conduct and competence committee substantive hearing€¦ · in this letter, mr dunn’s...
TRANSCRIPT
Page 1 of 31
Conduct and Competence Committee Substantive Hearing
27 – 30 June 2016 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH
Name of Registrant: Mr John Adam Dunn
NMC PIN: 08I1466S
Part(s) of the register: RN3, Registered Nurse – Sub Part 2 Mental Health (12 September 2011)
Area of Registered Address: Scotland
Type of Case: Misconduct
Panel Members: Brian Yates (Chair / Lay member) Penny Tindle (Registrant member) Nigel Westwood (Lay member)
Legal Assessor: Gerard Coll
Panel Secretary: Erika Brady
Mr Dunn: Not present and not represented Nursing and Midwifery Council: Represented by Yusuf Segovia, counsel,
instructed by Nursing and Midwifery Council (NMC) Regulatory Legal Team
Facts found proved: Charges 1(a), 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 3
and 4 Facts found not proved: None Fitness to Practise: Impaired Sanction: Striking Off Order Interim Order: Interim Suspension Order (18 months)
Page 2 of 31
Service of Notice of Hearing
The panel was informed at the start of this hearing that Mr Dunn was not in attendance,
nor was he represented, at this meeting today.
The panel was informed that notice of this hearing was sent to Mr Dunn on 6 May 2016
by recorded delivery and first class post to his address on the register.
In light of the information available, and after accepting the advice of the legal assessor,
the panel was satisfied that notice had been served in compliance with Rules 11 and 34
of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004
(as amended February 2012) (the Rules).
Proceeding in absence
The panel next considered whether to proceed in the absence of Mr Dunn.
The panel considered the submissions made by Mr Segovia on behalf of the NMC. It
took into account the advice of the legal assessor. The panel kept at the forefront of its
thinking the principle that the discretion to proceed in the absence of a registrant is one
which requires the utmost care and caution.
Mr Segovia drew the panel’s attention to a letter dated 24 June 2016 that was before
the panel from Mr Dunn’s representatives. In this letter, Mr Dunn’s representatives say
“Mr Dunn is unable to attend the Conduct and Competence Committee Hearing set
down for 27 June – 1 July 2016. We are not instructed to appear at the hearing on his
behalf.” Mr Segovia submitted that this statement clearly indicated that Mr Dunn was not
requesting an adjournment of this hearing. Mr Segovia submitted that, in light of the
information before the panel, Mr Dunn had voluntarily absented himself. He informed
the panel that there were five witnesses scheduled to attend the hearing, and an
adjournment might impact on their ability to recollect events.
Page 3 of 31
The panel looked to its previous decision that Mr Dunn had been sent notice of today’s
hearing in accordance with the Rules. The panel also noted the letter from Mr Dunn’s
representatives indicating that neither Mr Dunn nor his representatives would be in
attendance at the hearing taking place today. The panel was therefore satisfied that Mr
Dunn was aware of today’s hearing and concluded that he had chosen voluntarily to
absent himself. The panel had no reason to believe that an adjournment would result in
Mr Dunn’s future attendance. The panel had before it Mr Dunn’s responses to the
charges contained within the letter from his representatives. The panel was aware that
there are witnesses scheduled to attend the hearing and any adjournment could
inconvenience them. Having weighed the interests of Mr Dunn and the public interest,
including an expeditious disposal of this hearing, the panel determined to proceed in Mr
Dunn’s absence.
Charges as read: That you, a registered nurse whilst employed at Stratheden Hospital;
1. On 15/16 January 2014:
a. Verbally abused Patient A as per Schedule 1A
2. On 16/17 January 2014:
a. Verbally abused Patient A as per Schedule 1B
b. Pushed Patient A in the chest
c. Verbally abused Patient B as per Schedule 1C
d. Poked your finger in Patient B’s ear
e. Pushed Patient B on the forehead
f. Made abusive comments about Patient B to your colleagues as per
Schedule 1D and/ or E and/ or F
3. On 08 January 2014 was abusive about Patient C as per Schedule 1G
4. On 8th January 2014 was abusive about Patient D as per Schedule 1H
Page 4 of 31
And, in light of the above, your fitness to practice is impaired by virtue of your
misconduct.
PRIVATE SCHEDULE 1 A: “That one was for fucking free you pig, don’t kick me again”, or words to that
effect
B: “You don’t fucking hit girls”, or words to that effect
C: “Don’t fucking spit in my face of I will bang you square in the pus", or words to
that effect
D: “That fucking little bastard (B), it’s ridiculous, he’s like an animal”, or words to
that effect
E: “He’s a dirty little bastard”, or words to that effect
F: “I can’t help it, if there’s one thing I can’t stand its some cunt spitting in your
face! I’ll tell you though he won’t fucking do it again”, or words to that effect
G: “He’s a fucking retard” or words to that effect
H: “Oh we’ve got to go and deal with this vegetable now”, or words to that effect
Background A referral was made to the NMC by NHS Fife due to allegations of misconduct made
against Mr Dunn while he was working at Stratheden Hospital in January 2014.
It is alleged that on 15/16 January 2014, Mr Dunn verbally abused Patient A. It is further
alleged that on 16/17 January 2014, Mr Dunn verbally and physically abused Patient A.
It is also alleged that on 16/17 January 2014, Mr Dunn verbally and physically abused
Patient B.
Patients A and B were vulnerable patients. Two nursing assistants were present during
the incident Ms 1 and Ms 2.
Page 5 of 31
There was no reported harm following any of the incidents, although Patient A is
described as being ‘shocked’ and Patient B is described as being ‘agitated’ following the
alleged abuse.
The incident was reported by Ms 1. Both she and Ms 2 gave statements to the Trust
investigator.
The Trust appointed Ms 5, Senior Nurse in Older Adults and Rehabilitation, to
investigate the allegations.
The result of the investigation was that the allegations were upheld and Mr Dunn’s
employment was terminated for gross misconduct.
