“Findings We considered all the information we hold and are satisfied that: you restricted a patient’s movement by tying a blanket across them to the rails of their bed 29-30/01/2023 DBS remains satisfied you engaged in relevant conduct in relation to vulnerable adults. This is because you have engaged in conduct which endangered a vulnerable adult or was likely to endanger a vulnerable adult. It is also considered that you have engaged in relevant conduct in relation to children, specifically conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him or her. We remain satisfied a barring decision is appropriate. This is because whilst the DBS appreciate that you are currently subject to criminal prosecution and an NMC investigation, we are unable to defer our decision indefinitely. The DBS has a duty to safeguard children and vulnerable adults and any decision made is independent of that made by the NMC and the courts. You have the right to request a review of this decision at any time if information, which we did not have at the time of your inclusion, becomes available in the future, such as at the conclusion of the prosecution or the NMC investigation. You have also been given the opportunity, via the invitation to submit representations and the subsequent allowance of late representations, to challenge the evidence and DBS findings, your Article 6 (ECHR) rights have therefore not been violated. Whilst it’s acknowledged that you are currently suspended from your nursing duties and it’s suggested this is a sufficient safeguard, the DBS has a duty to consider the wider workforce of regulated activity with children and vulnerable adults in its entirety. It’s reasonable to consider that you may seek work or volunteer in other regulated activity roles, outside of nursing, during your suspension. Whilst you have stated you don’t work with children in your role as a nurse, the training certificate’s provided show you have completed a course on Child Protection, indicating that you either require this for future nursing roles or that you intend to work/volunteer with children in the future. It’s acknowledged that no statement was ever taken from Patient X, that no original photographs exist of the restraint and that no one saw the restraint take place. It’s also acknowledged that there were other staff who had access to the Patient and that the Patient could have entangled herself, however there is professional medical opinion that the patient couldn’t have tied the blanket herself to the bed rails. There is also no reason to doubt the credibility of your colleagues who witnessed the patient in the position they did, or that they exaggerated what they had seen. The evidence showed that when you were told the Patient had been found in a blanket tied to the bed rails, you replied “yes, I was trying to save her cannula for her medication”
“In all the circumstances, the decision of the Disclosure and Barring Service (“DBS”) to include HZ on the Adults’ Barred List and Children’s Barred Lists was wrong in that: Mistake of fact 1. The DBS materially erred in fact in finding that HZ: a. Implemented the restraint in order to complete paperwork before the end of the shift; b. Disregarded the welfare of the patient; c. Failed to treat the patient with dignity and respect; d. Placed her own needs first; e. Put the patient at risk of emotional/physical harm; f. Intends to work/volunteer with children in the future; and g. Poses an ongoing risk to vulnerable adults or children. Mistakes of law 2. The DBS materially erred in law in that the DBS was not in possession of all relevant material when making its findings of fact having refused to wait for the outcome of the criminal proceedings; 3.The DBS failed to take into account matters which it ought to have done, or failed to give adequate weight to those matters, including: i. HZ’s recent training in DOLS (deprivation of liberty)/moving and handling/adult safeguarding. ii. the gaps in the evidence provided by the employer. iii. the inconsistencies in the evidence provided by the employer. iv. the fact that the photographs of the restraint had been recreated after the fact. v. there is no, or no sufficient evidence or reasoning to support the finding that HZ is likely to repeat the conduct alleged in the referral form; vi. there is no, or no sufficient evidence or reasoning to support the finding that HZ poses an ongoing risk to vulnerable adults and children; 4. The decision to include HZ on the Adults’ Barred List and Children's Barred List was, in all the circumstances, disproportionate.”
