Nursing and Midwifery Council:

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 20 December 2018 Nursing and Midwifery Council, George Street, Edinburgh, EH2 4LH Name of Registrant Nurse: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Nursing and Midwifery Council: Registrant: Order being reviewed: Outcome: Lorna Jean McGougan 95I0366S RNA, Registered Nurse (sub part 1) Adult (28 August 1998) Scotland Misconduct Noreen Kent (Chair, Registrant member) Christine Somerville (Registrant member) Bill Matthews (Lay member) Angela Hughes Aoife Kennedy Represented by Alistair Kennedy, Case Presenter Not present and not represented in her absence Conditions of practice order (9 months) Conditions of Practice Order (9 months) to come into effect at the end of 30 December 2018 in accordance with Article 30 (1) 1

2 Decision on Service of Notice of Hearing: The panel was informed at the start of this review hearing that Ms McGougan was not in attendance and that written notice of this hearing had been sent to her registered address by recorded delivery and by first class post on 15 November The panel took into account that the notice letter provided the time, dates and venue of the hearing and, amongst other things, information about Ms McGougan s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. Mr Kennedy submitted that the Nursing and Midwifery Council (NMC) had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Ms McGougan has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. Decision on proceeding in the absence of the Registrant: Mr Kennedy drew the panel s attention to a letter from Ms McGougan s solicitors dated 19 December 2018 stating in relation to today s hearing: we are no longer instructed by the Royal College of Nursing to appear on behalf of Ms McGougan and will therefore not be representing Ms McGougan at hearing. The panel also had sight of an from Ms McGougan to her NMC Case Officer, dated 28 November 2018, in which she stated: 2

3 So, in short, I am no longer a nurse, I have not complied with NMC conditions and will not be attending any hearing. Mr Kennedy invited the panel to proceed in the absence of Ms McGougan on the basis that she has waived her right to attend today s hearing. Mr Kennedy submitted that Ms McGougan had voluntarily absented herself, that she had made no request for an adjournment, and that there is a public interest in holding a review of this case expeditiously. The panel accepted the advice of the legal assessor. The panel decided to proceed in the absence of Ms McGougan for the following reasons: Notice has been served to Ms McGougan and she should be aware of today s review hearing; No adjournment has been sought; There is no indication that an adjournment would secure her attendance; There is a strong public interest in reviewing this case prior to the expiry of the existing order at the end of 30 December In these circumstances, the panel has decided that no useful purpose would be served by an adjournment and that it is fair, appropriate and proportionate to proceed in the absence of Ms McGougan. 3

4 Decision and reasons on review of the current order This panel decided to extend the current conditions of practice order for a period of 9 months. This order will come into effect at the end of 30 December 2018 in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the first review of a conditions of practice order, originally imposed by a panel of the Fitness to Practise Committee on 27 February 2018 for 9 months. The current order is due to expire on 30 December The panel is reviewing the order pursuant to Article 30(1) of the Order. The facts found proved at the substantive hearing are as follows: You, a registered nurse, 1. During the night shift commencing 8 April 2016 pulled Patient B from a chair: 1.1 by her wrist against her will; 1.2 using excessive force 2. During the night shift commencing 11 April 2016 pulled Patient A from a chair by her arms against her will And in light of the above, your fitness to practise is impaired by reason of your misconduct. The substantive panel determined the following with regard to impairment: Although the panel had no doubt that you were a caring nurse, it was not satisfied that you understood that there could be a difference between you 4

5 collaborating with colleagues to agree and record a plan of care which could be carried out instead of you deciding to provide your care. In the example you gave from your recent practice, you described how you disagreed with the care being foisted on a patient by a senior colleagues (as you saw it). However, although your alternative care might be one that better protected patient choice and dignity, nonetheless, you did not provide evidence of you effectively challenging your colleague and then agreeing and recording how better care was to be delivered. The panel was of the view that when working with patients in this environment, and in this case dementia, it is your responsibility to act in the best interest of the patient, and come to an agreement on how to implement appropriate care to patients. The example you provided, gave rise to a real concern for the panel about the degree of insight that you have truly gained. When questioned during the course of this hearing about how you would handle the situation differently in the future, you were able to provide detailed answers. However, the panel did not find that this demonstrated sufficient insight into your actions and how they could put patients within your care at potential risk or harm. It had regard to the references that you provided, the panel noted that many of them were friends as well as colleagues. It found that there was missing evidence of the assertions made within them, and the panel would have benefited from receiving references from a senior manager of your current employer. Due to the lack of evidence regarding your training since the incidents, it was not satisfied that you have taken sufficient steps to remediate your failings. You told the panel that you completed Module 1 of the Dementia Framework in January 2018 but did not provide further information on the course provider or details of the module or other modules done by you. 5

