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 21 September 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN Miss Sepedah Sadig Baheran 88Y0909E Part(s) of the Register Registered Nurse Sub Part 1 Adult 1 December 2000 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Order being reviewed: Outcome: England Misconduct Timothy Cole (Chair, lay member) Susan Field (Registrant member) Kevin Hope (Registrant member) Fiona Barnett Kelly O Brien Present and represented by Eve Horren, Royal College of Nursing (RCN) Represented by Rebecca Richardson, counsel, NMC Regulatory Legal Team. Suspension Order (12 months) Conditions of Practice Order to come into effect on expiry of the suspension order at the end of 3 November 2018 in accordance with Article 30 (1)

2 Decision and reasons on review of the current order: The panel decided to impose a conditions of practice order. This order will come into effect on expiry of the suspension order in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the first review of a suspension order, originally imposed by a Conduct and Competence Committee on 4 October 2017 for 12 months. The current order is due to expire on 3 November The panel is reviewing the order pursuant to Article 30(1) of the Order. The charges found proved which resulted in the imposition of the substantive order were as follows: That you, whilst employed as the Manager of Bramber Nursing Home ("the Home") from around July 2014 until 7 April 2015: On 31 December 2014 did not write sufficient detail in the General Practitioner ("GP") referral for one or more of the following patients to allow the GP to be able to meet the criteria for the dietician referral process: 2.1. Patient T; 2.2. Patient E. 3. In around January and/or February 2015 failed to ensure that the Home was compliant with any or all of the Health and Social Care Act (Regulated Activity) Regulations listed in Schedule A: as amended Schedule A No. Inspection dates Regulated Activity Regulation January & 6 February 2015 Accommodation for persons who require nursing or personal care Regulation 13 HSCA (RA) Regulations 2010 Safeguarding service users

3 from abuse and improper treatment Regulation 13 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 Safeguarding people from abuse and improper treatment The provider had not ensured that people were safeguarded against the risks of abuse January & 6 February 2015 Accommodation for persons who require nursing or personal care Regulation 13 Regulation 18 HSCA (RA) Regulations 2010 Staffing Regulation 18 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 Staffing The provider had not safeguarded the health, safety and welfare of people living in the home by ensuring there were sufficient numbers of

4 suitably qualified staff January & 6 February 2015 Accommodation for persons who require nursing or personal care Regulation 18(1) Regulation 9 HSCA (RA) Regulations 2010 Personcentred care Regulation 9 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 Person-centred care The provider did not ensure that people were protected against receiving care or treatment that is inappropriate or unsafe January & 6 February 2015 Accommodation for persons who require nursing or personal care Regulation 9(1)(3) Regulation 17 HSCA (RA) Regulations 2010 Good governance Regulations 17 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 Good governance The provider did not have

5 an effective monitoring and assessment system in place to ensure that people were protected against inappropriate and unsafe care and support January & 6 February 2015 Accommodation for persons who require nursing or personal care Regulation 17 Regulation 16 HSCA (RA) Regulations 2010 Receiving and acting on complaints Regulations 16 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 Receiving and acting upon complaints The provider did not ensure appropriate systems were in place to listen to, take action and respond to concerns and complaints January & 6 February 2015 Accommodation for persons who require nursing or personal care Regulation 16 Regulation 18 CQC (Registration) Regulations 2009 Notification of other incidents Regulation 18(e)(g)(i) of the

6 Care Quality Commission (Registration) Regulations 2009 Notifications The provider did not inform CQC of issues that might affect the safety of people January & 6 February 2015 Accommodation for persons who require nursing or personal care Regulation 18(e)(g)(i) Regulation 20 HSCA 2008 (Regulated Activities) Regulations 2010 Records Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 Records The provider did not ensure that service users were protected from the risk of unsafe or inappropriate care due to the lack of accurate records being maintained Regulation Failed to ensure that any or all of the following documents were displayed and/or available at the Home:

7 Risk assessments for Kitchen and Laundry; Red emergency file; Failed to ensure that all staff had undertaken any or all of the following training: Health and Safety; Dementia; 7.5. Safeguarding Adults; 7.6. Deprivation of Liberty Safeguarding; 7.7. Mental Capacity Act; 7.8. Food Hygiene; 7.9. Infection Control; Fire Safety;

8 Falls Prevention Training; Feeding a patient with a dysphagia diet. 10. Failed to ensure that the induction for agency staff included information relating to how staff are to seek medical advice and/or where staff are to record that they have sought medical advice. 11.

