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Nursing and Midwifery Council

Fitness to Practise Committee

Substantive Hearing

23 – 26 April 2018

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

Name of registrant: Mr Simon Carl Bates NMC PIN: 92C2468E Part(s) of the register: Registered Nurse – Subpart 1 RNA: 25 March 1995 Area of Registered Address: England Type of Case: Misconduct Panel Members: Andrew Gell (Chair, Lay member)

Marian Robertson (Registrant member) Paul Evans (Lay member)

Legal Assessor: James Holdsworth Panel Secretary: Lesley Rudd (23 April 2018) Nour Shaheen (24 April 2018) Jodie Harrison (25 -26 April 2018) Registrant: Not present and not represented Nursing and Midwifery Council: Represented by Ms Hannah Thomas, Case

Presenter Facts proved: 1(a)(i), 1(a)(ii), 1(a)(iii), 1(b), 1(c)(i), 1(c)(ii),

2(a), 2(b)(i), 2(b)(iii), 3(i), 3(ii), 3(iii), 3(iv), 3(v), 3(vi) and 3(vii)

Facts not proved: 2(b)(ii) Fitness to practise: Impaired Sanction: Striking-off order Interim Order: Suspension order (18 months)

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Details of charge:

“That you, a Registered Nurse,

1. While employed in an nursing role at Northampton General Hospital

NHS Trust:

a) On 12 April 2014

i) Touched Colleague A’s bottom [proved]

ii) Touched Colleague A’s bottom on an occasion other than in

1a)i) above [proved]

iii) Placed or attempted to place your hand inside Colleague

A’s skirt. [proved]

b) On 26 May 2014 straddled or attempted to straddle Colleague A

[proved]

c) On unspecified dates during 2014 inappropriately said to

Colleague A:

i) On one occasion “You look like a lesbian” [proved]

ii) On another occasion: “It’s a shame you’ve lost weight

because your tits don’t look big anymore” [proved]

2. While employed in a nursing Role at University Hospitals Coventry and

Warwickshire NHS Trust:

a) On 13 October 2016 sent an inappropriate message to Colleague

B on Facebook stating: ““you got any dirty pics of anyone at work

like [Colleague C].” [proved]

b) On 25 November 2016:

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i) Pushed and/or followed Colleague D into a cleaning

cupboard [proved]

ii) Said to Colleague D words to the effect of “Lucky I didn’t

fucking hit you” [not proved]

iii) Said to Colleague D words to the effect of “I should have

bent you over the bin trolley” [proved]

3. Your behaviour in respect of the following were inappropriate and / or

sexually motivated:

i) Charge 1a)i) above [proved]

ii) Charge 1a)ii) above [proved]

iii) Charge 1a)iii) above [proved]

iv) Charge 1b) above [proved but only in relation to inappropriate

behaviour]

v) Charge 2a) above [proved]

vi) Charge 2b) i) above [proved]

vii) Charge 2biii) above [proved]

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

your misconduct”

Decision on Service of Notice of Hearing

The panel was informed at the start of this hearing that Mr Bates was not in attendance

and that written notice of this hearing had been sent to Mr Bates’ registered address by

recorded delivery and by first class post on 22 March 2018.

The panel took into account that the notice letter provided details of the allegation, the

time, dates and venue of the hearing and, amongst other things, information about Mr

Bates’ right to attend, be represented and call evidence, as well as the panel’s power to

proceed in his absence.

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Ms Thomas, on behalf of the Nursing and Midwifery Council (NMC) submitted that the

NMC had complied with the requirements of Rules 11 and 34 of the Nursing and

Midwifery Council (Fitness to Practise) Rules 2004, as amended (“the Rules”).

The panel accepted the advice of the legal assessor.

In the light of all of the information available, the panel was satisfied that Mr Bates has

been served with notice of this hearing in accordance with the requirements of Rules 11

and 34. It noted that the rules do not require delivery and that it is the responsibility of

any registrant to maintain an effective and up-to-date registered address.

Decision on proceeding in the absence of the Registrant

The panel next considered whether it should proceed in the absence of Mr Bates.

The panel had regard to Rule 21 (2) states:

(2) Where the registrant fails to attend and is not represented at the hearing, the

Committee -

(a) shall require the presenter to adduce evidence that all reasonable

efforts have been made, in accordance with these Rules, to serve the

notice of hearing on the registrant;

(b) may, where the Committee is satisfied that the notice of hearing has

been duly served, direct that the allegation should be heard and

determined notwithstanding the absence of the registrant; or

(c) may adjourn the hearing and issue directions.

