Post on 09-Sep-2020
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Fitness to Practise Committee Substantive Hearing
1 – 4 August 2017 Nursing and Midwifery Council (NMC), 61 Aldwych, London WC2B 4AE
Name of Registrant Nurse: Andrea Rachel Moore
NMC PIN: 08I0444E
Part(s) of the register: RNMH, Registered Nurse (sub part 1) Mental Health (22 September 2008) Area of Registered Address: England
Type of Case: Misconduct
Panel Members: Mary Monnington (Chair, Registrant member) Diane Corderoy (Registrant member) Thomas Woods (Lay member)
Legal Assessor: Breige Gilmore
Panel Secretary: Susan Curnow (1-3 August 2017)
Lesley Rudd (4 August 2017)
Representation NMC: Represented by Nazmeen Imambaccus, counsel, instructed by NMC Regulatory Legal Team
Registrant: Mrs Moore was not present and not
represented Facts proved by admission: 1 a.
Facts proved: 1 bi; 1 bii; 1 biii;
Facts not proved: 1 b iv; 1 c; 1 d. Fitness to practise: Impaired
Sanction: Striking-off Order Interim Order: 18 months Suspension Order
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Details of amended charges:
That you, a Registered Nurse, whilst working at The Willows Nursing Home:
1. On 5 April 2016, in relation to Resident A:
a. Having become aware that Resident A was incontinent of faeces, did not ensure that
he was cleaned in a timely fashion; (this charge is found proved)
b. Spoke inappropriately and/ or in a threatening manner to Resident A in
that:
i. You told him to shut up, or words to that effect, on one or more occasions;
(this charge is found proved)
ii. Upon being told to ‘fuck off’ by Resident A, you responded, ‘Why don’t
you’, or words to that effect; (this charge is found proved)
iii. You said, ‘Come on then big boy, stand up, standing fucking up’, or
words to that effect; (this charge is found proved)
iv. You said, “Do you want to go outside to calm down” (this charge is found not proved)
c. Inappropriately held an incontinence pad close to Resident A’s face; (this charge is found not proved)
d. Inappropriately placed a towel over Resident A’s mouth. (this charge is found not proved)
And, in light of the above, your fitness to practise is impaired by reason of
your misconduct.
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Decision on service of notice of hearing: The panel was informed at the start of this hearing that Mrs Moore was not in
attendance and that written notice of this hearing had been sent to Mrs Moore’s
registered address by recorded delivery and by first class post on 30 June 2017.
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 Mrs
Moore’s right to attend, be represented and call evidence, as well as the panel’s power
to proceed in her absence.
Ms Imambaccus submitted 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 the information available, the panel was satisfied that notice had been
served, as advised by the legal assessor, in compliance and accordance with Rules 11
and 34 of the Rules;:
11 (2) The notice of hearing shall be sent to the registrant ...
(b) in every case, no later than 28 days before the date fixed for
the hearing.
34 (1) Any notice of hearing required to be served upon the registrant shall be
delivered by sending it by a postal service or other delivery service in
which delivery or receipt is recorded to
(a) her address in the register
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.
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Proceeding in the absence: The panel then considered continuing in the absence of Mrs Moore. The panel heard
the submissions made by Ms Imambaccus on behalf of the Nursing and Midwifery
Council (NMC).
The panel accepted the advice of the legal assessor. She advised, in accordance with
the decision of the case of GMC v Adeogba [2016] EWCA civ 182, in that where there
was good reason not to proceed, the case should be adjourned, but where there was
not, the case should proceed. The panel was mindful that this was a discretion that
must 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
In deciding whether to proceed in the absence of Mrs Moore, the panel weighed its
responsibilities for public protection and the expeditious disposal of the case with Mrs
Moore’s right to a fair hearing.
The panel had sight of correspondence from Mrs Moore dated 13 July 2017, in which
she states she is unable to attend the hearing. In the letter Mrs Moore states: “I am
responding to the last letter that I received at my parent’s home earlier this month. … I
do not have legal representation [private] and I cannot afford to pay for the journey.”
Mrs Moore had been sent notice of today’s hearing to her address on the register, and
that letter had been forwarded to her parent’s address where she is currently residing.
Mrs Moore has sent a letter to the NMC dated 13 July 2017, in which she confirms she
has received the notice of the hearing and has provided a response to the allegations.
The panel was therefore satisfied that she was aware of today’s hearing. The panel
enquired as to whether Mrs Moore had been offered financial assistance to attend the
hearing. The panel also enquired as to whether she had been asked to attend the
hearing via telephone or video link. Ms Imambaccus informed the panel that Mrs Moore
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had been emailed as to whether she wished to seek financial support following the
receipt of her letter dated 13 July 2017, and no response had been received. The NMC
has had limited telephone contact with Mrs Moore and Ms Imambaccus informed the
panel that telephone calls to her were not answered. In the absence of a response
regarding financial support, the NMC did not pursue any further communication with
her.