“The safeguarding regime 18. The DBS is a body corporate (section 87 of the Protection of Freedoms Act 2012 ("POFA")). It is not a servant or agent of the Crown (POFA, Schedule 8, paragraph 15(1)(a)). Barring decisions are part of the core functions of the DBS, and the Secretary of State is precluded from giving directions to the DBS in respect of any such core function (POFA, Schedule 8, paragraphs 8 and 14). 19. The arrangements governing the DBS's functions of protecting children (and vulnerable adults) are contained in theSafeguarding Vulnerable Groups Act 2006 ("the 2006 Act"). Schedule 3 to the 2006 Act provides, at paragraph 3: " (1) This paragraph applies to a person if a. it appears to DBS that the person i. has (at any time) engaged in relevant conduct and ii. is or has been, or might in future, be engaged in regulated activity relating to children and b. DBS proposes to include him in the children's barred list. (2) DBS must give the person the opportunity to make representations as to why he should not be included in the children's barred list. (3) DBS must include the person in the children's barred list if a. it is satisfied that the person has engaged in relevant conduct aa. it has reason to believe that the person is or has been or might in future be engaged in regulated activity relating to children, and b. it is satisfied that it is appropriate to include the person in the list." 20. "Relevant conduct" is defined in paragraph 4 of Schedule 3 as including conduct of a sexual nature involving a child, "if it appears to DBS that the conduct is inappropriate." It also includes conduct which puts a child at risk of harm. 21. Teaching children is a regulated activity under section 5 and Part 1 of Schedule 4 to the 2006 Act. A person included in the children's barred list is prohibited from engaging in regulated activity relating to children (section 3 of the 2006 Act ). 22. The requirement that, before making a barring decision, the DBS must afford the individual concerned the opportunity to make representations as to why they should not be included in the children's barred list, is addressed in more detail in paragraph 16 of Schedule 3. This provides, relevantly, in sub-paragraph (3) that: "The opportunity to make representations does not include the opportunity to make representations that findings of fact made by a competent body were wrongly made". Sub-paragraph (4) states that findings of fact made by a competent body are findings of fact made in proceedings before the Secretary of State in the exercise of the Secretary of State's functions under section 141B of the 2002 Act (i.e. proceedings before the TRA) or in proceedings before certain other specified professional regulators, including, for example, the General Medical Council, the General Optical Council and the Nursing and Midwifery Council. 23. The ambit of the role and functions of the DBS was explained by the Divisional Court in R(SXM) v DBS[2020] EWHC 624 (Admin) ,[2020] 1 WLR 3259 in these terms at [38]: "… it is clear that the function of the DBS is a protective forward-looking function, intended to prevent the risk of harm to children by excluding persons from involvement in regulated activities. The DBS is not performing a prosecutorial or adjudicatory role and it is not engaged in considering complaints from individuals and imposing punishments. It may, as part of its task, have to form a view as to whether a person has engaged in conduct likely to endanger a child or sexually inappropriate conduct, or the case may involve conduct posing a risk of harm. It will need also to consider questions as to whether it is appropriate to include the person on the children's barred list. However it is not there to receive and adjudicate upon complaints from individuals." That explains why information about whether a person's name is on the children's barred list is not publicly available. It is restricted to those who intend to employ or engage someone who would be involved in regulated activity with children. In SXM it was decided that even someone who alleged that they had been abused as a child by a person referred by a local authority to the DBS for determination as to whether they should be included in the children's barred list, had no status to seek information from the DBS as to the outcome of that referral. 24.Section 4 of the 2006 Act provides for a right of appeal against a barring decision to the UT, with the permission of the UT, on the grounds that the DBS has made a mistake on any point of law or in any finding of fact which it has made and on which the barring decision was based. If the UT finds that the DBS made such a mistake, it must either direct the DBS to remove the appellant from the barred list or remit the matter to the DBS for a fresh decision. If it takes the latter course, the UT may set out any findings of fact which it has made on which the DBS must base its new decision. 25. In determining such an appeal, the UT is not restricted to consideration of the information which was before the DBS decision maker. It has the power to hear oral evidence, and to make its own findings of fact and draw its own inferences from all the evidence before it. It will not defer to the DBS in factual matters but will afford appropriate weight to fact-findings by the DBS in matters that engage its expertise, such as the assessment of risk to the public: see PF v DBS[2020] UKUT 256 (AAC) at [51], approved by this Court in Kihembo v DBS[2023] EWCA Civ 1547 at [26]. 26. In the present case, the UT accurately summarised the case law on the nature and extent of its "mistake of fact" jurisdiction undersection 4(2)(b) of the 2006 Act at [39] to [47] of its determination. It referred, among other matters, to the decision in DBS v JHB[2023] EWCA Civ 982 in which it was confirmed by the Court of Appeal that a finding of fact may be "wrong" even if there was some evidence to support it or it was not irrational, if it is a finding about which the UT has heard evidence which was not before the DBS and the new evidence shows that the finding made by the DBS was wrong. In that case, the Court of Appeal held that the UT had erred by substituting its own evaluation of the evidence for that of the DBS decision-maker in circumstances where (i) the evidence was identical, and (ii) the UT had not held that the DBS had made findings which were not open to a reasonable decision-maker (i.e. irrational). 