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Nursing and Midwifery Council Fitness to Practise Committee

Substantive Hearing

16 to 19 October 2017 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH

Name of registrant: Linda Hancock NMC PIN: 79J0286S Part(s) of the register: Registered Nurse - Mental Health Area of Registered Address: Scotland Type of Case: Misconduct Panel Members: Anthony Griffin (Chair, Lay member)

Kathryn Eastwood (Registrant member) Claire Gill (Registrant member)

Legal Assessor: Peter McLuckie Panel Secretary: Elaine Stewart Registrant: Present and represented by Kate Kearney of

Anderson Strathern LLP Nursing and Midwifery Council: Represented by Yusuf Segovia, counsel,

instructed by NMC Regulatory Legal Team. Facts proved: 1.a, 1.b, 2 Facts not proved: 1.c – No case to answer Fitness to practise: Impaired Sanction: Suspension Order – 3 months Interim Order: Suspension Order – 18 months

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Details of charge:

That you, a Registered Nurse, whilst working as the Registered Manager of

Knowesouth Nursing Home:

1. Between approximately August 2012 and January 2013, failed to act upon

concerns raised by Colleague 1 in relation to the treatment provided by

Colleague 2 to:

a. Resident A

b. Resident B

c. Resident C

2. Between approximately May 2011 and 22 February 2013, failed to act upon

concerns raised by Colleague 3 in relation to the treatment provided by

Colleague 2 to an unknown patient.

And in light of the above your practice is impaired by reason of your misconduct.

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Decision and reasons on application to amend the charge The panel heard an application made by Mr Segovia on behalf of the NMC, to amend

the wording of charge no. 2.

The proposed amendment was to add “and/or colleague 4” and to amend the final part

of this charge to read “one or more unknown patient(s). It was submitted by Mr Segovia,

that the proposed amendment would provide clarity and more accurately reflect the

evidence.

Original Charge

2 Between approximately May 2011 and 22 February 2013, failed to act

upon concerns raised by Colleague 3 in relation to the treatment provided

by Colleague 2 to an unknown patient.

Amended Charge

2 Between approximately May 2011 and 22 February 2013, failed to act

upon concerns raised by Colleague 3 and/or Colleague 4 in relation to the

treatment provided by Colleague 2 to one or more unknown patient(s).

Ms Kearney made no objection on your behalf.

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,

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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 was of the view that such an amendment, as applied for, was in the interest

of justice. The panel was satisfied that there would be no prejudice to you and no

injustice would be caused to either party by the proposed amendment being allowed. It

was therefore appropriate to allow the amendment, as applied for, to ensure clarity and

accuracy.

Decision and reasons on application pursuant to Rule 31 The panel heard an application made by Mr Segovia under Rule 31 of the Rules to

allow the written statement of Mr 1, Social Work Team Manager – Scottish Borders

Council into evidence.

Ms Kearney on your behalf, submitted that she had no objection to the application

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 gave the application in regard to Mr 1 serious consideration. The panel noted

Mr 1’s statement had been prepared in anticipation of being used in these proceedings

and contained the paragraph ‘This statement … is true to the best of my information,

knowledge and belief’ and was signed by him.

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In these circumstances, the panel came to the view that it would be fair and relevant to

accept into evidence the written statement of Mr 1 but would give what it deemed

appropriate weight once the panel had heard and evaluated all the evidence before it.

Decision and reasons on application of no case to answer The panel considered an application from Ms Kearney on your behalf that there was no

case to answer in respect of the entirety 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 …

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.

In relation to this application Ms Kearney submitted that the panel should give

consideration to the case of R v Galbraith [1981] 1WLR 1039 and decide whether the

evidence presented by the NMC is sufficient. She submitted that the witnesses had

provided insufficient and unreliable evidence that was often contradictory to their written

statements. She further submitted that there had been no evidence presented that

spoke to charge 2 as none of the witnesses were in a position to know if any action had

been taken. In these circumstances, it was submitted that both charges should not be

allowed to remain before the panel.

Mr Segovia, on behalf of the NMC, submitted that the panel, in their consideration of the

evidence, need not find every aspect to be reliable in order to find the evidence useful.

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He submitted that the issues raised are serious and that each witness has given their

account as they best recalled it. Mr Segovia submitted that there is sufficient evidence

available to the panel to enable it to make an informed decision on the facts of the case.

The panel took account of the submissions made and heard and accepted the advice of

the legal assessor.

In reaching its decision, the panel made an initial assessment of all the evidence that

had been presented to it at this stage. The panel was solely considering whether

sufficient evidence had been presented to find the facts proved on the basis of the test

set out in R v Galbraith.