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Ms Thomas invited the panel to continue in the absence of Mr Bates on the basis that

he had voluntarily absented himself. Ms Thomas drew the panel’s attention to an email

from Mr Bates to the NMC Case Officer dated 19 April 2018 and submitted that there

was no reason to believe that an adjournment would secure his attendance on some

future occasion.


The panel noted that its discretionary power to proceed in the absence of a registrant

under the provisions of Rule 21 is not absolute and is one that should be exercised “with

the utmost care and caution” as referred to in the case of R. v Jones (Anthony William),

(No.2) [2002] UKHL 5.

The panel noted the email from Mr Bates to the NMC Case Officer dated 19 April 2018

in which he stated, “I won’t be attending the hearing and the panel can proceed in my

absence.”

The panel has decided to proceed in the absence of Mr Bates. In reaching this decision,

the panel has considered the submissions of the case presenter, and the advice of the

legal assessor. It has had particular regard to the factors set out in the decision of

Jones. It has had regard to the overall interests of justice and fairness to all parties. It

noted that:

no application for an adjournment has been made by Mr Bates;

there is no reason to suppose that adjourning would secure his attendance at

some future date;

one witness has attended today to give live evidence, others are due to attend;

not proceeding may inconvenience the witnesses, their employers and, for those

involved in clinical practice, the clients who need their professional services;

the charges relate to events that date back to 2014;

further delay may have an adverse effect on the ability of witnesses accurately to

recall events;

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there is a strong public interest in the expeditious disposal of the case.

There is some disadvantage to Mr Bates in proceeding in his absence. Although the

evidence upon which the NMC relies will have been sent to him at his registered

address, he has made no response to the allegations. However, he did make some

limited responses when the allegations were put to him by his employers. He will not be

able to challenge the evidence relied upon by the NMC and will not be able to give

evidence on his own behalf. However, in the panel’s judgement, this can be mitigated.

The panel can make allowance for the fact that the NMC’s evidence will not be tested

by cross-examination and, of its own volition, can explore any inconsistencies in the

evidence which it identifies. Furthermore, the limited disadvantage is the consequence

of Mr Bates’ decisions to absent himself from the hearing, waive his rights to attend

and/or be represented and to not provide evidence or make submissions on his own

behalf.

In these circumstances, the panel has decided that it is fair, appropriate and

proportionate to proceed in the absence of Mr Bates.

Background

The charges arose whilst Mr Bates was employed as a Band 7 Senior Nurse in the

Accident and Emergency (A&E) department by Northampton General Hospital NHS

Trust (NGH) and whilst he was employed as a Staff Nurse in the A&E department by

University Hospitals Coventry and Warwickshire NHS Trust (UHCW).

It is alleged that on 12 April 2014, whilst working at NGH, Mr Bates touched Colleague

A’s bottom on more than one occasion, and placed, or attempted to place, his hand

inside Colleague A’s skirt. It is alleged that this conduct was inappropriate and/or

sexually motivated.

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It is further alleged that on 26 May 2014, whilst working at NGH, Mr Bates straddled, or

attempted to straddle, Colleague A, and that this conduct was inappropriate and/or

sexually motivated.

It is also alleged that on an unspecified date during 2014, whilst working at NGH, Mr

Bates inappropriately said to Colleague A “you look like a lesbian”, and “it’s a shame

you’ve lost weight because your tits don’t look big anymore”.

It is alleged that on 13 October 2016, whilst working at UHCW, Mr Bates sent an

inappropriate message to Colleague B on Facebook stating, “you got any dirty pictures

of anyone at work like [Colleague C]” and that this was inappropriate and/or sexually

motivated.

It is also alleged that on 25 November 2016, whilst working at UHCW, Mr Bates pushed

and/or followed Colleague D into a cleaning cupboard, said to Colleague D words to the

effect of “I should have bent you over the bin trolley”, and that this conduct was

inappropriate and/or sexually motivated. It is further alleged that Mr Bates said to

Colleague D words to the effect of “lucky I didn’t fucking hit you”.

Decision on the findings on facts and reasons

In reaching its decisions on the facts, the panel considered all the evidence adduced in

this case together with the submissions made by Ms Thomas, on behalf of the NMC.


The panel was aware that the burden of proof rests on the NMC, and that the standard

of proof is the civil standard, namely the balance of probabilities. This means that the

facts will be proved if the panel is satisfied that it was more likely than not that the

incidents occurred as alleged.

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The panel has drawn no adverse inference from the non-attendance of Mr Bates.

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

Colleague A, Staff Nurse at NGH;

Colleague D, Healthcare Cleaner at UHCW;

Ms 1, Domestic Cleaner at UHCW; and

Ms 2, Principal Operating Department Practitioner at UHCW.