6 The panel is of the view that there is a real risk of repetition based on insufficient evidence of remediation and limited insight into your actions. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold/protect the wider public interest, which includes promoting and maintaining public confidence in the nursing profession and upholding the proper professional standards for members of the profession. The panel determined that, in this case, a finding of impairment on public interest grounds was also required. It was satisfied in the light of its findings, that public confidence in the nursing profession would be damaged if a finding of impairment was not made. Further, such a finding was necessary to ensure that proper standards of conduct and behaviour are maintained in the nursing profession. The panel concluded that your fitness to practise is currently impaired on public protection and public interest grounds. The substantive panel determined the following with regard to sanction: The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel determined that it would be possible to formulate appropriate and practical conditions which would address the failings highlighted in this case. The panel accepted that you would be willing to comply with conditions of practice. The panel was of the view that to impose a suspension order would be disproportionate and would not be a reasonable response in the circumstances of your case. 6

7 The panel noted that you have been working in a similar care environment for a further two years without repetition and you have also undertaken some training. The panel was mindful that there was no interim order against you and that you have begun to take steps to remedy your practice. Having regard to the matters it has identified, the panel has concluded that a conditions of practice order will mark the importance of maintaining public confidence in the profession, and will send to the public and the profession a clear message about the standards of practice required of a registered nurse. It determined that a conditions of practice order for nine months would afford you sufficient time to source appropriate training and education and discuss with line manager how additional learning will improve your practice. Further, it will allow you to further develop your insight. The panel determined that the following conditions should apply in this case: 1. You must work with your line manager, mentor or supervisor (or their nominated deputy) to create a personal development plan designed to address the concerns about the following areas of your practice: 1. understanding autonomy, respect, dignity and patient choice particularly in the context of patients with limited capacity 2. demonstrate evidence on how these regulatory and ethical matters impact on your practice 2. You must meet with your line manager, mentor or supervisor (or their nominated deputy) monthly to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 7

8 3. You must forward to the NMC a copy of your personal development plan within 28 days of the date on which these conditions become effective or the date on which you take up an appointment, whichever is sooner. 4. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and your progress towards achieving the aims set out in your personal development plan to the NMC at least 14 days before any NMC review hearing or meeting. 5. You must allow the NMC to exchange, as necessary, information about the standard of your performance and your progress towards achieving the aims set out in your personal development plan with your line manager, mentor or supervisor (or their nominated deputy) and any other person who is or will be involved in your retraining and supervision with any employer, prospective employer and at any educational establishment. 6. You must disclose a report not more than 28 days old from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and your progress towards achieving the aims set out in your personal development plan to any current and prospective employers (at the time of application) and any other person who is or will be involved in your retraining and supervision with any employer, prospective employer and at any educational establishment. 7. You must tell the NMC within 14 days of any nursing or midwifery appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 8

9 8. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 14 days of you receiving notice of them. 9. a) You must within 14 days of accepting any post of employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, provide the NMC with the name/contact details of the individual or organisation offering the post, employment or course of study. b) You must within 14 days of entering into any arrangements required by these conditions of practise provide the NMC with the name and contact details of the individual/organisation with whom you have entered into the arrangement. 10. You must immediately tell the following parties that you are subject to a conditions of practice order under the NMC s fitness to practise procedures and disclose the conditions listed at (1) to (9) above, to them 1. Any organisation or person employing, contracting with or using you to undertake nursing or midwifery work 2. Any agency you are registered with or apply to be registered with (at the time of application) to provide nursing or midwifery services 3. Any prospective employer (at the time of application) where you are applying for any nursing or midwifery appointment 9

10 4. Any educational establishment at which you are undertaking a course of study connected with nursing or midwifery, or any such establishment to which you apply to take a course (at the time of application). The period of this order is for nine months. Decision on current fitness to practise This panel has considered carefully whether Ms McGougan s fitness to practise remains impaired. Whilst there is no statutory definition of fitness to practise, the NMC has defined fitness to practise as a registrant s suitability to remain on the register without restriction. In considering this case, the panel has carried out a comprehensive review of the order in light of the current circumstances. It has noted the decision of the last panel. However, it has exercised its own judgment as to current impairment. The panel has had regard to all of the documentation before it, including an from Ms McGougan dated 28 November 2018, and has taken account of the submissions made by Mr Kennedy, on behalf of the NMC. The panel heard and accepted the advice of the legal assessor. In reaching its decision, the panel was mindful of the need to protect the public, maintain public confidence in the profession and to declare and uphold proper standards of conduct and performance. The panel considered whether Ms McGougan s fitness to practise remains impaired. The panel has been presented with no information demonstrating any evidence of remorse, insight, or remediation. In particular, the panel noted that in Ms McGougan s to the NMC dated 28 November 2018, she continued to deny the 10