The panel was of the view that, taking account of all the evidence before it, there was

no realistic prospect that it would find the facts of charge 1c proved. The panel found

that Colleague 1, who gave evidence on this matter, was unsure who he had reported

the incident in charge 1c to and was clear in his oral and written evidence that he could

not recall if it was Mrs Hancock.

The panel was of the view that there had been sufficient evidence to support the

remaining charges at this stage. What weight the panel gives to any evidence remains

to be determined at the conclusion of all the evidence.

Background

You were employed in the role of Home Manager at Knowesouth Care Centre (the

Home). You worked at the Home from its opening in 1986, in a variety of roles until you

were promoted to Home Manager in 2002. You were employed as Home Manager until

you resigned in February 2013. A referral was made to the NMC regarding allegations

that you had had failed to deal with complaints raised to you regarding the abuse of

residents within the home. One of the carers in the Home was convicted under the

provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 relating to ill

treatment and wilful neglect. It is alleged that concerns regarding this carer were raised

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to you on multiple occasions by numerous members of staff and you did not act upon

their concerns.

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 Mr Segovia, on behalf of the NMC and

those made by Ms Kearney on your behalf.

The panel heard and accepted the advice of the legal assessor.

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

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

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

incidents occurred as alleged.

The panel heard oral evidence from three witnesses tendered on behalf of the NMC. In

addition, the panel heard oral evidence from you.

Witnesses called on behalf of the NMC were:

Colleague 1 – Senior Care Assistant at Knowesouth;

Colleague 3 – Carer at Knowesouth;

Colleague 4 – Senior Carer at Knowesouth;

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

had heard from, including you.

The panel found Colleague 1 to be a credible and reliable witness who did his best to

assist the panel. He was clear in his evidence and consistent in his account with

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regards as to what he had observed and reported to you. The panel accepted that there

were areas where his memory was limited due to the passage of time.

The panel found Colleague 3 to be clear and consistent in her account and found she

gave her evidence in a straightforward manner with no attempt to elaborate or

embellish. The panel found her to be a reliable witness who did her best to assist the

panel.

The panel found Colleague 4 to be a credible and reliable witness who recalled what

she could remember clearly and was honest where her memory was limited due to the

passage of time. Whilst the panel noted she had some difficulties in remembering dates,

when taken a letter provided by Police Scotland in the NMC bundle, she was able to

clarify details further. The panel found Colleague 4 to be honest and unbiased in her

evidence.

The panel also considered the statement of Mr 1 – Social Work Team Manager,

Scottish Borders Council. The panel accepted the evidence of Mr 1 as a factual

statement that confirmed there was no record of any concerns being raised to the

Scottish Borders Council with regard to Colleague 2.

You told the panel that you have worked in care homes throughout your nursing career.

You explained that you had been the Home Manager at Knowesouth since 2002 and

were responsible for the day to day running of the home, training and financial

management. You said you were a hands-on manager who worked frequently

throughout the home, assisting with patient care and supervising staff though you later

said you mainly worked in the older of the two buildings of the Home and your

observation of staff working in the newer building was limited. You said staff were

trained in safeguarding and knew how to report concerns and that if a concern was

raised to you, you would take statements from those involved, check on the resident

and inform their family and the relevant partner agencies.

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You told the panel that you were not informed of any of the incidents raised by

Colleague 1 and that, as his SVQ assessor, you knew he had received training in how

to report problems or concerns.

You told the panel that Colleague 3 had not raised any concerns with you regarding

patient care and that you would not have been in the home on a Saturday morning

when she said she reported the incident to you. You said that because you were not

informed, you did not take any action regarding the incident but would have if you had

been told.

You told the panel that Colleague 4 had not raised any concerns with you regarding the

issue with Resident A and therefore you had taken no action regarding it. You told the

panel that Colleague 4 had raised a concern about the manner and tone that Colleague

2 spoke to residents. You said you spoke to Colleague 2 about her communication skills

and moved her to work in the old part of the Home where she could be supervised for 2

weeks. You said you observed her carefully and had no concerns with her practice so

she returned to her normal location in the new building in the Home.

You told the panel that when Colleague 2 was convicted, you were appalled and felt

guilty that the abuse could have had taken place while you managed the Home but that

you were not aware of it.

You said you had good relationships with your staff and did not know why they were

saying that they reported concerns to you when it was your position that they did not.

The panel was unconvinced by your evidence and found it to be inconsistent on

occasions and your explanations to be unlikely in all the circumstances of the case. The

panel therefore found your evidence lacked credibility.

