Conduct and Competence Committee
Substantive Hearing
17 – 20 September 2013
Nursing and Midwifery Council, 61 Aldwych, London, WC2B 4AE
20 – 22 January 2014
Nursing and Midwifery Council, 20 Old Bailey, London, EC4M 7LN
Name of Registrant Nurse:
Timothy Paul Wood
NMC PIN:
00B0361E
Part(s) of the register:
Registered Nurse – Sub part 1
Adult Nurse – February 2003
Area of Registered Address:
England
Type of Case:
Misconduct
Case Officer:
Karen Fletcher
Panel Members:
Alan Nisbett (Chair, lay member)
Paul Webb (Registrant member)
Wilma Hainsworth (Lay member)
Legal Assessor:
Iain Harris
Panel Secretary:
Liam Bostock
Representation:
Timothy Paul Wood was present and
represented by Heather McMahon,
counsel instructed by the Royal College
of Nursing.
Nursing and Midwifery Council:
Represented by Saima Hirji, Case
Presenter, NMC Regulatory Legal
Team.
Facts proved:
1(a), 2(b), 2(c) & 3
Facts proved by admission:
1(b) & 1(c)
Facts not proved:
2(a)
Fitness to practise:
Currently Impaired
Sanction:
Suspension Order, 12 months
Interim Order:
Interim Suspension Order, 18 months
Page 1 of 24
Details of charge:
1. That you, whilst employed as a registered nurse by Precedo Healthcare Services
Ltd, to work at HMP Moorland:
a) On or around 2 April 2012, obtained Staff member A’s mobile telephone
number without Staff member A’s consent;
b) On or around 3 April 2012, at around 08.45am, sent an unsolicited text
message to Staff member A’s mobile telephone number;
c) On or around 3 April 2012, at around 11.08pm, sent an unsolicited text
message to Staff member A’s mobile telephone number;
2. That you, whilst employed as a registered nurse by Vanguard Healthcare
Solutions:
a) On or around 18 December 2009, obtained Patient X’s mobile telephone
number without Patient X’s consent;
b) On or around 18 December 2009, sent a number of unsolicited text
messages and a picture message to Patient X;
c) On one or more occasion(s) on or around 2009 and 2010, sent
inappropriate and unsolicited text messages to Staff member B’s mobile
telephone.
3.
and that your conduct in relation to charge 2(b) and 2(c) was sexually
motivated.
AND in light of the above, your fitness to practise is impaired by reason of your
misconduct.
Application under Rule 28:
Ms Hirji, on behalf of the NMC, made an application to amend the charge. She told the
panel that she proposed a third charge, namely
3. and that your conduct in relation to charges 1 and/or 2 was sexually motivated
Ms Hirji told the panel that you were charged with such an allegation prior to the start of
today’s hearing. She said that the charge had been published on the NMC’s website but
had been subsequently removed. Ms Hirji advised the panel that your representatives
were aware of such a charge and that the charge had been served on you prior to
today’s hearing.
Miss McMahon, on your behalf, told the panel that your representatives, Royal College
of Nursing (RCN), had been told that you were charged with conduct that was alleged to
have been sexually motivated. She advised the panel that the charges had been served
on the RCN and yourself in the NMC Case Management Form. She made clear to the
panel that the charge, in relation to sexual motivation, had only been made in respect of
Charge 2, (b) and (c).
Miss McMahon objected to Ms Hirji’s application on the basis that your defence had
been prepared in respect of Charges 1 and 2 only.
Page 2 of 24
The panel heard and accepted the advice of the legal assessor.
The panel noted that neither you nor your representative had been served with a charge
that alleged sexually motivated conduct in respect of Charge 1(a), (b) and (c). In these
circumstances that panel concluded that it would not be fair to these proceedings to
allow an amendment of which no previous notice or intimation had been given to you
and accordingly, such amendment could not be made without injustice. Accordingly, the
panel disallowed the amendment in relation to Charge 1.
The panel determined that it would be appropriate to accept Ms Hirji’s application in
respect of Charge 2(b) and (c). It was mindful that you had been notified that the NMC
proposed a charge of conduct that was sexually motivated in respect of Charge 2(b)
and (c) prior to today’s hearing.
In all the circumstances, the panel decided that there would be no prejudice or injustice
in allowing Ms Hirji’s application. Accordingly, the NMC is permitted to put Charge 3 in
the following terms;
3. and that your conduct in relation to charge 2(b) and 2(c) was sexually
motivated.
Application under Rule 31:
Ms Hirji, on behalf of the NMC made an application under Rule 31 of the 2004 Rules, to
receive the evidence of a witness, via telephone. Rule 31 states:
“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.”
Ms Hirji advised the panel that the witness, ‘Staff Member A’ was too distressed and
upset to attend this hearing to give evidence in person. She submitted that her evidence
was relevant to the facts alleged in Charges 1(a), (b) and (c) and was fair and in the
interests of justice to submit via telephone.
Miss McMahon, on your behalf, opposed the NMC’s application to admit the evidence of
the witness via telephone. She submitted that the witness in question, Staff Member A,
was not a vulnerable witness.
Miss McMahon submitted that Staff Member A should be required to attend the hearing
in person to give her evidence. She told the panel that she had questions to ask Staff
Member A in cross examination. The opportunity for the panel to observe her giving
evidence and see her body language would assist it in assessing her credibility.
Miss McMahon submitted that fairness to you requires that Staff Member A attend to
given evidence before the panel. Miss McMahon submitted that it would not be in the
interest of justice to allow the NMC’s application.
Page 3 of 24
The panel heard and accepted the advice of the legal assessor. He advised the panel
that it must consider whether the admittance of telephone evidence would be relevant
and fair.
The panel has considered the application carefully. It has determined that it is both
relevant and fair to allow Staff Member A’s evidence by telephone in these proceedings.
As regards relevance, in light of the submissions made and the evidence received so far
it is clear that Staff Member A’s evidence may assist it in reaching a decision on the
facts of this case.
The panel next considered whether it was fair to grant the application and had regard to
all of the relevant factors known to it. The panel first considered the reasons why the
witnesses could not be present in person. The panel is satisfied, based on Ms Hirji’s
submissions, that Staff Member A is too distressed to attending to give evidence at this
hearing. Nevertheless, Staff Member A’s evidence is relevant to the facts of Charge 1
The panel accepts that it will not be able to assess the demeanour of this witness but is
satisfied that any apparent unfairness that this presents can be dealt with by the
opportunity to ask the witnesses questions about their evidence. The panel will be able
to hear the responses of the witness and the tone and manner in which they are
delivered. Further, it is a matter for the panel what degree of weight it attaches to Staff
Member A’s evidence. The panel is satisfied that granting this application is fair in all the
circumstances.