The panel first considered the overall credibility and reliability of all of the witnesses it

had heard from.

The panel found Colleague A to be a clear, credible and reliable witness. Her evidence

was compelling and she was open and honest throughout. Her accounts were

consistent and she had a firm recollection of the incidents. When she did not remember

something, she said so.

The panel found Colleague D to be a clear, credible and reliable witness. There were

some inconsistencies between her accounts as set out in the written evidence.

However, these were satisfactorily explained during her oral evidence. She was frank

and open in her evidence and did not seek to embellish her account of the incident. Her

reaction to Mr Bates’ account of events were wholly convincing.

The panel found Ms 1 to be a clear, credible and reliable witness. Her evidence was

largely corroborative of Colleague D’s evidence and she made it clear to the panel when

she was not certain of matters put to her.

The panel found Ms 2 to be a clear and professionally credible witness. She did her

best to assist the panel, although her evidence was limited to her internal investigation

at UHCW.

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The panel considered each charge and made the following findings:

Charge 1:

1. While employed in an nursing role at Northampton General Hospital

NHS Trust:

a) On 12 April 2014

i) Touched Colleague A’s bottom

ii) Touched Colleague A’s bottom on an occasion other than in

1a)i) above

iii) Placed or attempted to place your hand inside Colleague

A’s skirt.

b) On 26 May 2014 straddled or attempted to straddle Colleague A

c) On unspecified dates during 2014 inappropriately said to

Colleague A:

i) On one occasion “You look like a lesbian”

ii) On another occasion: “It’s a shame you’ve lost weight

because your tits don’t look big anymore”

Charge 1(a)(i)

This charge is found proved.

Colleague A said that on 12 April 2014, during her shift, she was discussing a patient

with another colleague. She said she was standing on the patient’s side of the nurses’

station when Mr Bates approached her and grabbed and felt her bottom. Colleague A

said that this was done in front of patients and relatives, which she pointed out to him as

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she was shocked. She said that Mr Bates smiled and walked out of the resuscitation

department.

The panel noted the minutes of an investigatory meeting which took place on 27 August

2014 at which Mr Bates was present. The panel noted Mr Bates’ response to the

question “If you don’t recall the incident, why would [Colleague A] make this allegation

against you?” to which he replied, “I don’t know. I might have pinched her bottom at

some point but in a silly way, not sexually. I just try to be funny. The last thing I want is

to upset anyone. I may have pinched her bottom as I walked past but it wasn’t meant in

a sexual way.”

The panel was satisfied, on the basis of Mr Bates’ apparent admission that he pinched

Colleague A’s bottom, and in the light of Colleague A’s compelling evidence, that on the

balance of probabilities, on 12 April 2014, Mr Bates touched Colleague A’s bottom.

The panel therefore found this charge proved.

Charge 1(a)(ii) & 1(a)(iii)

These charges are found proved.

These two charges are dealt with together as they allegedly occurred within a very short

time of each other.

Colleague A said that later on during her shift on 12 April 2014, after the first incident of

Mr Bates touching her bottom, she had entered the nurses’ station in the majors

department as she needed to make a telephone call to a ward regarding a patient. She

said that she was standing up using the telephone and that Mr Bates was sitting down

in the “Nurse in Charge chair”. She said that he touched her bottom again and within a

very short time thereafter put his hand up her skirt. She said that Mr Bates smiled and

she walked away. Colleague A said she was shocked by this and immediately took

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herself to the toilets to gather her thoughts and texted a friend to let them know what

had just happened.

The panel was satisfied, for the same reasons as set out in charge 1(a)(i) that, on the

balance of probabilities, it was more likely than not that on 12 April 2014, Mr Bates

touched Colleague A’s bottom on an occasion other than in charge 1(a)(i) above.


2014 at which Mr Bates was present and during which he was asked about the skirt

allegation. The panel noted Mr Bates’ response to the question “do you recall this

incident?” to which he replied “No, definitely not. I wouldn’t put my hand up her skirt. It’s

not true at all.”

The panel found Colleague A’s evidence on this matter to be compelling and accepted

her account of the events in respect of this charge. The panel was satisfied that, on the

balance of probabilities, it was more likely than not that on 12 April 2014, Mr Bates

placed his hand inside Colleague A’s skirt.

In all the circumstances the panel found both of these charges proved on the balance of

probabilities.

