Stephen Barker (Chair, lay member) Ann Chapman (Registrant member) Jo Hathaway (Lay member)

Transcription

1 Conduct and Competence Committee Substantive Order Review 7 July 2015 The Nursing and Midwifery Council (NMC), 2 Stratford Place, London Name of Registrant Nurse: NMC PIN: Janice Lesley Birch 96E0055E Part(s) of the register: Registered Nurse Sub Part 1 Adult Nurse 3 May 1999 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: England Substantive order review Stephen Barker (Chair, lay member) Ann Chapman (Registrant member) Jo Hathaway (Lay member) Charles Apthorp Sebastian Harrison The Nursing and Midwifery Council: Represented by Lara Akande, case presenter, instructed by the NMC Regulatory Legal Team. Nurse: Outcome: The registrant was not present or represented Order replaced with a striking off order to take effect on the expiry of the existing order under Article 30(1) Page 1 of 7

2 Determination on Service of Notice of Hearing: Mrs Birch is not present and is not represented at this hearing. The panel has heard the submissions of Ms Akande, on behalf of the Nursing and Midwifery Council (NMC). The panel has heard and accepted the advice of the legal assessor. Notice of this hearing was sent to Mrs Birch on 1 June 2015 by recorded delivery and first class post to her registered address. The panel is satisfied that notice has been effected in accordance with The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (the Rules) and in particular Rules 34 and 11. Decision on proceeding in the absence of the registrant: The panel next considered whether it should proceed in Mrs Birch s absence. Under Rule 21 of the rules, the panel has decided to do so. The panel has heard the submissions of Ms Akande on behalf of the NMC, that it should proceed in the absence of the registrant today, as the expeditious disposal of this case is in the public interest. The panel has accepted the advice of the legal assessor that its discretion to proceed in the absence of the registrant is one which should be exercised with the utmost care and caution. The panel has taken account of the fact that Mrs Birch has not engaged with the NMC process from the original substantive meeting to today s review hearing. In deciding whether to proceed in the absence of the registrant the panel has to consider fairness to both parties, the wider public interest and the expeditious disposal of the case. Weighed against this is the registrant s right to a fair hearing. The panel has considered very carefully whether an adjournment would serve any purpose. In the particular circumstances there is no indication that Mrs Birch would attend on a future date and there has been no request for an adjournment from Mrs Birch or any representatives. This is a mandatory review, with the suspension order due to expire on 7 August 2015, and it is the panel s judgement that it is in the interests of justice to review the present order and that in doing so there is no injustice to the registrant. In all the circumstances the panel has decided that it is fair and just to proceed in the absence of the registrant. Page 2 of 7

3 Reasons: This panel has carried out a comprehensive review of the existing order in the light of the circumstances that exist today. The panel approached this matter afresh and carefully considered all of the papers and the submissions of Ms Akande, the case presenter for the NMC. The panel has not received any information from Mrs Birch. It has accepted the advice of the legal assessor. The panel exercised its own independent judgment in relation to this case. The panel was reminded that the first stage of its consideration is whether or not Mrs Birch s fitness to practise continues to be impaired. If so, the panel s attention was drawn to Article 30(1) of the Nursing and Midwifery Order 2001 which sets out the powers available to a reviewing panel of the Conduct and Competence Committee. The panel has the power to extend the order for a maximum period of 12 months from the current expiry date or it can replace the order with any other order which could have been made at the substantive meeting or it can take no further action. In exercising the above powers, the panel was advised that it must have regard to the principle of proportionality which means balancing the public interest against the registrant s own interests. The public interest in this instance would include protection of the public, the maintenance of public confidence in the profession and the declaring and upholding of standards of conduct and behaviour within the profession. The NMC received a complaint about Mrs Birch on 8 March 2013 from South Essex Partnership NHS Foundation Trust ( the Trust ). Mrs Birch was employed by the Trust as a Registered General Nurse in the District Nursing Team. She was dismissed following a disciplinary hearing on 17 January 2013 into allegations that she failed to act safely and appropriately in the care of a diabetic patient, namely Patient A. In particular, it was alleged that on 5 September 2012, during the course of a home visit, Mrs Birch failed to assess Patient A s blood glucose level prior to the administration of subcutaneous insulin therapy. Patient A was subsequently found unconscious by his mother who called an ambulance. He was found to have a very low blood sugar and required treatment by the ambulance crew. Mrs Birch was also alleged to have failed to review Patient A s care plan prior to the administration of insulin. It was also alleged that Mrs Birch failed to ensure the safe administration of medication to Patient B via a syringe driver in that she was alleged to have discarded prescribed medication that would not fit in the syringe driver on three occasions, thereby resulting in the patient receiving an inadequate dose of her prescribed medication. It was further alleged that she falsely recorded having administered the full prescribed doses of medication to Patient B on those three occasions. The allegations which Mrs Birch faced at her original substantive meeting, which took place on 7 January 2014, were as follows: That you, whilst employed as a Registered Nurse at South Essex Partnership NHS Foundation Trust: Page 3 of 7

