding this improvement, Ms 8’s evidence

was that Resident B was subject to a referral dated 24 December 2016 made by a

named registered nurse at the Home and received by the Community Dietetics Services

on 28 December 2016. There was also a further referral, marked urgent, made by Ms

11 to the Community Nutrition Service (CNC) ON 20 January 2017.

The panel noted from Resident B’s notes that it was recorded on 25 January 2017 that

he had “19% weight loss in less than 3 months.” Resident B’s recorded weight in

October 2016 was 71kg; 53kg on 13 December 2016 and 57kg on 22 December 2016.

It was also noted in Resident B’s notes that his MUST weight score on 25 January 2017

was “2+” which placed him at high risk. However, within the same notes made on 25

January 2017, the panel noted the nutritional diagnosis. This diagnosis reads “recent

hospital admission for diarrhoea and vomiting. No medical or infective causes found.

Reduced kcal intake from reducing cola intake, ongoing diarrhoea. Also challenging

behaviour issues possible causes for reduced intake. Likely to meet nutritional

requirements with current oral intake. AIM. Maintain current heathy weight 57 kg…

2.Continue fortijuice x 2 as prescribed by GP”.

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The panel had sight of Resident B’s MUST chart documentation that included the time

standards for referral to the Dietetics Service following weight loss. In the panel’s

professional view, the referrals made by the staff in the Home in respect of Resident B

following his weight loss were compliant with those standards.

In light of the above evidence, the panel found that this charge is not proved on the

balance of probabilities. On the above evidence, the panel considered that there was an

adequate standard of care in that you ensured that residents’ nutritional and/or dietary

needs were adequately met. Specifically, it appears that Resident B was made the

subject of a prompt referral on 24 December 2016 and thereafter on 20 January 2017

following concerns about his weight. The evidence shows that Resident B’s weight had

already stabilised by the time the dietician assessed him following the first referral and

that she just continued the forti-juice. There were no concerns noted by the dietician

regarding the promptness of the first referral.

Therefore, this charge is found not proved.

Charge 1a (iii)




iii) Resident B had not been receiving his prescribed high calorie drinks following

a significant weight loss


The panel took account of Ms 1’s evidence in that she was able to ascertain that

Resident B was prescribed high calorie drinks because she “found the information

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recorded in his care notes”. In her oral evidence, Ms 1 states that she had spoken to the

kitchen staff and those responsible for serving meals at the Home and that they said

that they had no knowledge of Resident B being prescribed high calorie drinks. Ms 1

could not identify these members of staff and the panel has not heard or read any such

supporting evidence. Accordingly, the panel attached no weight to what amounts to

anonymous hearsay.

The panel found your evidence clear in respect of this charge. You stated that Resident

B was receiving the high calorie drinks and that you knew this because, in consultation

with the dietician and the mental health team, you had found a solution to overcome

Resident B from throwing them away.

The panel noted from Resident B’s referral documentation and care records that he had

been prescribed forti-juice to be taken twice each day and to “continue fortijuice x 2 as

prescribed by GP”. The panel also noted that Resident B’s assessed needs in his care

plan stated that he was to have a forti-juice supplement. This is reflected in the entry

dated 19 January 2017 which states that a named doctor “prescribed fortijuice

supplement drink”.

The only evidence that the NMC has provided in support of this charge comes from Ms

1. There is no documentation provided in relation to Resident B that records his daily

fluid intake.

As Ms 1’s evidence was reliant upon anonymous hearsay, the panel was left with the

documentary evidence which shows that Resident B was prescribed high calorie drinks

and, in the absence of any positive evidence to the contrary, was therefore receiving

them. In this regard, the panel took into account that the burden of proof is upon the

NMC to prove on the balance of probabilities that Resident B had not been receiving his

prescribed high calorie drinks. The panel determined that the NMC has not discharged

this burden in respect of the allegation that he has not been receiving the high calorie

drinks.

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Therefore, this charge is found not proved.

Charge 1a (iv)









These charges are found NOT proved.

The panel considered charges 1 (a)(iv) (a) and (b) together as they relate to one event

observed by Ms 1 and to one alleged mischief.

The panel noted Ms 1 in her January 2017 CQC notes wrote that on 17 January 2017

she “observed Resident D being supported to have breakfast at 11.00 and Resident E

was being supported to have her breakfast at 11:15. They were then offered lunch at

12:30”.

The panel accepts the facts of what Ms 1 actually saw. However, the panel noted the

first two stems to these two charges which are drafted in terms of failing to ensure that

residents’ receive an adequate standard of care in respect of their nutritional and/or

dietary needs being adequately met. The panel has not been provided with any dietary

or nutritional records in respect of residents D and E. In the absence of such

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documentary evidence the panel determined that the NMC has not discharged its

burden of proof on the balance of probabilities.

The panel noted the times that Resident D and Resident E were supported to have

breakfast. It considered it likely that the times provided were as a result of these

residents getting up late in the morning thereby missing the earlier scheduled breakfast

time. In the panel’s professional view it considered that being offered lunch routinely as

it became available at 12:30 would not in itself necessarily be a problem as it allowed

them to choose whether to have lunch or not.

The panel noted your evidence that there was a 24 hour food service whereby the

residents, if they so wished, could have food as and when they requested it and they

would be offered such additional food on a regular basis as evidenced by Ms 6 and Ms

9. Again, as the panel have no dietary or nutritional records in respect of residents D

and E, it is unable to determine whether this regime was suitable to these two residents.

Therefore, these charges are found not proved.

Charge 1e (ii)





This charge is found NOT proved

The panel noted the evidence from Ms 1 that she spoke to the vicar of Resident E when

he visited the Home on 18 January 2016. She told the panel that the vicar said that

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Resident E had previously been a very active member of his congregation. Although

Resident E, now was suffering from dementia, in the vicar’s view’s, based on the

Resident E’s previous preferences, would most likely want to receive prayers. Indeed,

the vicar was in fact visiting the Home to say prayers with Resident E on that basis. Ms

1 confirmed that she was unable to speak directly to Resident E about her spiritual

needs as a result of her dementia.

The panel also noted that within the Adult Protection Case Conference minutes dated

26 January 2017,when Ms 1 checked Resident E’s care plan, there was nothing in it

about her religious requirements save that her “family did not want to discuss”. This

shows that there was an entry on Resident E’s care plan to show that her spiritual

needs had been considered but that her family were not willing to discuss it.

The panel had no care plan documentation before it in relation to Resident E and

therefore was not able to determine the medical status of Resident E and whether she

was in fact at the end of her life. The panel noted your account that Resident E was not

in fact at the end of her life.

In light of the family not wanting to discuss the spiritual needs of Resident E and that the

Resident was suffering from dementia. It appeared to the panel that staff did consider

her spiritual needs but were unable to identify her specific preferences. Notwithstanding

her difficulties it is clear from Ms 1’s evidence that Resident E was receiving prayers

from her vicar in line with his understanding of her wishes.

For the above reasons the panel decided that this charge is not proved on the balance

of probabilities.

Charge 1i (iii)


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7/9/16 (no case to answer), 13/12/16, 23/12/16, 30/12/16 and 16/1/17

This charge is found proved in respect of clothing on 13/12/16;

This charge is found NOT proved in respect of bedding on 13/12/16;

This charge is found NOT proved in respect of clothing or bedding 23/12/16;

This charge is found proved in respect of clothing and bedding 30/12/16;

This charge is found proved in respect of bedding on 16/1/17;

This charge is found NOT proved in respect of clothing on 16/1/17.

The panel considered the evidence in relation each charge separately. The panel

carefully considered the photographs taken by Ms 5 in the hospital and those taken at

the Home together with her oral and written evidence.

13 December 2006:

The panel decided on the photographic evidence that Resident A’s clothing appears to

be dirty. In particular, his gilet and slippers appear to be not clean. The panel could not

find any evidence that the bedding was not clean on this date.

This charge is found proved in respect of clothing and not proved in respect of bedding

on 13 December 2006.

23 December 2016:

The panel considered the photographs taken by Ms 5 on 23 December 2016 which

show Resident A wearing a blue tartan dressing gown. This is the only identifiable piece

of clothing. The photographs do not show Resident A in “a soiled T-shirt” or “wearing

any stained clothes” which is alleged in Ms 5’s statement. The only item in the

photographs which shows a stain appears to be on a piece of white gauze which was, in

the panel’s professional judgement, probably used to wipe Resident A’s face. This is

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neither clothing nor bedding. There is no photographic evidence as to the state or

otherwise of Resident A’s bedding on this date.

In light of the above evidence, the panel determined that this charge is not proved in

respect of clothing or bedding.

30 December 2016:

The panel considered the evidence in relation to 30 December 2016. Ms 5 in her written

statement, said that when she visited her husband in his bedroom “he was lying on an

unclean blue pressure mattress with no bedding. I noticed a white sticky patch on the

mattress.” In examination in chief, Ms 5 said that she asked one of the carers where his

bedding was. Ms 5 stated that the carer said “that they were changing his bedding”.

Further, in examination in chief, Ms 5 stated that to “the best of my memory, later on,

they [the carers] came round with some bedding”. Ms 5 makes no complaint concerning

the state of Resident A’s clothing.

The panel considered Resident A’s daily report sheet for 30 December 2016 and whilst

such reporting does not usually include detailed entries concerning the times of

changing clothing and/or bedding, the panel noted that there are two separate entries at

3:30 and 17:00 stating that Resident A was assisted with or provided with personal

care.

The panel noted the wording of this charge which alleges a duty to provide clean

bedding to Resident A. Two photographs taken by Ms 5 clearly show that Resident A

was lying on a blue mattress which has no bottom sheet and no top sheet. The panel

took into account that these photographs could have been taken at the time of the

bedding being changed. However, the panel, in its professional judgement would expect

that the old bedding would have been removed at the same time that the new bedding

was introduced. This method is generally called the roll off/roll on method.

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In light of the above reasons, the panel found that this charge is proved in respect of

bedding.

The panel noted the wording of this charge which alleges a duty to provide clean

clothing to Resident A. Two photographs show that whilst Resident A has what appears

to be a clean top on his body, he is unclothed save for an incontinence pad on his lower

half. The panel decided that in light of this evidence, Resident A was not provided with

clean clothing in terms of pyjama bottoms or trousers.

In light of the above reasons, the panel found that this charge is proved in respect of

clothing.

