Nursing and Midwifery Council: Fitness to Practise Committee. Substantive Order Review Hearing

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 2 April 2019 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC PIN: Noelia Serrano Martinez 16D0078C Part(s) of the register: Registered Nurse Sub Part 1 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Nursing and Midwifery Council: Miss Serrano Martinez: Order being reviewed: Outcome: England Lack of knowledge of English Clive Chalk (Chair, Lay member) Anita Underwood (Registrant member) Michael Glickman (Lay member) Gillian Hawken Charlie Russell Represented by Ben Wild, Case Presenter Not present and not represented Suspension Order (12 months) Suspension Order (6 months) to come into effect on 2 May 2019 in accordance with Article 30 (1) 1

2 Service of Notice of Hearing The panel was informed at the start of this hearing that Miss Serrano Martinez was not in attendance, nor was she represented in her absence. The panel was informed that the notice of this hearing was sent to Miss Serrano Martinez on 1 March 2019 by recorded delivery and first class post to her registered address. That notice invited Miss Serrano Martinez to attend today s substantive order hearing review, or to submit written representations, should she find herself unable to attend. The panel accepted the advice of the legal assessor. In the light of the information available the panel was satisfied that notice had been served in accordance with Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) (the Rules). Proceeding in absence The panel then considered proceeding in the absence of Miss Serrano Martinez. The panel was mindful that the discretion to proceed in absence is one which must be exercised with the utmost care and caution. The panel considered all of the information before it, together with the submissions made by Mr Wild, on behalf of the Nursing and Midwifery Council (NMC). Mr Wild submitted that there has been an ongoing lack of engagement from Miss Serrano Martinez for over a year now. He added that before this, communication was sporadic and that Miss Serrano Martinez has never attended an NMC hearing. In light of the circumstances, Mr Wild submitted that an adjournment would not be likely to secure Miss Serrano Martinez s attendance at a later date and invited the panel to proceed in the absence of Miss Serrano Martinez. 2

3 The panel accepted the advice of the legal assessor. Miss Serrano Martinez had been sent notice of today s hearing and the panel was satisfied that she was or should be aware of today s hearing and was of the view that she had chosen not to engage. The panel noted that the first substantive order review was conducted as a meeting, which Miss Serrano Martinez could not attend. The panel concluded that on the information before it today, she had chosen to voluntarily to absent herself. The panel had no reason to believe that an adjournment would result in Miss Serrano Martinez s attendance on a future date. The panel also took into account the strong public interest in reviewing cases prior to their expiry and that the existing order is due to expire on 2 May Having weighed the interests of Miss Serrano Martinez with those of the NMC and the public interest in an expeditious disposal of this hearing the panel determined to proceed in Miss Serrano Martinez s absence. Decision and reasons on review of the current order: This panel decided to extend the current suspension order by 6 months. This order will come into effect at the end of 2 May 2019 in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the second review of a suspension order originally imposed by a panel of the Conduct and Competence Committee on 30 March 2017 for a period of 12 months. This order was reviewed at a meeting conducted by the Fitness to Practise Committee on 29 March 2018, when a panel imposed a further suspension order of 12 months. The current order is due to expire on 2 May The panel is reviewing the order pursuant to Article 30(1) of the Order. The charge found proved which resulted in the imposition of the substantive order was as follows: That you, a registered nurse: 3

4 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. The first reviewing panel determined the following with regard to impairment: This panel noted that it was not bound by the decisions of the previous panel. However, there has been no new information before it to make any finding other than the previous panel s founding that Miss Serrano Martinez fitness to practise is impaired. Miss Serrano Martinez has engaged with these proceedings. On 21 April 2017 and 7 March 2018, Miss Serrano Martinez has informed the NMC by way of correspondence that she has undertaken the IELTS. On 20, 25 April 2017 and 12 March 2018, the NMC advised Miss Serrano Martinez that the NMC have not received her IELTS test results and she has been requested to either forward a copy of the results or to provide the NMC with the course booking reference so as to allow the NMC to ascertain the results direct from the course provider. Despite these requests, neither the test results nor the booking reference number have been forthcoming from Miss Serrano Martinez. The panel therefore determined that Miss Serrano Martinez has yet to provide evidence that she has reached the necessary standard of English to practise safely and effectively. Therefore there remains a risk of harm to the public if Miss Serrano Martinez were permitted to practise as a nurse without restriction. The panel had borne in mind that its primary function is to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance. The 4

5 panel determined that, in this case, a finding of continuing impairment was necessary on public protection and public interest grounds. The first reviewing panel determined the following with regard to sanction: The panel first considered whether it should allow the current order to lapse upon expiry, but concluded that this would be inappropriate in view of the lack of evidence of competence in English language. The panel also decided that a caution order would be inappropriate for the same reasons. It considered that restriction on Miss Serrano Martinez practice was required to protect the public. The panel next considered the imposition of a conditions of practice order. The panel concluded that Miss Serrano Martinez has yet to provide the NMC with the results of the IELTS test. The panel has therefore received no evidence which would enable it to conclude that her level of English is at the appropriate standard to enable her to practise safely as a registered nurse. It considered that it is essential for Miss Serrano Martinez to provide evidence that she has passed the IELTS test to the NMC s required standard before returning to nursing practice. Further, the panel determined that imposing a condition that Miss Serrano Martinez must not practice until she has satisfactorily passed the IELTS would in effect be tantamount to a suspension. The panel determined that in the particular circumstances of this case, a conditions of practice order is not appropriate or workable. The panel determined that a suspension order is the only appropriate sanction which would both protect the public and satisfy the wider public interest. Accordingly, the panel determined to extend the suspension order by a further 12 months to take effect at the expiry of the existing order at the end of 3 May The panel considered that a further period of suspension was an appropriate timescale to allow Miss Serrano Martinez adequate time to provide evidence that she has successfully undertaken and passed the IELTS test. Miss Serrano Martinez has the right to ask for an early review if she can provide the NMC with the results of an IELTS test to the NMC s required standard before the expiration of the order. 5