4 1. On 5 September 2012 failed to assess Patient A s blood glucose level and/or review his care plan prior to administering subcutaneous insulin to him. 2. When preparing a syringe driver to administer medication to Patient B, failed to ensure the full prescribed amount of the medication was given and discarded the excess medication that would not fit in the syringe driver, on: September October October Falsely recorded that you administered the full prescribed doses of medication described at charge 2 above to Patient B. And, in light of the above, your fitness to practise is impaired by reason of your misconduct. At the substantive meeting that panel found Charges 1 and 2 proved and Charge 3 not proved. In relation to Charge 1 the panel found it proved subject to the deletion of the words and/or review his care plan. The substantive meeting panel concluded that Mrs Birch s fitness to practise was impaired and imposed a six month suspension order on her registration with recommendations that she provide evidence of insight, a reflective piece and up to date references and testimonials. That panel did consider imposing a conditions of practice order but was unable to impose such an order due to Ms Birch s lack of engagement with the NMC. On 3 July 2014 the suspension order was reviewed. In considering the issue of Ms Birch s current impairment that panel concluded: this panel bore in mind the recommendations of the panel at Ms Birch s substantive meeting in January 2014 with regard to evidence that would be useful for a reviewing panel. It considered that there was no evidence before it that Ms Birch has made any attempts to comply with these recommendations which would have been helpful to this panel when considering whether her fitness to practise remains impaired. That panel commented that it had received no evidence of any insight, remediation or information from Mrs Birch about her current circumstances. It concluded that Mrs Birch s fitness to practise remained impaired and imposed a further suspension order for six months stating: a further period of suspension is required to send a message to Ms Birch that it is essential that she engages with her regulator and that her future registration maybe at risk if she does not take any steps to satisfy a future panel that she has full insight into her misconduct and has or is willing to remediate that misconduct. Page 4 of 7

5 The suspension order was then reviewed for a second time on 6 January That panel also noted there had been no subsequent engagement with the NMC by Mrs Birch and came to the conclusion that her fitness to practise was impaired. In relation to sanction that panel considered carefully whether Mrs Birch s conduct was incompatible with ongoing registration: This panel was disappointed to have received nothing from Ms Birch. The panel was considerably exercised by the fact that Ms Birch s non-engagement, her failings, misconduct and lack of evidence of insight or remediation all indicate an attitudinal problem which is fundamentally incompatible with Ms Birch remaining on the register. However the panel determined that at this moment in time, a striking off order was not required because Ms Birch s misconduct is still capable of remediation and, in the absence of any evidence of previous misconduct, there was a public interest in returning a generally competent nurse to safe practice. That panel concluded that a striking off order was disproportionate at that time, observing that a suspension order would give Mrs Birch a further opportunity to consider whether she wishes to engage with the NMC and provide the evidence that she has remediated and developed insight into her previous failings. Submissions at review hearing: Ms Akande, on behalf of the NMC, drew the panel s attention to the background and chronology of the case. She highlighted the serious nature of the charges found proved, which resulted in actual harm to Patient A and potential harm to Patient B Ms Akande also submitted that Mrs Birch has failed to engage with the NMC and to demonstrate any insight or remediation. She invited the panel to find that Mrs Birch is still impaired and observed that it may conclude that a 6 month suspension order remains the appropriate order. Panel decision on impairment: The review panel first considered whether Mrs Birch s fitness to practise remains impaired. The panel carefully considered the original substantive decision reached by the Conduct and Competence Committee and noted in particular the reasons reached for both impairment and sanction (outlined above). The panel also had regard to the review hearings of the substantive order. The panel noted that the misconduct found proved by the original substantive panel was serious and related to deficiencies in fundamental care being given to two patients, Patient A and B. Patient A was found to be unconscious by his mother following the erroneous administration of subcutaneous insulin therapy, a situation which could have had grave consequences beyond the harm he suffered. Patient B was exposed to a risk of harm through a failure to administer prescribed amounts of medication through a syringe driver. The panel noted that Mrs Birch has never engaged in any with the NMC proceedings. Page 5 of 7