9 Failed to complete and/or record that you had completed quality audits and/ or quality monitoring. 14. Failed to ensure a tissue viability care plan was in place for one or more of the following patients: Patient A; Patient B. 15. In relation to Patient E: failed to complete a risk assessment regarding the risks the patient posed to himself and/or other patients; failed to ensure that the patient's behaviour care plan was updated; failed to put measures in place to prevent incidents of physical aggression by the patient towards other patients and/or staff; Failed to notify East Sussex County Council Social Care Direct of any or all of the following incidents relating to the patient: On or around 30 October 2014 when the patient hit Patient V on her forehead; On 6 November 2014 when the patient hit Patient M on the arm; On 7 November 2014 when the patient attempted to strangle Patient G; On 13 November 2014: when the patient pushed Patient L's U s head; as amended

10 when the patient punched an unknown patient; On 14 November 2014 when the patient hit Staff Member A; On 15 November 2014 when the patient was displaying physical aggression to other patients; On 19 November 2014 when the patient pulled an unknown patient's arm; On 2 December 2014 when the patient attempted to hit other patients. 16. Failed to ensure that Speech and Language therapist advice regarding pureed food and/or thickened fluids were recorded in one or more of the following patients' nutrition care plans: Patient A; Patient F. 17. On or around 14 and/or 15 January 2015 did not provide evidence to Individual 1 that Patient C had been given soya cream and not cream. 18. On 15 January 2015 when asked if Individual 1 could review Patient U's file you informed Individual 1 that Patient U's file was "missing", or words to that effect. 19.

11 19.3. Failed to ensure that any or all of the following information was recorded within the patient's care plan: the level or range to maintain best possible control of blood glucose levels; the circumstances under which advice should be sought from a Diabetic Nurse Specialist; the frequency that staff should take venous blood samples to support the annual assessment of HbA1c levels; the frequency that staff should take HbA1c levels. [Charge not pursued as it duplicates Charge ] failed to ensure that a covert medication sheet was in place. 20. In relation to Patient A: Failed to ensure that the patient's covert medication sheet contained any or all of the following information: Whether medication could be chewed, broken and/or dissolved; That capacity of the person to consent had been considered; That a best interest decision had been made. 22. In relation to Patient S:

12 Between 5 September 2014 and 15 January 2015 failed to ensure any or all of the following care plans were reviewed and/or updated: end of life care plan; night care plan. 24. On or around 3 March 2015 failed to ensure that there was equipment in place so that patients' food could be pureed. And, as a result of the facts as set out above, your fitness to practise is impaired by reason of your misconduct. The original panel determined the following with regard to impairment: Applying the relevant elements of Dame Janet Smith s test from her Fifth Shipman report, cited with approval by Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence and Nursing and Midwifery Council v Grant [2011] EWHC 927 (Admin), the panel considered whether your misconduct indicates that your fitness to practise is currently impaired in the sense that you: have in the past acted and/or are liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or have in the past brought and/or are liable in the future to bring the nursing profession into disrepute; and/or, have in the past breached and/or are liable in the future to breach one of the fundamental tenets of the nursing profession. The panel decided that your misconduct placed patients at real risk of physical or emotional harm and breached fundamental tenets of the profession, namely the duty to make the care of people your first concern, and to provide a high standard of practice and care at all times. The public do not expect a nurse to act as you did, because they require nurses to adhere at all times to the appropriate professional standards and to act to safeguard those in their care. For all these reasons the panel

13 is satisfied that your misconduct will have brought the reputation of the profession into disrepute. The panel concluded that your misconduct is potentially remediable. It noted your long career in the profession. However, although it has been provided with positive testimonials, and the evidence that you worked as Home Manager subsequently at Old Wall Cottage Care Home/Nursing Home, the panel was not persuaded that your misconduct, which involved a significant number of aspects of fundamental nursing practice, and not purely managerial duties, has been remedied. You have demonstrated some insight, by making a number of admissions. However, the panel was concerned at the limited extent of your insight. In the panel s judgment, your written reflection is as notable for what it does not contain as for what it does. There is no expression of apology or remorse for the risks to which you exposed vulnerable residents. There is nothing that demonstrates recognition on your part of the harm which specific residents may have suffered as a consequence of your actions or omissions, nor is there anything to indicate that you have considered how your actions and omissions will have undermined public confidence in the profession. In the panel s judgment there is a theme running through your evidence which continues into your reflection, and that is a tendency to seek to deflect from your own responsibilities as a Registered Nurse by blaming the circumstances in which you found yourself or the shortcomings of others without acknowledging, in any meaningful way, your own professional accountability even in relation to those facts which you admitted. Rather, there is a catalogue of reasons to explain why things occurred as they did. Even your consideration of how you would act in future is expressed in terms of ensuring that others, for example, the care provider, will be able to support you in providing care. The panel next considered the risk of repetition. In the panel s judgment, based on the deficiencies in your insight, and the absence of cogent evidence of remediation there remains a real risk of repetition.