16 January 2017:

The panel considered the evidence in relation to 16 January 2017. The panel noted the

written statement of Ms 5 in which she states that she visited her husband during the

morning on 16 January 2017 and noticed that he “was sleepy and I noticed that he must

have vomited as there was vomit on his pillow”. The panel noted a photograph taken by

Ms 5 which shows a yellow stain on the corner of a pillow. Ms 5 said in her oral

evidence that she spoke to a named carer about the unclean pillow and that “Eventually

it was changed, yes”.

The panel had sight of Resident A’s daily report sheet which reads that he “was

assisted with full personal care” and that there were “no concerns at this time”.

The panel noted your evidence that key workers should have been in and out of

Resident A’s room about five to six times each hour. On the basis of your evidence, the

soiled bedding should have been replaced with clean linen.

In light of the above evidence, the panel found this charge proved in respect of bedding.

The panel could find no evidence to support this allegation in relation the clothing.

Accordingly, the panel found this charge not proved in respect of clothing.

159

Charge 1i (iv)



iv) He was provided with a pressure cushion which was necessary for his

comfort on 7/9/16 and 25/12/16.

This charge is found proved.

The panel considered the evidence in relation to 7 September 2016. The panel noted

that Resident A’s care plan (skin integrity) and specifically the “care and support to be

provided section” where-in there is an entry which reads “When sitting in lounge always

sat [sic] on a blue pressure relieving cushion.” The panel had regard to Ms 5’s written

statement where she stated that “The home did not provide me with a pressure cushion

as they advised me that my husband’s cushion had gone missing”. The panel also took

into account Resident A’s condition and in particular the photographs which were taken

by Ms 5. These photographs relate to 13, 23 and 30 December 2016 which is over three

months after 7 September 2016 and showed him to be of very low weight and therefore

likely to be at risk of skin breakdown.

The panel considered the evidence in relation to 25 December 2016. Ms 5, in her oral

evidence stated that when she visited her husband on 25 December 2016, he was not

sitting on a pressure cushion. The panel noted that this is reflected in Resident A’s daily

report sheet which at 18:00 states that he was in the third lounge “comfortably sitting on

the chair”. There is no mention of a pressure cushion in respect of the two separate

entries for 25 December 2016.

The panel decided the evidence set out above supports this charge. The panel decided,

that on the balance of probabilities that even if there were several pressure cushions

160

available around the Home, Resident A was not provided with a pressure cushion which

was necessary for his comfort on the two dates alleged.

For the above reasons the panel decided that this charge is found proved on the

balance of probabilities in respect of 7 September 2016 and 25 December 2016.

Charge 1i (vii)



vii) He was provided with clean bedroom furniture on 30/12/16.


The panel noted that Ms 5 in her written statement stated “… that I was unable to sit

next to his bedside as the chair had [faeces] on it”. This is supported by two

photographs of alleged [faeces] on an arm of a chair. The panel noted that Ms 5 made

no mention of [faeces] on the bedroom furniture in her near contemporaneous

handwritten notes for 30 December 2016.

The panel had sight of the photographs taken by Ms 5 on 30 December 2016 titled

“photo of faeces on arm of chair.”

The panel determined that the evidence set out above supports this charge. The panel

determined that this charge is found proved on the balance of probabilities.

Charge 1i (viii)


161


viii) He was provided with clean tub of sudocrem.


The panel noted that Ms 5 in her oral evidence confirmed that sudocrem was not a

prescribed cream for Resident A but was something that she bought for him. In the

absence of any prescription or requirement for the Home to provide sudocrem for

Resident A, the panel determined that the NMC has not established that there was a

duty on the Home to provide this medication. Where there is no duty, there can be no

failure.

The panel noted your oral evidence that there was, at the time, a medical alert that

sudocrem was not to be used as it was thought to be carcinogenic.

In light of the above evidence, the panel found, on the balance of probabilities, that this

charge is not proved.

Charge 1j (ii)



ii) Between 17 and 18 January 2017 an unidentified staff member dragged an



162

The panel noted that Ms 1 in her written statement stated “… we observed one staff

member walking with a resident and pulling them by the wrist. The resident was

reluctant to walk and appeared anxious. The staff member continued to pull the

resident’s wrist. We would expect that the staff member encourage and prompt the

person to walk with them”. In her oral evidence, Ms 1 stated that she actually saw a

resident being pulled by the wrist without any verbal encouragement to walk.

The panel noted that several witnesses gave evidence about the need for a culture

change within the Home because of the deep rooted problems, especially with staff and

their attitudes. For example, Ms 6’s evidence was that you tried to stamp out this poor

culture within the work place and that you tried to show them that there was a different

way to work and behave. Ms 9 corroborated Ms 6’s evidence. You gave evidence that

you would warn and dismiss staff if standards were not maintained. Further, you said

that you would undertake spot checks, in your uniform, to make sure that staff were

behaving appropriately.

The panel noted that this a serious allegation and carefully considered the evidence

together with the two stems to this charge.

Whilst the panel accepted that you were taking some material steps to ensure that the

staff were engaging appropriately with residents and that the residents were receiving

an adequate standard of care, the panel decided, on the balance of probabilities, that

you were not taking sufficient steps to ensure specifically that residents were treated

with dignity and respect at all times and that on any single occasion this failed to

happen that it was reported to you. The conduct of the unidentified member of staff,

which you do not seek to go behind, falls significantly below the standard of care that

residents should expect.

In light of the above evidence, the panel found that this charge is proved on the balance

of probabilities.

163

Charge 1l (i)






At the outset of considering this charge, the panel noted that there is no statutory

requirement concerning the number of registered nurses required in a home.

The panel gave careful consideration to the staff rota for the Home on 17 January 2017.

The rota clearly shows that there was only one nurse on duty. You accepted that this

was the position during your oral evidence. You told the panel that you had assessed

the residents’ needs in respect of nursing and found that the Home required a minimum

of two nurses at any given time.

The panel noted Ms 1’s evidence from her January 2017 CQC notes that you told her

on 17 January 2017 “that there should be 2 nurses on duty during the day, 2 team

leaders to run the shift, 4 care staff deployed upstairs and 6 care staff deployed

downstairs.”

The panel noted the situation that you were placed in, on 17 January 2017, when one

nurse was on duty but the second nurse due to be on duty had called in sick that

morning. You gave evidence that as soon as you were aware of this situation, you tried

to arrange cover and went over your director’s head to try to obtain an agency nurse.

164

Whilst you took immediate practical steps to book a second nurse to be on duty, the

panel decided that you did fail to ensure adequate staffing levels to meet the residents’

needs in that you, as a registered nurse, did not step in to fill the second nursing role

when no other registered nurse, urgently required, became available. The panel in its

professional judgement, decided that the absence of a second nurse could have serious

consequences and that it should have been apparent to you as an experienced nurse

and as a manager that a second nurse was required immediately, so as to meet the

residents’ needs.

In light of the above reasons, the panel found this charge, on the balance of

probabilities, proved both in terms of the residents’ needs and the meeting of the

residents’ needs promptly.

Charge 1l (ii)







The rota shows that there were more than eight staff, on duty at the Home. Further, the

oral evidence of Ms 1 did not support this allegation and, in fact, supported the

contention that there were in excess of eight members of care staff on duty that day.

In light of the above reasons, the panel found this charge, on the balance of

probabilities, not proved.

165

Charge 1l (iii)







The rota clearly shows that there were seven care staff members and two team leaders

on duty that day.

In light of this clear evidence, the panel found this charge, on the balance of


Charge 1n (iii)




iii) Fluids

166


The panel noted Ms 1’s evidence in her January 2017 CQC notes that “A new fluid audit

had been devised in December 2016 but had not been put into operation to check that

people were being supported to drink enough each day to maintain good health. The

last audit had been completed in May 2016.”

The panel noted the oral evidence of Ms 3 who was unable to say whether there were

individual food and fluid charts for the residents and relied upon what was said in the

minutes of the safeguarding meeting.

The panel reviewed the documentation before it and noted that within the fluid charts

available, all failed to state a fluid balance reconciliation over the period of time they

were in place. Further, the panel noted that a number of fluid charts were filled in but

had not been checked.

The panel noted your evidence that you said you had introduced new fluid charts at the

Home in November. You said that the nurses checked the fluid charts and you audited

them in December providing feedback for improvements. You said that the staff were

undertaking regular fluid checks but that this had been interrupted by the Christmas

break and that a further check was due to take place but that you left the Home in

January.

The panel found that whilst there were regular checks of the fluid charts, these checks

were not sufficient to ensure that residents received good quality care in relation to fluid

balance. In coming to this conclusion, the panel placed weight on the documentary

evidence before it which showed that a number of the reconciliations within the fluid

charts failed to state a balance and that a number of charts were filled in but had not

been checked. In addition, the panel noted that the new fluid charts you told the panel

you introduced in November 2015 did not include clear columns or any other provisions

for fluid balance reconciliation to prompt the staff to record appropriately. Further, the

167

panel noted that it is important that fluid charts are regularly and properly checked so

that elderly and vulnerable residents do not becomes dehydrated or malnourished.

In light of this clear evidence, the panel found this charge, on the balance of

probabilities, proved.

Charge 2a


that



This charge is found proved

The panel noted your evidence that the nurses had been trained by the pharmacist with

regard to the correct temperature to store medication and how to re-set the

thermometer.

The panel noted Ms 4’s written statement where she states “During the inspection, I

noticed that some medicines (I do not recall which ones) were stored in a medicines

fridge and the temperature was too high on occasions. The fridge was recorded as

having a maximum temperature of 10.9 on 9 occasions from 09/01/17 to 18/01/17. The

temperature was consistently at 10.9 degrees Celsius and I would have expected it to

have been 2 to 8 Celsius. Action had not been taken to make sure that these medicines

were stored at the correct temperature and the nurses that I spoke to did not know how

to reset the thermometer.” Ms 4’s statement is supported by the hand written

contemporaneous notes which she made during the CQC inspection. In those notes she

wrote “Fridge temperatures monitored daily but going above range” and “Nurses are

unsure as to how to reset thermometer”.

168

The panel noted that Ms 4 was unable to identify what medicines had been stored in the

fridge on any specific dates. The panel noted that this charge refers to medication and

not specific medicines.

The panel found that Ms 4’s evidence was consistent with her written statement. The

panel noted that you have submitted that Ms 4 relies upon anonymous hearsay from

nurses saying that they were unable to reset the fridge thermometer correctly. In her

oral evidence, Ms 4 stated that whilst she spoke to some nurses to make sure that they

could reset the thermometer correctly, she stated that “some of them were unsure how

to reset it”. The panel inferred from this that Ms 4 had sought to find out practically

whether the nurses that she spoke to could, in fact, actually reset the thermometer. This

is not inherently unreliable anonymous hearsay evidence but direct evidence that the

nurses who Ms 4 spoke with could not properly reset the thermometer.