Decision and Reasons on proceeding in private whilst under Rule 19: Mr Segovia, on behalf of the NMC, made an application to hear elements of the
witnesses’ evidence in private under Rule 19. Rule 19 states that:
19. (1) Subject to paragraphs (2) and (3) below, hearings shall be conducted in
public.
(3) Hearings other than those referred to in paragraph (2) above may be held,
wholly or partly, in private if the Committee is satisfied⎯
(a) having given the parties, and any third party from whom the Committee
considers it appropriate to hear, an opportunity to make representations;
and
(b) having obtained the advice of the legal assessor,
that this is justified (and outweighs any prejudice) by the interests of any party or
of any third party (including a complainant, witness or patient) or by the public
interest.
Page 6 of 31
Mr Segovia submitted that some of the evidence which was relevant to the case dealt
with health issues, and he submitted that it would not be appropriate to hear these in
public. He submitted that private session need only be entered into for very specific
parts of the evidence, and it would be entirely possible to go in and out of private
session as necessary.
The panel accepted the advice of the legal assessor who advised that hearings shall be
conducted in public, but Rule 19 permits the panel to hold hearings partly or wholly in
private if it is satisfied that this is justified by the interests of any party or by the public
interest.
The panel considered the submissions of Mr Segovia.
The panel is satisfied that any reference to health or sensitive personal matters should
be confined to being heard in private. The panel is satisfied that the interest of the public
does not outweigh the participants’ interests in this matter and decided that it is justified
and fair in the circumstances that the hearing proceed in the public domain but that any
reference to health matters or difficult personal circumstances will be heard in private. Witness Evidence
The panel heard oral evidence from the following witnesses on behalf of the NMC:
• Ms 1, Nursing Assistant, Bayview Ward, Stratheden Hospital
• Ms 2, Nursing Assistant, Bayview Ward, Stratheden Hospital
• Ms 3, Band 6 Nurse, Bayview Ward, Stratheden Hospital
• Ms 4, Band 5 Staff Nurse, Bayview Ward, Stratheden Hospital
• Ms 5, Band 8a Senior Nurse in Older Adults and Rehabilitation,
Stratheden Hospital
The above named witnesses’ titles refer to their positions at the time of the incident.
Page 7 of 31
The panel was presented with the NMC exhibit bundle, the witness statements and a
letter from Mr Dunn’s representatives dated 24 June 2016.
The panel considered the oral evidence of the witnesses.
Overall, the panel considered all of the witnesses to be credible and reliable. It first
looked to the evidence of Ms 1 and Ms 2. It noted that Mr Dunn, in his letter dated 24
June 2016 said that Ms 1 and Ms 2 complained about him because he had complained
about them. However, in looking at all of the evidence before it, the panel considered
that this was not the case. The panel could find no evidence that Ms 1 or Ms 2 were
producing their statements out of a vindictive response. The panel noted that both
witnesses provided evidence under oath, and denied a vindictive motive. In addition,
the panel noted that the accounts of Ms 1 and Ms 2 were consistent with the other
witnesses with regard to the recounting of Mr Dunn’s use of bad language and negative
attitude to patients. The panel also took specific instances into account, and noted that
with regard to charge 1(a), Ms 2’s account largely supports Ms 1’s account, except for
the fact that Ms 2 did not hear the words that were said. The panel found Ms 2’s
explanation for why she did not hear the words that were spoken to be a credible
reason. In particular, the panel considered that Ms 1 was reliable and consistent in all of
her accounts. Ms 2 was not always consistent, but only when it came to minor issues.
The panel considered that both witnesses were ordinary members of the public who
were trying to give an honest account. In addition, there was no tendency to embellish
while giving live evidence.
The panel considered Ms 3’s evidence to be straight-forward. She didn’t embellish her
account, but instead provided the facts to the best of her ability. The panel noted that
Ms 3 had challenged Mr Dunn about his language, and it found her to be credible and
reliable. The panel did note that there was an element of Ms 3’s original statement
which was not in her NMC witness statement. However, the panel considered that her
explanation for this omission was plausible. The panel considered Ms 3 to be a credible
and reliable witness
Page 8 of 31
Ms 4 was very clear if she did not remember something. When asked why she delayed
in reporting the incident, the panel found her explanation to be plausible. When other
concerns were raised, she then escalated her own allegation. There was nothing to
indicate to the panel that Ms 4 was in any way being vindictive towards Mr Dunn.
Finally, the panel looked to the evidence of Ms 5. Ms 5 was the investigator into the
allegations, and therefore she could not provide direct evidence as to the facts of the
charges. The panel found Ms 5 to be credible is so far as her evidence pertained to the
case.
Decision and reasons on facts
The panel found charges 1(a), 2(a), 2(b), 2(c), 2(d), 2(e), 2(f), 3 and 4 proved.
The panel carefully considered the evidence put before it including Mr Segovia’s
submissions on behalf of the NMC. The panel took account of the written submissions
made by Mr Dunn in the letter from his representatives dated 24 June 2016.
The panel accepted the advice of the legal assessor. The panel was advised 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 may be found proved if
the panel is satisfied that it is more likely than not that the facts alleged did occur.
Charges
1. On 15/16 January 2014:
a. Verbally abused Patient A as per Schedule 1A
Schedule A: “That one was for fucking free you pig, don’t kick me again”, or words to that effect
Page 9 of 31
The panel had regard to the evidence as it relates to this charge. The panel considered
Mr Dunn’s response to the charge in which he said that Ms 2 would have heard
anything he said from where she was standing in the room. However, Ms 2 provided the
panel with an explanation as to why she did not hear what was said, and the panel was
content with that explanation. In reaching its decision on this charge, the panel
considered what amounts to abuse. It found that abuse includes anything that makes an
individual uncomfortable, worried, scared, demeaned, insulted or offended. The panel
considered that, to use bad language and derogatory terms such as “pig” would amount
to abuse. The panel noted in Ms 1’s evidence that Patient A appeared to be shocked.