The panel therefore concluded that Mrs Moore had chosen voluntarily to absent herself.
The panel then decided to proceed in the absence of Mrs Moore. In reaching this
decision, the panel has considered the submissions of Ms Imambaccus, and the advice
of the legal assessor. 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 Mrs Moore and there is no
reason to suppose that adjourning would secure her attendance at some future
date;
• Mrs Moore has responded to the notice of hearing and has provided a limited
written response to the allegations;
• Two witnesses had been warned to attend today to give live evidence;
• The charges relate to events that occurred in 2016 and there is a strong public
interest in the expeditious disposal of the case.
There is some disadvantage to Mrs Moore in proceeding in her absence. She will not be
able to challenge the evidence relied upon by the NMC and will not be able to give
evidence on her own behalf. The panel noted that Mrs Moore did not accept the
evidence against her in most regards. However, in the panel’s judgment, this can be
mitigated. The panel can make allowance for the fact that the NMC’s evidence will not
be tested by cross examination and, of its own volition, can explore any inconsistencies
in the evidence which it identifies.
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In these circumstances, the panel has decided that it is fair, appropriate and
proportionate to proceed in the absence of Mrs Moore. The panel will draw no adverse
inference from Mrs Moore’s absence in its findings of fact.
Preliminary matters: Decision and reasons on the application to amend the charge: The panel identified an omission in the charges and heard an application made by Ms
Imambaccus, on behalf of the NMC, to amend the wording in the stem of charge 1.
The proposed amendment was to include the year (2016) in the date so as to read “On
5 April 2016, in relation to Resident A:”. It was submitted by Ms Imambaccus that the
proposed amendment would clearly specify the year in which the incidents are alleged
to have occurred and therefore provide clarity.
The panel accepted the advice of the legal assessor that Rule 28 of the Nursing and
Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended 2012)
(The Rules) states:
28.—(1) At any stage before making its findings of fact…
(i)… the Conduct and Competence Committee, may amend—
(a) the charge set out in the notice of hearing…
unless, having regard to the merits of the case and the fairness of the
proceedings, the required amendment cannot be made without injustice.
The panel was of the view that such an amendment, as applied for, was in the interests
of justice. The panel was satisfied that there would be no prejudice to Mrs Moore who
was aware of the allegations and the specific date and year in which they occurred. It
was also satisfied that 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.
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Decision and reasons on the application to take telephone evidence: Ms Imambaccus made an application under Rule 31 of the Rules, to receive the
evidence of one of the witnesses, Ms 2, via a telephone conference. Rule 31 states:
Rule 31(1), “Upon receiving the advice of the legal assessor, and subject only to
the requirements of relevance and fairness, a Practice Committee considering an
allegation may admit oral, documentary or other evidence, whether or not such
evidence would be admissible in civil proceedings (in the appropriate Court in
that part of the United Kingdom in which the hearing takes place).”
Ms Imambaccus submitted that it was always intended to have Ms 2 attend in person to
adduce evidence. Ms 2 had conducted the internal investigation into the alleged
incidents. Her evidence relates to that investigation and to a number of documents
acquired during the course of that investigation. However, Ms 2 was unable to attend
due to health reasons and had stated in an email dated 31 July 2017 that she was
currently on sick leave and unable to attend the hearing due to illness. The panel was
informed that this had been confirmed by Ms 2’s employer, and that Ms 2 had provided
a Statement of Fitness to Work from her GP confirming her condition and sick leave.
The NMC made contact with Ms 2 and ascertained that she was willing to give evidence
via a telephone conference. Ms Imambaccus submitted that Mrs Moore had sight of Ms
2’s witness statement and the documents included in the bundle, therefore there is no
injustice to her (Mrs Moore) in taking Ms 2’s evidence by telephone.
The panel accepted the advice of the legal assessor. She reminded the panel that Rule
31 states:
Rule 31(1), “Upon receiving the advice of the legal assessor, and subject only to
the requirements of relevance and fairness, a Practice Committee considering an
allegation may admit oral, documentary or other evidence, whether or not such
evidence would be admissible in civil proceedings (in the appropriate Court in
that part of the United Kingdom in which the hearing takes place).”
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The panel was in no doubt that Ms 2’s evidence was relevant and considered that it
would be fair, having regard to its duty to protect the public and satisfy the wider public
interest, to receive Ms 2’s evidence by telephone. The panel accepts that it would not
be able to assess the physical demeanour of Ms 2 but was satisfied that any apparent
unfairness that this may present could be dealt with by addressing what weight the
panel decides to attach to her evidence. The panel would be able to hear Ms 2’s
responses and the tone and manner in which they would be delivered. The panel was
conscious of the need to receive and consider all relevant evidence in discharging its
duties to protect the public and to ensure a fair hearing and was satisfied that granting
this application was both fair and proportionate in all the circumstances.