The panel considered each charge and made the following findings:

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Charge 1:

1. Between approximately August 2012 and January 2013, failed to act upon

concerns raised by Colleague 1 in relation to the treatment provided by

Colleague 2 to:

a. Resident A

b. Resident B

c. …..

This charge is found proved in respect of parts a and b. It was earlier determined that you had no case to answer in respect of part c. In reaching this decision, the panel took into account the evidence of Colleague 1 who

provided an account of the incidents in his police statement of 2013, his NMC statement

of 2016 and his oral evidence today. In all three accounts, Colleague 1 was consistent

in his evidence that he had witnessed Colleague 2 behaving aggressively to Resident A

and to Resident B and had reported this behaviour to you. Colleague 1 was clear in his

evidence that it was reported at the time of the incidents to you and that you said you

would deal with it. He believed you had not done so as Colleague 2 was still working in

the home and her behaviour was unchanged. Colleague 1 was also consistent in his

evidence that he had reported incidents involving Colleague 2 to either the nurse in

charge or another member of the management team.

You told the panel that neither incident was reported to you by Colleague 1 and as such

you did not take any action regarding Colleague 2. You said that if he had raised

concerns, you would have investigated and taken the appropriate safeguarding and

disciplinary action.

The panel preferred the account of Colleague 1. He also stated that he believed other

staff had reported concerns to you. This supports the evidence of Colleague 3 who gave

oral evidence to that effect today. The panel found that based on the volume of

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evidence and the consistency of his account over a 4 year period, on the balance of

probabilities, it seems more likely than not that Colleague 1 did raise concerns about the

treatment provided by Colleague 2 to Residents A and B and that you failed to act on

these concerns. As such, this charge is found proved.

Charge 2:

2. Between approximately May 2011 and 22 February 2013, failed to act upon

concerns raised by Colleague 3 and/or Colleague 4 in relation to the treatment

provided by Colleague 2 to one or more unknown patient(s).

This charge is found proved.

In reaching this decision, the panel took into account the evidence of Colleagues 3 and

4. Colleague 3 said that she had witnessed Colleague 2 hit a resident in retaliation and

she was shocked and upset by the incident. She said when she arrived home she was

still distressed by the incident and she spoke to a friend who was a nurse at the Home,

though not on shift at the time of the incident or telephone call. The nurse told her to

report the incident to you. Colleague 3 said she came in to the Home the following

morning to speak to you about it and you said you would deal with it. She said it was a

Saturday morning and you were in the Home to deal with Laundry as there was no

laundry assistant. You said it was well known in the Home that you never worked on a

Saturday morning, although on occasion you were there to drop a relative off, so would

not have been there at the time Colleague 3 said she reported the incident.

The panel preferred the evidence of Colleague 3 as her account was sufficiently

detailed and consistent and supported the statement of Colleague 1 who said that other

staff had raised concerns.

With regards to Colleague 4, she told the panel that she had raised her concerns with

you but that you said you had spoken to Colleague 2 who had admitted her actions and

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therefore nothing could be done. Colleague 4 said she found that strange. When she

asked why nothing had been done regarding other complaints by colleagues, she said

you had told her you could not make complaints official unless colleagues gave their

names and they were unwilling to do so. Colleague 4 said she was happy to give her

name and make an official complaint. Colleague 4 said she was unhappy that nothing

was being done to stop the abuse by Colleague 2 so she left the home and then

reported the incident to the Care Inspectorate. Colleague 4 said she had made no other

formal complaints and when she reported the incident with Resident A, you had not

taken any notes or appeared to take any action.

The panel noted that you said you had addressed another concern raised by Colleague

4 regarding Colleague 2’s tone and manner. However you said she had not reported the

specific incident of Colleague 2 shouting in Resident A’s face as he lay on the floor to

you. Colleague 4 said she believed no action had been taken as you told her there was

nothing you could do and Colleague 2 was still working in the home months after the

incident occurred.

The panel preferred the evidence of Colleague 4 in this regard as her oral evidence was

detailed and clear in her account of her reporting of the incident and her actions after

the event. The panel found it unlikely, on the balance of probabilities that an

experienced Carer, who then left the Home after a 9 year period of service, would not

have reported such a serious incident that had upset her.

In light of the evidence before it, the panel found charge 2 proved.

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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 your fitness to

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

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

suitability to remain on the register unrestricted.

In his submissions Mr Segovia invited the panel to take the view that your actions

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

nurses and midwives 2008 (“the Code”). He then directed the panel to specific

paragraphs and identified where, in the NMC’s view, your actions amounted to

misconduct.