The panel noted that Patient A was a vulnerable patient with impaired cognitive abilities.
It had regard to its earlier review of the credibility of Ms 1 and Ms 2, who directly
observed the incident in this allegation.
On balance, the panel found that it was more likely than not that Mr Dunn said
something like the words in the charge. The panel considered that, in its own view, its
members would all have felt abused had such language been used towards them. The
tone of the language left the panel in no doubt that the language used by Mr Dunn was
abusive. Further the witnesses to the incident found the behaviour offensive.
The panel found this charge proved.
2. On 16/17 January 2014:
a. Verbally abused Patient A as per Schedule 1B
Schedule B: “You don’t fucking hit girls”, or words to that effect
Both Ms 1 and Ms 2 provided evidence on this allegation. Both of the witnesses
accounts support the use of the words alleged, although the reference to Patient A
having been a policeman was only in Ms 2’s NMC statement. The panel noted that the
charge includes “or words to that effect” and therefore the exact words need not be
found proved, but rather the general meaning of them. The panel noted that Ms 1 has
referred to the same words in all three of her accounts before the panel: the interview
notes of 22 January 2014, the statement of 20 January 2014 and the NMC witness
statement, taken in May 2015. It noted that the earlier two accounts were relatively
Page 10 of 31
contemporaneous, and therefore more likely to be reliable. The panel noted that Ms 2’s
account of the events varied a little. As an example, it noted Ms 2’s use of the words
“you don’t fucking hit girls” in the NMC witness statement and “Don’t hit women” in the
interview notes on 23 January 2014. However, the panel decided that this was not a
substantial difference, and it considered that Ms 2 was doing her best to remember
what she had heard. The panel also noted that Ms 2’s earlier accounts were
contemporaneous with the event. The panel found that it was more likely than not that
Mr Dunn did say something to the patient, and went on to consider whether this was
verbal abuse. The panel noted that both witnesses say that Patient A was taken aback.
The panel considered that Mr Dunn’s actions were admonishing the patient in a way
that is completely unnecessary – he did not attempt to de-escalate the situation, but
rather patronised the patient. The panel considered that in this case, abuse had taken
place in light of the language used.
The panel found this charge proved.
b. Pushed Patient A in the chest
The panel considered this allegation, and all of the evidence pertaining to it. The panel
had regard to Mr Dunn’s response to this charge, in which he denies pushing the
patient, and says that instead, he put his arms around the patient to prevent him from
striking Ms 1. Mr Dunn did not address the allegation in the interview held on 25 June
2014. The panel also had regard to the NMC statements of Ms 1 and Ms 2. Ms 1 said
that “Although I did not see the patient try to hit me I did see [Mr Dunn] pushing the
patient back”. Ms 2 states “[Mr Dunn] put his right hand on the patient’s chest and
pushed him down quite forcefully”. The panel considered that both statements are clear,
and, on the balance of probabilities, Mr Dunn did push Patient A in the chest. The panel found this charge proved.
Page 11 of 31
c. Verbally abused Patient B as per Schedule 1C
Schedule C: “Don’t fucking spit in my face of I will bang you square in the
pus", or words to that effect The panel noted that, with regard to this charge, there was some inconsistency with
whether or not Patient B spat at Mr Dunn. However, the panel did not consider that the
specific action of Patient B was relevant in this case. The panel considered that the
words Mr Dunn is alleged to have used were abusive, in that, not only was bad
language used, but a threat was made against the patient. Both Ms 1 and Ms 2 refer to
this incident in their statements, and the panel noted that, while the specific words of the
statements do not match, this adds to the credibility of their testimony. Again, the panel
considered Ms 1 to be consistent in her evidence. While there is variation in the
description of the wording throughout Ms 2’s evidence, the panel considered this to be
normal variation made in Ms 2’s attempt to recall the incident. The panel considered
that, in the balance, it was more likely than not that Mr Dunn did use the words as laid
out in the schedule.
The panel found this charge proved.
d. Poked your finger in Patient B’s ear
The panel had regard to the written statement of Mr Dunn in which he said that Ms 1
would not have been able to see him do this from where she was standing. However,
the panel asked Ms 1 while she was providing oral evidence whether she could see Mr
Dunn’s actions, and she replied that Patient B was a small man, and the way that they
were seated allowed her to see Mr Dunn’s actions. The panel noted that this allegation
was not mentioned in Ms 2’s interview on 23 February 2014. However, it is mentioned in
an account she wrote on 10 February 2014. The panel considered that these accounts
were written close together and were contemporaneous with the incident. The panel
considered that this charge needed to be considered on the balance of probabilities,
weighing the likelihood of someone doing such an action against the likelihood of
someone making the story up. The panel noted that Mr Dunn admitted in the evidence
before the panel that he was in a heightened state of agitation when finishing his shift
Page 12 of 31
and in anger, he may have acted inappropriately. The panel found, on the balance of
probabilities, it was more likely than not that Mr Dunn did act as alleged. The likelihood
of both Ms 1 and Ms 2 making this up belied the established credibility of their evidence. The panel found this charge proved.
e. Pushed Patient B on the forehead
The panel noted that Mr Dunn denies this allegation. It noted the various descriptions of
what happened – in one account it was a “slap” and in the other account it was a “push”.
However, the outcome which is consistent in all accounts, including that of Mr Dunn, is
that Ms 1, Mr Dunn and Patient B ended up falling over onto Patient B’s bed. The panel
noted Ms 2 said that she did not see any marks on Patient B’s forehead and Ms 1 said
that she did not notice any marks on Patient B’s forehead. The panel considered that,
on the balance of probabilities, it was more likely than not that Mr Dunn pushed Patient
B by putting his hand on Patient B’s forehead. The panel had found Ms 1 and Ms 2 to
be credible witnesses and had no reason to doubt their account of this incident.