Decision and reasons on application to admit further evidence under Rule 31:
Prior to contacting Ms 2 to give oral evidence by telephone, the panel heard an
application made by Ms Imambaccus under Rule 31 of the Rules to allow into evidence
the Investigation Report (the Report) presented by Ms 2 at the Disciplinary Meeting of
17 May 2016. Ms Imambaccus submitted that the Report was relevant because it
included details of Mrs Moore’s training records which the panel had enquired of when
considering the oral evidence of Ms 1. She further submitted that the information
contained within the Report was relevant to these proceedings and specific to the
charges. In relation to fairness to Mrs Moore, Ms Imambaccus submitted that the Report
had been contained within a bundle of documents sent to Mrs Moore in relation to the
allegations, and that she was aware of the document even though it had not been part
of the hearing bundle.
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.
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The panel was satisfied that the Report was relevant to the charges and considered
whether it was fair to Mrs Moore to admit the information contained within that report
into evidence. It determined that there would be no unfairness to Mrs Moore for the
panel to have sight of the document and therefore her training record.
Furthermore, it considered that there was also a public interest in the issues being
explored fully which supported the admission of this evidence into the proceedings.
In these circumstances the panel decided that it would accept into evidence the
additional documentation.
Background:
The charges arose whilst Mrs Moore was employed as a Registered Nurse on the
dementia unit at the Willow Care Home (“the Home”), a nursing home owned by
Methodist Homes for the Aged (MHA). The Home can accommodate up to sixty-one
residents and consists of a twenty bed nursing/dementia unit, the Fieldview Unit (“the
Unit”) and a forty-one bed unit for frail and elderly residents. Mrs Moore worked on the
nursing/dementia unit, and had been employed at the Home since 25 June 2014. There
would be one registered nurse on the Unit at each shift, and at least four health care
assistants.
Mrs Moore was referred to the NMC on 20 June 2016 following an incident which
occurred on 5 April 2016. Mrs Moore was the nurse in charge of the Unit on 5 April 2016
and was supported by five healthcare assistants. Prior to dinner being served, it
became apparent that Resident A, may have manually evacuated faeces while in the
dining room. Resident A was an elderly patient, wheelchair bound, with dementia who
used coarse language and could be both physically and verbally aggressive. It is
alleged that Mrs Moore instructed a care assistant, Ms 1, to take Resident A to the
bathroom to wash his hands, and instructed Ms1 that he was not to be showered until
the teatime was over. Mrs Moore allowed Resident A to return to the dining room and
remain soiled for a period of around 45 minutes. It is also alleged that during this time
Mrs Moore observed him putting his hands down the back of his trousers, and asked
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him not to do so. It is alleged that she then swore at him, and became verbally abusive.
When Mrs Moore accompanied Resident A to be showered along with two health care
assistants and one senior health care assistant, Ms 1, it is further alleged that Mrs
Moore verbally abused him again, picked up the soiled incontinence pad and put it close
to his face. It is also alleged that Mrs Moore then placed a towel over Resident A’s
mouth.
The incidents were reported to Ms 2, the Home Manager, on 7 April 2016 by a number
of care assistants including Ms 1. On the 8 April 2016 Mrs Moore was asked to provide
a statement regarding the incidents that occurred on 5 April 2016, and was suspended
from the Home that same day. A disciplinary meeting was held on 17 May 2016,
conducted by Ms 4 (a senior manager) and Mrs Moore was dismissed from the Home
on 20 May 2016.
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 Imambaccus, on behalf of the
NMC, and the written submissions of Mrs Moore in a letter dated 13 July 2017. It also
had sight of the contemporaneous statements made by Ms 1 dated 7 April 2016 and
that of Mrs Moore dated 8 April 2016; the minutes of the disciplinary meeting and
Report dated 17 May 2016 and a letter written by Mrs Moore to MHA dated 31 May
2016.
The panel heard and accepted the advice of the legal assessor. The legal assessor
reminded the panel 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 is more likely than not that the incidents
occurred as alleged. She advised that the panel must assess the credibility of the
witnesses and the reliability of the evidence presented to it. She further advised that it
was a matter for the panel what weight to attach to any documentary or oral evidence.
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The panel heard oral evidence from two witnesses called on behalf of the NMC:
• Ms 1, Senior Healthcare Assistant
• Ms 2, Home Manager (by telephone)
The above titles refer to the individuals’ positions at the time of the charges.
The panel found Ms 1 to be a credible witness. She conceded she may have been
confused over timelines, and the panel found that there were no significant
inconsistencies between her oral evidence and that of her written statement of 8 April
2016 and her witness statement provided for these proceedings dated 20 January 2017.
Ms 1 told the panel that she had started in the role of senior healthcare assistant in
March 2016 and had worked between 12 and 15 shifts with Mrs Moore prior to the
incidents.