Charge 1(b)


Colleague A said that on 26 May 2014, during a night shift she went on a break in the

staff room where she was lying down on the sofa covered in a blanket. She said that

she believed that there was a fellow colleague asleep on the opposite sofa. Colleague A

said that she had her eyes closed, resting, but that she was not asleep. Colleague A

said that she heard someone come into the staff room but that she did not know who it

was. Colleague A said that she felt someone approach her and when she woke up Mr

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Bates was attempting to straddle her. Colleague A said that Mr Bates had one leg on

the floor and was in the course of putting the other leg over her. She said that she was

not sure where Mr Bates’ hands were. Colleague A said that she told Mr Bates to “get

off”, which he did. She said he then sat down on the sofa next to her.


2014 at which Mr Bates was present, and in particular the following exchange between

Mr Bates and the investigating officer (IO),

“IO: do you recall this incident?

Mr Bates: I recall the event but that’s not the way it went. I came up to her and I went to

make her jump while she was asleep. I put my hands either side of her head so she

could feel the pressure on the pillow to make her jump and she jumped.

IO: [Colleague A] allegedly said to you ‘get off’ – do you recall this?

Mr Bates: Yes because I made her jump and she said ‘get off’. I thought she would have

laughed.”

The panel found Colleague A’s account of this event compelling and accepted her

version of events. The panel was satisfied that when Colleague A opened her eyes she

found Mr Bates in a position where one of his legs was on the floor and the other was

moving over her. The panel interpreted this as an attempt to straddle on Mr Bates’ part.

As such, the panel was satisfied, on the balance of probabilities, that on 26 May 2014,

Mr Bates attempted to straddle Colleague A.

It therefore found this charge proved.

Charge 1(c)(i)

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Colleague A said that Mr Bates made a lot of inappropriate comments to her. She said

that she remembers two remarks in particular that he made to her while she was

working with him. She said that on one occasion he said to her “you look like a lesbian.”

The panel found Colleague A’s account of this event compelling and accepted her

version of events. The panel noted that whilst giving evidence, Colleague A was clear

about the fact that Mr Bates had made this comment and the panel was of the view that

this was a remark that was so unusual that it would have stuck in Colleague A’s mind.

The panel was therefore satisfied that, on the balance of probabilities, on one occasion,

Mr Bates said to Colleague A words to the effect of “you look like a lesbian”.

It therefore found this charge proved.

Charge 1(c)(ii)


Colleague A said that on another unspecified occasion after she had lost some weight,

Mr Bates remarked at her that “It’s a shame you’ve lost weight because your tits don’t

look big anymore.” In response to written questions from his employers, Mr Bates

confirmed that a conversation had indeed taken place with Colleague A concerning her

weight. He said that Colleague A had told him that she had lost weight “but I have lost

my boobs” to which he thought he replied “I prefer women with more weight on them”.

During the hearing, Colleague A was insistent that Mr Bates had referred to her “tits”

and had made the comment alleged.

In the light of Colleague A’s evidence, which the panel fully accepted, in conjunction

with Mr Bates concession that a conversation had taken place concerning Colleague

A’s weight the panel find this charge proved on the balance of probabilities.

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Charge 2:

2. While employed in a nursing Role at University Hospitals Coventry and

Warwickshire NHS Trust:

a) On 13 October 2016 sent an inappropriate message to Colleague

B on Facebook stating: ““you got any dirty pics of anyone at work

like [Colleague C].”

b) On 25 November 2016:

i) Pushed and/or followed Colleague D into a cleaning

cupboard

ii) Said to Colleague D words to the effect of “Lucky I didn’t

fucking hit you”

iii) Said to Colleague D words to the effect of “I should have

bent you over the bin trolley”

Charge 2(a)


Colleague C wrote to the UHCW HR Business Partner in an undated letter to raise a

complaint against Mr Bates. This alleged that on the 13 October 2016 Mr Bates sent a

social media message to Colleague B in which he had asked ‘You got any dirty pics of

anyone at work like [Colleague C]’. When the message was not answered, Mr Bates

sent a chaser asking ‘So?’. Colleague C enclosed a screenshot of the message. The

letter and screenshot were included in the UHCW internal investigation report.

The panel noted that, in a written statement to the UHCW investigation, Mr Bates

described the social media message as a ‘private piece of locker room banter’. He

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added that the message was ‘intended to be banter only and not a genuine request’. He

went on to describe issues in his personal life and concerning the state of his health.

The panel rejected Mr Bates’ explanation. It was satisfied that Mr Bates had sent the

message and, whether in a work or personal setting, that it was inappropriate.


Charge 2(b)(i)


Colleague D gave evidence that on 25 November 2016, whilst she was working as a

cleaner in the UHCW’s A&E department, Mr Bates put his hand on her back and

pushed her into the cleaning cupboard. She described how she felt to be “still in shock

of being manhandled in the cupboard”.