27. The UT also referred to the more recent case of DBS v RI[2024] EWCA Civ 95 , in which a different constitution of the Court of Appeal found it difficult to discern the ratio of JHB save possibly that "it may be authority for the proposition that if the UT has exactly the same material before it as was before the DBS, then the tribunal should not overturn the findings of the DBS unless they were irrational or there was simply no evidence to justify the decision": see the judgment of Bean LJ, with which Males LJ and Lewis LJ agreed, at [33]. Males LJ, in his concurring judgment, with which Lewis LJ also agreed, indicated that the restrictive approach adopted in JHB should be confined to those cases where the appellant does not give oral evidence before the appellate tribunal, or gives no evidence relevant to the question whether they committed the relevant act relied upon. The UT quoted from his judgment where he said (at [49]): "In conferring a right of appeal in the terms of section 4(2)(b), Parliament must therefore have intended that it would be open to a person included on a barred list to contend before the Upper Tribunal that the DBS was mistaken to find that they committed the relevant act – or in other words, to contend that they did not commit the relevant act and that the decision of the DBS that they did was therefore mistaken. On its plain words, the section does not require any more granular mistake to be identified than that." 28. The UT directed itself in accordance with that approach. It first satisfied itself that whilst the DBS decision could have been better explained, and different findings could have been made, the findings made by the DBS were open to the decision maker on the evidence before them. It then considered further evidence, including the TRA decision, to ascertain whether any of those findings were mistaken ([88] and [89]). 29. For completeness, Paragraph 18 of Schedule 3 to the 2006 Act provides for the right of a person who is included in a barred list to apply to the DBS for a review of their inclusion (though the permission of the DBS is required to make such an application). However, sub-paragraph (3) provides that such an application can only be made after the end of the minimum barred period (which is prescribed by regulations, currently SI 2008/474) which in XYZ's case is 10 years.”
‘43. By way of preliminary observation, the role of the Upper Tribunal on considering an appeal needs to be borne in mind. The Act is intended to ensure the protection of children and vulnerable adults. It does so by providing that the DBS may include people within a list of persons who are barred from engaging in certain activities with children or vulnerable adults. The DBS must decide whether or not the criteria for inclusion of a person within the relevant barred list are satisfied, or, as here, if it is satisfied that it is no longer appropriate to continue to include a person's name in the list. The role of the Upper Tribunal on an appeal is to consider if the DBS has made a mistake on any point of law or in any finding of fact. It cannot consider the appropriateness of listing (see section 4(3) of the Act). That is, unless the decision of the DBS is legally or factually flawed, the assessment of the risk presented by the person concerned, and the appropriateness of including him in a list barring him from regulated activity with children or vulnerable adults, is a matter for the DBS. … 55. Section 4(7) of the Act provides that where the Upper Tribunal remits a matter to the DBS it “may set out any findings of fact which it has made (on which DBS must base its new decision)”. It is neither necessary nor feasible to set out precisely the limits on that power. The following should, however, be borne in mind. First, the Upper Tribunal may set out findings of fact. It will need to distinguish carefully a finding of fact from value judgments or evaluations of the relevance or weight to be given to the fact in assessing appropriateness. The Upper Tribunal may do the former but not the latter. By way of example only, the fact that a person is married and the marriage subsists may be a finding of fact. A reference to a marriage being a "strong" marriage or a "mutually-supportive one" may be more of a value judgment rather than a finding of fact. A reference to a marriage being likely to reduce the risk of a person engaging in inappropriate conduct is an evaluation of the risk. The third "finding" would certainly not involve a finding of fact. Secondly, an Upper Tribunal will need to consider carefully whether it is appropriate for it to set out particular facts on which the DBS must base its decision when remitting a matter to the DBS for a new decision. For example, an Upper Tribunal would have to have sufficient evidence to find a fact. Further, given that the primary responsibility for assessing the appropriateness of including a person in the children's barred list (or the adults’ barred list) is for the DBS, the Upper Tribunal will have to consider whether, in context, it is appropriate for it to find facts on which the DBS must base its new decision.’
“Q. Well, i’m asking the question again, how would putting side rails up on the bed stop the patient moving in the bed and getting tangled, how would that help? A. Okay, i’ll explain that to you. Q. Yes. A. I think the nature of the tubing it goes on the ears, so i don’t know how it happens, like I think my colleague one of the witnesses said before it would get in her neck. In any event, that i had out those bed rails and she came out or fell with the tubing in her neck it means she was going to be strangled by it and i didn’t want that to happen. Q. I’m sorry to labour the point [HZ], i still don’t quite understand, perhaps it’s me, how putting the bed rails up would stop the patient moving around inside the bed, It wouldn’t would it? A. No, that one wouldn’t. But for her to come out of bed with wrapped tubing around her neck would have been more dangerous. So, i decided to keep the bed rails up.”