The panel found this charge proved.
f. Made abusive comments about Patient B to your colleagues as per
Schedule 1D and/ or E and/ or F
Schedule D: “That fucking little bastard (B), it’s ridiculous, he’s like an
animal”, or words to that effect Schedule E: “He’s a well old dirty little bastard”, or words to that effect Schedule F: “I can’t help it, if there’s one thing I can’t stand its some cunt
spitting in your face! I’ll tell you though he won’t fucking do it again”, or words to that effect
The panel noted that Mr Dunn agrees that he expressed frustration with his colleagues
following the shift. The panel also noted that Ms 3 said she had never found Mr Dunn to
behave in that way. The panel noted that Patient B was a challenging patient, and Mr
Page 13 of 31
Dunn himself admitted in his interview on 10 February 2014 that he was unhappy when
finishing his shift. The panel therefore considered that Mr Dunn has accepted that he
was agitated following the shift. It had regard to the charge, and to the statements in the
schedule to which it refers. In this schedule, the panel can consider whether Mr Dunn
said a number of different things, or words to that effect. The panel noted the evidence
of Ms 3 and her reasons for some changes that were apparent in her NMC witness
statement. The panel considered that she was careful in composing her statement. The
panel considered Ms 3 to be a very credible witness who did not embellish but instead
responded in a measured way. The panel had asked Ms 3 about the culture of language
on the ward and she admitted that while some bad language may be used, she would
not condone it on the ward, and the staff room was just off the ward. The panel
considered that, on the balance of probabilities, and in light of all three of the witness
accounts being contemporaneous, it was more likely than not that Mr Dunn made all of
the statements he is alleged to have made.
The panel found this charge proved.
3. On 08 January 2014 was abusive about Patient C as per Schedule 1G
Schedule G: “He’s a fucking retard” or words to that effect
The panel noted that Mr Dunn has said he would never call someone a “retard” because
he was called that in school and hated it. However, the panel had also found throughout
the evidence that Mr Dunn had a propensity to use bad language in his common
speech. Ms 4 was very clear in her evidence that the word “retard” was used by Mr
Dunn, although she conceded that she cannot remember the exact words he used
around it. The panel noted that Ms 4 had delayed reporting this incident, but considered
her reasons for doing so were plausible. She said she was new in the role and was
scared to report it. The panel preferred Ms 4’s evidence over Mr Dunn’s evidence in this
case, and considered that, in light of the information before it, it was more likely than not
that Mr Dunn referred to Patient C as a “retard” and that it was abusive. The panel found this charge proved.
Page 14 of 31
4. On 8th January 2014 was abusive about Patient D as per Schedule 1H
Schedule H: “Oh we’ve got to go and deal with this vegetable now”, or words to that effect
The panel accepted the evidence of Ms 4 on this allegation. The panel considered that
the use of the word “vegetable” was demeaning and abusive. She said that she was
horrified by what he had said and she did not know what to do or say. The panel
considered all of the evidence, and the use of bad language that Mr Dunn appears to
have used regularly. The panel noted that Ms 4 had delayed reporting this incident, but
considered her reasons for doing so were plausible. She said she was new in the role
and was scared to report it. The panel deemed it understandable that she would raise
the allegation when other issues were also coming to light. Ms 4 was clear that Mr
Dunn used the word “vegetable”, although she admitted to being uncertain of the words
around it. The panel found that, in light of all of the evidence, it was more likely than not
that Mr Dunn referred to Patient D as a “vegetable”.
The panel found this charge proved.
Decision on the application to admit additional documentation Before proceeding to the next stage, Mr Segovia made an application to place an
additional piece of evidence before the panel. He informed the panel that he wished to
put two further pieces of information before it, one which describes in more detail the
context and profile of the patients in this case, and the other which addressed
information brought up in the letter from Mr Dunn’s representative dated 24 June 2016.
He submitted that the information was relevant to the panel’s decision, and that fairness
to Mr Dunn was not undermined as both he and his representatives had sight of the
document and had referred to it in their written submission contained in the letter.
The panel accepted the advice of the legal assessor.
Page 15 of 31
Rule 31 states the following:
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).
The panel understood that it could accept additional documentation throughout the
hearing. However, it also had regard to the matters of relevance and fairness. Mr Dunn
is not present at this hearing, and while he was clearly aware of the document to which
Mr Segovia refers, he would not have been aware of the intention to place these before
the panel for its consideration. The panel was not satisfied from the submissions of Mr
Segovia that the document in question was relevant to the panel’s considerations at this
stage of the hearing.
For these reasons, the panel rejected Mr Segovia’s application to admit additional
documentation at this stage.
Reasons and decision on Misconduct and Impairment:
Having found the facts proved, the panel moved on to consider whether the facts found
proved amount to misconduct and, if so, whether Mr Dunn’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.
Mr Segovia submitted that this was a two-stage process and that there was no standard
definition of misconduct. He referred the panel to the case of Roylance v General
Medical Council (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.
Page 16 of 31
Mr Segovia reminded the panel that, in order to make a finding of misconduct, it has to
be serious. He drew the panel’s attention to its findings on facts, and that the panel had
found that all allegations of abuse had been found proved. He submitted that it is
unacceptable to abuse patients, and Mr Dunn should have known that as common
sense. Mr Segovia submitted that Mr Dunn’s actions as found proved fell significantly
below the standards expected of a registered nurse. Mr Segovia emphasised the
vulnerability of the patients who were in the advanced stages of dementia. He submitted
that both the patients and their relatives had an expectation that they would get the care
they needed and be treated appropriately with compassion and understanding. In his
submissions, Mr Dunn’s failure to do this was another reason that he fell below the
standards to be expected of a registered nurse. Further, he submitted that any member
of the public would agree. Mr Segovia submitted that, as a registered nurse, he was
expected to set an example for those he worked with. In relation to the allegations
around care provided to Patient A and Patient B, Mr Dunn was accompanied by care
assistants, and Mr Segovia submitted that Mr Dunn provided a very poor example to
those colleagues. Mr Segovia also submitted that the possible perception of these
failings would undoubtedly raise concerns with relatives as to how their family members
are being cared for.
