Nursing and Midwifery Council: Fitness to Practise Committee Substantive Hearing. Tuesday 5 September 2017

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing Tuesday 5 September 2017 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: NMC PIN: Caroline Yvonne Cropper 89Y0002E Part(s) of the register: Registered Nurse Sub part 1 Registered Nurse Sub part 2 Adult (Level 1 and 2) 1 June 2000 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Consensual Panel Determination: England Misconduct Cindy Barnett (Chair, Lay member) Jacqueline Rendell (Registrant member) Peter Swain (Lay member) David Marshall Manisha Hirani Mrs Cropper not present and not represented in her absence Represented by Rebecca Richardson, counsel, NMC Regulatory Legal Team Accepted 1

2 Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Mrs Cropper was neither in attendance nor was she represented in her absence. The panel was also informed that written notice of this hearing had been sent to Mrs Cropper s address on the NMC register by recorded delivery and by first class post on 26 July Following a Consensual Panel Determination provisional agreement, the hearing was re-listed for one day, rather than the four days originally scheduled, and therefore a subsequent notice of hearing was sent to Mrs Cropper on 16 August The panel was informed that Mrs Cropper s representatives at the Royal College of Nursing confirmed to the NMC, in an dated 8 August 2017, that Mrs Cropper did not object to the hearing being re-listed for one day. The panel took into account that the notice letter provided details of the allegation, the time, date and venue of the hearing and information about Mrs Cropper s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Mrs Cropper has been served with notice of this hearing in accordance with Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). Decision on Proceeding in the Absence of the Registrant The panel then considered proceeding in the absence of Mrs Cropper. The panel heard the submissions made by Ms Richardson, on behalf of the Nursing and Midwifery Council (NMC), and took account of the legal assessor s advice. 2

3 Mrs Cropper has a right to a reasonable opportunity to attend and/or be represented and she has been given that opportunity. In deciding whether to proceed in her absence, the panel weighed its responsibilities for public protection and the expeditious disposal of the case. The panel accepted the advice of the legal assessor. The panel was made aware of a signed provisional Consensual Panel Determination (CPD) agreement which states the following: Mrs Cropper is aware of the CPD hearing taking place. Mrs Cropper does not intend to attend the hearing and is content for it to proceed in her absence. However, her representative will be available by telephone to answer any questions that the panel may have. Mrs Cropper was sent notice of today s hearing. She signed a provisional CPD agreement, which states that she is content for the hearing to proceed in her absence. The panel therefore concluded that Mrs Cropper was aware of today s hearing and that she had chosen voluntarily to absent herself. The panel had no reason to believe that an adjournment would result in Mrs Cropper s attendance. The panel took into account that should it wish to seek clarification on any point in relation to the provisional CPD agreement, Mrs Cropper s representatives can be contacted via telephone. There appears to be no prejudice to Mrs Cropper if the panel proceeds to consider the CPD today. Having weighed the interests of Mrs Cropper with those of the NMC and the public interest in an expeditious disposal of this hearing, the panel has determined to proceed in her absence. Application Pursuant to Rule 19 3

4 Ms Richardson, on behalf of the NMC, submitted that proper exploration of this case involves matters involving Mrs Cropper s health, and therefore invited the panel to hold such parts of the hearing in private. The panel accepted the advice of the legal assessor who reminded the panel that Rule 19(3) of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended 2012) (The Rules) states that the panel may hold hearings partly or wholly in private if it is satisfied that this is justified by the interests of any party or by the public interest. The panel determined that given that the allegations in this case relate to matters involving Mrs Cropper s health, it shall hold such parts of the hearing in private. Provisional Consensual Panel Determination Agreement An agreement was reached between the NMC and Mrs Cropper on a provisional CPD agreement (the Agreement) with regard to this case. The Agreement, which was put before the panel, sets out Mrs Cropper s full admissions to the facts of the charges, and her acceptance that her fitness to practise is currently impaired by reason of her misconduct. It is further stated in the Agreement that the appropriate sanction in this case would be a 5-year Caution Order. Mrs Cropper had signed and dated the Agreement on 30 August Ms Richardson had signed and dated the Agreement on 31 August 2017, for and on behalf of the NMC. The Agreement reached by the parties reads as follows: 4