“Q. You accepted when i showed you the photographs earlier, didn’t you, that tying a patient to the bed in that manner is completely unacceptable and not something a nurse should do, do you agree? A. Yes. Q. So, when you heard from matron on the phone the words she was tied to the bed, were you not shocked- A. Yes, i was. Q. -at that point? A. I was. Q. Yes. But you didn’t say to matron something like oh my god what are you talking about, how did that happen, did you? A. What shocked me more was she already came to make an allegation against me when i knew nothing about it. It made me go numb, i didn’t know, i was shocked more by that. Q. Well, [HZ] you didn’t say to the matron, did you during that conversation, i don’t know anything about that, meaning tying her to the bed. You didn’t say that to her, did you? A. I told her i didn’t know about that. I knew about her moving about possible leading to how she was found.”
‘The starting point for the tribunal’s consideration of factual matters is the DBS decision in the sense that an appellant must demonstrate a mistake of law or fact. However, given that the tribunal may consider factual matters for itself, the starting point may not determine the outcome of the appeal. The starting point is likely to make no practical difference in those cases in which the tribunal receives evidence that was not before the decision-maker.’
‘In determining whether the DBS has made a mistake of fact, the tribunal will consider all the evidence before it and is not confined to the evidence before the decision-maker. The tribunal may hear oral evidence for this purpose…. In reaching its own factual findings, the tribunal is able to make findings based directly on the evidence and to draw inferences from the evidence before it...The tribunal will not defer to the DBS in factual matters but will give appropriate weight to the DBS’s factual findings in matters that engage its expertise.’
“Dear [HZ], Possible restraint of patient on the shift of 29/01/23 I was contacted today by the ward manager of S[] ward who informed me the a patient in side room 23 was found by the day staff in a blanket, tied to the bedrails. As discussed by telephone today, I have raised this incident with the Director of Nursing and our Safeguarding lead. A safeguarding referral has been made about the incident. There will be a Trust investigation. During this time you cannot remain in a clinical role or remain unsupervised on night shifts. C[] will liaise with you to provide a Mon - Fri rota, along with non-clinical responsibilities. We will write to you with further details of the investigation. As discussed this morning, please provide a statement of this incident to me at your earliest convenience. If you require additional support, please contact me. Many thanks”
“I was allocated to look after side room patients, who comprised of an end-of-life patient, one unwell patient, two confused patients and others who were stable. At handover the day nurse indicated the need to start IV fluids for a patient who was inside SR23, as soon as the family leave. Before the daughter left, she asked me to administer the fluids as she wanted to make sure her mum was receiving this treatment before she went home. I adhered to the daughters request and started the administration of the fluids. As I was connecting the fluids to the patient the patient's daughter stated she was concerned about her mother who she thought was hallucinating, and that she wanted to speak to the doctor about the matter the following day. I reassured her, then she left to go home. Upon doing observations I noticed the patient was desaturating. I reconnected her back onto the oxygen which she had been persistently taking off during the shift. At this point the nurse in charge had also come to see the patient and reconnect her back to the oxygen, she suggested the close monitoring of the patient, in a bay with other patients but it was impossible to follow this through because the patient was infectious. I could check on my other patients since we all decided to work as a team through the night. When I left to go and help insert cannulas of two patients whom the day team had failed, the nurses and the health care assistants working with me checked on the patient and helped reposition her. When attended to the patient in the morning to assess the saturation, she was still persistent in removing the oxygen, which I suspected caused her to become more restless. I stayed with the patient after sitting her up with the aid of the health care assistant I was working with. The saturation raised to the required range, so I reassured the patient, but she seemed more confused than the previous night. I left her to go attend to a patient who was deteriorating, I called the on-call doctor who promised to come after MET call. I also decided to call the next of kin and inform her on her mother's condition. The next of kin told me that her mother was on R [Ward] not S [Ward] and thought I was discussing a wrong patient. I apologised consistently for her not being informed when her mother was moved. She asked a lot of questions about her mother’s condition in an upset frantic manner, but later calmed down and was thankful that I informed her about her mother's condition. She stated that she would visit the next the day. I immediately went back to check the patient in SR23 who had pulled out her cannula and was bleeding from the site. At the same time, she had taken her oxygen off and was desaturating again. Unfortunately, everyone was busy at that time on the ward. The NA working with told me she had to go and finish back rounds on the bay and I also had other patients to change and reposition. Those who were doubles. The NA [nursing assistant]’s finished rounds at almost 7:00AM at handover time, the Nurses were also busy. I was under pressure at this point with all that was happening at that time, I could only imagine the horror that could occur such as the patient getting hypoxic and falling from the bed. The patient was elderly and looked very frail even though the daughter said she was fully independent before admission. The daughter of the patient in SR23 appeared to have high hopes that her mother would return to her baseline. Assessing the condition of the patient, with how confused she was and the incidents that kept occurring it was more important to keep her safe. I could not get bloods from her or even think of inserting another cannula because she would not comply. Before I left the patients room to go and check the other patients, and administer their antibiotics, I tried to secure the patient, to keep her safe and prevent her from pulling off her oxygen. During the night when the patient removed her oxygen the tubing managed to go around her neck, so I was afraid of this event repeating itself. I have never used the method of restriction before to keep a patient safe, but I was put in a dire situation where I got overly worried of the patient harming herself. The other 3 bays also had confused patients who needed close monitoring so it was difficult for anyone to help me at that point. It is very unfortunate that I find myself in this situation at a time that I am supporting a colleague whose place of work is being sued after a patient fell on her shift and broke a hip then later died of hospital acquired pneumonia. Another friend has just been to court to answer for an incident that took place on her shift where the patient fell, and the family held her responsible for the death which occurred several months later. I sincerely apologise for the incident which took place. I did not mean any harm to the patient but for her to be safe throughout my shift. When I finished attending to the other patients it was already well after 7AM, with day nurses waiting for side room hand over. I left the ward when it was 07:40 hours. I always advocate not only to look after my patients when working but all patients on the ward. That is why I had to go and insert the cannulas for the patients in the other bays, which were left from the day and the site manager failed to insert.”