11 facts found proved by the substantive panel, and sought to deflect blame for her actions onto others. The panel was also concerned with regard to the tone within this correspondence with her professional regulator. In the light of Ms McGougan s lack of compliance with her current conditions of practice order, and lack of any evidence of insight or remediation, the panel concluded that nothing had been submitted to it to suggest that there is no longer a risk to the public. It determined that Ms McGougan s fitness to practise remains impaired on the grounds of public protection and in the wider public interest and in order to uphold proper standards of conduct and maintain public confidence in the nursing profession. Determination on sanction Having found Ms McGougan s fitness to practise currently impaired, the panel then considered what, if any, sanction it should impose in this case. The panel has taken into account the NMC s Sanctions Guidance and has borne in mind that the purpose of a sanction is not to be punitive, though any sanction imposed may have a punitive effect. In reviewing this order the panel has given careful consideration to the principle of proportionality. It has therefore balanced the personal and professional interests of Ms McGougan with the public interest which in this case involves public protection and the maintenance of public trust and confidence in the profession. The panel has also had regard to the need to take the minimum appropriate action which is necessary in the public interest having regard to all the circumstances of this case. The panel first considered whether to take no action and allow the current order to expire, but concluded that this would be inappropriate given the current risk to the public and public interest identified. 11

12 The panel then considered whether to impose a caution order but concluded that this would be inappropriate in view of the risk identified. Imposing a caution order would not place any restrictions on Ms McGougan s practice and so would not sufficiently protect the public or the wider public interest. The panel next considered the imposition of a conditions of practice order. The panel noted that Ms McGougan has not complied with her current conditions of practice order and has indicated that she does not wish to return to practise as a nurse. However, it determined that she should be afforded another opportunity to comply with the current conditions of practice order. The panel therefore determined that the current conditions of practice, as follows, should be extended for a period of 9 months: 1. You must work with your line manager, mentor or supervisor (or their nominated deputy) to create a personal development plan designed to address the concerns about the following areas of your practice: 1. understanding autonomy, respect, dignity and patient choice particularly in the context of patients with limited capacity 2. demonstrate evidence on how these regulatory and ethical matters impact on your practice 2. You must meet with your line manager, mentor or supervisor (or their nominated deputy) monthly to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 3. You must forward to the NMC a copy of your personal development plan within 28 days of the date on which these conditions become effective or the date on which you take up an appointment, whichever is sooner. 12

13 4. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and your progress towards achieving the aims set out in your personal development plan to the NMC at least 14 days before any NMC review hearing or meeting. 5. You must allow the NMC to exchange, as necessary, information about the standard of your performance and your progress towards achieving the aims set out in your personal development plan with your line manager, mentor or supervisor (or their nominated deputy) and any other person who is or will be involved in your retraining and supervision with any employer, prospective employer and at any educational establishment. 6. You must disclose a report not more than 28 days old from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and your progress towards achieving the aims set out in your personal development plan to any current and prospective employers (at the time of application) and any other person who is or will be involved in your retraining and supervision with any employer, prospective employer and at any educational establishment. 7. You must tell the NMC within 14 days of any nursing or midwifery appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 8. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 14 days of you receiving notice of them. 9. a) You must within 14 days of accepting any post of employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, provide the NMC with the name/contact details of the individual or organisation offering the post, employment or course of study. 13

14 b) You must within 14 days of entering into any arrangements required by these conditions of practise provide the NMC with the name and contact details of the individual/organisation with whom you have entered into the arrangement. 10. You must immediately tell the following parties that you are subject to a conditions of practice order under the NMC s fitness to practise procedures and disclose the conditions listed at (1) to (9) above, to them 1. Any organisation or person employing, contracting with or using you to undertake nursing or midwifery work 2. Any agency you are registered with or apply to be registered with (at the time of application) to provide nursing or midwifery services 3. Any prospective employer (at the time of application) where you are applying for any nursing or midwifery appointment 4. Any educational establishment at which you are undertaking a course of study connected with nursing or midwifery, or any such establishment to which you apply to take a course (at the time of application). The period of this order is for nine months. This panel did consider the imposition of a suspension order, but considered that it would serve no purpose as it would not allow Ms McGougan an opportunity to remediate. 14

15 The panel also considered a strike-off, but considered that the charges found proved at the substantive hearing are capable of remediation should Ms McGougan demonstrate insight and choose to take steps towards remediating her practice. This panel noted, however, that a future panel will have the full range of sanctions available to it, up to and including, strike-off. This conditions of practice order must be reviewed before its expiry. At the review hearing or meeting the panel may decide to allow the order to lapse without further action, it may extend the period of the order or it may replace the order with another order. As such the reviewing panel may benefit from the following: Evidence of Ms McGougan s insight and remediation Evidence of any work undertaken whether paid or unpaid, and any testimonials in relation to this Ms McGougan s attendance at her review hearing This decision will be confirmed to Ms McGougan in writing. That concludes this determination. 15