Ms 1 stated in her written statement to the NMC and her oral evidence that she thought
the incidents that gave rise to the allegations took place over the lunchtime period, but
accepted she could have been mistaken regarding the time of day. The panel noted that
she had not provided a time frame in her statement to the Home dated 7 April 2016 and
accepted that although she was confused about the time of day, she was in the dining
room at the relevant time. She confirmed she was also a witness to the events that
occurred when Resident A was later showered. Ms 1 also confirmed that she reported
her concerns about the events of 5 April 2016 to Ms 2 two days after the incidents as
did two other healthcare assistants. In her oral evidence Ms 1 stated that she did not
feel able to confront Mrs Moore about the alleged incidents at the time.
The panel found Ms 2 to be a credible witness. She was an experienced mental health
nurse and had worked both as a nurse within the NHS and a care home manager in the
private sector. She took up her role as Home Manager at the Home in October 2014,
and undertook the investigation into the allegations following the concerns raised by the
healthcare assistants about the nursing care provided to Resident A by Mrs Moore on 5
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April 2016. She provided a context to the allegations, and stated that prior to the
incidents there had been no disciplinary issues with Mrs Moore, nor had there been
complaints about her practice from relatives or “anyone else”. She told the panel that
she was not aware of any relationship issues between the health care assistants and
Mrs Moore, and that two of the health care assistants (including Ms 1) were relatively
new employees at the Home. She stated that Mrs Moore had confirmed there had been
an altercation between her and Resident A.
The panel also noted the documentary evidence provided by Ms 2 regarding Mrs Moore
training record in relation to managing individuals presenting with challenging
behaviours. She informed the panel that five of the training programmes undertaken by
Mrs Moore including:
• Understanding and managing behaviour that challenges
• Safeguarding vulnerable adults
• Living the values
• The person inside
• The spirituality workshop
completed in 2014 and 2015 would all have addressed the issue of managing
challenging behaviours. In any event, as a registered mental health nurse, she would
have known the appropriate action to take in these circumstances.
Mrs Moore provided a statement dated 8 April 2016 to Ms 1 describing her version of
the events. Following the disciplinary meeting on 17 May 2016, she provided a further
response to the MHA dated 31 May 2016. She also provided a response to the charges
in her letter dated 13 July 2017. Mrs Moore accepts that she left Resident A in a soiled
pad for the duration of the tea time meal, and that on reflection, Resident A should have
been showered immediately. She also accepts that she did try to calm Resident A down
on his return to the dining area by offering to take him for a walk in the garden. She has
denied throughout that she verbally abused or intimidated Resident A.
The panel considered each charge in turn and made the following findings:
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The panel first considered charge 1.
That you, a Registered Nurse, whilst working at The Willows Nursing Home:
1. On 5 April 2016, in relation to Resident A:
Charge 1a:
a. Having become aware that Resident A was incontinent of faeces, did not
ensure that he was cleaned in a timely fashion;
This charge is found proved.
In reaching this decision, the panel took into account the oral and written evidence of
Ms 1. Ms 1 stated that on 5 April 2016, during a meal time, it was discovered that
Resident A had been incontinent of faeces and had faeces on his hands. Mrs Moore
asked her to take Resident A to the bathroom and wash his hands, and told her that
Resident A would be showered as soon as the meal was finished. Ms 1 accompanied
Mrs Moore, along with two other healthcare assistants when Resident A was later
showered.
The panel noted that Mrs Moore said in her statement of 8 April 2016, that she was
taking the medication trolley into the dining room to begin the tea time medications,
when one of the care staff noted that Resident A had manually evacuated faeces. She
further states that she had a choice to either send three or four care staff to shower him,
or to carry on with the teatime medications. The panel accepted the evidence that
Resident A can become agitated, aggressive, and verbally offensive during care and
personal interventions, and that, in accordance with the care plan, at least three care
staff are required when undertaking any interventions. In addition, the panel accepted
the evidence of Ms 1 that Resident A did not like being touched. The panel also took
into account the informal admissions made by Mrs Moore that she had made a wrong
decision in leaving Resident A in the dining room soiled.
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The panel found that Mrs Moore having become aware that Resident A was incontinent
of faeces did not ensure that he was cleaned (showered and changed) in a timely
fashion by the evidence provided by Ms 1, and by Mrs Moore’s own admission.
The panel therefore found charge 1a proved.
The panel next considered charge 1 b. b. Spoke inappropriately and/ or in a threatening manner to Resident A in
that:
This charge is found proved.
The panel noted that Mrs Moore had told Ms 2 that there had been an altercation
between her and Resident A. Mrs Moore also admitted that she had spoken
“firmly” to Resident A and had taken him outside, through the patio doors in the
dining room in his wheelchair. She also accepted that Resident A was swearing
and threatening her over this period of time. In her statement of 8 April 2016 she
says: “I touched his left elbow with the fingertips of my right hand, and guided his
left hand in mine from the back of his body to the front of his body. He started to
shout out loud “Fuck off, just fuck off will you” I asked Resident A to calm down,
and then he threatened to punch me.”