“Account of Events 26. I was working a bank shift on 29th January night shift. Any employee of the Trust can sign up for bank shifts. You can book yourself on the system or can be called on to work when there are staff shortages. This could be in your own ward, or on other wards. 27. I was working on S[] ward, but I normally work on M[] ward which is where I had been assigned since 2018. 28. S[] Ward cares for primarily elderly patients who could have a range of general medical needs. There were three bays on the ward. I think there were around 25 patients. 29. At the start of the Shift, I was assigned a total of six patients, all of whom were in single side rooms. This meant that I could not see all patients in one glance and would instead need to go from room to room to check on them. 30. There were four nurses working on this shift, the Nurse-in-Charge (NIC) who was a permanent member of the team in S[] Ward, another bank staff nurse, an agency staff nurse and me. In addition to this there were three health care assistants (HCAs) on shift whose duty was to look after each of the three bays on the wards. 31. I was not assigned a HCA to assist me with caring for the patients in the side rooms. Instead, it was said by the NIC that it was normal ward allocation to have three healthcare assistants allocated to the bays who would also have two patients each from the side rooms to look after. 32. As a fall prevention measure, the ward practised “bay tagging” where a staff member would be present at all times to watch over patients at high risk. This made it difficult for HCAs to be available to support patients in the side rooms as they were allocated to patients at high risk of falling in each of the bays (1-3). The side rooms did not have bay tagging. 33. At the start of my shift, I received a handover from the day staff nurse. I was told that in side room 23 (‘SR23’) was a confused patient, with influenza (‘Patient X’). Patient X was still in SR23 as the Infection Control Team (ICT) had not given her the ‘all clear’. She required the ‘all clear’, before she was placed on the main ward to avoid any infection of other patients. 34. The day nurse informed me that Patient X had been seen by the doctor earlier that day and had been prescribed intravenous (‘IV’) fluids, but these had not yet been administered. It was indicated to me that this should be administered as soon as the family member with her left. 35. I was concerned to be told that Patient X seemed very confused, I queried why a confused patient was being nursed in a side room but was told that this was due to a delayed assessment from the ICT. The delay being due to the weekend. 36. Following the handover, I recall that I went round to see my patients to ensure I introduced myself and informed them that I would be their nurse for the night. It was at this point that I noticed Patient X’s daughter sitting in the room with her mother. As is my usual style, I went in, introduced myself and had a quick chat with her regarding her mother. 37. Patient X’s daughter asked me to administer the IV fluids, as she wanted to make sure that her mum was receiving this treatment before she went home. I adhered to the daughter's request and started the administration of the IV fluids. During the conversation with Patient X’s daughter, I recall that she told me that she was concerned about her mother whom she thought seemed to be hallucinating and that she wanted to speak to the doctor the following day. I reassured her that since Patient X had already been seen by the doctor that day, I would monitor Patient X and would call the on-call doctor should there be any concerns. I explained that in the meantime, I had to do my initial assessment myself and check her observations to get a clear insight into what was going on. I also expressed that Patient X would be seen the following day during the Monday doctors’ rounds. Patient X’s daughter then left. 38. As recorded in the Chart, I checked on Patient X at 8pm and 10pm. I have recorded that she was mildly confused (recorded as MC) both times. 39. I also did observations on Patient X twice during the Shift. It is difficult to tell from the chart, but they seem to have been recorded at around 22.10 and 6.40am. Observations include checking temperature, heart rate, breathing rate, blood pressure, alertness, and pain levels. 40. Upon doing observations, in the morning of30th January 2023 , I noticed that Patient X was desaturating. Desaturating is the reduction in the percentage of oxygen in the blood. I reconnected her back on to the oxygen (via nasal tube) which she had been persistently taking off during the shift. At that point, I informed the nurse in charge and called the on-call doctor for patient review. 41. My priority with Patient X was to initiate the administration of the prescribed IV fluids, which had been requested by the medical team, and her daughter. I did this at the start of the shift. 