In light of Ms 4’s clear evidence, the panel found this charge, on the balance of


Charge 2b


that

b) You failed to put in place an effective system designed to ensure that residents’

medication was always in stock as required in that



a) 4 January 2017

b) 5 January 2017

c) 10 January 2017

169

d) 11 January 2017

e) 14 January 2017



a) 31 December 2016

b) 1 January 2017

c) 2 January 2017

d) 3 January 2017

iii) On 10 January 2017 Memantine 20mg was out of stock and as a result was


iv) On the following dates Citalopram 20mg was out of stock and as a result was

not administered to an unidentified resident on

a) 15 January 2017

b) 16 January 2017

c) 18 January 2017

This charge is found proved in its entirety

The panel considered each of the sub charges within charge 2 (b) separately. However,

the panel considered charges 2 (b)(i) (ii) (iii) and (iv) as the evidence which related to all

of these sub charges relies upon the evidence of Ms 4 and her contemporaneous notes.

The panel noted the written statement of Ms 4 which states “Effective systems were not

in place to order residents’ medicines from the pharmacy, and as a result, some

residents have not received these medicines as they were out of stock. These included

medicines for the treatment of high blood pressure, depression and Alzheimer’s

disease. Zopiclone 3.75 mg for insomnia was not given as there was no stock for the

person on 4/1/17, 5/1/17, 10/1/17, 11/1/17 and 14/1/17… Perindopril for hypertension

was not given on 31/12/16, 1/1/17, 2/1/17, 3/1/17. Memantine for dementia was not

170

given on 10/1/17. Citalopram for depression/anxiety was not given on 15/1/17, 16/1/17

and 18/1/7.” This evidence was supported by Ms 4’s handwritten contemporaneous

notes made during the CQC Inspection. In her oral evidence, Ms 4 said that “… you

expect them to have some kind of prompting system that flags up when people are

running low. Some people use also used [sic] countdown sheets so that they are very

aware of how many medicines somebody has left for the month.” She stated that there

was no such system in place at the Home at the time of the CQC inspection.

The panel noted you submitted that Ms 4’s evidence “was poor” in respect of these

charges. However, the panel placed significant weight upon Ms 4’s contemporaneous

notes which were based upon her direct observation of various MAR charts.

In light of Ms 4’s clear evidence, the panel found this charge in respect of all sub

charges, on the balance of probabilities, proved.

Charge 2d (ii)


that



ii) Between 17 and 18 January 2017an unidentified resident was administered

drugs in a yogurt


The panel noted the evidence of Ms 1 in the Adult Protection Case Conference Minutes

on 26 January 2017 that “The meds are given to the patients in yogurt. There is one pot

of yogurt for the entire home this is used on the morning drugs round and then left out

171

until the afternoon meds round. There was one lady in the middle of eating her fish pie

who was stopped to receive her medication in yogurt and then carried on eating her fish

pie.”

The panel noted the evidence of Ms 4. In her written statement she stated “One

resident’s tablet had been crushed and given to them in a yogurt, however, dairy

products reduce the absorption of the medicine and there was a risk that it would not be

effective”. Further, Ms 4 confirmed in cross examination that the yogurt was in fact a

dairy product as opposed to a non-dairy product.

Whilst charge 2d (ii) does not require the identification of the resident, it does require

the NMC to prove that the effectiveness of the particular drug administered to the

unidentified resident was compromised by being given with yogurt. The panel had

regard to the oral evidence of Ms 4 who said in her evidence in chief to a question

concerning dairy products and medication effectiveness “In this instance I think the

medicine we are referring to here was an iron tablet. Iron tablets are best not taken with

milk containing products because it affects the absorption.”

The panel noted the CQC site visit notes made on 18 January 2017 that in respect of a

named resident, it was recorded that “Ferrous fumerate tablet is crushed? (why not

liquid?). Crushed with spoon then spoon used in yoghurt – cross contamination of

tablets.”

In light of Ms 4’s clear evidence, the panel found this charge in respect of all sub

charges, on the balance of probabilities, proved.

Charge 3a



172



The panel noted that the evidence presented to the panel on behalf of the NMC was

contradictory. The evidence of Ms 1 was that she had searched for written evidence in

the staff files at the Home, of DBS checks being completed and that she could not find

such evidence for three members of staff during her inspection. Ms 1’s evidence was

that she believed that she would have requested this evidence but was clear that it was

not her role to “search” for this evidence, and as such, it was not provided.

It was the evidence of Ms 9 that part of the DBS application process was undertaken

within the Home, however, it was clear that the final employment checks, including

DBS, were completed by Head Office. In this respect, her evidence was consistent with

you, as you stated in your evidence that the DBS checks were completed by Head

Office and that staff were only able to commence employment at the Home once the

Home had received either an e mail or a telephone call to confirm that the member of

staff was fit to work.

The evidence before the panel is further conflicted as Ms 1 stated in her evidence that

she discussed this issue with both the administrator and you and that she would have

expected you, as Registered Manager, to be able to point her to the DBS information.

You in your evidence stated that this conversation did not take place.

The panel further noted that an independent audit of systems within the Home, including

staff recruitment, had taken place in October, and no deficits were found in the area of

DBS checks. Ms 1 confirmed that the paper DBS check would no longer be sent to the

service and instead go directly to the individual to be shared with the employing

organisation.

173

The charge in this instance is drafted in the terms that the DBS check had not been

“completed”. In the panel’s professional view, on the balance of probabilities, Head

Office would not permit employment contracts and systems to be generated without

confirmed DBS checks for staff being completed. Further, the panel has not been

provided with direct evidence that these checks were not completed, simply, that a

written confirmation note had not been added to the staff file.

The panel reminded itself that the burden of proof at the fact finding stage is upon the

NMC. The panel determined that the NMC has not discharged its burden of proof and,

therefore, on the balance of probabilities, the panel found this charge not proved.

Charge 3b






The panel accepted the evidence of Ms 1. It was her evidence that she had sight of a

named member of staff’s documentation, showing a caution or criminal conviction. She

stated that there were “four declarations on his DBS”.

Ms 1, further, in her contemporaneous notes recorded on the day of the CQC inspection

of the Home, states “I asked KH was action she shad taken to assess the risk to the

vulnerable people living at the service and she told me that she knew what the

disclosures were but had not completed a risk assessment. I asked KH if anyone

working at the service had a risk assessment in place where they had cautions of

convictions, she told me they did not” [sic].

174

Ms 1 documented further on the day of the inspection that she asked you if anyone

working in the Home had a risk assessment in place where they had cautions or

convictions, and you told her that they did not.

The panel also had sight of Ms 1’s witness statement in which she stated:

“We reviewed the staff members’ recruitment records and we noted that DBS checks

had not been completed for health care assistants that were assisting residents. DBS

checks should be carried out by employers to assist them with making safer recruitment

decisions as these records prevent unsuitable people from working within a care setting.

It is the manager’s responsibility to review the DBS certificate to gain an understanding

of any information provided and then assess the risk to the residents. One member of

staff, a health care assistant who worked on the floor, had not had a DBS check but we

found that they had declared a conviction on their application and during their interview.

I reviewed the interview notes and within the notes it stated “explained what – very

upfront of this.” There was no record of what the conviction was. During our inspection,

it was confirmed that the conviction was for a violent offence. We noted that another

member of staff, a registered nurse, had a DBS with a conviction (I cannot recall what

the conviction was for) and a risk assessment had not been carried out. We would have

expected the home to have assessed whether this conviction posed a risk to the

residents at the home. Another member of staff, a health care assistant, had a DBS

conviction for domestic violence. This member of staff had also been dismissed from

previous employment with a warning for “poor practice”. I would have expected to have

seen a risk assessment but this assessment had not been completed” [sic].

The panel was also mindful of the evidence of Ms 9 who told the panel that if there was

any relevant information on the DBS that required a risk assessment being carried out

then “the Home would do that, the home manager with the guidance of head office.”

In your witness statement, you said that “I had no knowledge that any of our members

of staff had any convictions. If I had know I would have done a risk assessment before

the member of staff started employment” [sic].

175

On balance and in the panel’s professional view, the panel found it implausible that you

did not have a conversation with Ms 1 on the day of the inspection about the concerns

she found. In the panel’s professional view, the nature of a CQC inspection ordinarily

requires the inspecting team to make inquiries of staff including the manager of a home.

Given a manager’s pivotal role, the panel would expect in its professional view, that the

inspecting team would make frequent queries of you and that you, as the responsible

person for the operation of the Home, would wish to actively assist the CQC team by

initiating contact with them, from time to time, thereby addressing any concerns in a

timely way.

On this basis, the panel preferred the evidence of Ms 1 to your evidence.

In light of the above evidence, the panel found this charge, on the balance of


Charge 3d (i)






The panel first had sight of Ms 1’s contemporaneous notes recorded on the day of the

CQC inspection of the Home. In those notes she stated “No staff had received training

in how to safely restrain people. 25 of the 48 staff on the training matrix who worked

176

with people had not completed training in how to manage behaviour which challenge.”

[sic].

The panel had sight of the Home Staff Training Matrix 2016 Updated 13 January 2017.

This Matrix included training figures for the qualified nurses, team leaders, health care

assistants and other staff. It did not include new starters who were awaiting DBS

clearance or staff on maternity leave. The audit was based on 61 applicable employees.

The panel was mindful that this update of the Staff Training Matrix was carried out four

days prior to the CQC inspection. On the Matrix, there are 12 stand-alone training

sessions outlined including, for example, Manual Handling, Infection Control, Dementia,

Safeguarding of Vulnerable Adults (SOVA), Challenging Behaviour, Mental Capacity Act

(MCA) and Person Centred Care. Whilst the panel was mindful that there was no stand-

alone training session identified for restraining residents in a safe way, in the panel’s

professional view, the Person Centred Care training, the Challenging Behaviour

training, and Dementia training sessions would necessarily include principles of

capacity, mental health, dignity and respect and how to appropriately restrain

aggressive, physically frail and possibly confused residents appropriately and safely.

Many of the staff had recently attended such training sessions and therefore, in the

panel’s professional view, should have been aware of the appropriate ways to restrain

residents in a safe way.