The panel noted the explanation offered by Mr Bates to the UHCW internal

investigation. He said ‘As a joke only, I pushed her [Colleague D] and the skip halfway

through the door. I deliberately only went half way so the action didn’t appear too

intimidating or scary’.

In her evidence, Ms 1, who had witnessed the events, was clear that Mr Bates and

Colleague D were fully inside the cleaning cupboard and not half way. This was

consistent with Colleague D’s evidence.

The panel accepts Colleague D’s evidence that she was pushed into the cupboard by

Mr Bates. Noting that this accords with Mr Bates own description in his statement to the

UHCW investigation of having pushed Colleague D.


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Charge 2(b)(ii)

This charge is found not proved.

The NMC offered no evidence to show that Mr Bates had said the words alleged to

Colleague D. In her evidence, Colleague D confirmed that Mr Bates had not said this to

her and offered an alternative explanation that she had used a similar form of words to

Mr Bates in response to being pushed into the cleaning cupboard.

The panel therefore found this charge not proved.

Charge 2(b)(iii)


Colleague D states that after Mr Bates had pushed her into the cleaning cupboard, and

before either of them had left the cupboard, he said to her “I should have bent you over

the bin trolley”. She said in her statement that Mr Bates made this remark ‘in a very

sexually suggestive way like he knew what he was doing. It made me feel sick and

shocked and I could not believe how he treated me’.

In her evidence, Ms 1 stated that she had heard Mr Bates use the words alleged to

Colleague D whilst they were in the cupboard.

In an email exchange with the West Midlands police dated 2 April 2018, Mr Bates

denied using the words alleged.

On the balance of probabilities, the panel is satisfied on the evidence of Colleague D

and Ms 1 that on 25 November 2016 Mr Bates said to Colleague D the words alleged in

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this particular. The panel does not find Mr Bates’ denial in his email to the police to be

plausible. This charge is therefore found proved.

Charge 3:

3. Your behaviour in respect of the following were inappropriate and / or sexually

motivated:

i) Charge 1a)i) above

ii) Charge 1a)ii) above

iii) Charge 1a)iii) above

iv) Charge 1b) above

v) Charge 2a) above

vi) Charge 2b) i) above

vii) Charge 2biii) above

When considering the charges under this paragraph, the panel bore in mind that when

considering whether Mr Bates’ behaviour was inappropriate, this was a matter for the

panel’s judgement based on both common sense and also the standards to be

expected of a registered nurse. With regard to sexually motivated behaviour, there is no

statutory definition for this expression. However, the panel adopted, on the advice of the

legal assessor and with the agreement of Ms Thomas for the NMC, the concept that

such behaviour involved an act which, either in whole or substantial part, is for the direct

sexual gratification of the perpetrator. The panel also applied its own common sense to

this issue and to the meaning of the expression.

Charge 3 in relation to charge 1a


With regard to the events found proved in relation to Charge 1a, which all occurred on

the same day, the very nature of the acts themselves suggest sexual motivation and by

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extension inappropriate behaviour. However, the panel’s judgement that each act was

sexually motivated is fortified by the fact that the behaviour on each occasion was of a

similar nature and on the same day. The panel therefore found this behaviour was both

inappropriate and sexually motivated and that Charge 3 is proved in relation to the

whole of 1a.

Charge 3 in relation to 1b

This charge is found proved in part.

The uninvited touching and placing of one’s body in close proximity to a colleague

without any justification is clearly inappropriate behaviour and behaviour not to be

expected of a registered nurse. The panel therefore found this behaviour to be

inappropriate. However, without further evidence as to Mr Bates’ actual motivation for

his behaviour on this particular occasion the panel cannot be satisfied to the necessary

standard that this behaviour was sexually motivated. Charge 3 in relation to charge 1b

is found proved, but only in respect of inappropriate behaviour.

Charge 3 in relation to charge 2a


The comment made in the message to Colleague B had clearly on the face of it

provides sexual innuendo and sexual motive and as such on the face of it provides

evidence of sexual motivation. In the absence of any satisfactory explanation from Mr

Bates to suggest the contrary, the panel is satisfied on the balance of probabilities that

this behaviour was sexually motivated and again, by extension, inappropriate. Charge 3

is therefore found proved in relation to charge 2a.

Charge 3 in relation to charges 2(b)(i) and 2(b)(iii)

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The behaviour and words used in relation to the events found proved in charges 2(b)(i)

and 2(b)(iii) are in the panel’s judgement clearly sexually motivated and the panel is

unable to think of any other motive for such behaviour in the absence of any clear and

cogent evidence to the contrary. Such evidence has not been provided. In the

circumstances the panel finds that the behaviour involved and the words used were

both sexually motivated and inappropriate. Charge 3 is therefore found proved in

relation to these two sub-charges.