The panel had regard to the notes of the disciplinary meeting on 17 May 2016 in which
Ms 4 agreed when challenged by Mrs Moore’s representative that some “other
members of staff said she didn’t swear”. However, the panel noted that Mrs Moore
herself accepted that all of the statements provided to her as part of the internal
investigation stated that she had used the same swear word. In her letter dated 31 May
2016 she states: “the allegation of me supposedly swearing and asking Resident A to
“Stand up” … are not consistent, although they all contain the same swear word which I
deny using at any time.”
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In reaching its decision in relation to this charge, the panel took into account the
evidence provided by Ms 1. She told the panel that when she took Resident A back to
the dining room, having washed his hands, he was still upset and was shouting at Mrs
Moore. Ms 1 told the panel that Mrs Moore then told him to ‘shut up’. Throughout her
written statements Mrs Moore denies verbally abusing and swearing at Resident A.
The panel preferred Ms 1’s evidence in relation to this charge. The panel took into
account that Ms 2 had said Mrs Moore could “get stressed a bit when something out of
the ordinary occurred”. The panel also noted that Resident A was demonstrating
challenging and aggressive behaviour at this time. The panel found that, on the balance
of probabilities, it was likely that Mrs Moore had told Resident A to shut up on at least
one occasion.
The panel therefore found charge 1b i proved.
The panel next considered charge 1 b ii: ii. Upon being told to ‘fuck off’ by Resident A, you responded, ‘Why don’t you’, or
words to that effect;
This charge is found proved.
In reaching this decision, the panel took into account the evidence provided by Ms 1
who said that Resident A had started swearing at Mrs Moore telling her to ‘fuck off’
repeatedly. Ms 1 stated that Mrs Moore responded by saying ‘why don’t you’. The panel
noted that Mrs Moore denies saying this, but also had regard to the heightened nature
of the altercation, which was ongoing, between Mrs Moore and Resident A. The panel
preferred Ms 1’s evidence in relation to this charge, and found, on the balance of
probabilities, that Mrs Moore was likely to have responded to the verbal abuse directed
at her by Resident A with a response similar to “Why don’t you” or words to that effect.
The panel therefore found charge 1 b ii proved.
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The panel next considered charge 1 b iii.: iii. You said, ‘Come on then big boy, stand up, standing fucking up’, or
words to that effect;
This charge is found proved.
In reaching this decision, the panel took into account the evidence provided by Ms 1
that at this point Resident A “put his fist up to her and she said ‘come on then big boy,
stand up, stand fucking up’ ” and that this had made Resident A even more angry.
The panel noted that Mrs Moore also denied using these words. The panel preferred Ms
1’s evidence in relation to this charge over the responses provided by Mrs Moore
contained in her written evidence before the hearing. The panel had regard to the
ongoing and volatile nature of the situation between Resident A and Mrs Moore. It
found, on the balance of probabilities, that it was likely that Mrs Moore responded to the
verbal abuse directed at her by Resident A with a response that echoed the words used
by Resident A and that it was likely that she said something similar to “Come on then
big boy, stand up, standing fucking up’ or words to that effect.
In reaching this decision the panel was mindful of the acceptance by Mrs Moore,
throughout her written responses, of an ongoing altercation between herself and
Resident A.
The panel therefore found charge 1b iii proved.
The panel next considered charge 1 b iv.: iv. You said, “Do you want to go outside to calm down”
This charge is found NOT proved.
In reaching this decision, the panel took account of the evidence of Ms 1 and that of Mrs
Moore provided in her statements of 8 April 2016 and 13 July 2017. In her statement of
8 April 2016 Mrs Moore states that she “then said to Resident A “Do you want to go
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outside to calm down” and that her thoughts were to remove him from the dining room
environment so that other residents did not have to listen to his coarse language. She
says that her intention was to “walk him around the garden and try to distract him and
try to de-escalate the situation.” She also stated that the patio doors in the dining area
were open, and when Resident A again became verbally aggressive and threatening
she “just walked away and carried on with the tea time medication.”
Ms 1 said in her statement of 7 April 2016, that Resident A became even more angry at
this point, and that the argument continued until Mrs Moore wheeled him out of the
room and into the garden. She said that Resident A had said “I will have you outside”
and Mrs Moore responded by saying “Oh you will, will you. OK how about I [take] you
out, she wheeled him outside.” In her oral evidence Ms1 stated that Mrs Moore went to
close the patio doors behind her but then brought him back in. When questioned by the
panel, Ms 1 could not recall whether the patio doors were locked or not, but was almost
sure that they were locked. She also stated that both Mrs Moore and Resident A were
only outside briefly, for around a period of four seconds.
The panel noted that the words which Mrs Moore said she used and which are reflected
in the exact wording of the charge are in stark contrast to the description of this
particular event by Ms 1.
The panel preferred the evidence provided by Ms 1. It found that given the nature of the
exchange between Resident A and Mrs Moore, that on the balance of probabilities, Mrs
Moore was likely to have responded to the situation as described by Ms 1 and did not
accept that Mrs Moore had simply said to Resident A: “Do you want to go outside and
calm down.”