The panel also had sight of the December 2016 summary report demonstrating the

applicable staff training attendance percentages. This report included qualified nurses,

team leaders, health care assistants and other staff.

The panel had sight of the attendance percentages, most importantly for SOVA,

Dementia and Challenging Behaviour and MCA. The percentages of staff who had not

attended these training sessions and had training needs outstanding were 44% for

SOVA, 46% for Dementia, 66% for MCA and 57% for Challenging Behaviours.

177

In light of the high levels of staff still requiring training in these key stand-alone

sessions, it was the panel’s professional judgement, that it is clear not all members of

staff had been trained appropriately.

In coming to this conclusion, the panel was concerned that there was no stand-alone

training for staff so as to protect residents and staff.

In light of this evidence, the panel found this charge, on the balance of probabilities,

proved.

Charge 3d (ii)




ii) Keeping people safe from abuse



CQC inspection of the Home. In those notes she stated “keeping people safe from

abuse. See training Matrix dated 13/1/19.” [sic].

The panel had sight of your witness statement with regards to training matters. In that

statement you said “I accept that some members of staff were awaiting training. The in

house trainer left at the end of August 2016. From that time until I left the Home, I was

attempting to source relevant training for all members of staff. I was able to source the

induction training, which included Manual Handling etc. I managed to source training for

all new starters but not for those who required refresher training. I accept arranging

178

suitable training was on going issue [sic]. I raised this on a weekly basis and included

this in my weekly report that was sent to Head office.”


This Matrix included training figures for the qualified nurses, team leaders, health care

assistants and other staff. It did not include new starters that are awaiting DBS


The panel was mindful that this update of the staff training matrix was carried out four

days prior to the CQC inspection. On the Matrix there are 44% of staff were not trained

in SOVA.

In light of the high levels of staff still requiring training in this key stand-alone session

and in the context that it did not include new starters or staff on maternity leave, in the

panel’s professional judgement, it was clear that not all members of staff had been

trained appropriately.


proved.

Charge 3d (iii)




iii) fire safety


179


CQC inspection of the Home. In those notes she stated “fire safety. See training matrix

13/1/19.” [sic].







suitable training was on going issue. I raised this on a weekly basis and included this in

my weekly report that was sent to Head office.”[sic].


This matrix included training figures for the qualified nurses, team leaders, health care

assistants and other staff. It did not include new starters who were awaiting DBS


The panel had sight of the attendance percentages for statutory fire training. Within that

matrix it showed that 48% of staff had training needs outstanding for fire safety.

The panel also had sight of Ms 1’s NMC statement in which she said “A fire evacuation

plan was in place but staff were not clear about the action that they should take to keep

the residents safe. I have noted that less than half of the staff had completed fire safety

training. Fire evacuation equipment was available but some staff did not know about it.

Other staff told us that they had not practiced using the equipment and they were not

confident to use it”.

The panel was mindful that the Home’s residents were highly vulnerable, often

incapacitated and many of whom were suffering dementia. Furthermore, the panel had

been told that the Home was a three storey building, thus, presenting additional

180

challenges to evacuate such vulnerable, incapacitated and often confused residents.

Therefore, it was of the utmost importance that staff attend fire safety training and

annual refresher training in order to be informed and equipped to care for the Home’s

residents if a fire occurred.

In light of the high levels of staff still requiring training in this key statutory stand-alone

session and in the panel’s professional judgement, it is clear that not all members of

staff had been trained appropriately.


proved.

Charge 3d (iv)







CQC inspection of the Home. In those notes she stated “The principles of the Mental

Capacity Act 2005- 24 out of 48 staff on the Training Matrix dated 13/1/17 had not

completed MCA training.”

The panel also had sight of Ms 1’s NMC statement in which she said “We found that

staff did not follow the principles of the MCA 2005 in assessing residents’ capacity to

make specific decisions, no assessments had been undertaken. A discussion should be

181

had between healthcare professional, staff and relatives to discuss whether decisions

should be made on a resident’s behalf whilst considering if it is in their best interests.

During our inspection, we noted that staff were covertly administrating medicines to

residents, but no assessment of the residents capacity had been completed. We would

have expected to have seen a note of the assessment within the residents records

stating why their medication needed to be administered covertly.”







suitable training was on going issue. I raised this on a weekly basis and included this in

my weekly report that was sent to Head office.” [sic].


On that matrix 66% of staff had MCA training outstanding. The outstanding attendance

figures for October 2015 and November 2015 were 60% outstanding for each month.

Therefore, the attendance figure was deteriorating for a stand-alone training session

which was essential for the staff and the residents in the Home.

In light of the high levels of staff still requiring training in this key stand-alone session

and in the panel’s professional judgement, it is clear that not all members of staff had

been trained appropriately.


proved.

182

Charge 3f





The panel had sight of Ms 1’s contemporaneous notes recorded on the day of the CQC

inspection of the Home. In those notes she stated “Any failure to ensure that an

adequate process for the induction of new staff was in place - No staff whose records

we looked at had completed a competency based induction process. New staff had

been employed by KH as she was also recruiting to staff vacancies. I spoke with [a

member of staff] who was working her second shift at the service on 17/1/19. I observed

that she was not supervised or supported by other staff. [This member of staff] told me

her induction was ‘very vague’ and she was ‘very confused’ about what she was

expected to do. KH told me that [another member of staff] was her mentor and should

have been supporting her. I discussed this with KH who was not aware [the member of

staff] was not being support.” [sic].

Ms 1 in her oral evidence stated that she had asked to see the documentation in

relation to induction and supervisions. She said she was not provided with any evidence

that these were taking place.

Whilst some of the above evidence is clearly hearsay and therefore debatably

inadmissible, other witnesses (Ms 6 and Ms 9) gave some evidence that you had

introduced inductions, supervisions, shadowing and mentorship.

The panel had sight of your witness statement, in that statement you said “I disagree;

there was an induction process for new starters. The Induction for staff would take place

183

over two weeks, within these two weeks the staff member would undertake shadowing,

supernumerary and training. The new starters would also have an induction pack

detailing their induction process. After two weeks, they should have been mostly ready

to go on the floor. All the mandatory training including food and hygiene had to be

signed off. The rest of the training, including DOLS and Dementia training was added

once they were signed off. The employee would be shadowed by their team leader until

such times that the required training had been fulfilled. There was a three month

probation period, in which they were given time to learn the role and were mentored.”

[sic].

Ms Agyekum, on your behalf, submitted that Ms 1 did not state which staff records she

looked for and that she reported unreliable, anonymous and untested hearsay. Ms 6

and Ms 9’s evidence on this point was, in the panel’s view, very clear and was

corroborative of your witness statement.

The panel accepted the evidence of Ms 6 and Ms 9 that supported your evidence and

Ms Agyekum’s submissions. The NMC did not provide the panel with any

documentation, for example, induction packs. In the panel’s view, the NMC has not

discharged its burden of proof to the required standard.

In light of this evidence, the panel found this charge, on the balance of probabilities, not

proved.

Charge 3(h) and (i)



h) An adequate system for ensuring that staff were supported in their role was

not in place

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i) An adequate system for supervision and/or clinical supervision for staff was

not in place

These charges are found NOT proved

The panel carefully considered the sub charges (h) and (i) but could not distinguish the

mischief between them. Consequently, the panel considered these two sub charges

together as the evidence was co-terminus in respect of each sub charge.


inspection of the Home. In those notes she stated “ Any failure to ensure that an

adequate system for ensuring team meetings was in place- team meeting were held

months but KH told me that staff attendance was ‘adhoc’ and she had not put any

strategies in place to make sure that all staff attended the meetings. Any failure to

ensure that an adequate system for ensuring that staff were supported in their role was

in place – I discussed supervisions and clinical supervisions with KH, she told me and

effective system to provider staff with supervision was not in operation and she had

planned to offer staff 4 weekly group supervisions. [Member of staff’s name] had receive

1 supervision in 2016 on 06/7/16. [Member of staff’s name] had receive 1 supervision in

2016 on 24/12/16. Any failure to ensure that an adequate system of supervision and/or

clinical supervision for staff was in place – KH told me when asked that nurses had not

received clinical supervision.” [sic].

The panel also had sight of Ms 1’s NMC statement in which she said “There was a lack

of team meetings and support systems. Systems were not in place to support staff to

speak about any concern they had about people or their practice or do discuss their

development. There were not processes in place to give staff the opportunity to learn

about changes at the service and share their views of the service and make

suggestions for improvements.”[sic].

185

The panel had sight of your witness statement which said “I do not accept this

allegation. As I’ve said above, new starters would have a robust induction period. More

experienced members of staff would have a team leader, a mentor on the floor for any

updated training and clinical staff to support them. I introduced a leadership tree and

everyone knew whom they could go to for support. I also had an open door policy and

attempted to be as visible as possible so I would undertake a walk around the Home

every day.”

Ms Agyekum, on your behalf, submitted that Ms 9 and Ms 6 gave evidence to

corroborate your witness statement regarding supervision, shadowing, monitoring and a

buddy system that was set up in the Home. Ms 6 and Ms 9 both confirmed that group

clinical supervision sessions were taking place monthly alongside one to ones and

appraisals which mirrored the NHS system. She submitted that this was a more than

adequate system for supervision and support of staff.

In light of the above evidence and submissions, the panel found on the balance of

probabilities that the NMC has not discharged its burden of proof to the required

standard. In particular, the panel determined that the NMC has not established that

there was a duty upon you in respect of each of these two sub charges.

In light of this evidence, the panel found these two sub charges, on the balance of


Charge 4a (i) and (ii)





186


and treatment



The panel carefully considered the sub charges 4a (i) and (ii) together. The panel

considered these two sub charges together as the evidence was associated and co-

terminus in respect of each sub charge.


inspection of the Home. In those notes she stated “planned care for a resident following

their return from hospital after suffering a head injury-Resident C had been taken to

hospital following a fall from his wheelchair at 17:30 on 16/1/17. He had a V shaped

laceration to his left eyebrow. No guidance to staff had been provided at the morning

handover about Resident C care and treatment. I spoke with staff who did not know

when Resident C had returned from the hospital and what, if any, care he should be

offered. Regular checks on Resident C had not been planned or completed. Staff I

spoke with did not know if there were any signs or symptoms that may indicate that

Resident C required further treatment.” [sic].