6 The panel noted that a future reviewing panel would have the option to consider a striking off order after two years of continued suspension if satisfactory English test results are not produced. Decision on current fitness to practise The panel has considered carefully whether Miss Serrano Martinez 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. It has taken account of the submissions made by Mr Wild, on behalf of the NMC. Mr Wild outlined the background of the case for the panel. He submitted that despite numerous efforts from her regulator, including three monthly follow-ups regarding undergoing the International English Language Testing System (IELTS) test, engagement from Miss Serrano Martinez has decreased over time. He added that in the limited correspondence the NMC has with Miss Serrano Martinez, her written and verbal communication highlights the regulatory concern, and that there has been no new evidence submitted to counter this. Mr Wild further submitted that Miss Serrano Martinez informed the NMC in March 2017 via that she had passed the required IELTS test. However, to date, no booking reference or results have been provided. He concluded that in light of these circumstances, a continuation of the current suspension order remains necessary on the grounds of public protection, and is otherwise in the public interest. 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. 6

7 The panel first considered whether Miss Serrano Martinez s fitness to practise remains impaired. The panel had regard to the NMC s guidance on registration language requirements, updated in January It noted that there are three types of evidence which are accepted by the NMC, and demonstrate the necessary knowledge of English to practise safely in the UK. They are: - Recent practice for one year in a majority English-speaking country - Completion of a pre-registration nurse, midwife or nursing associate programme, taught and examined in English. - Achievement of the required score in the International English Language Testing System (IELTS) test or any other English language tests accepted by the NMC. The required score must be achieved in reading, writing, listening and speaking. The panel considered that, despite being provided ample opportunity to engage and to provide evidence of the IELTS test that Miss Serrano Martinez says she has completed, no evidence of this has been provided to date. It was not satisfied therefore, that the requirements have been met for Miss Serrano Martinez to practise safely and effectively in the UK. The panel considered that a lack of knowledge of the English language is remediable. In its consideration of whether Miss Serrano Martinez has remedied her practice the panel took into account the limited evidence before it. This included a written statement from Miss Serrano Martinez, claiming to have passed the required IELTS test in March It noted that this is the most recent correspondence the NMC has had with her. The panel was therefore not satisfied that there has been any new information or evidence submitted since that meeting to alter the previous panel s decision on impairment. There remains a risk of harm to the public if Miss Serrano Martinez were permitted to practise as a nurse without restriction. Further, the panel bore in mind that the wider public interest includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance and determined that a finding of continuing 7

8 impairment is necessary on the grounds of public protection, and is otherwise in the public interest. Determination on sanction Having found Miss Serrano Martinez s fitness to practise currently impaired, the panel then considered what, if any, sanction it should impose in this case. The panel noted that its powers are set out in Article 29 of the Order. The panel has also taken into account the NMC s Sanctions Guidance (SG) 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. The panel accepted the advice of the legal assessor, including that under Article 29 (6) of the Order, it did not have the power to impose a striking-off order at this stage, as Miss Serrano Martinez has not been continuously subject to a substantive order for two years or more. The panel first considered whether to take no action and allow the order to lapse, but concluded that this would be inappropriate in view of the public protection concerns identified. The panel decided that it would be neither proportionate nor in the public interest to take no further action. The panel then considered whether to impose a caution order, however concluded that this would be inappropriate given the particular circumstances of Miss Serrano Martinez lack of knowledge of the English language. The panel concluded that a caution order would neither protect the public, nor address the public interest concerns in this case as Miss Serrano Martinez would be allowed to practise unrestricted. The panel moved on to consideration of a conditions of practice order, however was not satisfied that workable conditions could be formulated given that Miss Serrano Martinez has not yet met the required standard of English to practise as a nurse in the UK. Furthermore, due to lack of engagement it was not confident that Miss Serrano Martinez would abide by proposed conditions. The panel considered the imposition of a further period of suspension. It was of the view that a suspension order would enable the public to remain protected and would allow 8

9 Miss Serrano Martinez a further opportunity to engage with her regulator. The panel concluded that a further 6 month suspension order would be the appropriate and proportionate response and would afford Miss Serrano Martinez adequate time to either submit her IELTS results or allow her time to undertake the IELTS, or another NMCrecognised English language assessment. Before the end of the period of suspension, another panel will review the order. At the review hearing, the panel may revoke the order, extend the order or may replace the order with another type of order. This panel reminds Miss Serrano Martinez that a future reviewing panel will have all of the sanctions available to it, including that of a strikingoff order. If Miss Serrano Martinez is able to complete an NMC-recognised English language assessment before the six months have elapsed, she may apply to the NMC for an early review of this suspension order. This decision will be confirmed to Miss Serrano Martinez in writing. That concludes this determination. 9