Mr Segovia submitted that the Preamble to The code: Standards of conduct,
performance and ethics for nurses and midwives 2008 (“The code”) was relevant in this
case, and invited the panel to consider the entirety of the preamble as engaged in this
case.
Mr Segovia further submitted that paragraphs 1, 3 and 61 of The code were also
relevant in this case. In light of what he said was a very serious case, Mr Segovia
invited the panel to make a finding of misconduct.
With regard to impairment, Mr Segovia reminded the panel that Mr Dunn denies the
facts of the allegations, as was his right. Mr Segovia drew the panel’s attention to the
following section of Ms 1’s NMC statement: “[Mr Dunn] and I then went to the kitchen to
Page 17 of 31
get a drink. Whilst we were doing so [Mr Dunn] told me that if [Ms 2] reported him for
what he had done he would deny it.” Mr Segovia submitted that this was disturbing.
Mr Segovia referred the panel to various paragrpahs in the case of Council for
Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011]
EWHC 927 (Admin) including paragraphs 70 and 74. He also guided the panel to
paragraph 76 and submitted that the following criteria set out by Dame Janet Smith in
the Fifth Shipman Report and adopted in the case of Grant in that paragraph were
relevant:
“Do our findings of fact in respect of the [doctor's] misconduct… 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. . . .”
Mr Segovia first dealt with whether or not the above criteria had been engaged in the
past. He submitted that patients had been put at risk of harm in the past. He
acknowledged Mr Dunn’s assertion in the letter dated 24 June 2016 that “At no time
was any patient harmed.” However, Mr Segovia submitted that, the panel having found
that abuse had taken place as laid out in the charges, it was clear that Mr Dunn, as a
registered nurse, had put patients at risk. Mr Segovia submitted that it had been
acknowledged by both parties that the patients, who suffered from dementia, were
challenging to care for, but that Mr Dunn’s actions, in the past, put both colleagues and
patients at risk of harm. With regard to bringing the profession into disrepute, Mr
Segovia submitted that not every finding on facts necessarily means that the reputation
of the profession would be undermined. However, in this case, he submitted that Mr
Dunn’s actions did have the potential to impact on the reputation of the profession. He
submitted that Mr Dunn’s actions would put doubt in the minds of the public that his
Page 18 of 31
behaviour was acceptable and that vulnerable patients were subject to abuse. He
therefore submitted that Mr Dunn’s actions had an impact on the public’s perception of
the profession and their confidence in it. Finally, with regard to breaching the
fundamental tenets of the profession, Mr Segovia submitted that, if the panel was with
him with regard to the elements of the preamble which he submitted are engaged in this
case, this criterion had also been met in the context of the past.
With regard to whether the above criteria had been engaged in terms of the future, Mr
Segovia submitted that Mr Dunn has not provided the potential the panel with any
information that would reassure it that he is incapable of repeating the actions found
proved. In the letter dated 24 June 2016, Mr Dunn “denies the factual allegations.”
However, the panel has found the facts of the case proved and not only was bad
language used, but he threatened to hit a highly vulnerable patient Mr Segovia
submitted that the panel had no reassurance that Mr Dunn would not follow this threat
through in the future and this would be concerning for the public. Mr Segovia referred
the panel to the statement of Ms 1 where Mr Dunn allegedly said that he would deny
any accusation. Mr Segovia also referred the panel to Mr Dunn’s comments that the
witnesses had vindictive motivations. Mr Segovia submitted that this goes to Mr Dunn’s
insight. He submitted that there was a risk of repetition of past behaviours and therefore
a risk to patients in the future. Mr Segovia submitted that if that is accepted by the
panel, the criteria of bringing the profession into disrepute and breaching fundamental
tenets of the profession follows.
With regard to remediation and insight, Mr Segovia submitted that it was difficult to
remediate behavioural and attitudinal matters and he posed the question as to whether
Mr Dunn could address these matters if he does not see his actions as wrong. Mr
Segovia submitted that there is nothing before the panel to indicate he would ever act
differently. He submitted that there is no information before the panel which would
enable it to conclude that Mr Dunn would even be willing, were it possible, to remediate.
Mr Segovia submitted that Mr Dunn has shown no evidence of insight and he referred
the panel to paragraph 116 of Grant:
Page 19 of 31
“. . . In circumstances where the Committee had no evidence before them of the
Registrant’s recent performance in a clinical setting, her failure clearly and
unambiguously to acknowledge her failings was a matter of serious concern.”
Finally, Mr Segovia submitted that whether in the past or in the future, the three criteria
laid out by Dame Janet Smith in the case of Grant were engaged in this case. He
therefore submitted that this was a case of serious misconduct and a finding of
impairment could be made on those grounds.
Decision on Misconduct:
The panel accepted the advice of the legal assessor.
The panel took account of the submissions of Mr Segovia on behalf of the NMC and it
had regard to Mr Dunn’s letter of 24 June 2016..
The panel adopted a two stage process in its consideration, as advised. First, the panel
considered whether the facts found proved amount to misconduct. Secondly, only if the
facts found proved amounted to misconduct could the panel decide whether, in all the
circumstances, your fitness to practise is currently impaired as a result of that
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. The panel appreciated that not every breach of The code and
not every falling short of what would be proper in the circumstances constitutes
misconduct so serious as to raise the issue of fitness to practise.
The panel had regard to the case law that it had been referred to by Mr Segovia and the
legal assessor. In particular, the panel looked to the case of Grant and took into account
the guidance provided by Cox J including that it should not lose sight of the need to
Page 20 of 31
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 considered whether, by acting inappropriately, Mr Dunn had breached
fundamental tenets of the profession and brought the profession into disrepute. The
panel looked to The code and considered the following aspects of the preamble were
relevant in this case:
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
• . . . 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 you must always be able to justify your decisions.