5 Conduct and Competence Committee Consensual panel determination: provisional agreement Preliminary Mrs Cropper is aware of the CPD hearing taking place. Mrs Cropper does not intend to attend the hearing and is content for it to proceed in her absence. However, her representative will be available by telephone to answer any questions that the panel may have. The Nursing and Midwifery Council and Mrs Caroline Yvonne Cropper, PIN 89Y0002E ( the parties ) agree as follows: Charges That you, a registered nurse, whilst working for Interserve Health Care: 1. On the 21 April 2016 whilst providing care to Client A: 1.1 Consumed alcohol; 1.2 Fell asleep; 1.3 Failed to complete Client A s daily check list. AND, in light of the above, your fitness to practise is impaired by reason of your misconduct. Facts 1. The agreed facts are as follows: 5

6 1.1 At the material time, the registrant was working as an agency care nurse for Interserve Healthcare. She was providing home care at Client A s home address working a 0700 hour shift to 1900 hour shift. 1.2 On 21 April 2016, the registrant had responsibility for Client A, who was receiving 2:1 care. The registrant was working with a health care assistant (HCA) who began her shift at That morning, the registrant was in the lounge with Client A and the HCA. The HCA heard (but did not see) the registrant open a can and pour the contents into a cup. The registrant drank from that cup for a large part of the morning. 1.4 Later in the shift the HCA was sitting in the lounge with the registrant and noticed the registrant had fallen asleep in her armchair. 1.5 Later on, the registrant and the HCA took Client A to the commode. Whilst Client A was on the commode the HCA went downstairs to investigate what was in the can that she had heard being opened by the Registrant earlier. She discovered one can of Stella Artois Lager in an orange Sainsbury s carrier bag behind the armchair where the registrant had been sitting. 1.6 Throughout the afternoon the HCA reported that the registrant s behaviour was unprofessional. She hugged the HCA and searched for a scarf she was wearing at the time and also smelt of alcohol. 1.7 Throughout the day, the HCA reported that the registrant did not tick off any of the agreed actions on Client A s care plan. 1.8 [Ms 1] the senior branch consultant at Interserve Health Care investigated the incident. An investigative meeting took place between [Ms 1] and the registrant on 4 May In this meeting the registrant denied all allegations. 6

7 1.9 A formal action hearing by Interserve Health Care took place on 17 June 2016, where the registrant provided a written response to all allegations. She admitted to drinking lager on duty and stated that Client A s checks were carried out but that she forgot to fill in the list. She denied that she had slept on duty. At this hearing the allegations that the registrant had drunk alcohol whilst on duty and had failed to follow Client A s care plan were upheld. The registrant was removed from the Interserve Health Care register and referred to the NMC. Misconduct 2. In the case of Roylance v General Medical Council (No.2) [2000] 1 AC 311, Lord Clyde stated that: [M]isconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by the medical practitioner in the particular circumstances. 3. The registrant admits that her conduct fell seriously short of the standards of behaviour expected of registered nurses. She accepts that her actions breached the following provisions of the NMC s Code of Conduct Standards of conduct, performance and ethics for nurses and midwives (2015) ( the Code ): 1.2 make sure you deliver the fundamentals of care effectively 3 Make sure that people s physical, social and psychological needs are assessed and responded to To achieve this, you must: 7

8 3.1 pay special attention to promoting wellbeing, preventing ill health and meeting the changing health and care needs of people during all life stages 4 Act in the best interests of people at all times 10 Keep clear and accurate records relevant to your practice 20 Uphold the reputation of your profession at all times To achieve this, you must: 20.1 keep to and uphold the standards and values set out in the Code 4. For the reasons set out above, the registrant accepts that the facts amount to misconduct. Impairment 6 The registrant admits that her fitness to practise is currently impaired by reason of her misconduct. 7 The parties have considered the test formulated by Dame Janet Smith in her Fifth Shipman Report, approved in the case of CHRE v Grant & NMC [2011] EWHC 927 (Admin) ( Grant ) by Cox J. 8 The registrant agrees that she: (a) has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; (b) has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and 8