Mr Segovia 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.’

He 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. Mr Segovia referred the panel to the

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

Council (2) Grant [2011] EWHC 927 (Admin).

Ms Kearney, on your behalf, submitted that you accept the panel’s finding on facts and

that this leads to a finding of misconduct. Ms Kearney submitted that, as in the case of

Cohen, a finding of misconduct does not necessarily lead to a finding of impairment.

She submitted that, as in the case of Azzam v GMC [2008] EWHC 2711 (Admin) the

panel should accord significant weight to your present skills and attempts to remedy

your practice when considering the issue of impairment. Ms Kearney provided the panel

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with a number of testimonials and training certificates and encouraged the panel to

consider these carefully when evaluating current impairment. Ms Kearney also drew the

panel’s attention to the case of PSA v NMC [2017] CSIH 29 and the necessity for a

panel to consider each case on its merits. That case maintains that it is not always

necessary for a panel to make a finding of impairment to uphold professional standards

and maintain public confidence in the profession. In that case, the court warned against

making a finding of impairment to enable the enforcement of a perceived necessary

penalty.

Ms Kearney submitted that you are an experienced and well respected nurse who is

considered to be trustworthy by your colleagues. She said you are committed to your

profession and that this was a single incident in a long career. Ms Kearney said this

behaviour was out of character for you and out of the manner of your regular practice.

Ms Kearney said you accepted the panel’s decision and were shocked and ashamed

that you were told of incidents and failed to act on them. She submitted that the lengthy

regulatory process had served as a salutary lesson and would prevent any such

incidents occurring in the future.

The panel has accepted the advice of the legal assessor.

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, your 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.

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 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:

The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must:

• make the care of people your first concern, treating them as individuals

and respecting their dignity

• work with others to protect and promote the health and wellbeing of those

in your care, their families and carers, and the wider community

• provide a high standard of practice and care at all times

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

profession.

As a professional, you are personally accountable for actions and omissions in

your practice, and must always be able to justify your decisions

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Work with others to protect and promote the health and wellbeing of those in your care, their families and carers, and the wider community 22 You must work with colleagues to monitor the quality of your work and

maintain the safety of those in your care.

32 You must act without delay if you believe that you, a colleague or anyone

else may be putting someone at risk.

Be open and honest , act with integrity and uphold the reputation of your profession 54 You must act immediately to put matters right if someone in your care has

suffered harm for any reason.

61 You must uphold the reputation of your profession 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 this was a serious failure to act

and such an omission fell far short of the standards expected of a registered nurse. The

panel determined that this was not an isolated incident as a number of different issues

were reported by numerous colleagues regarding multiple residents over an extended

period of time. The incidents reported to you were particularly serious as they were

regarding the assault of vulnerable elderly residents in your care. The panel determined

that by failing to act upon these reports, you exposed the residents to significant risk of

harm and this was a serious breach of the professional standards expected of a

registered nurse and would be considered deplorable by other nurses.

The panel found that your actions did fall seriously short of the conduct and standards

expected of a nurse and amounted to misconduct.

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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. 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 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 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. has in the past acted dishonestly and/or is liable to act

dishonestly in the future.

The panel finds that in this case, the first three limbs of Grant are engaged. The panel

found that by failing to address the concerns raised by your colleagues, you put the

residents in your care at unwarranted risk of harm. Your behaviour would be considered

unacceptable by a member of the public or fellow nurse and as such brought the

reputation of the profession into disrepute. By failing to address the concerns of your

colleagues and exposing residents to risk of harm, you also breached one of the

fundamental tenets of the profession.

The panel considered your insight into your misconduct in the context of future risk. The

panel considered that, while you demonstrated some remorse, you did not demonstrate

insight into the seriousness of your failings. You had a leadership role and a position of

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trust to ensure the health and wellbeing of the residents. Your failure to take action

when concerns were raised breached that trust. The panel found that you did not fully

understand the impact, and the potential impact, of your actions on the residents

involved and the other residents in the care home. You did not demonstrate insight into

the impact your failings had on your colleagues and on the reputation of the nursing

profession. The panel considered that you appeared to know what you should have

done but failed to do so and have not been able to explain why you failed to act. You

gave assurances you would act differently in future.

In its consideration of whether you have remedied your practice the panel took into

account the testimonials from employers and training certificates provided. The panel

noted you have worked as a Home Manager in two different settings since these

events. However no references were supplied from these employers. Therefore the

panel had no evidence of your performance in an equivalent role since these incidents.

The panel noted that a number of the training certificates supplied appeared to relate to

mandatory training completed with a new employer and did not specifically address the

issues relevant to this case.