In cross examination, Ms 1 said that she had not seen who had brought Resident C

back to the Home and she did not witness the handover. She said that she would have

expected there to be records of his return, advice and a plan for how he was going to be

monitored. She added that these matters should have been recorded so that it was

accessible to all of the staff on duty. Ms 1 accepted that Resident C could have been

returned to the Home about 10 minutes before she saw him. She went on to say “… he

could have returned several hours before, but because the records weren’t clear

nobody was able to tell me when he’d returned. The day staff I spoke to weren’t able to

tell me.” Ms 1 said that there was a leaflet from the hospital in Resident C’s care plan.

She described this leaflet as being “like a guidance leaflet” and that “The leaflet was

187

generalised. It wasn’t specific to him. Care should have been planned for him.” She said

that she did not read the document but “what I did was ask the staff, because it was

important that the staff knew what they were doing.”

The panel had sight of your witness statement, in that statement you said “I deny this

allegation. Resident C had just returned from hospital on the morning of the

unannounced inspection. Resident C returned to the Home from the hospital at around

11:30 and therefore was not present at the morning handover. On his arrival, he had all

his hospital documents and care plans. The hospital care plan included a leaflet

regarding head injuries. The ambulance service handed over… I was the one who

received Resident C and took the handover. I then passed this information over to the

lead nurse and she would sign in all of the medication and check MAR sheet and then

she would have given a handover to the team leader on Resident C’s floor.”

Ms Agyekum, on your behalf, submitted that Ms 1 was not at handover so could not

state what happened there. Ms 1 did not state which members of staff she questioned

and she did not look at the information that came back with Resident C from the

hospital. She submitted that your evidence was clear and that staff directly involved in

Resident’s C care were aware of this handover and also aware of the signs and

symptoms that would indicate whether Resident C should have required further

treatment.

The panel did not find that there was a duty upon you to provide a handover to all staff

in the Home rather than a specific handover to Resident C’s nurse and key worker. The

panel was also mindful that the Home had three floors and not all the staff working on

all the floors would necessarily have been aware of the handover from you, regarding

Resident C, to his nurse and key worker. Further, the panel found that there was no

duty or requirement on you to write up his care plan immediately.

Accordingly, the panel determined that on the balance of probabilities, the NMC has not

discharged its burden of proof in respect of both sub charges.

188

In light of this evidence, the panel found these two sub charges on the balance of


Charge 4a (iii) and (iv)








These charges are found NOT proved

The panel carefully considered the sub charges 4a (iii) and (iv) together. The panel

considered these two sub charges together as the evidence was associated and co-

terminus in respect of each sub charge.


inspection of the Home. In those notes she stated “I spoke with staff who did not know

when Resident C had returned from the hospital and what, if any, care he should be

offered. Regular checks on Resident C had not been planned or completed. Staff I

spoke with did not know if there were any signs or symptoms that may indicate that

Resident C required further treatment.”

In cross examination, Ms 1 said that when she asked the staff “if there was any signs

that they were supposed to be looking for, any concerns or any worries that they would

have, any care that they were giving to the person that day, any checks that they had to

189

do, they told her they didn’t know. Regardless of what’s in the records, it’s really

important that staff know, and staff didn’t know”.

In your statement, you said with regards to checks on Resident C in line with the policy,

the “… the nurse would have planned and implemented regular checks for Resident C

with the assistance of the Key Worker and the team leader. The Nurse would have also

have had a conversation with the key worker to watch out for any signs and symptoms

that could cause concern.” [sic].

Ms Agyekum, on your behalf, submitted that regular checks had been planned for this

resident and that staff involved with his care were aware of this and that you clearly

handed over his care to the nurse caring for Resident C.

The panel was also mindful that there were three floors in the Home and that all the

staff on every floor may not have necessarily been aware of the handover from you to

Resident C’s nurse and key worker, in particular with regards to regular checks.

Specifically, in relation to charge 4 (a)(iv) there is no evidence as to who Ms 1 actually

spoke to. Further, she does not appear to have seen Resident C’s care plan.

The panel determined that on the balance of probabilities, the NMC has not discharged

its burden of proof. In coming to this conclusion, the panel could find no evidence that

the checks were not carried out and that all of the checks needed to be documented. In

this regard, the panel placed little weight upon Ms 1’s answers in cross examination, set

out above. The panel found that Ms 1’s observations were in the moment and that she

did not follow them up.

In light of this evidence, the panel found both these sub charges, on the balance of


190

Charge 4b (ii)





move the resident.



inspection of the Home. The panel could not find any reference to this particular

concern in her contemporaneous notes.

The panel also had sight of Ms 1’s NMC statement in which she said “Residents were

not always moved safely by staff. We observed one patient, I cannot confirm who, was

moved from a wheelchair into an arm chair with a toilet sling. A toilet sling is used to

transfer people on and off the toilet as it offers less support than a standard sling;

therefore increasing the risk of that person falling out the sling. We asked the health

care staff why they were using this sling and they told us that “this is the sling that I was

told to use by the team leader. It is a full body sling.” It was clear that guidance and

training had not been provided to staff about the equipment and techniques they should

use to move residents safely. We checked the resident’s records as we would have

expected to have seen a clear explanation as to how to move the resident”.

During her oral evidence, Ms 1 said in cross examination that she looked through the

resident’s moving and handling care plan but “there was no guidance around what size

sling was best for that person”. She went on to say “ There was no moving and handling

191

plan that said this person needed to be using which piece of equipment and which

sling”.

In your statement, you said “I deny this allegation. Firstly, in the new daily care plans,

there were specific manual handling plans for each resident and they were regularly

updated. This information had been available to staff members. Team Leaders were

also trained in manual handling and would always be able to advise other staff

members on how to move residents.”

In cross examination Ms 1 said “there was no guidance around what size sling was best

for that person. They should have been assessed as to what sling was appropriate to

use. There was no guidance. There was no moving and handling plan that said this

person needed to be using which piece of equipment and which sling.” Ms 1 confirmed,

in cross examination, that she definitely looked through all that residents’ moving and

handling care plans, spoke to staff and went to the resident’s bedroom as some staff

had told her that slings were sometimes in peoples bedrooms. But there was no sling in

that resident’s bedroom.

In the panel’s professional view, there should have been such guidance with regards to

how to move residents safely within their care plan documentation. Ms 1 did check all of

Resident C’s available care plan documentation and she did check Resident C’s

bedroom to look for the appropriate sling which was not there.


proved.

Charge 4c


192




The panel noted the evidence of Ms 6 who stated in her written statement that she

looked at Resident C’s MAR charts for the period between 31 October 2016 and 23

January 2017 and that “… it is clear that the prescription for Lorazepam on MAR 1 and

MAR 2 states ‘one 3 times a day’ but this has been crossed out and replaced with ‘take

one as required’ (‘PRN’). In relation to MAR 3, this still indicates that 1mg of Lorazepam

should be administered three times a day. Therefore it would appear that staff could

have administered this medication regularly when it should have been given PRN (as

required).”

In her written statement, Ms 6 stated that when she reviewed Resident C’s notes at the

time that “I noticed that a GP had reviewed the prescription on 17/11/16 and changed

the dose from a regular dose to PRN” by a handwritten entry directly on the MAR chart.

The panel had sight of the documentary evidence, that is, the MAR charts in question

which confirmed the evidence of Ms 6.

The panel had sight of the NMC witness statement of Ms 6 in which she said with

regards to the MAR charts not being correctly updated for a period of three months in

respect of prescribed Lorazepam “There was no evidence of Misuse of medication and I

do not believe Resident C was being over sedated with Lorazepam; however, his MAR

charts were not updated correctly for over three months, and upon looking at MAR 3 it is

possible that staff could have administered the medication on a regular (more frequent)

basis than what was prescribed. However, they did not do so, as evidenced on the

MAR’s; the letter A is the code for not given and on reverse of the MARs it is recorded

that resident C was sleepy, so the medication was not given.” [sic].

193

In your statement, with regard to this matter you said “I was not informed of this by any

of the nurses or the Lead nurse. If it had been raised with me, I would have ensured that

I actioned this immediately. I can recall that the frequency of Resident C’s medication

had changed; this should have been reflected in Resident C’s MAR chart. It would

usually responsibility of the nurse in charge, the pharmacist or the GP to make the

necessary amendments. It must have been missed by the nurses and the pharmacist

who conducted regular checks on the MAR’s charts every month. A system was in

place which must have broken down on this occasion.” [sic].

In cross examination, you accepted that the Lorazepam prescription on Resident C’s

MAR charts should have been changed to PRN and they were not.

In your answers to panel questions you said that you would have expected the

prescription chart “to be very clear that it was PRN and typed as opposed to crossed out

and written, as required”. You confirmed that this shortfall in standards in relation to

MAR charts documentation was not reported to you by the nursing staff and neither did

the medication audits being carried out in the Home pick up such short falls.

In the panel’s professional judgement, this failing was potentially serious as Lorazepam

is a Controlled Drug with the potential to cause harm.

In light of the above evidence and your apparent acceptance when questioned on this

matter, the panel found this charge, on the balance of probabilities, proved.

Charge 4d (i)




194





inspection of the Home. In those notes she stated “Resident C records showed that he

had renal failure. I looked at his care plans and found that care had not been planned to

support his with this need.” In her oral evidence Ms 1 was asked in cross examination

what she would have expected to see in Resident C’s care plan concerning his renal

failure. She said “I would expect to see a care plan which told staff any signs that the

person was deteriorating, any special care and consideration they had to give the

person, any restriction or guidance around fluid intake, around their output. Just

information for staff so they would be able to provide the person’s care in the way that

they needed it, and recognise any signs that the person needs were changing. The

majority of the care was given by health care assistants. So they are not clinically

trained, so I would have expected them to have clear guidance in place of what to look

for and then what to do when they saw those signs.” [sic].

The panel had regard to Resident C’s three care plans provided by the NMC. They each

appear detailed, personalised and set out the “care and support to be provided”

guidance for the care staff. None of these care plans refers to the care and support

needs of Resident C in relation to his renal failure.

In your statement you said “I do not accept that there was no guidance in Resident C’s

care plan as to how to support with his renal failure. All medical conditions were

addressed in the care plans.” The panel had regard to the three care plans of Resident

C before it. It was clear to the panel, as one of those care plans was marked care plan

number 13, that there were at least 13 care plans in place for Resident C. The three

care plans provided to the panel were:

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1. Care plan for Mental Health behaviour,

2. Aggressive behaviour

3. Resident C’s medication

It was clear to the panel therefore that it was not in possession of the full range of

Resident C’s care plans. The care plans before it, however, appeared, in the panel’s

professional view, detailed, personalised and set out that they set out a full range of the

care and support to be provided with relation to those specific plans.