Submissions under Rule 24(7)
At the close of the NMC’s case, Miss McMahon, on your behalf, made an application
under Rule 24(7) of The Nursing and Midwifery Council (Fitness to Practise) Rules
Order of Council 2004 (as amended February 2012) (The Rules). In making her
submissions she urged the panel to focus on the test applied in The Rules. The Rules at
24(7) state:
24.—
(7) Except where all the facts have been admitted and found proved under
paragraph (5), at the close of the Council’s case, and—
(i) either upon the application of the registrant, or
(ii) of its own volition, the Committee may hear submissions from the parties as to
whether sufficient evidence has been presented to find the facts proved and shall
make a determination as to whether the registrant has a case to answer.
Miss McMahon submitted that the panel should have regard to the salient test in The
Rules, namely whether “sufficient evidence” has been presented. Her secondary
submission was that the panel should have regard to the criminal test and her tertiary
submission was that it should have regard to the civil test.
In respect of the criminal test, Miss McMahon referred the panel to the authority of R. v
Galbraith (George Charles) [1981] 1 W.L.R. 1039. In Galbraith it was held that in
dismissing an application for leave to appeal against sentence of four years for affray,
Page 4 of 24
the Court of Appeal stated that the approach to "no case" should be: (a) if there was no
evidence as to the crime, the judge should stop the case; (b) if there was some
evidence but because of weakness, vagueness or inconsistency with other evidence the
judge felt a jury could not properly convict on it he should again stop the case; and (c) if
the prosecution evidence was such that it depended on a view as to the reliability of
witness or other matters within the province of the jury, the case must go to the jury.
Furthermore, in respect of the civil test, Mrs McMahon referred the panel to the authority
Benham Ltd v Kythria Investments Ltd [2003] EWCA Civ 1974 in which it was held that
a case to answer is established by “some evidence however weak” and “only a scintilla
of evidence to support the (relevant) inferences.” The Court went on to state the test is
whether the case “has a reasonable prospect of success.”
Miss McMahon submitted that it would be appropriate to apply the principles of
Galbraith in your case.
Miss McMahon referred the panel to Charge 2(a). She submitted that Patient X’s
evidence was that she had given you her telephone number with her consent, but with
consent for a particular purpose and not personal reasons Miss McMahon drew the
panel’s attention to the specific wording of Charge 2(a) and submitted that the evidence
adduced, taken at its highest could not make out the facts of this charge on the basis
that there was no evidence to establish that you had obtained Patient X’s mobile
telephone number without her consent.
In respect of Charge 2(b), Miss McMahon submitted that the NMC previously had the
opportunity to obtain information which would have revealed the identity of the individual
who is alleged to have sent text messages to Patient X. She submitted that the NMC
had not done so and could therefore not establish that you had been the individual who
had text messaged Patient X.
In respect of Charge 3, Miss McMahon submitted that this charge was an inference
based upon an inference. She submitted that the NMC had adduced no evidence that
established your conduct was sexually motivated.
In respect of Charges 2(a), 2(b), and 3, she invited the panel to find that there is no
case for you to answer.
Ms Hirji, on behalf of the NMC, submitted that the appropriate test for the panel to apply
was set out in Galbraith.
In respect of Charge 2(a), Ms Hirji submitted although the charge did not particularise
that you had ‘inappropriately’ obtained Patient X’s mobile telephone number without
consent, it should not be concluded at this stage. She invited the panel to consider that
it is wholly appropriate for a registered nurse to obtain a patient’s personal contact
details in the course of caring for a patient. She submitted that the issue arose when
you obtained Patient X’s personal details for your own private purposes. She submitted
that the issue of ‘consent’ commences when the patients details were used for purposes
other then those related to clinical matters.
In respect of Charge 2(b), Ms Hirji submitted that Miss McMahon’s submission was
wholly without merit. She referred the panel to the particulars of the alleged text
Page 5 of 24
messages that had been exhibit by the NMC. In particular, she referred the panel to a
text message that had been signed off with ‘Tim.’ Furthermore, she referred the panel to
the picture message that was sent to Patient X, reminding the panel that this was a
picture of you.
In respect of Charge 3, Ms Hirji referred the panel to the texts messages allegedly sent
by you to Patient X. She invited the panel to consider the inappropriate and “flirty”
nature of the messages that had been sent to and received by Patient X.
Ms Hirji submitted that there was sufficient evidence to establish that you do have a
case to answer in respect of Charge 2(a), 2(b) and 3.
The panel heard and accepted the advice of the legal assessor. He reminded the panel
that the application under Rule 24(7) was made by Miss McMahon on your behalf. He
also referred the panel to the authority of Galbraith. Furthermore, he reminded the
panel, at this stage in proceeding, its duty was not to make decisions on the facts,
rather it was to consider whether sufficient evidence had been adduced to establish
whether or not you have a case to answer in respect of Charges 2(a), 2(b) and 3.
The panel carefully considered the evidence adduced by the NMC and had regard to
the particulars of the charges in dispute.
In respect of Charge 2(a), it was alleged that you obtained Patient X’s mobile telephone
number without Patient X’s consent. The panel bore in mind that Patient X’s written and
oral evidence was that she gave her telephone number to you when requested to do so.
The panel determined that the evidence adduced by the NMC was that Patient X had
given you her mobile telephone number when requested by you and had done so with
consent. Accordingly, the panel determined that there was no evidence that you had
obtained Patient X’s mobile telephone number without her consent. The panel therefore
determined you do not have a case to answer in respect of Charge 2(a).
The panel then considered Miss McMahon’s application in respect of Charge 2(b). The
panel examined the texts messages that were alleged to have been sent by you to
Patient X. It bore in mind the level of detail contained in the text messages including a
picture of you. Furthermore, in reaching its decision, the panel also had regard to
Patient X’s written and oral evidence. It did not consider that to be weak, vague or
inconsistent with other evidence. The panel considered that there is sufficient evidence
to establish that there is a case for you to answer in respect of Charge 2(b).
In respect of Charge 3, the panel determined that there was a case for you to answer on
the facts of this charge. It bore in mind the nature of the text messages you are alleged
to have sent to Patient X. Furthermore, it had regard to the oral and written evidence of
Patient X. The panel determined that there is sufficient evidence to establish that there
is a case for you to answer in respect of Charge 3.
Page 6 of 24
Adjournment of proceedings:
On 20 September 2013, the fourth and final day of proceedings, the hearing was
adjourned at 09:00 hours. The Chair of the hearing had informed the NMC that he was
unable to attend on 20 September 2013 due to extenuating circumstances. The hearing
was adjourned on the grounds that the panel was not appropriately constituted to
proceed with its deliberation on the facts.
This hearing will resume at a date to be confirmed in October 2013.
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. Furthermore, the panel heard the submissions made by Ms Hirji on behalf of
the Nursing and Midwifery Council (NMC) and Miss McMahon, on your behalf.