The panel considered the following paragraphs of The code were also relevant:
1 You must treat people as individuals and respect their dignity
3 You must treat people kindly and considerately
61 You must uphold the reputation of your profession at all times
When considering misconduct, the panel first looked at the charges individually. It
looked to charge 1(a). The panel noted that Patient A was a vulnerable patient, and it
considered Mr Dunn’s actions amounted to abuse and were both disrespectful and
Page 21 of 31
serious. It noted that Ms 1 said that Patient A was scared and shocked. Further, the
panel considered that there was a certain degree of menace in this charge, whereby Mr
Dunn threatened Patient A with consequences. The panel had regard to its findings on
fact, and that it found that abuse had taken place. In addition, the panel considered that
Mr Dunn had set a bad example to the nursing assistants who witnessed his actions.
The panel found that misconduct had occurred in this charge.
With regard to charge 2(a) the panel noted the evidence that Ms 1 and Ms 2 put forward
that Patient A was taken aback. Again, the panel considered that Mr Dunn’s use of bad
language was abusive and he admonished Patient A rather than dealing with the
situation appropriately and de-escalating. While the panel acknowledged that Patient A
was challenging and may have been trying to hit Ms 1, requiring some form of
intervention, the panel found that it was not appropriate to demean Patient A. The panel
considered that Mr Dunn did not appropriately manage the situation, and his actions
amounted to misconduct.
With regard to charge 2(b) the panel noted that Ms 1 did not see Patient A’s action as
her back was turned. Ms 2 did see it and said that “The patient lifted his right arm and
tried to hot [Ms 1], but did not manage to make contact. [Mr Dunn] then put his right
hand on the patient’s chest and pushed him down quite forcefully. . .” The panel
considered that, in isolation, this charge might not amount to misconduct. While policies
may have existed to indicate that this was not an appropriate way to deal with patients,
they were not before the panel, and it seemed clear that some intervention was
required. Ms 1 mentioned that she would push on a patient’s stomach to indicate she
wanted him to sit, and so the panel noted that contact with the torso might be
appropriate in some circumstances. The panel did note that Mr Dunn stopped Patient A
from lashing out, and it noted that Patient A was a challenging patient with lots of
handling issues. In and of itself, the panel concluded that this charge did not reach the
threshold of misconduct.
With regard to charge 2(c) the panel considered that abuse had taken place in this
case. In addition, it noted that Mr Dunn made a threat towards Patient B and that this
Page 22 of 31
threat was both overt and direct. The panel considered that this was totally
inappropriate and that this charge amounted to misconduct.
With regard to charge 2(d), the panel considered that Mr Dunn had physically assaulted
Patient B. It did not appear that there was any reason for Mr Dunn to act as he did other
than to annoy the patient. Mr Dunn’s actions caused more distress to the patient who
was already clearly agitated. Ms 1 and Ms 2 witness the incident and were not
comfortable with how Mr Dunn acted. The panel considered that Mr Dunn had not
provided a good example for Ms 1 and Ms 2 and had provoked Patient B who was
already in distress. Aside from the fact that what he did was unpleasant, the panel
considered that Mr Dunn’s actions were wholly inappropriate, and amounted to
misconduct.
With regard to charge 2(e), the panel noted the evidence that Ms 1 and Ms 2 provided
in that they saw no marks on Patient B’s forehead following Mr Dunn’s action. However,
he pushed Patient B forcefully enough that the patient, Ms 1 and Mr Dunn all fell onto
Patient B’s bed. The panel concluded that just because Mr Dunn’s actions did not result
in a mark, did not mean that it was appropriate to push someone on the head. The
panel could not imagine an occasion where this action would be deemed an appropriate
way to handle a patient. The panel noted that Ms 1 described Patient B as angry
following Mr Dunn’s action and he was agitated for some time afterwards. The panel
concluded that Mr Dunn’s actions in this charge escalated the situation and while
pushing a patient on the torso may be appropriate in a difficult physical situation, it
would never be appropriate to push a patient on the forehead. The panel found that this
charge amounted to misconduct.
With regard to charge 2(f), the panel considered that talking about patients in a closed
room behind their back could potentially lead to the establishment of a bad culture. To
do this was neither appropriate nor professional. Mr Dunn clearly set a bad example in
this instance. In addition, the witnesses’ evidence with regard to this charge is that they
were made very uncomfortable by what Mr Dunn said. Ms 3 said in her oral evidence
that while bad language may be used, she herself would not condone its use on the
Page 23 of 31
ward. The panel concluded that Mr Dunn’s actions in this regard did amount to
misconduct.
With regard to charge 3, the panel noted that Ms 4 was a new nurse and Mr Dunn’s
actions did not provide a good example for her to follow. Ms 4 was very clear on Mr
Dunn’s use of the word “retard”. The panel considered that this was abusive and that
the term was both discriminatory and demeaning. Further, Ms 4 said in her NMC
statement that Mr Dunn’s tone of voice was loud and angry. Ms 1 also said that she did
not want to confront Mr Dunn as she had seen him act aggressively towards another
staff member, which the panel considered supported the reasons these witnesses had
for being hesitant to step forward about Mr Dunn’s actions. The panel considered that
Mr Dunn’s actions in this case amounted to misconduct.
Finally, with regard to charge 4, the panel considered that the grounds as laid out in its
consideration of charge 3 also applied in this case. Ms 4 was a new nurse and Mr
Dunn’s actions did not provide a good example for her to follow. Ms 4 was very clear on
Mr Dunn’s use of the word “vegetable”. The panel considered that this was abusive and
that the term was both discriminatory and demeaning. The panel considered that Mr
Dunn’s actions in this case amounted to misconduct.
Having looked at them individually, the panel concluded that all of the charges except
for charge 2(b) amounted to misconduct.
Decision on Impairment:
The panel next went on to decide if, as a result of the findings of misconduct, Mr Dunn’s
fitness to practise is currently impaired by reason of that misconduct.
