Nursing and Midwifery Council:

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing Thursday, 6 December 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Mr Alessandro Marchi 16D0277C Part(s) of the register: Registered Nurse Sub-part 1 Adult Nursing 6 April 2016 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mr Marchi: Nursing and Midwifery Council: England Lack of knowledge of English Mrs Cindy Barnett (Chair, Lay member) Mrs Jane Fraser (Registrant member) Mr Bill Matthews (Lay member) Ms Nina Ellin Mr Philip Austin Present but not represented Represented by Ms Karen Tarling, Case Presenter Facts proved by admission: Charge 1 Facts not proved: Fitness to practise: Sanction: Interim Order: None Currently impaired Suspension order 12 months (with review) Interim suspension order 18 months 1

2 Details of charge: That you, a Registered Nurse: 1) Do not have the necessary knowledge of English to practise safely and effectively. AND in light of the above, your fitness to practise is impaired by reason of your lack of knowledge of English. 2

3 Background The NMC received a referral on the 14 August 2017 from Lincolnshire and Goole NHS Foundation Trust ( the Trust ) where you had worked on a general surgical ward as a Band 5 registered nurse since 8 September 2016 until 31 August 2017 when your employment at the trust was terminated. During the course of your employment, concerns were raised as to your ability to communicate safely and effectively in English. It is alleged that the Trust provided additional support to you to help improve your knowledge of the English language and your clinical nursing practice, but you were unable to perform to the required standard expected of a Band 5 registered nurse. You undertook an International English Language Testing System ( IELTS ) on 10 February 2018, and achieved an overall score of 5, with a descriptor of Modest User. An overall score of 7 is the minimum standard required for you to practise as a registered nurse in the UK. It is therefore alleged that you do not have the necessary knowledge of English to practise safely as a registered nurse at this time. 3

4 Admissions At the outset of the hearing, you admitted charge 1, that you do not have the necessary knowledge of English to practise safely and effectively. You also made an admission that your fitness to practise is currently impaired as you have not been able to provide evidence to demonstrate that you are a safe and effective registered nurse. The panel heard and accepted the advice of the legal assessor. In light of the above, the panel found charge 1 proved by way of admission. The panel acknowledged your admission that your fitness to practise is currently impaired, but recognised that this is a decision for the panel s own independent judgment, which it will move on to consider. 4

5 Submission on lack of knowledge of English and impairment: Having announced its findings on charge 1, the panel then considered whether, on the basis of the fact proved by way of admission, your fitness to practise is currently impaired by your lack of knowledge of English. There is no statutory definition of fitness to practise. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel took into account all the evidence before it. In her submissions, Ms Tarling invited the panel to have regard to The Code: Professional standards of practice and behaviour for nurses and midwives (2015) ( the Code ), in particular, to paragraph 7.5. Ms Tarling submitted that, in respect of charge 1, not having the required knowledge of English to perform safely and effectively as a registered nurse could put patients at an unwarranted risk of harm, and brings the nursing profession into disrepute. Ms Tarling submitted that as you have not yet been able to achieve the required overall score of 7 in an IELTS assessment, the risk of unwarranted harm to patients is high, should you be permitted to practise as a registered nurse without restriction. She also addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards and maintain public confidence in the profession and in the NMC as a regulatory body. Ms Tarling referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). 5

6 You reminded the panel that you accept that your fitness to practise is currently impaired. You submitted that you recognise that being able to communicate safely and effectively in English is important in the role of a registered nurse. You told the panel that you want to undertake another IELTS assessment in the near future, as you believe that your knowledge of English has improved since you last undertook an IELTS assessment. You told the panel that you are currently applying for work as a healthcare assistant, and that you want to remain in the healthcare environment. The panel has accepted the advice of the legal assessor which included reference to Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). The panel adopted a two stage process, as advised. First, the panel must determine whether the fact found proved amounted to a lack of knowledge of English. Second, only if the fact found proved amounts to a lack of knowledge of English, the panel would then decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of this finding. 6