42. At the beginning of the shift, I had asked the NIC whether Patient X could be moved to an open bay to ensure that she would be more visibly monitored. The NIC declined the request stating, the same reason that I received at handover, that the ICT had not reassessed her yet. The NIC insisted to me that she would assist with checking and monitoring Patient X to ensure that she would be safe. 43. It was evident pretty quickly that the management of Patient X was going to be quite difficult. I recall that Patient X kept trying to get out of bed and was repeatedly wrapping herself with IV and oxygen tubes. I distinctly recall that on some occasions the oxygen tubing would end up around her neck. It was clear that Patient X would need close monitoring. Between the NIC, the HCA and I, we regularly re-positioned Patient X and ensured that the oxygen and the IV fluids were on throughout the night. I recorded in my notes above about repositioning her, her confusion, that she was restless, that she was kicking, and that she was removing everything around her, including the lines. 44. As well as attending to Patient X, I also gave the required care to all of my other five patients. 45. I noticed at the beginning of my shift that there were bed rails attached to Patient X’s bed. I believe at that time; the use of bed rails was in the best interests of Patient X as it was appropriate and proportionate to the falls risk posed. Patient X was at risk of falling out of the bed due to her confusion. 46. There was no HCA allocated to work just on the side rooms throughout the shift neither was I able to place Patient X on a high visibility area within the main ward bays, so I continued with the use of bedrails. 47. I am not trained in restraints. As general nurses, we do not use restraint methods. If faced with challenging patients, we usually get the support of mental health nurses. 48. My understanding is that the bed rails could be classified as a method of restriction. The more confused a patient gets, the higher the risk of using bed rails. The risk is higher as if they decide to climb out of bed, over the rails, then there is more of a risk of falling. If a patient is confused, and is in a side room, then they may need 1:1 care. I did not have the option of 1:1 care for Patient X during the Shift. I decided to leave the bed rails on, because Patient X was so restless, and I wanted to try to prevent her rolling out of the bed. The patient was being nursed on a bed with bed rails already when I came on shift. 49. Having made that decision to keep the bed rails on, I had to manage with increased frequency of visual observation on Patient X as she was not able to use a nurse call bell and was at risk of falling. I informed the NIC, as I was aware that this could be interpreted as a form of restriction. The use of bed rails was the only restriction I used on Patient X during the Shift. 50. When I attended to Patient X at, in or around, 05:00 on30th January 2023 , I noticed that she had become more restless, very unsettled and seemed more confused. I realised the need to escalate her condition to the doctor on call. I, however, first needed to ensure that I practice effectively and promote safety by checking and recording her vital signs. I recall taking a set of observations, but I did not record them as I knew that they were inaccurate because she was so agitated. I then took another set when she had calmed down, and these are the ones recorded in the Observation Chart. She was desaturating at the time. This result raised my concerns because she was on oxygen, so I immediately called the on-call doctor. The doctor confirmed that they would come to review the patient. I informed the NIC. 51. Immediately after calling the doctor, I called the HCA (EK) and asked her to help me make Patient X more comfortable and sit her up in bed. She helped me and then excused herself as she needed to go and help with the comfort rounds for the other patients that she was looking after in the main bay. I stayed with Patient X until her saturation levels were raised to the required range. 52. I then left Patient X for a short period of time to check on other patients and upon coming back I realised that she had pulled her cannula out. Since the patient had pulled out her cannula, the connection of the tubing from the intravenous fluid bag (which had nearly finished) to the patient was now disconnected. 53. I went back to check Patient X in SR23 who had pulled out her cannula and was bleeding from the site. At the same time, she had taken her oxygen off and was desaturating again. Unfortunately, everyone was busy at that time on the ward. The HCA working with told me she had to go and finish back rounds on the bay, and I also had other patients to change and reposition, including patients who require two people to complete personal care. The HCAs finished rounds at almost 7:00AM (handover time). The Nurses were also busy. I was under pressure at this point with all that was happening at that time, I could only imagine the horror that could occur such as the patient getting hypoxic and falling from the bed. Patient X was elderly and looked very frail even though the daughter said she was fully independent before admission. 54. The daughter of the Patient X in SR23 appeared to have high hopes that her mother would return to her baseline. Assessing the condition of the patient, with how confused she was and the incidents that kept occurring it was more important to keep her safe. I could not get bloods from her or even think of inserting another cannula because she would not comply. My note of this how she was through the morning set out above (entry at 6.40am). 