The panel had regard to the judgement of Mrs Justice Cox in the case of Grant. 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
Page 24 of 31
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.”
The panel considered Mr Dunn’s letter of 24 June 2016 and his assertion that no
patients had been harmed. However, the panel was aware that it needed to consider,
not only actual harm, but the potential for harm as well. The panel agreed with the
submissions of Mr Segovia. Although the behaviour described in the charges is in
theory remediable, the panel did not consider Mr Dunn has provided it with any
evidence of insight which would make remediation likely in this case. The panel
considered that Mr Dunn’s behaviour suggests someone who is not in control of himself.
The panel noted that these were challenging patients, and that the circumstances were
difficult. However, it was not appropriate for Mr Dunn to act in the way that he did.
The panel noted that it had nothing before it to indicate there was any reflection or
insight from Mr Dunn. Instead, he denies all of the allegations and deflects blame onto
others, saying that the motivations of the witnesses were vindictive. Without any
indication of developed insight or any attempts at remediation, the panel could not be
satisfied that Mr Dunn would not repeat the misconduct. While the panel noted that the
letter of 24 June 2016 indicates that Mr Dunn has not been before his regulator
previously, it did have sight of information in the documentation before it that Mr Dunn
had had an altercation with another staff member. While the behaviours was potentially
remediable with significant insight, in this case, this was not evidence.
The panel went on to consider whether or not the public interest would require a finding
of impairment. The panel bore in mind that its primary function is to protect patients and
the wider public interest which includes maintaining confidence in the nursing profession
and declaring and upholding the proper standards and behaviour.
The panel has an important role to play in the protection of the public. The panel noted
that public sensitivity was very high with regard to elderly patients and patients with
dementia where there is the potential for abuse. The panel considered that a finding of
current impairment was necessary to protect the wider public interest and to uphold
Page 25 of 31
confidence in the profession. It considered that public confidence in the profession
would be undermined if a finding of impairment were not made. The panel has
determined for the above reasons, that Mr Dunn fitness to practise is currently impaired.
Decision on sanction and reasons
In reaching this decision the panel has had regard to all the information that has been
placed before it in this case.
Mr Segovia made no submission as to which particular sanction would be appropriate.
He referred the panel to the Indicative Sanctions Guidance (ISG) and reminded the
panel that it should approach the sanctions in ascending order of severity. He submitted
that being on the register is not a right, but rather that it is a privilege that is gained by
three things: qualification; registration; and conduct and competence. Mr Segovia
submitted that Mr Dunn’s actions were abusive and violated the trust of the public.
The panel accepted the advice of the legal assessor.
The panel bore in mind that any sanction imposed must be appropriate and
proportionate. The purpose of any sanction is not intended to be punitive even though it
may have that effect. The panel recognised that the decision on sanction is a matter for
the panel exercising its own independent judgement.
The panel had careful regard to the ISG. In making its decision, the panel bore in mind
the need to protect the public as well as the wider public interest. This includes
maintaining public confidence in the profession and in the NMC as the regulator, and
declaring and upholding proper standards of conduct and behaviour. The panel has
applied the principle of proportionality, weighing the interests of the public with Mr
Dunn’s interests, and has taken into account the mitigating and aggravating factors in
this case.
The panel found the following mitigating factors in this case:
Page 26 of 31
• There is no evidence of any previous formal disciplinary proceedings by
Mr Dunn’s employers, nor any other regulatory proceedings
• Mr Dunn asserts that he was going through a difficult time in his private life
at the time of the incidents which impacted his [PRIVATE] health
• Mr Dunn has engaged with the process prior to the commencement of this
hearing.
The panel found the following aggravating factors in this case:
• Mr Dunn was an experienced nurse within the discipline of mental health
which should have equipped him to deal appropriately with such
challenging behaviour as presented by dementia patients
• These were vulnerable patients
• Mr Dunn lacks insight and remorse into his actions and the consequences
of his actions on the patients, his colleagues and the wider profession
• Mr Dunn has denied everything throughout the entirety of the proceedings
• The misconduct was witnessed by junior colleagues, with Mr Dunn
presenting a bad example and potentially promoting a negative culture in
the workplace.
Having considered the mitigating and aggravating factors relevant in this case, the
panel went on to look at the sanctions available to it, in order of increasing severity.
The panel first considered whether to take no action but concluded that this would be
inappropriate in view of the seriousness of the charges found proved and its findings
with regard to Mr Dunn’s current impairment. The panel noted the risk Mr Dunn has
posed to patients in the past. Further, the panel had identified a residual risk of actual
harm to patients in the future. To impose no sanction would allow Mr Dunn to practise
as a registered nurse without restriction, and the panel considered that this would be
wholly inappropriate. Further, taking no action would neither be proportionate nor in the
public interest.
Page 27 of 31
The panel next considered whether to impose a caution order but concluded that this
would be inappropriate in light of the seriousness of Mr Dunn’s misconduct. The panel
was firmly of the opinion that Mr Dunn’s misconduct was not at the “lower end of the
spectrum” and therefore the panel determined that a caution order would not be
sufficient to protect the public or the reputation of the profession. The panel concluded
that the public trust and confidence in the nursing profession and its regulator would be
seriously undermined if such an order were made.
The panel next considered whether placing conditions of practice on Mr Dunn’s
registration would be a sufficient and appropriate response. The panel was mindful that
any conditions imposed must be relevant, proportionate, measurable and workable. It
noted the factors set out in paragraphs 62 to 64 of the ISG which indicate when such an
order may be appropriate. Specifically, it looked at whether conditions would be
sufficient to protect patients and the public interest.
The panel considered that Mr Dunn’s failings are, in principle, potentially remediable.