7 Decision on lack of knowledge of English: With regard to its decision on lack of knowledge of English, the panel bore in mind that adequate knowledge of the English language is an essential part of safe nursing practice and that the public expect registered nurses to be able to communicate safely and effectively. It considered that, in order to practise safely as a nurse, it is necessary to be able to speak, read and understand English, in all aspects of nursing practice. In respect of the fact as set out in charge 1, the panel considered you fell short as to the standard set out in paragraph 7.5 of the Code, which states: 7 Communicate clearly To achieve this, you must: 7.5 be able to communicate clearly and effectively in English. The panel noted that your employers at the Trust were very concerned about your lack of knowledge of English to practise safely and effectively as a registered nurse, as several patients had raised concerns about your level of understanding whilst you were providing care to them. It further noted that the Trust provided you with additional support in an attempt to improve your knowledge of English. The panel had regard to the IELTS assessment you undertook on 10 February 2018, in which you achieved an overall score of 5. The panel was aware that the NMC guidance on registration language requirements (updated 5 December 2018) requires an overall score of 7 to be achieved for it to be satisfied that you do not present a risk to patient safety. In light of the above, the panel concluded that you have not yet been able to demonstrate that you have the necessary knowledge of English for it to be satisfied that you could practise safely and effectively as a registered nurse. The panel therefore 7

8 concluded that the concerns identified in charge 1 amounted to you having a lack of knowledge of the English Language. 8

9 Decision on impairment: The panel next went on to decide if, as a result of your lack of knowledge of English, your fitness to practise is currently impaired. The panel was mindful of the need to consider not only whether you continue to present a risk to members of the public, 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 of this case. In respect of its finding on your lack of knowledge of English, the panel concluded that you do not have the necessary knowledge of English to practise safely and effectively as a registered nurse. The panel was mindful that the issue it now had to determine was that of current impairment. It therefore had to consider whether you are liable in future to act in such a way as to put residents/patients at an unwarranted risk of harm. The panel noted that you had admitted that your fitness to practise is currently impaired by reason of your lack of knowledge of English. It further noted that you are aware of the minimum requirement expected of you, and that you would need to undertake an IELTS assessment and obtain an overall score of 7 to demonstrate that you are a safe and effective registered nurse. You also recognised that your lack of knowledge of English is a current barrier for you in achieving this required score. The panel considered you to have a good level of insight in this respect. With regard to remediation, the panel formed the view that the lack of knowledge of English should, in principle, be remediable. However, the panel had no evidence before it to demonstrate that the concerns identified had been remedied, as you have not yet been able to achieve the required score of 7. 9

10 The panel noted that you are currently trying to improve your knowledge of English through English language classes which you attend once a week by way of two-hour sessions. The panel further noted that you have not provided it with any references or testimonials from current employers attesting to your knowledge of the English language. In light of the above, the panel concluded that a finding of impairment on the grounds of public protection is necessary as you have not yet been able to demonstrate that you do not pose a risk to patient safety. The panel bore in mind the overarching objective of the NMC: to protect, promote and maintain the health safety and well-being of the public and patients and the wider public interest which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. In the judgement of the panel, public confidence in the profession and the regulator would be seriously undermined if a finding of impairment was not made in the particular circumstances of this case. The panel concluded that members of the public would be extremely concerned if you were declared fit to practise as a registered nurse, given that your lack of knowledge of English has not reached the minimum standard required for unrestricted nursing practice. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired by reason of your lack of knowledge of English language. 10

11 Determination on sanction: Having carefully considered all the circumstances of your case, the panel decided to impose a suspension order for a period of 12 months. The effect of this order is that the NMC register will show that your registration has been suspended. In reaching its decision, the panel had regard to all the evidence that has been adduced in this case, together with your submissions, and the submissions of Ms Tarling, on behalf of the NMC. Ms Tarling submitted that no further action nor a caution order would be appropriate as the panel found your fitness to practise impaired on the grounds of public protection and public interest. She submitted that a conditions of practice order would be inappropriate in the circumstances as any conditions the panel could impose to satisfy the public protection and public interest concerns would be tantamount to a suspension order in any event. Ms Tarling invited the panel to impose a suspension order for a period of 12 months. She submitted that your temporary removal from the register will adequately address the public protection and public interest considerations of this case, and it would also provide you with sufficient time for you to re-sit your IELTS assessment. She further submitted that if you achieved the required score of 7 overall within this time, you could ask for an early review of your substantive order. You advanced no submissions in respect of what sanction you considered to be appropriate in the circumstances. You reiterated your desire to undertake an IELTS assessment in the future and stated that you would continue to develop your knowledge of English. The panel heard and accepted the advice of the legal assessor. 11