6 As there has been no contact the panel considered that it was essentially in the same position as the last reviewing panel and that significant concerns remain surrounding Mrs Birch s lack of insight, remorse and remediation identified previously. The panel observed that the robustly worded recommendations expressed by the last reviewing panel have not been complied with and that, in the circumstances, there was still a significant risk of repetition which presented a real risk of harm to patients. The panel also considered that a finding of no impairment would severely undermine public confidence in the nursing profession. The panel concluded that Mrs Birch s fitness to practise is currently impaired. Panel decision on sanction: Having found that Mrs Birch s fitness to practise remains impaired, the panel went on to consider what sanction, if any, to impose. The panel has applied the principle of fairness, reasonableness and proportionality, weighing the public interest with Mrs Birch s own interests and taking into account any mitigating and aggravating factors in the case. The only additional aggravating factor in this case, since the original hearing, is Mrs Birch s continued lack of engagement and failure to take up the previous panel s recommendations. No further mitigating factors were advanced, though, as had previous panels, this panel noted the description of Mrs Birch by colleagues of her as being an otherwise good and competent nurse. The panel is mindful that the public interest includes the protection of patients, the maintenance of public confidence in the professions and the NMC and declaring and upholding proper standards of conduct and behaviour. The panel has also had regard to the NMC s Indicative Sanctions Guidance for Panels of the Conduct and Competence and Health Committees ( ISG ) as well as to its powers under Article 30(1) of the Nursing and Midwifery Order 2001 bearing in mind that the decision on sanction is one for its own independent judgment. The panel has considered the sanctions available to it in ascending order of severity. Taking no further action would allow the current order to expire. The panel decided that this was not appropriate given the seriousness of the misconduct found proved and the absence of any evidence of remedial action. Nor was a caution order appropriate given the seriousness of the findings, which were not at the lower end of the spectrum of impairment. It would not afford the public adequate protection and would not safeguard the public interest. The panel then considered whether the current suspension order could be replaced with a conditions of practice order. Neither the NMC nor the panel has had any contact with Mrs Birch and therefore the panel could not be satisfied that she was willing to engage in any retraining or comply with any conditions of practice that were formulated. The panel concluded, therefore, that no workable conditions could be created at this stage that would provide the public with sufficient protection. The panel next looked at whether to extend the period of suspension. The panel paid particular regard to the ISG. The panel observed that the misconduct was not a single Page 6 of 7

7 instance, that there was evidence of deep-seated attitudinal failings in her decision not to engage with the NMC, that Mrs Birch has failed to demonstrate any insight and posed a significant risk of repeating her behaviour. The panel also considered the carefully worded judgment of the last reviewing panel which gave Mrs Birch an opportunity to develop insight, remediate her conduct and recognise her failings. The panel was profoundly disappointed to find that Mrs Birch has failed to seize the opportunity offered to her by the last reviewing panel and has demonstrated a consistent disregard for the findings of three panels of her regulatory body. The findings of the original panel have been exacerbated, in the panel s view, by Mrs Birch s lack of engagement. While a suspension order would protect patients, the panel considered that such an order would not maintain public confidence in the nursing profession or the NMC as its regulator. The panel went on to consider a striking off order. It noted that Mrs Birch s actions, which have not been remediated in any way, constituted serious departures from the NMC Code of Conduct. Her actions exposed Patient A to actual harm, with potentially grave consequences, and Patient B to a risk of harm through fundamental errors. Finally, the panel considered that Mrs Birch s lack of insight could now be described as persistent and exacerbated by that lack of engagement. It also reinforced the issues that led to findings of deep-seated attitudinal failings that remain unaddressed and unremediated. The panel considered that public confidence in the profession could only be sustained if Mrs Birch was to be removed from the register. In all the circumstances, the panel concluded, with regret, that the seriousness of Mrs Birch s misconduct and consequent non-engagement was fundamentally incompatible with her ongoing registration. Accordingly, the panel considered that a further period of suspension would be insufficient to maintain the public s trust and confidence in the profession, and the NMC as a regulatory body. It concluded that a striking off order was the only sanction which was appropriate, proportionate and sufficient. Mrs Birch will be notified of the panel s decision in writing. The striking off order will come into effect on the expiry of the current order. That concludes this determination. Page 7 of 7