55. Before I left Patient X’s room to go and check the other patients, and administer their antibiotics, I tried to make sure I left Patent X in safe position. I wanted to prevent her from pulling off her oxygen. During the night when the patient removed her oxygen the tubing managed to go around her neck, so I was afraid of this event repeating itself. I would not normally use bed rails for this type of patient, but I felt I had no choice to try to keep her safe. I was worried of the patient harming herself. The other three bays also had confused patients who needed close monitoring, so it was difficult for anyone to help me at that point. 56. At, or around, 06:00 one of my other patients also appeared to be deteriorating (‘Patient Z’). I called the on-call doctor again and asked the doctor to attend to the Patient X and Patient Z. The doctor responded but was unable to come straight away due to her attending to a medical emergency, I recall that the doctor promised to come to the ward straight after. I was not with the doctor when they saw Patient X. 57. By this time, it was getting towards handover time to the day shift, and I had some outstanding jobs to complete. I continued with my morning tasks, including administration of specific prescribed medication, changing patients to maintain their dignity and repositioning them as well as checking and recording their vital signs. This was completed in between checks of Patient X. 58. I checked and assessed Patient X’s condition again at, or around, 06:30. At this point, I found that she had finally settled and appeared to be asleep. This was the only time that I observed her to be asleep throughout the whole shift. Whilst my note above is timed at 6.40, this related to the morning, as opposed to that specific time. I could have included in the entry that she was sleeping, but I left this out, probably because I was busy, and I was more concerned about ensuring there was a note about her restlessness and removing her cannula. 59. However I recall verbally handing over to the morning nurse that Patient X was asleep and that she had been seen by the doctor. When the on-call doctor came to review the two patients (Patient X and Patient Z) whom I had escalated, I was busy in the side rooms with my other patients’ medication due between 06:00 – 06:30. I eventually saw and spoke to the doctor, at, or around, 06:50 when they were updating patient notes at the nurses’ station. The note made by the doctor is set out above. 60. The doctor communicated to me the plan for both patients, including that they had no concerns for Patient X. The doctor’s only comment in regard to Patient X was that she was asleep and appeared comfortable at that time, her oxygen saturation was within the target range and so was her blood pressure. The doctor would have used the observations from the Observation Chart. I recall that when I mentioned to the doctor the need for Patient X’s cannula to be replaced, the doctor said that Patient X did not need more intravenous fluids and so there would be no need to insert another cannula. At this time the previous bag of the fluids, which was almost finished, was still hooked up on a drip stand by Patient X’s bedside in her room. 61. As discussed with the on-call doctor, I had made a telephone call to the daughter of Patient Z (the second deteriorating patient) to inform her of the changes in her mother’s condition. I confidently did this as I believed that it was in line with the requirements of the NMC Code of Professional Standards (prioritise people, practise effectively and preserve safety). This was a difficult phone call, the daughter raised concerns about her mother having been transferred to S[] Ward from R[] Ward (another ward within the Trust) without her knowledge. Following hearing this I looked at the patient's notes. In order to promote professionalism and trust, I needed to check when and why the patient was moved from R[] to S[ Ward to enable me to accurately respond to her questions. I explained the reasoning and the daughter eventually understood. I mistakenly made a record of this in Patient X’s notes so it appears at the entry at 06.30 on30th January 2023 (Exhibit HZ6). 62. The start of the handover to the morning shift was due to commence at 07:00 and so I continued with my morning duties. When it was my turn to hand over my patients, I did this by physically going into their rooms with the day nurses checking and showing them the charts as routinely done. However, as I was taking the nurse to Patient X’s side room, she was called to see a patient who was about to fall in another part of the ward. This nurse therefore asked me to hand over from the bay where she was, so she could keep an eye on the patient at risk of falling. The nurse explained that she had no HCAs allocated to support her, as yet, so she was on her own; I understood the predicament at that time. 63. I recall that this day nurse (Nurse MO) who I was handing over to permanently worked on the S[] Ward. The nurse told me that she knew Patient X and had looked after her several times through that admission. I gave the nurse a full handover about Patient X emphasising her increased confusion, risk of falling, desaturating and the doctor's review. 64. After the handover, I went to the nurse’s station where I continued to complete my nursing evaluation before I left to go home at, around 07:40. 65. At, or around, 11:40 on30 January 2023 I received a call from the Matron. 