12 The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the Sanctions Guidance ( SG ) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel identified the following as aggravating factors in this case: - The panel found you to have exposed patients to a risk of unwarranted harm. The panel identified the following as mitigating factors in this case: - The panel considered you to have demonstrated a good level of insight into your lack of knowledge of English. - There is no evidence of actual harm caused to patients. The panel then turned to the question of which sanction, if any, to impose in the circumstances of this case. It considered each available sanction in turn, starting with the least restrictive sanction and moving upwards. The panel first considered whether to take no action. The panel had borne in mind that it had identified at the impairment stage of these proceedings that your lack of knowledge of English exposed patients to a risk of unwarranted harm, and that these concerns have not yet been remediated. To take no action in respect of your nursing practice would not provide any protection to the public, nor would it mark the seriousness of this case. In addition, the panel determined that to take no action would not be in the public interest in declaring and upholding standards and maintaining public confidence in the profession. Next, in considering whether a caution order would be appropriate in the circumstances, the panel had regard to the SG, which states that a caution order may be appropriate 12

13 where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that this case was not at the lower end of the spectrum of impairment, as you have not yet been able to demonstrate that you are a safe and effective registered nurse. The panel noted that a caution order would not provide adequate protection to patients in this case. Accordingly, it determined that a caution order would be inappropriate in view of the concerns raised in respect of your lack of knowledge of English. The panel next considered whether placing a conditions of practice order on your registration would be a sufficient and appropriate response in this matter. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel noted that the principle concern centres around your lack of knowledge of English, and it was not satisfied on this basis that a conditions of practice order could be devised. The panel noted that any condition requiring you to undertake an IELTS test would be tantamount to a suspension order, as you would not be permitted to work as a registered nurse until you have achieved the required overall score of 7. The panel concluded that placing conditions on your registration would be unworkable in the circumstances. The panel then went on to consider whether a suspension order would be an appropriate and proportionate sanction. The panel noted that it is necessary for registered nurses to have the required knowledge of English to practise in the UK, and that the minimum score you are required to achieve is an overall score of 7. The panel took account of your submissions that you intend to re-sit your IELTS assessment in the near future. It was of the view that temporary removal from the register would provide you with an opportunity to re-sit your IELTS assessment, whilst sufficiently addressing the public protection and public interest considerations identified in this case. The panel determined that a suspension order for 12 months would be the appropriate and 13

14 proportionate sanction in the circumstances, and considered this ample time for you to re-sit your IELTS assessment, and achieve an overall score of 7. The panel noted that should you re-sit your IELTS assessment before the expiry of this order and if you achieved a minimum score of 7 in reading, listening and speaking, and a minimum of 6.5 in writing (with an overall score of 7), you could ask the NMC for an early review of this substantive order. The panel did not consider a striking-off order as it is not available to it at this time. At the end of the period of suspension, another panel will review the order. At the review hearing, a panel may revoke the order, or it may confirm the order, or it may replace the order with another order. The reviewing panel may be assisted by: Evidence that you have the necessary knowledge of English to practice safely and effectively as a registered nurse, in the form of a successful IELTS assessment or equivalent; Any references or testimonials from relevant employment (whether paid or unpaid, in or outside of the healthcare sector), with regard to your knowledge of English. Evidence of you having kept up to date with current nursing practice. 14

15 Determination on Interim Order The panel has considered the submissions made by Ms Tarling that an interim order should be made on the grounds that it is necessary for the protection of the public and it is otherwise in the public interest. She invited the panel to impose an interim suspension order for a period of 18 months. You did not oppose the application. The panel accepted the advice of the legal assessor. The panel had regard to the seriousness of the facts found proved, and the reasons set out in its decision for the substantive order. The panel decided that an interim suspension order is necessary for the protection of the public and it is otherwise in the public interest. To conclude otherwise would be incompatible with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by the suspension order 28 days after you are sent the decision of this hearing in writing. That concludes this determination. 15