At the outset of the hearing, Miss McMahon informed the panel that you admitted to
charges 1(b) & 1(c). By reason of your own admission, the panel found these charges
proved.
The panel accepted the advice of the legal assessor. He 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. He reminded the
panel to consider each allegation separately and assess the evidence accordingly.
The panel heard oral evidence from five witnesses called on behalf of the NMC.
The witnesses for the NMC were:
•
Mr 1 – Head of Operations, HM Prison and Youth Offenders Institution of South
Yorkshire;
•
Staff Member A;
•
Patient X;
•
Staff Member B; and
•
Ms 2 – Human Resources Manager, Vanguard.
Furthermore, the panel had regard to the documentary evidence submitted on your
behalf by Miss McMahon as well as the oral evidence that you gave under affirmation.
Background, in respect of Charge 1:
You were employed by Precedo Healthcare Services Ltd (“Precedo”) as a registered
nurse, to provide qualified nursing cover for a variety of Precedo’s clients on an agency
basis. Precedo is a company which provides recruitment solutions to the public and
private healthcare sectors. Nottinghamshire Healthcare NHS Trust (“the Trust”) is a
client of Precedo and you worked for the Trust’s Prison Services through Precedo.
Page 7 of 24
On 2 April 2012, you attended HM Prison Moorland for a security talk. Staff member A,
a member of HMP Moorland’s staff, was also present at this security talk and was sitting
next to you. All attendees at the talk were told to complete a personal details form and
Staff Member A completed hers on her lap as did other participants.
The following day, 3 April 2012, at around 16.30 hours, Staff Member A received a text
message from a number, which it later transpired, belonged to you. The same day, at
around 23:08 hours, Staff Member A is alleged to have received a second text message
from you, which she did not read until the following day, 4 April 2012.
The sender of these text messages referred to himself as “Tim from [the] key talk
yesterday”. Staff Member A did not respond to the text messages and was advised by
her family to report them to HM Prison Moorland as her privacy had been invaded.
On or around 4 April 2012, Staff Member A made a verbal complaint to HM Prison
Moorland. Mr 1, Head of Operations at the prison, met with Staff Member A to discuss
the matter and was shown a copy of the text messages which Staff Member A had
written down on a piece of note paper. Staff Member A explained that mobile phones
were not allowed in the Prison. Mr 1 also spoke with you shortly after the complaint
made by Staff member A. At the material time, you admitted obtaining Staff Member A’s
personal mobile telephone number during the security key talk on 2 April 2012 and to
sending text messages to her on 3 April 2012.
HM Prison Moorland took the decision to restrict you from entering the Prison again in
the future and to bar you carrying out any duties within the Prison.
Background, in respect of Charge 2 & 3:
You were employed by Vanguard Healthcare Solutions (“Vanguard”) as a registered
nurse to work on Vanguard’s mobile units. On 18 December 2009, Patient X visited the
John Radcliffe Hospital in Oxford (“the Hospital”) for an endoscopy. She was met by you
prior to the procedure to go through the required paperwork. The Hospital had a mobile
endoscopy unit, provided by Vanguard, in which Patient X’s procedure was due to take
place. After you had been through Patient X’s paperwork with her, you asked her for her
mobile telephone number as a daytime contact number. Patient X provided her mobile
telephone number for this purpose.
Patient X underwent the procedure and left the Hospital the same day around 13:40.
She had turned off her mobile telephone whilst in the Hospital.
On 22 December 2009, Patient X wrote a letter of complaint to the Hospital. She alleged
that at 16.35 pm on 18 December 2009, the same day the procedure was carried out,
she had turned on her mobile telephone and found that she had received a text
message which said that her telephone number had been “Bluetoothed” to a telephone
belonging to “Tim.” Patient X wrote that because her mobile telephone had been
switched off for the whole time she was in the Hospital, on 18 December 2009, she
could not see how this could have happened. Patient X alleged that she had received
approximately 12 text messages from the same number over a three day period, as well
as a picture message of you.
The sender of the text messages referred to himself as “Tim” who had completed her
“paperwork”. Patient X confirmed that the photograph of the person in the picture
message she received was the person who completed her paperwork with her on
Page 8 of 24
18 December 2009. Patient X had initially responded to the text messages and then
stopped.
After receiving the letter of complaint from Patient X, the Senior Theatre Manager at
Vanguard had a conversation with Ms 2, and the Operations Manager at Vanguard and
decided that Patient X’s complaint was sufficiently serious to warrant an investigation.
At the meeting on 5 January 2010, you were shown a copy of the text messages, and
denied sending them and suggested that someone else had sent the messages and the
photograph of you. You advised that you had dropped your Vanguard telephone in
water on or around 11 December 2009, and had stripped it of its SIM and memory card
and battery and left all the parts out to dry in the endoscopy unit at the Hospital.
The panel considered each of the charges separately and reached the following
decisions:
Charge 1(a):
1. That you, whilst employed as a registered nurse by Precedo Healthcare Services
Ltd, to work at HMP Moorland:
a) On or around 2 April 2012, obtained Staff member A’s mobile telephone
number without Staff member A’s consent;
This charge is found proved
In reaching its decision on the facts of charge 1(a), the panel considered the evidence
from Staff Member A and you. The panel bore in mind that Staff Member A had not
appeared before it to give oral evidence. Instead, the panel heard Staff Member A’s oral
evidence via a telephone conference. In the absence of Staff Member A, the panel was
invited by Miss McMahon to apply the appropriate weight to Staff Member A’s oral
evidence given that it was unable to assess her body language and demeanour.
Staff Member A told the panel that she was at HM Prison Moorland for a security key
talk. She said that the room accommodating the key talk was very small and that extra
chairs had been brought in to accommodate all those in attendance. She said that you
had been seated to her left and that another woman had been seated to her right. She
stated that you were all sat in a curved row and that she was sat some five to six
centimetres away from you. Staff Member A told the panel that she did not directly talk
to you but that those in attendance were talking in a group.
Staff Member A told the panel that the attendees at the key talk were required to
complete a personal details form. She completed the personal details form on her lap
and it had remained there for some 45 minutes.
In your oral evidence, you told the panel that during the security key talk you had to
complete a personal details form. You said that you completed your form on your lap
and that this was how others in attendance had completed theirs.
You said Staff Member A, who was sitting next you, was sitting with her legs and arms
crossed. You said that she was holding her personal details form in her right hand and
that her thumb was under her mobile telephone number. You said that she was sitting in
this position for some time. You stated that from Staff Member A’s body language that
you understood, at the time, that she was trying to communicate something with you.
You said that you understood this to mean that she was happy for you to take her
Page 9 of 24
mobile telephone number. You told the panel that you took Staff Member A’s telephone
number. You stated that you did this by memorising her telephone number and writing it
down after returning to your motor vehicle.