However, Mr Dunn’s ongoing lack of insight and remorse, his denial of the allegations,
and his comments that the witnesses were bringing these issues forward out of
vindictive motivations were indicative to the panel that Mr Dunn has an entrenched
attitudinal problem. The panel could not be confident that Mr Dunn would be willing to
comply with any conditions which could be imposed on his practice. The panel
concluded that it could not formulate workable conditions which would maintain the
public’s trust and confidence in the profession and in the NMC as a regulator. The panel
therefore decided that a conditions of practice order would be insufficient to protect the
public and the wider public interest.
The panel then went on to consider whether a suspension order would be an
appropriate sanction. It considered whether a period of suspension would be sufficient
to protect patients and the public interest.
Given the panel’s view that Mr Dunn’s failings are, in principle, potentially remediable, a
period of suspension might afford him time to remediate his failings while protecting the
public. However, Mr Dunn’s lack of insight and remorse, as well as his apparent
Page 28 of 31
attitudinal issues, was of serious concern to the panel. In the circumstances of this
case, the panel was not confident that a period of suspension would adequately protect
the public in the long term.
The panel noted that these incidents took place over a single month, and there is
nothing before it to indicate that Mr Dunn’s failings have been repeated, nor that he has
been before his regulator at any time other than this hearing. However, the panel
considered that Mr Dunn’s failings involved vulnerable patients and were witnessed by
junior colleagues. Mr Dunn has shown no insight into the seriousness of his actions and
the impact of those actions on his patients, his colleagues and the profession. The
panel took the view that Mr Dunn’s misconduct represented a very serious departure
from the relevant professional standards as set out in The code. The panel reminded
itself that in finding impairment, it formed the view that Mr Dunn had no apparent insight
into his failings, and instead denied all of the allegations. The panel looked again to Ms
1’s statement where she describes a conversation with Mr Dunn in which he indicated
he would deny anything that was raised following the incident with Patient A. The panel
was very concerned by this. Further, in the absence of any evidence of remediation, the
panel considered that there is a significant risk of repetition of Mr Dunn’s misconduct in
the future. Having regard to the nature and seriousness of the misconduct in this case,
the panel therefore determined that a suspension was not a sufficient sanction in these
circumstances.
As a result, the panel found that the only appropriate sanction in this case is a striking-
off order. In satisfying itself that a striking-off order was the appropriate sanction, it
looked to the following key considerations in the ISG:
70.1 Is striking-off the only sanction which will be sufficient to protect the public
interest?
70.2 Is the seriousness of the case incompatible with ongoing registration (see
paragraph 66 above for the factors to take into account when considering
seriousness)?
Page 29 of 31
70.3 Can public confidence in the professions and the NMC be sustained if the
nurse or midwife is not removed from the register?
The panel also looked to paragraphs in the ISG as they relate to a striking-off order:
71 This sanction is likely to be appropriate when the behaviour is
fundamentally incompatible with being a registered professional, which
may involve any of the following (this list is not exhaustive):
71.1 Serious departure from the relevant professional standards as
set out in key standards, guidance and advice . . .
71.2 Doing harm to others or behaving in such a way that could
foreseeably result in harm to others, particularly patients or other
people the nurse or midwife comes into contact with in a
professional capacity, either deliberately, recklessly, negligently or
through incompetence, particularly where there is a continuing risk
to patients. Harm may include physical, emotional and financial
harm. The panel will need to consider the seriousness of the harm
in coming to its decision
71.3 Abuse of position, abuse of trust, or violation of the rights of
patients, particularly in relation to vulnerable patients
71.7 Persistent lack of insight into seriousness of actions or
consequences
The panel looked to its decisions on facts and on impairment. It had regard to the letter
dated 24 June 2016 from Mr Dunn’s representatives. The panel could find no indication
in this document that Mr Dunn was willing or able to remediate his failings. There was
nothing before the panel to satisfy it that Mr Dunn would be safe to practice in the
future. The panel considered that Mr Dunn’s behaviour towards vulnerable patients was
appalling. Abuse of these patients had taken place, and while Mr Dunn’s
Page 30 of 31
representatives say in the letter of 24 June 2016 that no patients were harmed, the
panel considered that harm had taken place, particularly emotional harm. The panel
noted that the patients were challenging, but considered that, as an experienced
registered nurse, Mr Dunn should have removed himself from practice and availed
himself of support mechanisms which were in place if he felt he could not cope.
Mr Dunn’s behaviour was particularly egregious in light of the vulnerability of the
patients and the panel considered that the public interest was fully engaged in this case.
The panel concluded that Mr Dunn’s actions represented a fundamental departure from
the relevant standards as set out in The code, and that public confidence in the nursing
profession and in the NMC as its regulator would be undermined were the panel not to
impose a striking-off order.
The panel therefore considered that the only appropriate sanction in the specific
circumstances of this case was a striking-off order.
The panel was aware that a striking-off order could impact on Mr Dunn negatively in
terms of financial, personal and professional hardship, although the panel had no
information on these matters. However, taking full account of the important principle of
proportionality, the panel was of the view that the interests of the public outweigh Mr
Dunn’s interests in this regard.
The panel found that the seriousness of the misconduct, the potential risk to patients
and the negative impact on the reputation of the profession indicates that Mr Dunn’s
misconduct is fundamentally incompatible with his remaining on the register.
The panel, therefore, determined that a striking-off order should be made and directs
the Registrar to strike Mr Dunn’s name from the Register. Mr Dunn may apply for
restoration five years after the date that this decision takes effect.
Page 31 of 31
Decision on Interim Order and reasons
The panel went on to consider an interim order.
Mr Segovia submitted that an 18 month interim suspension order is necessary to protect
the public and is otherwise in the public interest. He submitted that a period of 18
months is appropriate in order to cover the appeal period. He submitted that this interim
order would be commensurate with the panel’s earlier findings.
The panel has 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. In reaching its decision to impose an
interim order, the panel has had regard to the seriousness of the facts found proved and
the reasons set out in its decision for the substantive order.
The period of this interim 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 substantive striking-
off order 28 days after Mr Dunn is served the decision of this hearing in writing.
That concludes this case.