9 (c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession. 9 The registrant agrees that by consuming alcohol while on duty caring for Client A she put Client A at an unwarranted risk of harm, in that her clinical judgment and assessment of patient needs may have been compromised by her reduced ability to practise safely. In addition, by falling asleep, even for a short time, she accepts that she would not have been able to respond were there to have been an emergency, and that she put her needs above those of Client A. Furthermore, she accepts that her conduct brought the nursing profession into disrepute and that fundamental tenets of the medical profession were breached by her failure to act in the best interests of patients, specifically Client A who was vulnerable and needed constant care. 10 The registrant has shown insight into the potential and actual consequences of her actions through two reflective pieces provided to the NMC dated 8 August 2017 and 25 August 2017(annexed to this CPD agreement as Annexe 1), and in an earlier response to allegations provided to Interserve HealthCare (annexed to this CPD agreement as Annexe 2). Although she denies falling asleep in this earlier response, she does now accept that she did fall asleep. 11 The registrant has demonstrated insight into the risk that she exposed the patient to by consuming alcohol at work, and in not properly documenting Client A s care plan actions. The registrant has shown understanding of the potential consequences of her actions and detailed the extent of the harm that could have been caused. The registrant expresses remorse and regret for her actions. The registrant has demonstrated understanding of the impact of her actions on the reputation of nurses that her actions have had, stating that she lost the trust of the family of the patient. 12 The registrant has provided two positive testimonials from colleagues (annexed to this CPD agreement as Annexe 3) saying that there are no concerns with her clinical 9

10 practice, and that she works to a high standard. In all the circumstances of this case, particularly given the registrant s circumstances at the time, and the steps she has taken to remedy them, it is considered that the risk of repetition of this conduct is low. 13 However, the parties agree that the level of seriousness of misconduct in this case is high and that there is a public interest in a finding of current impairment to uphold standards of the profession, as well as to uphold the public confidence in the profession that relies on being able to trust that nurses act with the utmost professionalism and in the best interests of patients, particularly those who are vulnerable. 14 The panel is further referred to paragraph 74 of Grant which sets out that the panel should consider not only whether the practitioner continues to present a risk to the public, but also whether public confidence in the profession would be undermined if a finding of impairment were not made. 15 Therefore, it is agreed that a finding of current impairment is necessary on grounds of public interest only. Sanction 16 The parties agree that the appropriate sanction in this case is a 5-year caution order. 17 The parties have considered this sanction to be appropriate and proportionate in light of the Indicative Sanctions Guidance ( the ISG ). 18 When determining the issue of sanction, the following aggravating and mitigating factors have been taken into account: 10

11 19 The aggravating factors are: a) The registrant s conduct involved a vulnerable patient; b) The registrant was the sole nurse in charge of the patient (although not the sole person on duty) and her conduct created an unwarranted risk of harm to the patient; c) The conduct had the potential to undermine trust and confidence in the profession; d) The registrant initially denied her actions. 20 The mitigating factors are: a) No actual harm was caused by the registrant s actions; b) The registrant made early admissions to her actions; c) This was an isolated incident; d) The registrant has had no previous NMC referrals; e) The registrant has advised the NMC [PRIVATE]; f) The registrant has demonstrated insight in her reflective pieces; g) The registrant has provided positive references from colleagues. 21 In arriving at the appropriate sanction, account has been taken of the NMC s published sanctions guidance. It is agreed between the parties that this is not a case in which taking no further action would be appropriate. The conduct of the registrant was serious, and could have had serious consequences. Some form of regulatory action in the form of sanction must therefore be taken in order to discharge the NMC s duty to uphold proper standards of conduct and behaviour and to maintain the reputation of the profession and the NMC as a regulator. 22 The parties agree that a caution order would be a proportionate sanction in this case. This would serve to mark the seriousness of the registrant s conduct, and as a reminder to the registrant that conduct of this nature must not be repeated. A 11

