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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):

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“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 …

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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:

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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

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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

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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.

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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

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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.

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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.