Ms Agyekum, submitted on your behalf, that the guidance on care and support to be

provided to Resident C was detailed and personalised. She submitted that your

evidence confirmed that all medical conditions, including Resident C’s renal failure were

detailed in his care plan. Resident C was also the subject of multi-disciplinary team

meetings where the various professionals would have discussed and recorded his care

in relation to his renal failure.

In light of the above evidence, the panel determined that the NMC, on the balance of

probabilities, has not discharged its burden of proof. In particular, the panel consider

that it should have been provided with all care plans relating to Resident C.



Charge 4f (v)




196




The panel had sight of Ms 5’s written NMC statement. In that statement in relation to 30

December 2016 she said “I checked my husband’s daily report sheet… The report

stated that the health care staff had checked my husband on an hourly basis. I took a

photograph of the daily report sheet as nurses have not checked him on an hourly basis

whilst I was there. I went home in the afternoon and telephoned the police to express

my concerns. I was advised that my concerns had been noted down and a police officer

would get back to me. (A named police officer) telephoned me at that afternoon and told

me that she would refer my concerns to safeguarding. I received another call from

(another named police officer) at 14.30.” Also in her witness statement, she said that

she took a photograph of her husband’s eye as she considered that he had an eye

infection. She spoke to a carer who then came to see her husband and wiped her

husband’s eye with a tissue. Ms 5 told the carer that her husband needed to be

reviewed by a nurse, and a named nurse was called and checked her husband’s eyes

and told Ms 5 that her husband did not have an eye infection.

In light of the above evidence, it is clear that at least two healthcare staff visited

Resident A in order to check his eyes during the period of Ms 5’s visit.

Ms 5 in her oral evidence told the panel that she usually arrived at the Home around

11:00 in the morning to visit her husband. She said that by December 2016 her

husband was mainly in bed and bed bound. She told the panel “my concerns were that

the daily report sheet, which was on the table in my husband’s room, explained what is

showing here, but it didn’t tally with the state that my husband was in.”

It is clear that Ms 5 arrived at the home around 11:00 for her visit, yet had completed

her visit, travelled home and spoken to a first member of the police staff before a

197

detective constable subsequently rang her at 14:30. Therefore, it is clear to the panel

that Ms 5’s visit, on the balance of probabilities, did not extend much beyond two hours.

The panel took into account your evidence in your witness statement, with regards to

this matter. You said “Having reviewed the records, the night staff have recorded at 3:30

and 17:00 that would have been entered by staff on shift at that time. Staff were aware

that they were to record only things that had occurred, when they had happened and

accurately. There was a record-keeping policy in place. I had also specified the correct

standards.”

The panel had sight of Resident A’s daily report sheet for 30 December 2016. The entry

that Ms 5 referred to was, in fact, the entry made on 30 December 2016 by the night

staff at 03:30, and specifically referred to hourly checks. She photographed this, and

evidently, she had made a mistake. There is a further entry in the daily report sheet on

30 December 2016 made at 17:00 where at the end of the shift, the day staff had

documented that Resident A remained in bed, and hourly checks and three hourly

position changes had been made.

In light of the above evidence, the panel determined that the NMC has not discharged

its burden of proof to the required standards. In coming to this conclusion, the panel

was concerned that the NMC did not adequately establish what properly constitutes “a

check”.



Charge 6a

6) Failed to ensure that a system was in place concerning the notification of incidents

to CQC in that

198





inspection of the Home. In those notes she stated “Any failure to ensure that a system

was in place concerning the notification of incidents to CQC in respect of any failure to

ensure adequate and/or prompt notification of significant events which had occurred in

the Home to the CQC (ie exact details of the significant events being referred to)

Resident C records shows that on 12/1/17 he grabbed another person’s pillow and the

person had slapped and punched Resident C I spoke to KH who said that she was not

aware of this incident so had not reported it to the local safeguarding authority.

Adequate systems had not been put in place so staff understood what constituted

abuse, including vulnerable adults to vulnerable adult abuse and ensure that it was

reported in a timely way.”[sic].

The panel was aware of your evidence and your written statement in which you said “If

anything occurred on the floor, an official form called the ABC would be completed by

the staff member who observed it and that would be escalated to me. I would then react

accordingly to the form. There was training in place, namely, SOVA that provided staff

members on information on notification. I also had guidance on my office wall which

detailed what I would have to refer and how to do so. I would make the referrals as soon

as I possibly could after I had received notification of the incident.”

It was noted that this contradicts your oral evidence, when you told the panel that you

did have a notification on your desk during the two days of inspection but your greater

priority was to focus on the CQC inspection. The panel asked you what you were doing

that took priority over notifying the CQC and you responded that you were trying to

highlight the good that you had done and the improvement within staff and the home

itself. The panel asked how you did that and you said “by going round and trying- sort of

199

saying, have you seen this? Can I show you that? Can I let you know that this was our

new system put in place? I showed them the- we put in place the sensory room, and

that’s the conversation I did have with Ms 1, was about the sensory room, because she

had come from a previous Learning Disabilities background, and we were discussing

what we could put in there. So I was trying to show the good, even in the short space of

time that we were on the right track. I was looking for guidance to say yes you are on

the right tracks”. [sic] The panel regarded this as a material divergence in your evidence

in respect of a serious allegation.

The panel, in its professional view, is aware that there are hotlines to the CQC for

managers such as yourself to report urgent matters. This was a serious matter which,

again in the panel’s professional view, ought to have been reported promptly. In this

regard, the panel determined that the reporting of this incident, some five working days

after it occurred was not prompt.



Decision and reasons on application under Rule 19

Ms Agyekum, on your behalf, submitted that in order to properly present at this stage,

she would have to make a reference to your health and family circumstances. She

therefore applied for this hearing to be heard partly in private. The application was made

pursuant to Rule 19 of the Nursing and Midwifery Council (Fitness to Practise) Rules

2004, as amended (“the Rules”).

Ms Guest made no objection to this.

The legal assessor reminded the panel that while Rule 19 (1) provides, as a starting

point, that hearings shall be conducted in public, Rule 19 (3) states that the panel may

200

hold hearings partly or wholly in private if it is satisfied that this is justified by the

interests of any party or by the public interest.

Rule 19 states

19.(1) Subject to paragraphs (2) and (3) below, hearings shall be conducted in

public.

(2) Subject to paragraph (2A), a hearing before the Fitness to Practise

Committee which relates solely to an allegation concerning the registrant’s

physical or mental health must be conducted in private.

(2A) All or part of the hearing referred to in paragraph (2) may be held in public

where the Fitness to Practise Committee—

(a) having given the parties, and any third party whom the Committee

considers it appropriate to hear, an opportunity to make representations;

and

(b) having obtained the advice of the legal assessor, is satisfied that the

public interest or the interests of any third party outweigh the need to

protect the privacy or confidentiality of the registrant.

(3) Hearings other than those referred to in paragraph (2) above may be held,

wholly or partly, in private if the Committee is satisfied

(a) having given the parties, and any third party from whom the Committee

considers it appropriate to hear, an opportunity to make representations;

and

(b) having obtained the advice of the legal assessor, that this is justified

(and outweighs any prejudice) by the interests of any party or of any

third party (including a complainant, witness or patient) or by the public

interest.

201

(4) In this rule, “in private” means conducted in the presence of every party and

any person representing a party, but otherwise excluding the public.

Having heard that there will be reference to personal and family circumstances, the

panel determined to hold this hearing in private when there will be reference to these

matters.

Submission on misconduct and impairment

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

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

practise is currently impaired. There is no statutory definition of fitness to practise.

However, the NMC has defined it as a registrant’s suitability to remain on the register

unrestricted.

The panel took into account the documentation which was provided on your behalf. This

documentation bundle included a number testimonials from your work colleagues, a

reflective piece and training certificates. The panel also took into account the

submissions of Ms Guest on behalf of the NMC, and the written and oral submissions of

Ms Agyekum on your behalf.

You gave further oral evidence at this stage. You informed the panel of the work that

you undertook in your past voluntary role at Age UK. You told the panel that you have

now been offered a role in a local community Rapid Response Team in a band 5

nursing role. You said that you just want to go back to nursing and do what you are

good at. You told the panel that you do not intend to go back to a role in management

and also do not ever wish to work outside the supportive environment of the NHS. You

told the panel that you kept your nursing knowledge and skills up to date and, whilst

caring for a family member, engaged closely with their Community Nursing Team to

assist in their care. You told the panel that, since these events in the Home, you have

202

been in regular contact with Ms 3 who has helped you gain access to attend some CCG

education programmes in order to keep up to date with your NMC PIN. You further told

the panel that you are engaged with local clinical supervision discussion groups and two

reflective groups facilitated by the Royal College of Nursing (RCN) education

programme.

You informed the panel how sorry and ashamed you were for your personal failings in

the management of the Home. You told the panel that you feel you are competent and

that you are confident in your clinical practice. However, you welcome all forms of

training, supervision and monitoring to assist you in boosting your confidence further

and in order to get back to nursing, the profession you love.

In her submissions, Ms Guest invited the panel to take the view that your actions

amounted to a breach of The Code: Professional standards of practice and behaviour

for nurses and midwives (2015) (the Code). She then directed the panel to specific

paragraphs and identified where, in the NMC’s view, your actions amounted to

misconduct.

Ms Guest referred the panel to the principles of law in 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.’

Ms Guest submitted that your failings were ranging and covered areas of nursing

practice which included;

failing to ensure residents in the Home you managed received adequate

standards of care;

failing to ensure staff engaged appropriately with residents;

failed to put in place effective systems designed to ensure that medication was

being stored at the correct temperature;

203

failed to ensure that staff employed at the Home were suitable and/or

appropriately trained and/or informed for their role.

Ms Guest submitted that the NMC accepts that this case involved “unusual

circumstances” and that it is further accepted that you were put in “an extremely difficult

position” in relation to managing this Home. However, she submitted that your actions

were sufficiently serious to amount to misconduct.

She 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. Ms Guest referred the panel to the

principles of law in the cases of Council for Healthcare Regulatory Excellence v (1)

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

Ms Guest submitted that there is a public protection concern, due to the vulnerability of

the patients and the impact of your actions on them. She submitted that you have not

sufficiently developed insight into your actions, and that there is, as of yet, no evidence

of significant remediation as you have not been in a nursing role since the incident. Ms

Guest stated that your failures have brought the profession into disrepute and you have

breached fundamental tenets of the profession.