12 caution would satisfy the public interest in declaring and upholding proper standards of the profession, and maintaining public confidence in the profession. It is agreed by the parties that, given the seriousness of the registrant s conduct, nothing less than a 5 year caution order would be appropriate in this case. 23 The parties have considered whether a conditions of practice order would be appropriate in this case, and agree that it would not be. Whilst in some respects the misconduct could be categorised as relating to clinical matters, it is agreed there are no clinical failings as such which require remediation. Further, it is noted that the registrant has been working without restriction since the referral of the case to the NMC and is currently working as a staff nurse in a stable environment. It is not considered that there are clinical failings which need remediating by way of conditions of practice. 24 The parties have also considered whether a suspension would be an appropriate sanction in this case, but consider that in all the circumstances a sanction order would be a disproportionate sanction to impose. [PRIVATE] Considering the progress made by the registrant in this regard, the parties agree that it is not necessary to restrict the registrant s practice in order to protect the public, and that suspension from the register, even for a short period, would be disproportionate. 25 It follows from matters above that the parties agree that permanent removal from the register would be neither appropriate nor proportionate. The registrant s misconduct, whilst serious, is not incompatible with ongoing registration. 26 The parties understand that this provisional agreement cannot bind a panel, and that the final decision on findings of impairment and sanction is a matter for the panel. The parties understand that, in the event that a panel does not agree with this provisional agreement, the admissions to the charges set out at section 4 above, and the agreed statement of facts set out at section 5 above, may be placed before 12

13 a differently constituted panel that is determining the allegation, provided that it would be relevant and fair to do so. The Panel s Decision In reaching its decision, the panel accepted the advice of the legal assessor and bore in mind that in reviewing the Agreement the panel should have regard to the law and guidance in respect of misconduct, impairment and sanction. The panel should consider whether the Agreement would be in the public interest. This means that the outcome must ensure an appropriate level of public protection, maintain public confidence in the profession and the regulatory body, and declare and uphold proper standards of conduct and behaviour for nurses. The panel found all the facts proved on the basis of Mrs Cropper s admissions included in the Agreement. It further noted that Mrs Cropper accepted her actions amounted to misconduct. The panel agreed that Mrs Cropper s actions breached paragraphs of the Code, as set out in the Agreement, and her actions were serious enough to amount to misconduct. In relation to the issue of impairment, the panel took into account that Mrs Cropper s conduct had the potential to put patients at unwarranted risk of harm, breached fundamental tenets of the nursing profession and brought the profession into disrepute. However, the panel also had regard to the level of insight, reflection and remorse demonstrated by Mrs Cropper in her written reflective pieces dated 8 August 2017 and 25 August 2017, and it was encouraged that Mrs Cropper has implemented coping mechanisms to help her manage stressful situations in the future. The panel agreed that given the level of remediation and insight demonstrated by Mrs Cropper, the risk of repetition was low. Nevertheless, the panel was of the view that Mrs Cropper s misconduct has undermined public confidence in the nursing profession, and it agreed that a finding of impairment is required on public interest grounds only. The panel 13

14 agreed that Mrs Cropper s fitness to practise is impaired by reason of her misconduct for the reasons set out in the Agreement. In relation to the issue of sanction, the panel agreed that it was not appropriate to take no further action because of the seriousness of the misconduct. The panel next considered a caution order and concluded that, in light of the mitigating factors outlined in the Agreement, and the level of insight, remorse and reflection demonstrated by Mrs Cropper, a Caution Order for the maximum period of 5 years is a proportionate outcome in the case. There were no clinical concerns so a conditions of practice order would not be appropriate, and the panel considered that a suspension order would be disproportionate in all the circumstances. A Caution Order for the maximum period adequately addresses the public interest and conveys a clear message that Mrs Cropper s conduct was unacceptable and a significant departure from standards of conduct and behaviour. Accordingly, the panel has decided to approve the Agreement. That concludes this determination. 14