You said that you subsequently understood that you had misunderstood Staff Member
A’s body language when you obtained her telephone number. You said that you had
sent two text messages.
The panel found Staff member A’s evidence to be clear, consistent and precise. She
had been measured in her responses, presenting herself as a credible witness. The
panel considered that Staff Member A had been unnerved by receiving text messages
from you. Staff Member A was clear that she had not given you consent to obtain her
telephone number and had refuted that her body language had been suggestive.
The panel determined, on the balance of probabilities, that you had obtained Staff
member A’s mobile telephone number without Staff member A’s consent
Charge 2(b):
2. That you, whilst employed as a registered nurse by Vanguard Healthcare
Solutions:
b) On or around 18 December 2009, sent a number of unsolicited text
messages and a picture message to Patient X;
This charge is found proved
Patient X confirmed to the panel that you were the nurse on duty who ‘checked’ her into
the endoscopy unit of Oxford Radcliffe Hospitals NHS Trust. She said that you had
accepted her personal details on the form, additionally received her mobile telephone
number as part of the check-in process.
Patient X told the panel that she had undergone a procedure at the unit, during which
time her mobile phone was turned off, and had been driven home by her step-farther.
She said that during the journey home she had turned on her mobile phone and
received a text message from an individual identifying himself as ‘Tim.’ She further
stated that the text message stated that the sender had been sent her mobile telephone
number via Bluetooth.
Patient X told the panel that she did not know how to send a message via Bluetooth.
She stated that she was now aware that you can send messages via Bluetooth. She
confirmed that the Bluetooth was not turned on at the time of the incident as her phone
was switched off.
Patient X could not recall how many messages you sent her on the first day, but stated
that she received text messages from you over a three day period.
In her oral evidence Patient X confirmed that she responded to the text messages as
she felt vulnerable and wanted to know who you were. She stated that she was
concerned about what other information that you may have held about her. Patient X
told the panel that she felt vulnerable and upset that a professional member of staff
would take her contact details for their own personal use.
Page 10 of 24
Patient X confirmed that she had sent a text you to ask you to stop texting her but
acknowledged that there was no evidence to confirm that she had done so. She told the
panel that she believed she sent the message on 4 January 2010.
The panel had before it the alleged text message exchanges between Patient X and
you on 4 January 2010. However, it noted that the alleged text message from Patient X
to you asking you to stop sending text message was not before it and had not been
obtained by the NMC. The panel had regard to the nature of text message exchanges. It
noted the terms of the initial exchanges engaged in by both parties. It noted that Patient
X had engaged with the sender of the messages for a specific purpose. It further noted
that a further five text messages had been sent to Patient X after she had asked you to
stop sending text messages.
It was your evidence that you had dropped your Vanguard mobile telephone in water on
or about 11 December 2009, and that you had stripped it of its SIM card, the memory
card and battery and left all the parts out to dry in the endoscopy unit at the Hospital.
You told the panel that someone else must have taken your SIM and memory card. You
denied that you had sent any text messages to Patient X.
You told the panel that the individual who had taken your SIM card and memory card
from your water damaged Vanguard phone must have used your memory card to send
a picture of you to Patient X. You gave three further explanations as to how text
messages might have been sent to Patient X in your name.
The panel noted that the text messages sent to Patient X were sent from a Pay as You
Go mobile telephone on the Tesco Mobile network. You told the panel that you did not
own a Tesco Mobile Pay as You Go mobile telephone. You said that you had attempted
to obtain the owner’s details of the Tesco Mobile Pay as You Go telephone in order to
prove that you had not sent text messages to Patient X. You said that you had
contacted Tesco Mobile and that they had refused to give you the details of the owner
of the mobile telephone.
The panel did not find your evidence to be credible. The panel found your explanations
to be implausible. There was no evidence before it that established that a third party
had taken the SIM card and memory card removed from your phone. Further, there was
no evidence to establish that a third party had known that you had checked Patient X
into the endoscopy unit and had taken her mobile telephone number in order to
implicate you as the sender of the text messages. The panel noted that the text
message exchanges provided details about you including your name, your age, your
employment as well as a picture message of you.
The panel determined, on the balance of probabilities, that you sent a number of
unsolicited text messages and a picture message to Patient X.
Charge 2(c):
2. That you, whilst employed as a registered nurse by Vanguard Healthcare
Solutions:
Page 11 of 24
c) On one or more occasion(s) on or around 2009 and 2010, sent
inappropriate and unsolicited text messages to Staff member B’s mobile
telephone.
This charge is found proved
In reaching its decision on the facts of charge 2(c), the panel considered the evidence
from Staff Member B and you.
Staff Member B confirmed that whilst she was employed by Vanguard, she was issued
with a company mobile. She told the panel that every staff member’s mobile number
was stored in the phone and that there was no need to add additional numbers. She
confirmed that your number was stored on the phone.
Staff Member B could not recall how many text messages you had sent her. She told
the panel that as she was new member of staff at Vanguard she did not complain as
she did not make a formal complaint in writing as she did not want to be seen as a
“trouble maker.” Staff Member B told the panel that she had “a lot going on” in her life at
the time of the incident.
Staff Member B said that each time she received a text message it came up with your
name as the sender. She said that she received text messages over a couple of
months. Staff Member B told the panel that she spoke to a senior colleague who
advised her to ignore the text messages from you. She told the panel that she was not
initially concerned about the text messages but that she became “freaked out” as time
went on. She told the panel that the text messages were suggestive and that you had
told her that you wanted to spend the night with her and that she would not be
disappointed.
You told the panel that you apart from the matters concerning Staff Member B, you
considered that you had a good working relationship with colleagues at Vanguard.
You told the panel that you were surprised when Staff Member B asked you to stop
texting her as you did not think your previous text messages had been inappropriate.
You told the panel that you then stopped contacting Staff Member B and did not text her
again. You told the panel that the only conclusion you could reasonably come to was
that Staff Member B may have misinterpreted your text messages.
The NMC had not obtained or presented any copies of the alleged text messages and
there was no documentary evidence placed before the panel to establish the nature of
the text message exchanges between Staff Member B and you. However, the panel
noted that when Staff Member B left Vanguard she returned her company mobile
telephone.
The panel considered Staff Member B’s oral evidence. It considered that her evidence
was clear, consistent and credible. There was no evidence to suggest that Staff
Member B had fabricated her evidence in order to cause you personal or professional
hardship.
Page 12 of 24
The panel determined, on the balance of probabilities, that on one or more occasion(s)
on or around 2009 and 2010, you had sent inappropriate and unsolicited text messages
to Staff member B’s mobile telephone.
Charge 3:
3. and that your conduct in relation to charge 2(b) and 2(c) was sexually
motivated.
This charge is found proved
In reaching it decision on Charge 3, the panel had regard to its finding in respect of
charges 2(b) and 2(c).