66. The Matron informed me that Patient X had been found wrapped in bedclothes, with a twisted intravenous line, oxygen tubing and a catheter tube tightly around her body. This did not necessarily surprise me, because of how Patient X had been throughout the Shift, confused, unsettled, moving in the bed a lot, pulling out IV and 02 lines, and twisting them round her. 67. The Matron also informed me that there would be an investigation into the matter because an allegation of improper restraint was made against me. I was totally shocked when she said this to me. 68. I understand that Patient X was found at 8.15am. I did not see the patient as described by the Matron. She was not in that position when I last saw her. At no point during the course of the Shift had I used any materials or medical equipment to restrain Patient X. I left my shift at about 7.40am. 69. Patient X was seen by a doctor at 6.50am. I did not see Patient X after this time. Another colleague completed the Chart at 8am (as set out above). Neither of them reported any sort of restraint. 70. The matron then phoned me later in the afternoon that same day, she asked me to write a statement giving a detailed account of my shift. I put together a statement. In this statement, I referred to using a “method of restriction”
“7…At the appeal I recall that it was found that, on the balance of probabilities, HZ was not in the vicinity of the patient at the time of the alleged harm. This was because HZ had handed over and was no longer on shift. 8. At the appeal hearing, I recall that evidence was presented of HZ’s good practice in the many years prior to the alleged harm and her manager’s evidence supported this. Additionally, the daughter of the patient who was alleged to have been harmed by HZ commended HZ’s practice and quality of care and this was acknowledged by the Chief Nurse [SC], chair of the appeal panel. HZ also provided good reflection at the hearing. 9. HZ gave evidence that she had seen and spoken to the patient during her shift. I recall that there was evidence that a doctor had seen the patient before HZ’s shift had ended. Disappointingly, a statement from the doctor was not taken, nor was the doctor interviewed as part of the investigation. It is my view, however, that had the doctor witnessed anything untold the doctor would have reported this at the time and raised concerns. No concerns were raised by the doctor. I do not know why the doctor’s evidence was not taken. 10. I do not recall the specific details but evidence was available that there were other members of staff around the patient at the time of the alleged harm. I am not aware of statements having been taken from these individuals. 11. The photographs presented at the hearing, I recall, were reenacted and were not of the patient herself. There were no pictures taken of the alleged incident. 12. In my view the decision to dismiss HZ was unfair and it was right to have been overturned and to reinstate her role at the Trust. 13. I recall that other failings in regard to the handling of the investigation were identified when the matter progressed to court, for example, from recollection, the Police were not notified of the appeal outcome….”
“I think when seen to this extent, where the tying of the bedclothes are, certainly this is restraint beyond restriction for her own good, the restriction I would see as the oxygen tubing and the IV tubing that clearly restricts anybody, in terms of unless it’s on a mobile basis. This I see as being restraint, to clarify.”
“• That you were responsible for the patient care of patient X on bed 23 [S] Ward from 19:30 Sunday29th January 2023 to 07:30 Monday30th January 2023 ‘the night shift’. • Healthcare assistant EK supported you with the physical care of the patient twice during ‘the night shift’ and also completed rounding checks at 00:00, 02:00, 04:00 and 06:00. • Nurse UU (NIC) provided intermittent support during ‘the night shift’ to patient X in regard to replacing oxygen nasal specs. • All other registered nurses and HCA staff on duty on S[] Ward either did not provide care to or were not responsible for patient X during ‘the night shift’. • The patient records show that you completed a Care Plan Evaluation at 01:30 (30/01/23) where you highlighted that Patient X “appears to be at risk of falls” and “verbally communicates. Appears confused”
“I weighed up the evidence and I have upheld allegation 1 on the balance of probabilities that you did restrain the patient through tying a blanket to the bedrails. I carefully considered the timeline of events and your initial statement to SC[], Medical Matron in which you stated “I tried to secure the patient, to keep her safe and prevent her from pulling off her oxygen. During the night when the patient removed her oxygen the tubing managed to go around her neck, so I was afraid of this event repeating itself. I have never used the method of restriction before to keep a patient safe... ”
“In consideration of the Children’s Barred List, concerns are that if you were faced with similar situations in the future, whereby you were responsible for the care and wellbeing of children, that you would disregard your training and neglect their welfare needs by placing your own needs first, behaviour which will always endanger a child. The DBS is satisfied it’s also appropriate to retain your name on the Children’s Barred List.”
“Whilst you have stated you don’t work with children in your role as a nurse, the training certificate’s provided show you have completed a course on Child Protection, indicating that you either require this for future nursing roles or that you intend to work/volunteer with children in the future.”