The panel is of the view that there is a risk of repetition based on your lack of full insight

into your failings and the lack of evidence of remediation. The panel therefore decided

that a finding of impairment is necessary on the grounds of public protection.

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

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

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

public confidence in the nursing and midwifery professions and upholding the proper

professional standards for members of those professions. The panel determined that, in

this case, a finding of impairment on public interest grounds was required due to the

serious nature of the incidents that left residents in your care vulnerable to harm.

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Having regard to all of the above, the panel was satisfied that your fitness to practise is

currently impaired.

Determination on sanction: The panel has considered this case very carefully and has decided to make a 3 month

suspension order. The effect of this order is that the NMC register will show that your

registration has been suspended.

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.

The panel considered the relevant aggravating and mitigating factors in reaching its

decision on the appropriate sanction.

The aggravating factors that the panel took into account, in particular, are:

• This was not an isolated incident – there were a number of concerns raised to

you over a period of time by numerous colleagues regarding more than one

resident.

• You are an experienced nurse who was in a senior role and position of trust.

• Your lack of insight and evidence of understanding of the significance and impact

of your misconduct

• The seriousness of the concerns raised to you.

The panel took into account these mitigating factors:

• Positive testimonials regarding your clinical practice.

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• No previous regulatory findings in a lengthy career.

• You have worked without incident since these events.

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

inappropriate in view of the seriousness of the case. The panel decided that 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 your impairment 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.

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 proportionate, measurable and workable. The panel took into account

the SG, and acknowledged that there was no evidence of general incompetence or

harmful deep seated attitudinal problems. However, the panel was of the view that there

are no practical or workable conditions that could be formulated, given the nature of the

charges in this case. The misconduct identified in this case was not something that can

be addressed through retraining.

Furthermore the panel concluded that the placing of conditions on your registration

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

wider public interest.

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

appropriate sanction. The Sanctions Guidance indicates that a suspension order may

be appropriate where some of the following factors are apparent:

• no evidence of harmful deep-seated personality or attitudinal problems

• no evidence of repetition of behaviour since the incident

The panel determined that there had been a clear breach of fundamental tenets of the

profession. The panel had no evidence before it that you had repeated this misconduct

since these events but found that the misconduct did represent a pattern of behaviour

related to your accountability as a nurse. The panel noted that you are at the early

stages of developing insight into the seriousness of your misconduct but it was of the

view that you had not demonstrated sufficient understanding of the significance of your

actions and the impact on residents and colleagues. The panel determined that a period

of suspension would allow you time to reflect on this and develop a deeper

understanding of the significance of your failings and on the role and accountability you

have as a nurse in a senior position.

The panel further considered whether a striking-off order would be proportionate in your

case. Taking account of all the information before it, and taking account of the mitigating

factors identified, the panel concluded that it would be disproportionate at this time. The

panel noted that your misconduct met a number of the criteria for a striking off order,

including the following factors:

• a serious departure from professional standards,

• it resulted in vulnerable residents in your care being exposed to risk of harm

• a breach of trust in the senior position you held

• you have a persistent lack of insight into the seriousness of your actions

The panel determined would be unduly punitive in your case to impose a striking off

order as the panel did not determine your actions at this time. The panel found that it

was in the public interest that a skilled nurse should be allowed to return to practise.

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Balancing all of these factors the panel has concluded that a suspension order would be

the appropriate and proportionate sanction.

The panel noted the hardship such an order will inevitably cause you. However this is

outweighed by the public interest in this case.

The panel considered that this order is 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.

The panel determined that a suspension order for a period of 3 months was appropriate

in this case to mark the seriousness of the misconduct.

At the end of the period of suspension, another panel will review the order. At the review

hearing the panel may revoke the order, or it may confirm the order, or it may replace

the order with another order. Any future panel may be assisted by:

• a reflective piece detailing your understanding of the seriousness of your

misconduct, the impact on residents and colleagues and on the importance of

accountability for a nurse.

• references or testimonials from your current employer.

• evidence of education undertaken which consolidates your understanding of your

misconduct, and the subsequent application of this learning to your future

practice.

Determination on Interim Order The panel considered the submissions made by Mr Segovia that an interim suspension

order should be made on the grounds that it is necessary for the protection of the public

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and is otherwise in the public interest. The panel took account that Ms Kearney did not

oppose the application for an interim order.

The panel accepted the advice of the legal assessor.

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

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

seriousness of the facts found proved and the reasons set out in its decision 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 suspension order 28

days after you are sent the decision of this hearing in writing.

That concludes this determination.