The panel considered the text message exchanges between Patient X and you. You
had referred to Patient X as ‘babe’ and ‘hun’ and had asked her to send a picture of her
after you had sent a picture of herself. You had obtained details regarding her age and
where she lived. Further, you had referred to yourself as the ‘young, good looking one’
and asked Patient X to meet you for a drink.
The panel found that your language was suggestive and considered that the purpose of
your text messages to Patient X was to pursue a relationship with her. In respect of
Charge 2(b), the panel determined that your conduct had been sexually motivated.
In respect of Charge 2(c), the panel bore in mind that no documentary evidence had
been adduced to establish the content of the text messages sent by you to Staff
Member B. The panel also bore in mind that it had found that you had sent
inappropriate and unsolicited text messages to Staff Member B.
The panel noted Staff Member B’s oral evidence. It noted that she had described text
messages sent by you that established that your conduct had been sexually motivated.
She told the panel that the text messages were suggestive and that you had told her
that you wanted to spend the night with her and that she would not be disappointed.
The panel considered that the text messages you had sent to Staff Member B had been
sexually motivated in that you had expressed to her that you wanted to meet with her for
the purpose of a sexual relationship.
In respect of Charge 2(c), the panel determined that your conduct had been sexually
motivated.
Submissions and advice on misconduct and impairment:
The panel must consider whether your fitness to practise is impaired on the basis of the
facts found proved in accordance with Rule 24 (12) of The Rules. The panel has taken
account of your oral evidence, as well as Ms Hirji’s submissions on behalf of the NMC
and those made by Miss McMahon on your behalf. Further, the panel accepted the
advice of the legal assessor.
Ms Hirji reminded the panel that the NMC defines 'fitness to practise' as meaning 'a
person's suitability to be on the register without restrictions'. She submitted that your
Page 13 of 24
fitness to practise is impaired because you are not currently suited to be on the register
without restriction as a result of the charges that had been found proved by the panel.
She referred the panel to the case of The General Medical Council v Professor Sir Roy
Meadow v Her Majesty's Attorney General [2006] EWCA Civ 1390 at paragraph 32 (in a
GMC context).
In considering your current fitness to practise, Ms Hirji also referred the panel to Cohen
v General Medical Council [2008] EWHC 581 (Admin).
Ms Hirji reminded the panel of its findings in respect of the charges. She reminded it
that the allegations consisted of similar concerns over a significant period of time; 2009
to 2012 and three separate complainants. She submitted that the most appropriate way
forward was to adopt the approach set out in Dr Cheng Toh Yeong v The General
Medical Council [2009] EWHC 1923 (Admin) at paragraphs 51 to 52. She reminded the
panel that was a case that had involved a finding of sexual misconduct.
Ms Hirji submitted that the misconduct in this case is not amenable to remediation and
in any event has not been remedied and that there remained a risk of repetition. She
submitted that you sought to refute the most serious charges, showing no insight into
your actions and resulting in the panel finding that your evidence was implausible and
lacked credibility. She submitted that a finding of current impairment is required so as to
re-affirm the proper professional standards of behaviour of registrants. Further, she
invited the panel to consider the public interest in your case and referred the panel to
the case of Council for Healthcare Regulatory Excellence v Nursing and Midwifery
Council, Paula Grant [2011] EWHC 927 (Admin) at paragraph 74 & 75 [TAB 4]:
In considering your misconduct, Ms Hirji invited the panel to have regard to the authority
of Roylance v General Medical Council (no. 2) [1999] 1 A.C. 311 in which misconduct
was defined as: ' ...a word of general effect, involving some act or omission which falls
short of what would be proper in the circumstances. The standard of propriety may often
be found by reference to the rules and standards ordinarily required to be followed by a
medical practitioner in the particular circumstances.'
Ms Hirji referred the panel two pieces of guidance in relation to health practitioner and
patient relationships and identified the relevant sections pertinent to this cass.
1. Council for Healthcare Regulatory Excellence – clear sexual boundaries between
healthcare professionals and patients: responsibilities of healthcare professionals
2. NMC Practitioner-client relationships & the prevention of abuse
Ms Hirji referred the panel to the NMC’s standards in force at the time, The code:
Standards of conduct, performance and ethics for nurses and midwives (2008) (“The
code (2008)”) and invited the panel to consider elements of The code that you could be
found to have breached.
In respect of current impairment, Ms Hirji invited the panel to have regard to Dame
Janet Smith’s Fifth Shipman Report and, in particular, her guidance relating to
impairment of fitness to practise.
Page 14 of 24
Miss McMahon reminded the panel of your position during the course of your evidence.
She told the panel that you admitted that your actions did amount to misconduct in
respect of the facts that you had admitted. She submitted that you accepted the panel’s
determination.
Miss McMahon referred the panel to the authority of Cohen and reminded the panel that
a finding of misconduct did not automatically lead to a finding of impairment. She
reminded the panel that it must look forward and not back and that it must make a
determination regarding your current impairment.
Miss McMahon also referred the panel to the case of Yeong. She reminded the panel
that the case of Yeong concerned a sexual relationship between a health practitioner
and a patient. She reminded the panel that this was not the same as your case.
Miss McMahon referred the panel to your reflective statement and the bundle of
testimonials submitted in your favour. In particular, she referred the panel to the positive
nature of the testimonials in which your fitness to practise is attested to as well as you
clinical competence, good character and professionalism. She submitted that you have
your employer’s confidence.
Miss McMahon submitted that you accept the findings of the panel. She submitted that
you do not accept that your fitness to practise is currently impaired.
In respect of Charge 1, in its entirety, Miss McMahon reminded the panel that you had
admitted to the facts of the charge at the earliest stage. Further, she reminded the panel
that you had attempted to apologise to Staff Member A but that this had not been
passed on to her by your former employer. She invited the panel to consider that you
had demonstrated insight into your conduct and that the risk of repetition was
significantly low.
In respect of Charge 2(b), 2(c) & 3, Miss McMahon reminded the panel of your evidence
and position in relation to the charges found proved. She reminded the panel of the
evidence adduced by the NMC. She submitted that you had no further contact with
either Patient X and Staff Member B.
Miss McMahon reminded the panel of the historic nature of the facts found proved.
She invited the panel to have regard to all the evidence before it attesting to your
current fitness to practise.
The panel accepted the advice of the legal assessor. He reminded the panel that it was
a two stage process, firstly to consider the issue of misconduct, and only if misconduct
is found, proceeding to determine whether your current fitness to practise is impaired.
Decision on misconduct & impairment:
In reaching its decision on misconduct, the panel bore in mind its duty to protect the
public, to maintain public confidence in the profession and the regulatory process, and
to declare and uphold proper standards of behaviour and conduct.