Ms Guest invited the panel to consider that a member of the public would, in the

circumstances of this case, expect some action to be taken by the regulator in respect

of your failure to adequately manage the Home appropriately. She submitted that a

finding of impairment on public interest grounds is justified, to declare and uphold the

proper standards of professional behaviour.

Ms Agyekum, on your behalf, submitted that you commenced your role as manager of

the care Home when the Home was in a state of turmoil and had deep-rooted problems.

204

She submitted that these long standing systemic problems were extensive and

embedded in the Home.

The panel carefully considered the full written submissions in relation to misconduct Ms

Agyekum made on your behalf. The panel noted that Ms Agyekum further developed

her written submissions in her oral submissions. She submitted that the charges do not

amount to misconduct. She submitted that you had been constantly taking steps to

remedy the Home’s systems and took robust steps in order to ensure that the Home

was managed well.

In relation to impairment, Ms Agyekum submitted that looking at your own actions in

relation to the charges found proved, they do not sufficiently amount to a finding of

current impairment. She submitted that you have demonstrated significant insight and

remorse into this matter. She submitted that you have explained what went wrong, why

it was wrong and crucially what you would do differently in the future to avoid it

happening again.

Ms Agyekum submitted that your reflective statement and your oral evidence on this

matter should be considered. She submitted that you have a genuine understanding of

what went wrong and how to ensure that it does not happen again. Your evidence

demonstrates that you are well aware of your limitations and as a responsible

practitioner (which you have proved to be over your career) it is evident that you would

fill any gaps of knowledge necessary and return to practise safely without the need for

regulatory intervention. She submitted that this has been evidenced by the training

certificates provided and the training mentioned in evidence that you have done in the

past and welcomes further training for the future.

Ms Agyekum submitted that you have demonstrated full insight. This full insight from a

conscientious practitioner with an unblemished record and therefore enough for the

panel to find remediation and no risk or a negligible risk of repetition.

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In terms of the wider public interest, Ms Agyekum submitted that you had been making

several positive contributions to the Home. She submitted that it was a work in

progress over 3 months. She submitted that a fully informed member of the public who

heard all of the facts and circumstances in this case would not consider it necessary to

make a finding of impairment for you trying to make changes in and improve what was a

“failing home” in a short period of time.

Ms Agyekum submitted that there are no public protection issues regarding your

practice and the wider public interest does not demand a finding of current impairment.

The panel has accepted the advice of the legal assessor which included reference to

Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, Cohen v General

Medical Council [2008] EWHC 581 (Admin) and Grant.

The panel adopted a two-stage process in its consideration, as advised. Firstly, 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, your fitness to practise is currently impaired as a result of that

misconduct.

Decision on misconduct

When determining whether the facts found proved amount to misconduct the panel had

regard to the terms of The Code: Professional standards of practice and behaviour for

nurses and midwives (2015) (the Code).

The panel, in reaching its decision, had regard to the public interest and accepted that

there was no burden or standard of proof at this stage but it exercised its own

professional judgement.

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The panel was of the view that your actions did fall significantly short of the standards

expected of a registered nurse, and that your actions amounted to a breach of the

Code. Specifically:

Promote professionalism and trust

You uphold the reputation of your profession at all times. You should display a personal

commitment to the standards of practice and behaviour set out in the Code. You should

be a model … leadership for others to aspire to. This should lead to trust and

confidence in the professions from patients, people receiving care, other health and

care professionals and the public.

20 Uphold the reputation of your profession at all times

To achieve this, you must:

20.1 keep to and uphold the standards and values set out in the Code

25 Provide leadership to make sure people’s wellbeing is protected and to

improve their experiences of the health and care system


25.1 identify priorities, manage time, staff and resources effectively and deal with risk to

make sure that the quality of care or service you deliver is maintained and improved,

putting the needs of those receiving care or services first

25.2 support any staff you may be responsible for to follow the Code at all times. They

must have the knowledge, skills and competence for safe practice; and understand how

to raise any concerns linked to any circumstances where the Code has, or could be,

broken

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Preserve safety

You make sure that patient and public safety is not affected. You work within the limits

of your competence … raising concerns immediately whenever you come across

situations that put patients or public safety at risk. You take necessary action to deal

with any concerns where appropriate.

13 Recognise and work within the limits of your competence

To achieve this, you must, as appropriate:

13.5 complete the necessary training before carrying out a new role

16 Act without delay if you believe that there is a risk to patient safety or public

protection


16.1 raise and, if necessary, escalate any concerns you may have about patient or

public safety, or the level of care people are receiving in your workplace or any other

health and care setting and use the channels available to you in line with our guidance

and your local working practices

Prioritise people

You put the interests of people using or needing nursing … services first. You make

their care and safety your main concern and make sure that their dignity is preserved

and their needs are … responded to. You make sure that those receiving care are

treated with respect … and behaviours towards those receiving care are challenged.

3 Make sure that people’s physical, social and psychological needs are assessed

and responded to


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3.4 act as an advocate for the vulnerable, challenging poor practice … and behaviour

relating to their care

Practice effectively

10 Keep clear and accurate records relevant to your practice


10.2 identify any risks or problems that have arisen … so that colleagues who use the

records have all the information they need

11 Be accountable for your decisions to delegate tasks and duties to other people


11.1 only delegate tasks and duties that are within the other person’s scope of

competence, making sure that they fully understand your instructions

11.2 make sure that everyone you delegate tasks to is adequately supervised …. so

that they can provide safe and compassionate care

11.3 confirm that the outcome of any task you have delegated to someone else meets

the required standard

The panel appreciated that a breach or breaches of the Code do not automatically result

in a finding of misconduct. However, the panel was of the view that your actions and

personal failings did fall seriously short of the standards expected of a registered nurse

working as a home manager amounted to misconduct.

The panel determined that failing to ensure that residents were not administered

medication due to these medications not being in stock was unacceptable. The panel

was of the view that medications such as Zopiclone, Perindopril, Memantine and

Citalopram not being administered to residents, placed them at a potential risk of harm.

The panel also noted the failure to update the MAR chart for Resident C for PRN

Lorazepam over a three month period. The panel further considered that due to your

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failings, Resident A was left in an undignified manner on a bare mattress, without

clothing on the bottom half of his body. This finding along with the failure to ensure he

was sitting at all times on a pressure cushion put him at increased risk of skin tears and

therefore exposed him to the potential of harm. The panel was of the view that this was

a basic standard of dignity and respect which the resident did not receive as a result of

your personal failure to ensure that residents received an adequate standard of care.

The panel further determined charge 1j (ii) to be particularly serious. It was of the view

that your failing to ensure that staff engaged appropriately with residents resulted in a

resident being dragged by her wrist without verbal encouragement to walk. The panel

was particularly concerned that the residents at the Home were vulnerable, most of

whom were at an advanced stage dementia. The panel was of the view that your

personal failings put these residents at potential risk of serious harm.

The panel decided that your actions and personal failings, individually and cumulatively

in this case, fell seriously short of the conduct and standards expected of a registered

nurse and amounted to misconduct.

Decision on impairment

The panel next went on to decide if, as a result of this misconduct, your fitness to

practise is currently impaired.

Nurses occupy a position of privilege and trust in society and are expected at all times

to be professional and to care for their patients. 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 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, as summarised in the advice of the legal assessor. In paragraph 74 Mrs

Justice Cox said:

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“In determining whether a practitioner’s fitness to practise is impaired by

reason of misconduct, the relevant panel should generally consider not

only whether the practitioner continues to present a risk to members of the

public in his or her current role, but also whether the need to uphold

proper professional standards and public confidence in the profession

would be undermined if a finding of impairment were not made in the

particular circumstances.”

Mrs Justice Cox went on to say in Paragraph 76:

“I would also add the following observations in this case having heard

submissions, principally from Ms McDonald, as to the helpful and

comprehensive approach to determining this issue formulated by

Dame Janet Smith in her Fifth Report from Shipman, referred to above.

At paragraph 25.67 she identified the following as an appropriate test for

panels considering impairment of a doctor’s fitness to practise, but in my

view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

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

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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 found that the first three limbs of the Shipman “test” are engaged both as to

the past and the future. At the time of these incidents, your misconduct placed

vulnerable residents at unwarranted risk of harm, brought the nursing profession into

disrepute, and breached fundamental tenets of the nursing profession, relating to

adequate patient care.

The panel turned its consideration to matters of current impairment. It accepted that

your misconduct relates to events occurring over a period of four to five months whilst

you were employed as a manager at the Home. The panel also accepted that you were

put in a difficult situation due to the history of systemic problems in the Home and lack

of support for you. Resident A’s care was found to lack dignity and respect, and there

was risk of potential harm in relation to the other facts found proved. You accepted in

your oral evidence and took responsibility for your personal failings. The panel bore in

mind that there have been no further incidents of misconduct since these events.

The panel recognised that your insight, in relation to your personal failings, has

developed during the course of this hearing, however, it is neither sufficient nor full. It

noted that you made admissions to your personal failings during your oral evidence at

the misconduct and impairment stage. You have demonstrated an understanding of

how your actions put the residents at a risk of harm. You apologised to the panel for

your misconduct and that panel found that you showed genuine remorse for your

actions. When questioned during the course of this hearing about how you would

handle the situation differently, you were able to provide, for the most part, sufficiently

detailed answers. However, the panel was of the view that your insight is still

developing. It noted your responses to panel questions when asked what training you

may need to return to safe practice, specifically in relation to Safeguarding, Delegation

and Risk Management. The panel was of the view that your level of insight was not

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sufficient that you could identify the level of your competence and the areas in which

you need further monitoring and supervision. The panel considered that you have

learned a salutatory lesson and remain open and positive to further training.

The panel considered that your misconduct is capable of remediation. In its

consideration of whether you have remedied your practice the panel took into account

the reflective piece written by you dated 28 January 2020 and the additional training you

have undertaken, such as attending the Human Factors training course in 2018,

completed over several days. The panel noted that this course was delivered by the

Local CCG and accredited by the Medical Directorate of that CCG. The panel further

noted the Dementia Care Online training you completed on 31 July 2017. The panel

determined that you have made attempts to keep up to date with relevant mandatory

training in relation to your practice.

The panel had sight of the testimonials provided on your behalf. The panel accepted

that they spoke to your good character, however, it attached limited weight, in its

professional view, in relation to your current impairment. The panel determined that your

misconduct involved wide ranging failings in relation to your duties as a home manager

impacting on basic nursing care. The panel determined therefore that these failings

were managerial failings, rather than clinical failings. The panel took account of your

oral evidence in which you said that you do not intend to go back to either a managerial

or a care home role in the future.