The panel noted that this charge was not qualified by the use of “or words to that effect.”
The panel therefore found charge 1 b iv. not proved.
The panel next considered charges I c. and 1 d.
c. Inappropriately held an incontinence pad close to Resident A’s face;
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This charge is found NOT proved. d. Inappropriately placed a towel over Resident A’s mouth.
This charge is found NOT proved.
In reaching these decisions, the panel took into account the evidence of Ms 1 who
stated that “After [the meal] we took [Resident A] to his bathroom. [Mrs Moore] started
pulling at [Resident A]’s clothes to get them off and he was asking why she was doing
this and was crying, he was all confused about what was going on. [Mrs Moore] then
picked up his incontinence pad and put it very close to his face and said ‘because of
this’ and then told him that he had done it all up his back. ... She made no effort to
defuse the situation. After we had showered [Resident A], dried him and dressed him he
was trying to say something but [Mrs Moore] just put a towel over his mouth and told
him to ‘shut up’ as no one was listening.”
In respect of the charges in 1 c. and 1 d., the panel noted that the only evidence that
these events took place as alleged came from the written and oral evidence of Ms 1.
Furthermore, the panel noted that these two allegations were dealt with to a very limited
extent during the course of the internal investigation by the Home. In particular, the
panel noted in relation to charge 1 c. that this allegation was never put to Mrs Moore
during any interviews that took place with her.
The panel was aware that during the disciplinary hearing Mrs Moore was provided with
some statements taken from witnesses which may have included both allegations.
However, the panel was satisfied that these matters were not addressed during the
investigation to any meaningful extent. It was also noted by the panel, and no contrary
submission was made by Ms Imambaccus for the NMC with regard to it, that the internal
investigation had found the allegation at 1 d. to be “untrue” having only had the
evidence of one witness (presumably Ms 1).
In reaching its decision the panel was also mindful that Mrs Moore, throughout her
written responses, has denied that she acted in this way. The panel was aware that,
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according to the evidence of both Ms 1 and Mrs Moore that two other health care
assistants were in Resident A’s bathroom and that there was no evidence following the
incident or put before the panel from either of these witnesses to confirm that these
events occurred.
The panel concluded that in asking the question, ‘is it more likely than not that the
events in 1 c. and 1 d. happened as alleged?’, the answer that there was insufficient
evidence to substantiate the charges.
Although the panel found Ms 1 to be overall a credible and largely reliable witness it
was of the view that the available evidence for these two charges was weak and lacking
any further support so as to discharge the burden of proving them on the balance of
probabilities. The events as described by Ms 1 may have been a misinterpretation of the
situation and affected by her state of mind, as described in her own words: “… I couldn’t
sleep because I was thinking about it. I knew I should have reported it that night,
however I think I was in shock…”.
The panel therefore found charge 1 c. and 1 d. not proved.
Submissions 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 Mrs Moore’s
fitness to practise is currently impaired. The NMC has defined fitness to practise as a
registrant’s suitability to remain on the register unrestricted.
In reaching its decision, the panel had regard to all the evidence before it and the
submissions of Ms Imambaccus. It noted the Impairment bundle that contained details
of other, very similar NMC charges faced by Mrs Moore in 2014.
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Ms Imambaccus referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC
311 which defines misconduct as a word of general effect, involving some act or
omission which falls short of what would be proper in the circumstances.
In her submissions Ms Imambaccus invited the panel to take the view that Mrs Moore’s
actions amount 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, Mrs Moore’s actions
amounted to misconduct.
Ms Imambaccus then moved on to the issue of impairment. She referred the panel to
the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery
Council (2) Grant [2011] EWHC 927 (Admin). She then 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 Imambaccus also submitted that Cohen v GMC [2008] EWHC 581 (Admin) outlines
a three stage ‘test’ for impairment. When deciding whether fitness to practise is
impaired panels should take account of:
i) Whether the conduct which led to the charge is easily remediable;
ii) Whether it has been remedied; and
iii) Whether it is likely to be repeated.
The panel has accepted the advice of the legal assessor which included reference to a
number of judgments which are relevant, these included: Roylance v General Medical
Council (No 2) [2000] 1 A.C. 311, Nandi v GMC [2004] EWHC 2317 (Admin), and
GMC v Meadow [2007] QB 462 (Admin):
21
“Whilst remediation is a relevant factor, the public interest must still be considered
paramount and states:
It is essential, when deciding whether fitness to practise is impaired, not to lose
sight of the fundamental considerations … namely, the need to protect the public
and the need to declare and uphold proper standards of conduct and behaviour
so as to maintain public confidence in the profession”.
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, Mrs Moore fitness to practise is currently impaired as a result of that
misconduct.
Decision on misconduct:
The panel, in reaching its decision, had regard to the public interest and accepted that
there was no burden or standard of proof at this stage and exercised its own
professional judgement.