In considering the issue of misconduct, the panel concluded that the facts found proved
demonstrated conduct that fell significantly below of the standards expected of a
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registered nurse, and that your actions did breach The code (2008). The panel
considered that you had breached following provisions:
1. You must treat people as individuals and respect their dignity.
5. You must respect people’s right to confidentiality
20. You must establish and actively maintain clear sexual boundaries at all times
with people in your care, their families and carers.
27. You must treat your colleagues fairly and without discrimination.
57. You must not abuse your privileged position for your own ends.
61. You must uphold the reputation of your profession at all times.
The panel was aware that not every act falling short of what would be proper in the
circumstances, and not every breach of The code (2008), would be sufficiently serious
that it could properly be described as misconduct. The panel considered all the
circumstances carefully.
The panel bore in mind your position in relation to Charge 1. You accepted that your
actions did amount to misconduct. Further in relation to Charge 2(b), 2(c) and 3, you
accepted that any reasonable person would expect a finding of misconduct following the
panel’s determination.
In respect of Charge 1, the panel bore in mind that you had taken Staff Member A’s
mobile telephone number without her consent and had sent her two unsolicited text
messages. The panel noted that you had admitted to your employer that you had sent
text messages to Staff Member A. Further, you had apologised for your behaviour but
these apologies were not extended to Staff Member A.
The panel considered that you had failed to appreciate the importance of maintaining
professional boundaries between Patient X and you. Patient X, who was a vulnerable
18 year old girl at the material time, had trusted you with her personal details and had
considered that these would only be used by you in a professional capacity. You had
obtained Patient X’s mobile telephone number for your own personal use and had
engaged in an inappropriate and unprofessional exchange with her. The panel bore in
mind its finding that your conduct in respect of Patient X had been sexually motivated.
The panel noted that Staff Member B was a new employee at Vanguard Healthcare
Solutions who felt that she was unable to make a formal complaint against you. You had
abused your position of trust as her colleague by sending her inappropriate and
unsolicited text messages over some three months. Your misconduct was aggravated
by the sexual nature of the text messages that you had sent to Staff Member B. The
panel bore in mind its finding that your conduct in respect of Staff Member B had been
sexually motivated.
The panel concluded that your behaviour, on the facts found proved, fell below what
would be proper in the circumstances. This behaviour reflected an abuse of your
professional in respect of a young colleague, a young patient in your care, and a new
colleague. The panel determined that your behaviour was sufficient to amount to
serious misconduct.
Page 16 of 24
The panel then went on to consider whether by reason of your misconduct your fitness
to practise is currently impaired. The panel reminded itself that it should consider not
only the risk that a registrant poses to members of the public, but also the public interest
in upholding proper professional standards and public confidence in the NMC as a
regulator, and whether those aims would be undermined if a finding of impairment were
not made in the circumstances.
The panel had regard to the reflective statement you submitted following its
determination on the facts. Further, it had regard to the bundle of references and
testimonials submitted on your behalf. It noted that the references attest to your good
practice, conduct and character. The references did not highlight any concerns
regarding your current clinical practice.
The panel had regard to whether your misconduct is easily remediable, whether it had
been remedied and whether it is likely to be repeated. You told the panel that you were
in the process of undertaking a coaching course in order to improve your
communication skills.
The panel had regard to the matter of insight. It was to your credit that you recognised
the seriousness of the charges found proved and that you understood that the charges
would be likely to amount to misconduct. Your reflective statement had set out how a
registered nurse should maintain professional boundaries and relationships with
patients and colleagues.
You told the panel that whilst you accepted its determination on the facts, you
maintained your position in respect of the charges concerning Patient X and Staff
Member B. You continued to deny your behaviour as set out in the charges found
proved by the panel.
The panel considered that you had demonstrated limited insight into the seriousness of
your behaviour toward Patient X and Staff Member B and the subsequent impact your
behaviour had on them. In considering your reflective statement you had clearly
apologised for your conduct in respect of Staff Member A and demonstrated an
awareness of the impact of your behaviour on her. Your limited insight was
compounded by the fact that you sought to distance yourself from taking personal
responsibility for your behaviour. The panel noted that your reflective statement had
taken an “objective prospective” of Charges 2 & 3 which this panel found proved. In
continuing to deny before this panel any personal culpability, you gave the panel no
assurance that your behaviour is capable of remediation.
The panel considered that the charges both admitted and proved amounted to a pattern
of misconduct. The panel considered that your insight was so limited that you could not
be relied upon not to repeat your misconduct in the future.
The panel determined that there remained a continuing risk of repetition of the
misconduct and therefore a risk to public confidence in the profession and the NMC as
the regulator.
In determining the matter of impairment of current fitness to practise, the panel
considered the case of CHRE v Nursing and Midwifery Council and Grant, [2011]
EWHC 927 (Admin) and in particular what Mrs Justice Cox had said at paragraph 74;
Page 17 of 24
74.
In determining whether a practitioner’s fitness to practise is impaired by
reason of misconduct, the relevant panel should generally consider not only
whether the practitioner continues to present a risk to members of the public
in his or her current role, but also whether the need to uphold proper
professional standards and public confidence in the profession would be
undermined if a finding of impairment were not made in the particular
circumstances.
Mrs Justice Cox went on to say in Paragraph 76:
76.
I would also add the following observations in this case having heard
submissions, principally from… 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 s/he:
a) Has in the past acted and/or is liable to act in the future 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 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 profession; and/or
d) Has in the past acted dishonestly and/or is liable to act dishonestly in the
future.
The panel considered that b) and c) are engaged in this case.
In considering whether your misconduct had brought the profession into disrepute, the
panel had regard to the public interest in this case. The panel concluded that your
behaviour had brought the profession into disrepute. It determined that members of the
public would rightly expect that registered nurses act in such a way as to maintain
appropriate professional boundaries at all times. You had failed to maintain appropriate
professional boundaries with two former colleagues, and also a patient who had trusted
you with her personal details.
The panel had no doubt that you failed to uphold the reputation of the profession and
that your actions undermined public confidence in the profession. The panel determined
that your failings had breached fundamental tenets of the profession by your failure to
uphold the reputation of your profession at all times. Further, in the absence of evidence
regarding remediation and insight, the panel considered that there remained a risk of
repetition of your misconduct.
Page 18 of 24
In all the circumstances, the panel has concluded that your fitness to practise is
currently impaired. This finding is made in order to uphold proper professional standards
and maintain public confidence in the profession and the NMC as its regulator.
Determination on Sanction:
The panel has considered this case very carefully and has decided to make a
suspension order for a period of 12 months. The effect of this order is to suspend your
registration and restrict you from practising as a registered nurse.
Having determined that your fitness to practise is currently impaired, the panel
considered what sanction, if any, it should impose in relation to your registration. In
reaching its decision on sanction, the panel has considered all the evidence that has
been placed before it, including an additional reference, and had regard to the
submissions made by Ms Hirji on behalf of the NMC and the submissions made by Miss
McMahon on your behalf.