The panel then moved on to consider whether you are highly unlikely to repeat such

misconduct in the future. The panel is of the view that there is a risk of repetition based

on the fact that you have not been able to show to the panel sufficient insight into your

failings and also show any practical steps since you have been working in a clinical or a

management setting. The panel is therefore of the view that there is a real risk of

repetition of the misconduct identified in your case were you to return to nursing

practice. The panel therefore decided that a finding of impairment is necessary on the

grounds of public protection.

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The panel bore in mind that the overarching objectives of the NMC to protect, promote

and maintain the health, safety, and wellbeing of the public and patients, and to uphold

and protect the wider public interest. This includes promoting and maintaining public

confidence in the nursing and midwifery professions and upholding the proper

professional standards for members of those professions.

The panel had regard to the serious nature of your failings and determined that public

confidence in the profession would be undermined if a finding of current impairment was

not made. For this reason, the panel determined that a finding of current impairment on

public interest grounds was also required.

Having regard to all of the above, the panel was satisfied that your fitness to practise is

currently impaired on both public protection and public interest grounds.

Determination on sanction

The panel have considered your case and decided to make a conditions of practice

order for a period of nine months. The effect of this order is that your name on the NMC

register will show that you are subject to a conditions of practice order and anyone who

enquires about your registration will be informed of this order.

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

adduced in this case. It considered the submissions made by Ms Guest on behalf of the

NMC and Ms Agyekum on your behalf.

The panel accepted the advice of the legal assessor. The panel bore 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 Sanctions Guidance published by the NMC. It recognised that the decision on

sanction is a matter for the panel, exercising its own independent judgement.

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The panel identified the following as aggravating factors in this case:

Your conduct put vulnerable residents at risk of harm;

You failed to recognise during the four to five month period that you worked as a

manager in the Home that you should work within the limits of your competence.

The panel identified the following as mitigating factors in this case:

The Home was in a state of turmoil and there were long standing systemic

problems which were embedded;

You have evidenced good insight which is, at present, incomplete but

developing;

You have provided positive testimonials that attest to your good character and

caring nature;

You have demonstrated genuine remorse;

You have kept your nursing skills up to date throughout these proceedings;

You have taken some steps towards remediation such as attending some

relevant training, e.g. the accredited Human Factors Training course;

There are no previous regulatory concerns, referrals, or findings against you

since your first registration as a nurse in September 1999;

The panel heard no evidence of any clinical practice concerns in relation to your

practice as a nurse;

The panel heard no evidence of any attitudinal concerns in relation to you.

The panel first considered whether to take no action but concluded that this would be

inappropriate in view of the seriousness of the case. Further, as the panel identified a

risk of future harm, this would not be appropriate as it would not adequately protect the

public with no restrictions on your practice. The panel decided that it would be neither

proportionate nor in the public interest to take no further action.

Next, in considering whether a caution order would be appropriate in the circumstances,

the panel took into account the Sanctions Guidance, which states that a caution order

may be appropriate where ‘the case is at the lower end of the spectrum of impaired

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fitness to practise and the panel wishes to mark that the behaviour was unacceptable

and must not happen again.’ The panel considered that your misconduct was not at the

lower end of the spectrum and that a caution order would be inappropriate in view of the

seriousness of the case. Further, as the panel identified a risk of future harm, this would

not be appropriate as it would not adequately protect the public with no restrictions on

your practice. The panel decided that it would be neither proportionate nor in the public

interest to impose a caution order.

The panel next considered whether placing conditions of practice on your registration

would be a sufficient and appropriate response. The panel is mindful that any conditions

imposed must be relevant, proportionate, measurable and workable. The panel took into

account the Sanctions Guidance, in particular that:

“Conditions may be appropriate when some or all of the following factors are

apparent (this list is not exhaustive):

no evidence of harmful deep-seated personality or attitudinal problems

identifiable areas of the nurse’s practice in need of assessment and/or

retraining

no evidence of general incompetence

potential and willingness to respond positively to retraining

patients will not be put in danger either directly or indirectly as a result of

conditional registration

the conditions will protect patients during the period they are in force

it is possible to formulate conditions and to make provision as to how

conditions will be monitored”.

The panel found all of the above factors are engaged positively in your case.

The panel considered that there were identifiable failings in relation to your practice

which could be addressed through training, mentoring and support. It determined that it

would be possible to formulate appropriate and practical conditions, as set out in the

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Sanctions Guidance, which would address the failings highlighted in this case. The

panel accepted that you would be willing to comply with conditions of practice.

The panel had regard to the fact that these incidents occurred over a four to five month

period whilst you were in a manager in the Home, and, other than these incidents, you

have had a long, unblemished career as a nurse for over 20 years. The panel was of

the view that it was in the public interest that, with appropriate safeguards, you should

be able to return to practice as a nurse.

Balancing all of these factors and after having taken into account both the aggravating

and mitigating features of this case, the panel determined that that the appropriate and

proportionate sanction is that of a conditions of practice order.

The panel was mindful that the charges found proved represented a departure from the

standards expected of a registered nurse and it did consider whether a suspension

order was necessary to mark the seriousness of the misconduct. It noted that your

clinical practice has not been called into question and that a period of suspension would

not assist you in developing further insight. It further had regard to the role that you

intend to take up in the Rapid Response Team, therefore it was of the view that not

being in a managerial role posed minimum risk. The panel decided that a member of the

public, in full possession of the facts of this case, would think a suspension order was

wholly disproportionate and unduly punitive. Further, the public can be adequately

protected by a lesser order. There is also a public interest in returning a nurse back to

safe practice.

The panel therefore determined that the appropriate and proportionate sanction was

that of a conditions of practice order for a period of nine months. It decided that this

order would provide a proper level of public protection, whilst at the same time it would

allow you to return to practice in a structured manner. The order would also mark the

importance of maintaining public confidence in the profession, and would send to the

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

registered nurse.

Having regard to the matters it has identified, the panel has concluded that a conditions

of practice order will mark the importance of maintaining public confidence in the

profession, and will send to the public and the profession a clear message about the

standards of practice required of a registered nurse.

The panel determined that the following conditions are appropriate and proportionate in

this case:

For the purposes of these conditions, ‘employment’ and ‘work’ mean any paid or unpaid

post in a nursing, midwifery or nursing associate role. Also, ‘course of study’ and

‘course’ mean any course of educational study connected to nursing, midwifery or

nursing associates.

1. You must limit your nursing practice to working in a band 5 role in an NHS post.

2. You must ensure you are supervised at all times on the same shift as, but not

always directly observed by a more senior nurse of band 5 or above;

at least monthly supervision meetings to include discussion of your skills in

relation to the supervision and monitoring of your delegation to junior staff.

3. You must work with your supervisor to create a personal development plan

(PDP). Your PDP must address the concerns about your delegation to more

junior colleagues particularly in relation to:

Risk Assessment;

Safeguarding and;

Incident Reporting.

You must also:

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Meet with your supervisor at least every month to discuss your progress

towards achieving the aims set out in your PDP.

Send your NMC case officer a report from your supervisor two weeks prior to

any review hearing. This report must show your progress towards achieving

the aims set out in your PDP.

4. You must keep the NMC informed about anywhere you are working by:

a. Telling your case officer within 14 days of accepting or leaving any

employment.

b. Giving your case officer your employer’s contact details.

5. You must keep the NMC informed about anywhere you are studying by:

a. Telling your case officer within 14 days of accepting any course of study.

b. Giving your case officer the name and contact details of the organisation

offering that course of study.

6. You must immediately give a copy of these conditions to:

a. Any organisation or person you work for.

b. Any agency you apply to or are registered with for work.

c. Any employers you apply to for work (at the time of application).

d. Any establishment you apply to (at the time of application), or with which you

are already enrolled, for a course of study.

e. Any current or prospective patients or clients you intend to see or care for

when you are working in a self-employed capacity.

7. You must tell your case officer, within 14 days of your becoming aware of:

Any clinical incident you are involved in.

Any investigation started against you.

Any disciplinary proceedings taken against you.

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8. You must allow your case officer to receive, as necessary, details about your

performance, your compliance with and / or progress under these conditions

with:

Any current or future employer.

Any educational establishment.

Any other person(s) involved in your retraining and/or supervision required by

these conditions.

The period of this order is for nine months.

Before the end of the period of the order, a panel will hold a review hearing to see

whether you have complied with the order. At the review hearing the panel may revoke

the order or any condition of it, it may confirm the order or vary any condition of it, or it

may replace the order with another order. Alternatively, you may request an early

review of this order at any time if there has been a material change of circumstances.

Any future panel reviewing this case would be assisted by:

Your continued engagement with the NMC;

Your attendance at the next review hearing;

A structured written reflective piece using a recognised model which

demonstrates your understanding of;

o Effective leadership;

o Safeguarding issues regarding patients on your case load;

o Demonstrating an understanding of the importance of effective delegation

to more junior colleagues caring for vulnerable patients;

o The impact of effective leadership on patients, colleagues and the wider

public and;

o The effect of your misconduct on patients, the nursing profession and the

public’s perception of nurses.

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Evidence that you have kept your nursing skills up to date with your mandatory

and statutory training;

Any testimonials from your current employer commenting on your current

performance in the workplace and your progress in achieving the aims and

objectives as set out on your PDP.

Determination on Interim Order

Ms Guest, on behalf of the NMC, submitted that an interim order should be imposed on

the basis of protection of the public and in the public interest. She submitted that the

interim conditions of practice order should be imposed for a period of 18 months in

order to cover the possibility of an appeal being lodged by you during the 28 day appeal

period.

Ms Agyekum made no objection to this application.

The panel heard and accepted the advice of the Legal Assessor.

The panel was satisfied that an interim conditions of practice 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 for the

substantive order in reaching the decision to impose an interim order. To do otherwise

would be incompatible with its earlier findings.

The conditions for the interim order will be the same as those detailed in the substantive

conditions of practice order as set out in the decision on sanction.

The panel, in its professional judgement, determined that it was disproportionate to

make this order for a period longer than the nine months period of the substantive

conditions of practice order. The period of this interim order is for nine months to allow

for the possibility of an appeal to be made and determined.

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If no appeal is made, then the interim order will be replaced by the conditions of practice

order 28 days after you are sent the decision of this hearing in writing.

This decision will be confirmed to you in writing.

That concludes this determination.

nursing and midwifery council fitness to practise ......2020/01/21 · the home provides nursing...

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