When determining whether the facts found proved amount to misconduct the panel had
regard to the terms of the Code in force at that time, namely the March 2015 edition.
The panel was of the view that Mrs Moore actions fell short of the standards expected of
a registered nurse, and that her actions amounted to a breach of the Code. Specifically:
“1 Treat people as individuals and uphold their dignity
To achieve this, you must:
1.1 treat people with kindness, respect and compassion
1.2 make sure you deliver the fundamentals of care effectively
1.3 …
22
1.4 make sure that any treatment, assistance or care for which you are responsible is
delivered without undue delay, and
1.5 respect and uphold people’s human rights
2 Listen to people and respond to their preferences and concerns
To achieve this, you must:
2.1 work in partnership with people to make sure you deliver care effectively
2.2 …
2.3 …
2.4 …
2.5 …
2.6 recognise when people are anxious or in distress and respond compassionately and
politely.
3 Make sure that people’s physical, social and psychological needs are assessed and
responded to
To achieve this, you must:
3.1 …
3.2 …
3.3 act in partnership with those receiving care, helping them to access relevant health
and social care, information and support when they need it, and
3.4 act as an advocate for the vulnerable, challenging poor practice and discriminatory
attitudes and behaviour relating to their care.
8 Work cooperatively
To achieve this, you must:
8.1 respect the skills, expertise and contributions of your colleagues, referring matters to
them when appropriate
8.2 …
8.3 …
8.4 …
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8.5 work with colleagues to preserve the safety of those receiving care
8.6 …
8.7 …
17 Raise concerns immediately if you believe a person is vulnerable or at risk and
needs extra support and protection
To achieve this, you must:
17.1 take all reasonable steps to protect people who are vulnerable or at risk from harm,
neglect or abuse …
19 Be aware of, and reduce as far as possible, any potential for harm associated with
your practice
To achieve this, you must:
19.1 take measures to reduce as far as possible, the likelihood of mistakes, near
misses, harm and the effect of harm if it takes place…
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
20.2 act with … integrity at all times, treating people fairly and without discrimination,
bullying or harassment
20.3 be aware at all times of how your behaviour can affect and influence the behaviour
of other people
20.4 …
20.5 treat people in a way that does not take advantage of their vulnerability or cause
them upset or distress …
25 Provide leadership to make sure people’s wellbeing is protected and to improve their
experiences of the healthcare system
To achieve this, you must:
24
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, …”
The panel appreciated that breaches of the Code do not automatically result in a finding
of misconduct. The panel is of the view that Mrs Moore failed to use basic nursing skills
whilst caring for a highly vulnerable dementia patient. In fact, rather than de-escalate
the situation, as a mental health nurse is trained to do, Mrs Moore’s aggressive manner
and bad language inflamed the situation which eventually reduced Resident A to tears.
The panel concluded that Mrs Moore actions did fall seriously short of the conduct and
standards expected of a nurse and amounted to misconduct.
Decision on impairment: The panel next went on to decide if as a result of this misconduct Mrs Moore’s fitness to
practise is currently impaired.
Nurses occupy a position of privilege and trust in society and are expected at all times
to be professional and to maintain professional standards. 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 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
25
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 she/he:
a. has in the past acted and/or is liable in the future to act so as to
put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the
medical profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach
one of the fundamental tenets of the medical profession; and/or
d. ...
The panel finds that in leaving Resident A in soiled clothing whilst she completed her
mealtime duties and acting towards him in an aggressive manner by shouting and
swearing, Mrs Moore placed Resident A at unwarranted risk of harm and brought the
26
profession into disrepute. Further, the panel noted the information contained within the
Impairment Bundle, which showed that Mrs Moore had displayed similar behaviour in
the past bringing her before her regulator. The panel has determined that Mrs Moore
has in the past breached fundamental tenets of the nursing profession and such as has
been shown by the charges found proved at this hearing, is liable to continue to do so in
the future.
Regarding insight, the panel considered that Mrs Moore’s experience as a Registered
Mental Health Nurse should have given her the ability to manage Resident A’s
challenging behaviour. Rather, she failed to deliver basic nursing care. In obliging
Resident A to sit through the meal time whilst remaining in soiled clothing and shouting
and swearing at him, she failed to treat him with dignity and respect. The panel noted
that Mrs Moore has made a partial admission and accepted that her behaviour in that
respect was inappropriate. However, the panel noted that at no time has Mrs Moore
demonstrated an understanding of the impact of her failings on Resident A or the
nursing profession as a whole. The panel also noted that this is not the first time similar
behaviour has brought Mrs Moore before her regulator. In all the circumstances, the
panel has determined that Mrs Moore has shown a very limited degree of insight or
remorse.