Ms Hirji, invited the panel to have regard to the NMC Indicative Sanctions Guidance
(“ISG”) and referred it to the relevant parts it may consider pertinent to your case,
including the guidance on sexual misconduct. She referred the panel to the authority of
R (on the application of Abrahaem) V GMC [2004] EWHC 279 (Admin) and reminded it
that the purpose of a sanction was not to be punitive but to protect the public interest.
Ms Hirji made submissions in respect of the aggravating and mitigating factors in your
case and invited the panel to impose a sanction that was proportionate and sufficient to
maintain public confidence in the profession and the NMC as its regulator.
In her submissions, Ms Hirji also referred the panel to the case of Bolton v Law Society
[1994] 1 W.L.R 512 CA in which it was held, 'Considerations which would normally
weigh in mitigation of punishment have less effect on the exercise of this kind of
jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often
happens that a solicitor appearing before a tribunal can adduce a wealth of glowing
tributes from his professional brethren. He can often show that for him and his family the
consequences of striking off or suspension would be little short of tragic ... All these
matters are relevant and should be considered ... [but the] reputation of the profession
is more important than the fortunes of the individual member. Membership of the
profession brings many benefits, but that is a part of the price.'
Ms Hirji submitted that although you are a competent practitioner, the misconduct in
your case was: serious; constituted departure from the standards to be expected; and
that the risk of harm to the public interest that is caused by such departures, was such
that you should not remain on the register without some restriction.
Miss McMahon submitted that you understood that the purpose of sanction was to
protect the public interest. She referred the panel to the ISG and in particular the public
interest considerations the panel should have in mind when considering which sanction,
if any, it should impose in your case.
Miss McMahon submitted that there were three mitigating features in your case. She
submitted that you have some insight. She reminded the panel that you made early
admissions in respect of your misconduct concerning Staff Member A. She also
Page 19 of 24
reminded the panel that you had apologised for your actions to Mr 1 and that you had
attempted to apologise to Staff Member A, at the time, but that had not been
communicated to her through no fault of your own. Further, she reminded the panel that
you had apologised during the course of the hearing to Staff Member A.
Miss McMahon submitted that you had engaged with the NMC throughout the Fitness to
Practise process.
Miss McMahon reminded the panel of your oral evidence at the misconduct and
impairment stage. She reminded the panel that you had taken steps to remediate your
misconduct. She told the panel that you are undertaking a coaching course to improve
your communication skills. Further, she reminded the panel of the steps you have taken,
with colleagues, to ensure that you are not the subject of similar allegations in the
future.
In respect of your current practice, Miss McMahon submitted that you are a ‘good nurse’
who has the confidence of your present employer. She told the panel that your
employer had been aware of the NMC proceedings against you and had continued to
employ you throughout. She submitted that, prior to these charges, you have had an
unblemished career, qualifying as a nurse in 2003 and she provided the panel with an
account of your employment history as a registered nurse.
Miss McMahon submitted that you accepted the seven aggravating features in your
case to which Ms Hirji had referred. She told the panel that you accepted the panel’s
finding that your conduct was sexually motivated. She submitted that there is a broad
spectrum of misconduct. In respect of your case, she reminded the panel that serious
misconduct had been found in relation to text messages sent to Patient X and Staff
Member B which were sexually motivated. She submitted that the nature of the text
messages had been ‘flirtatious.’ She submitted, without minimising the distress that had
been caused to Patient X, Staff Member A and Staff Member B, that your case was not
one of serious sexual misconduct.
Miss McMahon submitted that the misconduct found in your case was not such that
required your restriction in the nursing profession. She submitted that a sanction
restricting you from practice would cause you professional and personal hardship.
In reaching its decision on sanction, the panel considered all the evidence before it and
accepted the advice of the legal assessor. Further, the panel has taken into account the
guidance set out in the ISG.
Under Article 29 of the Nursing and Midwifery Order (2001) the panel considered the
following sanctions in ascending order: take no action; make a caution order for one to
five years; make a conditions of practice order for no more than three years; make a
suspension order for a maximum of one year; or make a striking off order.
The panel had regard to the principle of proportionality, weighing your interests against
the public interest. The panel bore in mind that the purpose of a sanction is not to
punish, but it may have that effect. The purpose of a sanction is to protect patients and
the wider public interest. The wider public interest includes maintaining public
confidence in the profession and the NMC, and declaring and upholding proper
standards of conduct and behaviour within the nursing profession.
Page 20 of 24
The panel had regard to the mitigating and aggravating features in this case.
The panel considered the following to be mitigating features: your hitherto unblemished
career; the references submitted in your favour attesting to your good character,
conduct and competence; your early admission of your inappropriate behaviour toward
Staff Member A and attempts to apologise to her; your early admissions before this
panel in relation to charge 1b and 1c; and your engagement with whole NMC process.
The panel considered the following to be aggravating features: three separate
allegations of a similar nature, one involving a patient; the vulnerable nature and relative
youth of Staff Member A and Patient X; the impact of your behaviour on Staff Members
A and B as well as Patient X; your limited insight into the seriousness of your behaviour
toward Patient X and Staff Member B and the subsequent impact your behaviour had
on them.
Your limited insight was compounded by the fact that you sought to distance yourself
from taking personal responsibility for this behaviour; your continued denial of your own
culpability in relation to the facts found proved; and your failure to adhere to The code:
Standards of conduct, performance and ethics for nurses and midwives (2008) and
other relevant professional guidance resulting in breaches of fundamental tenets of the
profession.
The panel first considered taking no action but concluded that given the seriousness of
your misconduct this would be wholly inappropriate. The panel had no doubt that the
serious nature of the facts found proved required the imposition of a sanction to protect
the public interest and maintain public confidence in the reputation of the profession and
the NMC as its regulating body.
The panel next considered a caution order. The panel determined that a caution order
would be an inappropriate and insufficient sanction in this case given your serious lack
of insight and the risk the panel found of repetition of the misconduct. A caution order
would not address the need to declare and uphold proper standards of conduct and
behaviour and uphold the reputation of the nursing profession. The panel was satisfied
that your case could not be categorised as falling within the lower end of the spectrum
of impaired fitness to practise. The panel concluded that a more serious sanction was
required to mark the seriousness of your case and meet the public interest.
The panel next considered a conditions of practice order. The panel decided that this
sanction would not be appropriate, this case concerns your misconduct toward two
former colleagues and a patient, which called into question your character and integrity.
The panel noted that there are no concerns regarding your clinical competence. The
panel concluded that no relevant, workable or practicable conditions could be
formulated in these circumstances. In any event, the panel was satisfied that conditions
of practice order would not be a sufficient sanction given the seriousness of your
misconduct and the finding that it was sexually motivated.