Submission on misconduct and impairment:

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

whether the facts found proved amount to misconduct and, if so, whether Mr Bates’

fitness to practise is currently impaired. There is no statutory definition of fitness to

practise. However, the NMC has defined fitness to practise as a registrant’s suitability to

remain on the register unrestricted.

Ms Thomas referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311

which defines misconduct as a ‘word of general effect, involving some act or omission

which falls short of what would be proper in the circumstances.’ Ms Thomas further

referred the panel to the case of Nandi v GMC [2004] EWHC 2317 (Admin) and

explained that for misconduct to be established, the misconduct itself must be

considered deplorable by fellow practitioners. Ms Thomas submitted that in this case,

the conduct demonstrated by Mr Bates is deplorable, seriously undermines the

profession, and falls short of what would be expected of a registered nurse.

In her submissions Ms Thomas invited the panel to take the view that Mr Bates’ actions

amount to a breach of The Code: Standards of conduct, performance and ethics for

nurses and midwives 2008 (“the Code”) and The Code: Professional standards of

practice and behaviour for nurses and midwives (2015). Ms Thomas explained that both

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Codes are at play in this case. The 2008 Code is relevant to charge 1 and where

relevant, charge 3. The 2015 Code is relevant to the remaining charges. She then

directed the panel to specific paragraphs of the Code and identified where, in the NMC’s

view, Mr Bates’ actions amounted to misconduct.

Ms Thomas 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 uphold proper standards and maintain public confidence in the

profession and in the NMC as a regulatory body. Ms Thomas referred the panel to the

cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin). Ms Thomas told the panel that in relation

to all but one of the charges found proved, the conduct in this case is of a sexual and

inappropriate nature. She submitted that the nursing profession would be brought into

disrepute if a finding of impairment is not found. Ms Thomas submitted that the charges

arose over a two year period at two different hospitals, and in the absence of any

reflection or evidence of any development undertaken by Mr Bates, the risk of repetition

is high.

The panel has accepted the advice of the legal assessor which included reference to a

number of judgments which are relevant, these included: Nandi v GMC [2004] EWHC

2317 (Admin), Meadow v GMC [2006] EWCA Civ 1390 (Admin), Zygmunt v GMC [2008]

EWHC 2643 (Admin), Cohen v GMC [2008] EWHC 581 (Admin), Cheatle v General

Medical Council [2009] EWHC 645 (Admin), and Council for Healthcare Regulatory

Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin).

The panel adopted a two-stage process in its consideration, as advised. First, the panel

must determine whether the facts found proved amount to misconduct. Secondly, only if

the facts found proved amount to misconduct, the panel must decide whether, in all the

circumstances, Mr Bates’ fitness to practise is currently impaired as a result of that

misconduct.

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Decision on misconduct

When determining whether the facts found proved amount to misconduct the panel had

regard to the terms of The code: Standards of conduct, performance and ethics for

nurses and midwives (2008) and The Code: Professional standards of practice and

behaviour for nurses and midwives (2015).

The panel, in reaching its decision, had regard to the public interest and accepted that

there was no burden or standard of proof at this stage and exercised its own

professional judgement.

The panel was of the view that Mr Bates’ actions did fall significantly short of the

standards expected of a registered nurse, and that his actions amount to breaches of

the Code. Specifically:

The code (2008):

The people in your care must be able to trust you with their health and wellbeing

To justify that trust, you must:

Be open and honest, act with integrity and uphold the reputation of your

profession

Maintain clear professional boundaries

20 You must establish and actively maintain clear sexual boundaries at all times with

people in your care, their families and carers.

Uphold the reputation of your profession

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

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The Code (2015):

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

20.3 be aware at all times of how your behaviour can affect and influence the

behaviour of other people

20.5 treat people in a way that does not take advantage of their vulnerability or

cause them upset or distress

20.8 act as a role model of professional behaviour for students and newly

qualified nurses and midwives to aspire to

20.10 use all forms of spoken, written and digital communication (including social

media and networking sites) responsibly, respecting the right to privacy of others

at all times.

The panel appreciated that breaches of the Code do not automatically result in a finding

of misconduct. However, the panel was of the view that the facts found proved are

serious and fall far below the standards expected of a registered nurse. Mr Bates’

misconduct was of a repeated, sexual and inappropriate nature which would be seen as

deplorable by fellow practitioners and members of the public alike.

The panel found that Mr Bates’ actions did fall seriously short of the conduct and

standards expected of a nurse and amounted to serious misconduct.