In its consideration of whether Mrs Moore has remedied her practice the panel saw no
evidence that Mrs Moore’s previous training courses, particularly on Managing
Challenging Behaviour in August 2014, after her initial hearing at the NMC, have had
any positive effect on her behaviour. It noted that this is the second time Ms Moore is
before the NMC with very similar charges. Further, the panel notes that the course in
question is relevant to Mrs Moore’s practice as a Mental Health Nurse and not
specifically towards remediating the concerns raised about her behaviour. Mrs Moore
caused Resident A emotional distress, placed him at unwarranted physical risk of harm
and brought the profession into disrepute. The panel therefore decided that a finding of
impairment is necessary on the grounds of public protection.
27
The panel had borne in mind that its primary function is to protect patients and the wider
public interest which includes maintaining confidence in the nursing profession and
upholding the proper standards and behaviour. Mrs Moore’s failings towards Resident A
and her colleagues along with her behaviour whilst in a position of leadership and trust
had a direct impact on the reputation of the profession and brought the nursing
profession into disrepute. The panel therefore, determined that, in this case, a finding of
impairment on public interest grounds was required.
Having regard to all of the above, the panel was satisfied that Mrs Moore’s fitness to
practise is currently impaired.
Determination on sanction: In considering sanctions (if any) to impose, the panel took careful account of the
aggravating and mitigating factors of this case, which were:
Aggravating:
• Failure to safeguard a vulnerable patient
• Verbal abuse of a highly vulnerable patient
• Failure to recognise the effect of her conduct on the Resident, her colleagues
and the nursing profession as a whole
• Duration of the incident
• Repeated misconduct despite a previous appearance at the NMC for similar
reasons and despite taking further courses relevant to the management of
challenging behaviour
• Abuse of a position of trust
• Lack of insight
• Little evidence of remorse
• The panel has identified a high risk of repetition
Mitigating:
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• No evidence of longstanding harm to the Resident
The panel has considered this case very carefully and has decided to make a striking-
off order. It directs the registrar to strike Mrs Moore’s name from the register. The effect
of this order is that the NMC register will show that Mrs Moore’s name 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 Indicative Sanctions Guidance (“ISG”) published by
the NMC. It recognised that the decision on sanction is a matter for the panel,
exercising its own independent judgement.
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 ISG, 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 Mrs Moore’s 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.
The panel next considered whether placing conditions of practice on Mrs Moore’s
registration would be a sufficient and appropriate response. The panel is mindful that
any conditions imposed must be proportionate, measurable and workable. The panel
29
took into account the guidance contained within the ISG and has determined that Mrs
Moore has already undertaken training courses on dealing with the management of
Challenging Behaviours following her first NMC appearance and despite this she has
repeated her misconduct. The panel considered the misconduct in this case to be
attitudinal. 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 Mrs Moore’s
registration would not adequately address the seriousness of this case and would not
protect the public or public confidence in the profession as a whole.
The panel then went on to consider whether a suspension order would be an
appropriate sanction. The conduct, as highlighted by the facts found proved, was a
significant departure from the standards expected of a registered nurse. The panel
noted that the serious breach of the fundamental tenets of the profession evidenced by
Mrs Moore’s actions is fundamentally incompatible with her remaining on the register.
The panel noted that this was not a single incidence of misconduct and Mrs Moore has
demonstrated a continued pattern of that misconduct. Further, the panel noted that Mrs
Moore has demonstrated attitudinal and behavioural problems. The panel has seen
evidence of repetition since Mrs Moore’s first appearance before the NMC in 2014 and
that Mrs Moore has demonstrated limited insight and remorse. Therefore, the panel has
concluded that there is a high risk that Mrs Moore will repeat her misconduct.
Balancing all of these factors, the panel has determined that a suspension order would
not be an appropriate or proportionate sanction owing to the seriousness of this case
and that it would not protect patients or the public interest.
Finally, in considering a striking-off order, the panel took account of the guidance
contained within the ISG and noted that there could have been serious psychological
30
harm to Resident A. Mrs Moore’s conduct was a violation of that Resident’s rights; she
has repeated her behaviour and demonstrated a persistent lack of insight.
Furthermore, Mrs Moore’s actions were significant departures from the standards
expected of a registered nurse, and are fundamentally incompatible with her remaining
on the register. The panel was of the view that the findings in this particular case
demonstrate that Mrs Moore’s actions were serious and to allow her to continue
practising would undermine public confidence in the profession and in the NMC as a
regulatory body.
Balancing all of these factors and after taking into account all the evidence before it
during this case, 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
effect of Mrs Moore’s actions in bringing the profession into disrepute by adversely
affecting the public’s view of how a registered nurse should conduct herself, the panel
has concluded that nothing short of this would be sufficient in this case and the
seriousness of the case is incompatible with ongoing registration.
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.
Determination on Interim Order The panel has considered the submissions made by Ms Imambaccus that an interim
order should be made on the grounds that it is necessary for the protection of the public
and is otherwise in the public interest.
The panel accepted the advice of the legal assessor.
31
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 striking-off order 28 days
after Mrs Moore is sent the decision of this hearing in writing.
That concludes this determination.