The panel next considered whether to impose a suspension order. It also had regard to
the following ISG paragraphs:
70 When considering seriousness, the panel should take into account the extent of
the departure from the standards to be expected and the risk of harm to the public
interest caused by that departure, along with any particular factors it considers
relevant on each case.
Page 21 of 24
71 This sanction may be appropriate when some or all of the following factors are
apparent (this list is not exhaustive):
71.1 A single instance of misconduct but where a lesser sanction is not
sufficient.
71.2 The misconduct is not fundamentally incompatible with continuing to
be a registered nurse or midwife in that the public interest can be satisfied
by a less severe outcome than permanent removal from the register.
71.3 No evidence of harmful deep-seated personality or attitudinal
problems.
71.4 No evidence of repetition of behaviour since the incident.
71.5 The panel is satisfied that the nurse or midwife has insight and does
not pose a significant risk of repeating behaviour.
The panel bore in mind that your case did not concern a single instance of misconduct,
rather it concerned three instances of misconduct in which two were found to have been
sexually motivated. The panel also noted that there had been no evidence that there
had been a repetition of the misconduct since.
The panel considered that there was no evidence of deep-seated personality or
attitudinal problems. However, the panel determined that you had demonstrated limited
insight. You had accepted the panel’s determination on the facts and its finding of
misconduct and impairment. However, you have steadfastly refused to accept your own
culpability for your behaviour towards Patient X and Staff Member B. Your reflective
statement exhibited your determination to distance yourself from the panel’s findings
against you. The panel considered that your failure to accept the seriousness of your
behaviour toward Patient X and Staff Member B compounded your lack of insight.
The panel acknowledged that you had admitted to your misconduct toward Staff
Member A and that you had sought to apologise to Staff Member A, through your
employer, at the earliest opportunity. It was to your credit that you had appropriately
reflected on the impact of your behaviour on Staff Member A and accepted the panel’s
findings in relation to your misconduct. Further, in engaging with this hearing you had
admitted to the facts of Charge 1(b) and 1(c) from the outset.
The panel noted that you are otherwise of good character and it was not aware of any
previous NMC proceedings. The panel had regard to the professional and personal
testimonials submitted in your favour. The panel noted that your clinical competence is
attested to as is your professional conduct and good character. You have continued to
practise as a registered nurse since your referral and have retained the confidence of
your present employer.
The panel had regard to ISG guidance on sexual misconduct. In particular it noted the
following paragraphs:
Sexual Misconduct:
This covers a wide range of conduct, from criminal convictions for sexual offences
through to sexual misconduct with patients, colleagues or patients’ relatives.
42 Panels should have regard to the NMC’s advice on clear sexual boundaries.
43 The misconduct will be particularly serious where there is an abuse of the
special position of trust which the nurse or midwife holds, or where the nurse or
midwife is required to register as a sex offender. Although the level of risk to
Page 22 of 24
patients will need to be given careful consideration, sexual misconduct seriously
undermines public trust in the professions.
The panel noted that whilst sexual misconduct was neither charged nor found, your
misconduct was sexually motivated and it had regard to the nature of this misconduct. It
noted that you had sent suggestive and ‘flirtatious’ text messages to Staff Member B
and Patient X with the intention of pursuing a sexual relationship. The panel noted that
you had not engaged in any sexual activity with either Staff Member B or Patient X. In
considering the seriousness of your sexually motivated conduct, the panel determined
that your case had been at the lower end of the spectrum.
The panel was of the view that your behaviour was in breach of fundamental tenets of
the profession and as such were serious departures from the standards expected of a
Registered Nurse and The code (2008).
Having had considered all of the circumstances of this case, as well as having had
regard to the aggravating and mitigating features, the panel determined that your
misconduct was not such that required your removal from the NMC registrar.
The panel was satisfied that a period of suspension is the most appropriate and
proportionate sanction which marks the serious level of misconduct found and current
impairment whilst balancing your own interests and the public interest which includes
the need to maintain public confidence in the profession and the NMC as the regulator,
as well as the need to declare and uphold proper standards of conduct and behaviour.
It follows therefore that a striking off order would be disproportionate in the
circumstances of this case because the misconduct identified has the potential to be
remedied and a suspension order is sufficient to protect the public interest. The panel
considered that it was in the public interest that you may be able return to practise in the
future. In all the circumstances, the panel determined that a striking-off order would not
be the appropriate or proportionate response in this case.
In the professional judgment of the panel, a suspension order for 12 months is the
proportionate order to mark the seriousness of the misconduct and to maintain public
confidence in the profession and the NMC as the regulator, by declaring and upholding
proper standards of conduct and behaviour. While the panel is mindful of the likely
professional and financial hardship this Order may cause, it is nevertheless necessary
to meet the public interest and to maintain public confidence in the profession.
A panel of the Conduct and Competence Committee will review this Order at a
Substantive Order Review Hearing. The panel considered that the future panel may be
assisted by the following:
• Documentary evidence of the coaching course that you had/were undertaking in
relation to communication skills;
• Any documentation that demonstrates your training, learning and awareness in
relation to maintaining professional boundaries and, having taken those courses,
a further reflective statement that addresses the particulars of paragraph 53.4 of
the ISG;
• Any documentary evidence that demonstrates your continued nursing education
and training.
You will be notified of the panel’s decision in writing. The 12 month suspension order
will come into effect 28 days after the service of the notification of the panel’s decision
upon you. If you appeal the panel’s decision, the order will not take effect until the
appeal has been withdrawn or otherwise concluded.
Page 23 of 24
Decision on interim order:
Ms Hirji, on behalf of the NMC, made an application for an interim suspension order in
order to cover the period for any appeal. She submitted that an interim suspension
order was necessary to protect the public and was otherwise in the public interest given
the panel’s determination on sanction.
Miss McMahon reminded the panel that an interim order must only be imposed when it
is necessary.
The panel accepted the advice of the legal assessor.
The panel has borne in mind its reasons for making a 12 month suspension order. For
those same reasons the panel determined that an interim order was necessary for the
protection of the public and was otherwise in the public interest to uphold and maintain
public confidence in the profession and the NMC as regulator. The panel was satisfied
that it would be inconsistent with its reasoning as to why a substantive suspension order
was the only appropriate and proportionate sanction in your case not to make an interim
order to cover the appeal period.
The panel decided that an interim conditions of practice order would be neither
appropriate nor sufficient for the same reasons that the panel gave as to why it decided
not to make a substantive conditions of practice order.
The panel accordingly concluded that an interim suspension order should be made.
The panel decided that the period of the interim suspension order is 18 months. This is
to cover the time it may take to dispose of any appeal. If at the end of a period of 28
days, you have not lodged an appeal, the interim order will lapse and be replaced by the
suspension order . However, if you do lodge an appeal, the interim order will continue to
run until the appeal is either withdrawn or determined.
The NMC will confirm this determination in writing. That concludes this hearing.
Page 24 of 24