Decision on impairment

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The panel next went on to decide if as a result of this misconduct Mr Bates’ fitness to

practise is currently impaired.

Nurses occupy a position of privilege and trust in society and are expected at all times

to be professional and to maintain professional boundaries. Patients and their families

must be able to trust nurses with their lives and the lives of their loved ones. To justify

that trust, nurses must be honest and open and act with integrity. They must make sure

that their conduct at all times justifies both their patients’ and the public’s trust in the

profession. In this regard the panel considered the judgment of Mrs Justice Cox in the

case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74

she said:

In determining whether a practitioner’s fitness to practise is impaired by

reason of misconduct, the relevant panel should generally consider not

only whether the practitioner continues to present a risk to members of the

public in his or her current role, but also whether the need to uphold

proper professional standards and public confidence in the profession

would be undermined if a finding of impairment were not made in the

particular circumstances.

Mrs Justice Cox went on to say in Paragraph 76:

I would also add the following observations in this case having heard

submissions, principally from Ms McDonald, as to the helpful and

comprehensive approach to determining this issue formulated by

Dame Janet Smith in her Fifth Report from Shipman, referred to above.

At paragraph 25.67 she identified the following as an appropriate test for

panels considering impairment of a doctor’s fitness to practise, but in my

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view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

Do our findings of fact in respect of the doctor’s misconduct,

deficient professional performance, adverse health, conviction,

caution or determination show that his/her fitness to practise is

impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to

put a patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the

medical profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach

one of the fundamental tenets of the medical profession; and/or

d. …

Having determined that Mr Bates’ misconduct was deplorable and that he has breached

fundamental tenets of the medical profession, the panel therefore finds that limbs b and

c are engaged as a result of Mr Bates’ past misconduct. In respect of limb a, the panel

is of the view that although there is no evidence to suggest that Mr Bates has put

patients at risk of harm, Mr Bates has put colleagues at risk of harm, therefore the

essence of limb a is also engaged to that extent.

The panel had regard to Mr Bates’ undated apology letter to Colleague D and his letter

to the NMC dated 17 January 2017. The panel is of the view that whilst there are limited

indications of insight in Mr Bates’ letters, Mr Bates in the main seeks to minimise the

impact of his actions and to pass them off as light hearted banter, despite his actions

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involving serious sexual misconduct. Accordingly, the panel considered that any insight

expressed by Mr Bates is at this stage inadequate.

As regard to remediation, the panel is of the view that Mr Bates’ conduct is capable of

remediation. However, the panel considered that Mr Bates has not sufficiently

addressed the concerns raised or demonstrated that he is likely to change his behaviour

in the future. The panel were mindful that despite being under investigation for

inappropriate behaviour of a sexual nature whilst working at NGH, Mr Bates continued

to act in this manner when he subsequently worked at UHCW. A pattern of behaviour

underpins the panel’s finding that Mr Bates lacks insight. The panel determined that

there is no evidence to suggest that Mr Bates has remediated in any way and thus is

not satisfied that he will not repeat his actions in the future.

For these reasons the panel determined that there is a risk of repetition and that

although Mr Bates does not pose a risk to patients, he does pose a risk to the

profession and to future colleagues.

The panel bore in mind that the overarching objectives of the NMC are to protect,

promote and maintain the health, safety and well-being of the public and patients, and

to uphold/protect the wider public interest, which includes promoting and maintaining

public confidence in the nursing profession and upholding the proper professional

standards for members of that profession. The panel determined that, in this case, a

finding of impairment on public interest grounds was also required. The panel bore in

mind that Mr Bates has breached fundamental tenets of the profession, and that a

finding of impairment was required both to maintain confidence in the profession and to

send a clear message to the profession that such behaviour will not be tolerated.

Having regard to all of the above, the panel was satisfied that Mr Bates’ fitness to

practise is currently impaired.

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Determination on sanction:

The panel has considered this case very carefully and has decided to make a striking-

off order. It directs the registrar to strike Mr Bates off the register. The effect of this order

is that the NMC register will show that Mr Bates has been struck-off the register.

In reaching this decision, the panel has had regard to all the evidence that has been

adduced in this case. The panel accepted the advice of the legal assessor. The panel

has borne in mind that any sanction imposed must be appropriate and proportionate

and, although not intended to be punitive in its effect, may have such consequences.

The panel had careful regard to the Sanctions Guidance (“SG”) published by the NMC.

It recognised that the decision on sanction is a matter for the panel, exercising its own

independent judgement.

Ms Thomas outlined what the NMC considered to be the aggravating features of this

case. Ms Thomas submitted that Mr Bates’ behaviour occurred over an extensive period

of time across two different hospitals. She said there were multiple recipients of Mr

Bates’ unwanted behaviour and his conduct was such that, in respect of Charge 1, it

was referred to the police. Ms Thomas submitted that the mitigating features of the case

are Mr Bates’ self-proclaimed difficulties regarding his personal circumstances, and the

possibility that he is seeking to address his behaviour.

Ms Thomas submitted that a suspension order would not be sufficient to protect the

public or the public interest in light of the fact that after the first incident in 2014 with

Colleague A, Mr Bates was given a final written warning and was demoted. However,

he went on to resign from his role, moved to another employer and again engaged in

this unwanted behaviour. Ms Thomas submitted that serious misconduct of a sexual

nature specifically engages the public interest and a striking-off order is the only

appropriate sanction in this case.

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Before making its determination on sanction, the panel first identified what it considered

to be the aggravating and mitigating features in this case:

Aggravating:

The conduct occurred over an extended period of time

The conduct took place in two different hospitals

There were multiple victims involved

There is an absence of any meaningful insight

There is a lack of any evidence of remediation

The conduct is of a serious nature which involves sexual motivation

Mitigating:

Mr Bates has not previously been brought before his regulator

Mr Bates offered an apology to Colleague D, albeit limited

There are references to difficulties in relation to Mr Bates’ health and personal

circumstances, although unsupported

The panel first considered whether to take no action but concluded that this would be

inappropriate in view of the seriousness of the case and the risk of repetition identified.

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 SG, which states that a caution order may be

appropriate where ‘the case is at the lower end of the spectrum of impaired fitness to

practise and the panel wishes to mark that the behaviour was unacceptable and must

not happen again.’ The panel considered that Mr Bates’ 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. The panel decided that it would be neither proportionate nor in

the public interest to impose a caution order.

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The panel next considered whether placing conditions of practice on Mr Bates’

registration would be a sufficient and appropriate response. The panel is mindful that

any conditions imposed must be proportionate, measurable and workable. The panel is

of the view that there are no practical or workable conditions that could be formulated,

given the nature of the charges in this case.

Furthermore the panel concluded that the placing of conditions on Mr Bates’ registration

would not adequately address the seriousness of this case and would not protect the

public.

The panel then went on to consider whether a suspension order would be an

appropriate sanction. The panel bore in mind that Mr Bates’ behaviour occurred over an

extended period of time across two different hospitals. The panel is of the view that this,

combined with the lack of insight identified, demonstrates a clear risk of repetition. The

conduct, as highlighted by the facts found proved, was a significant departure from the

standards expected of a registered nurse. The panel considered that the serious breach

of the fundamental tenets of the profession evidenced by Mr Bates’ actions is

fundamentally incompatible with him remaining on the register.

The panel determined that given the specific circumstances of the case a suspension

order would not reflect the overall seriousness of the misconduct and would not be a

sufficient, appropriate or proportionate sanction.

The panel was of the view that the findings in this particular case demonstrate that Mr

Bates’ actions were serious and to allow him to continue practising would undermine

public confidence in the profession and in the NMC as a regulatory body. The panel

considered that Mr Bates abused his position and that his behaviour demonstrates an

abuse of trust. Despite a disciplinary procedure being initiated, he went on to another

employer and engaged in conduct of a similar nature.

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Balancing all of these factors and after taking into account all the evidence before it, the

panel determined that the appropriate and proportionate sanction is that of a striking-off

order. Having regard to the matters it identified, in particular the adverse effect of Mr

Bates’ actions on his colleagues and also in bringing the profession into disrepute, the

panel has concluded that nothing short of a striking-off order would be sufficient in this

case.

The panel considered that this order was necessary to mark the importance of

maintaining public confidence in the profession, and to send to the public and the

profession a clear message about the standard of behaviour required of a registered

nurse as well as to protect potential colleagues of Mr Bates.

Determination on Interim Order

The panel has considered the submissions made by Ms Thomas that an interim

suspension order for a period of 18 months should be made on the grounds that it is

necessary for the protection of the public and is otherwise in the public interest.


The panel was satisfied that an interim suspension order is necessary for the protection

of the public and is otherwise in the public interest. The panel had regard to the

seriousness of the facts found proved and the reasons set out in its decision for the

substantive order in reaching the decision to impose an interim order. To do otherwise

would be incompatible with its earlier findings.

The period of this order is for 18 months to allow for the possibility of an appeal to be

made and determined.

If no appeal is made, then the interim order will be replaced by the striking-off order 28

days after Mr Bates is sent the decision of this hearing in writing.

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That concludes this determination.

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