14 For all the above reasons, the panel decided that your fitness to practise is currently impaired by reason of your misconduct. Further, the panel had regard to paragraph 74 of Mrs Justice Cox s ruling in the case of Grant as follows: In determining whether a practitioner s fitness to practise is impaired... the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, 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. The panel was satisfied that, having regard to the nature of your misconduct the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of current impairment were not made. The original panel determined the following with regard to sanction: The panel had regard, as it has throughout this hearing, to the overarching objectives of the NMC which are (i) the protection, promotion and maintenance of the health, safety and well-being of the public and patients; and (ii) the wider public interest which includes (a) promoting and maintaining public confidence in the professions and (b) upholding the proper professional standards for members of those professions. The decision as to what sanction, if any, to impose is a matter for the panel s independent judgment. It had regard to the NMC s sanctions guidance but noted that: each case will depend on its own facts; the sanctions guidance is not to be regarded as laying down a rigid tariff. The panel applied the principle of proportionality, weighing the interests of the public with your own interests. Any interference with your ability to practise must be no more than necessary to satisfy the public interest, which includes the

15 protection of the public. The panel must strike a fair balance between your rights and the public interest. The panel considered the sanctions available in ascending order of severity. It noted that it must impose the least restrictive sanction necessary to protect patients and maintain public confidence in the profession and the NMC as its regulator. The purpose of imposing a sanction is not to be punitive, although some sanctions may have a punitive effect. The panel had regard to the aggravating and mitigating features of the case which it identified as relevant, as follows: aggravating features: vulnerable residents in your care suffered actual harm as a consequence of your misconduct; other vulnerable residents, and members of staff at the Home were put at real risk of harm as a consequence of your misconduct; your misconduct occurred over a significant period of time; concerns were repeatedly raised with you by CQC and local authority social services staff but these went unaddressed, at least in part because you believed you knew best; your insight is limited and is almost wholly self-focussed; there is no evidence of any expression of apology or remorse; you seek to apportion responsibility for your failings elsewhere and do not fully accept your own professional accountability. Mitigating features: you have engaged throughout with the NMC regulatory process; there is no evidence of any previous adverse regulatory history; you experienced a period of ill health for some of the material time. In the panel s judgment, the aggravating features significantly outweighed the mitigating features outlined above.

16 The panel first considered, but rejected, taking no action. In coming to this view, the panel had regard to the seriousness of the misconduct, and the need to protect the public and maintain public confidence in the profession and the NMC. The panel next considered a caution order. This would not restrict your practice. In the panel s judgment, there remains a risk of repetition principally because of the very limited nature of your insight, which is almost wholly self-focussed but also because of the absence of evidence of remediation. For these reasons, a caution order would not be appropriate or sufficient to protect the public. Furthermore, having regard to the nature and duration of the misconduct, a caution order would not satisfy the public interest in the case, which requires that it be marked by a more restrictive sanction. The panel next considered imposing a conditions of practice order. Conditions of practice are primarily designed to protect the public and thereby address the wider public interest. A conditions of practice order may also be appropriate where there are identifiable areas of the registrant s practice in need of assessment and/or retraining, where patients will not be put in danger either directly or indirectly as a result of conditional registration and where it is possible to formulate conditions and to make provision as to how they will be monitored. Conditions of practice may also support a registrant in addressing learning needs, thereby facilitating an eventual return to safe and unrestricted practice. In the panel s previous determination, it indicated that elements of your misconduct might be capable of being remedied. There are aspects of your practice which could be developed and assessed. These include but are not limited to risk assessment, auditing, record keeping, care planning and safeguarding. However, the panel was concerned that underpinning many of your failings was an approach to your practice which could be attitudinal. In the panel s judgment, this was evident from the fact that many of the incidents which led to charges in this case arose because of your belief that you knew best and could therefore discount the professional opinions of others. This was an approach which you maintained throughout these proceedings in relation to many of the charges. You

17 have provided no information which dispels this impression. On the contrary, your reflection provides a range of exculpatory explanations for what occurred and your limited insight is self-focussed. In the panel s judgment, until you have demonstrated a meaningful insight into your misconduct, the risks to which you exposed those in your care, and the damage to public confidence in the profession; which does not involve the avoidance of your personal accountability, you will remain at real risk of repeating the misconduct. For these reasons, the panel concluded that although conditions of practice might be constructed which would address the misconduct they would not be sufficient to protect the public at this time or satisfy the public interest. The panel therefore went on to consider imposing a suspension order. Such an order is intended to protect the public whilst conveying a message to the registrant, the profession and the wider public regarding the gravity of unacceptable and inappropriate behaviour and the importance of maintaining and upholding proper standards of professional conduct. A suspension order may be imposed, for up to one year, where, in the particular circumstances of the case, the behaviour being considered falls short of being fundamentally incompatible with continued registration. The public will be protected from any risk whilst a suspension order is in effect. A suspension order can also mark the nature and scale of the misconduct, thereby satisfying the public interest. Taking full account of the potential impact of a suspension order on you, the panel determined that it could protect the public and declare and uphold proper standards of professional behaviour, and thus maintain public confidence in the profession and the regulatory process by imposing such an order. The panel concluded that suspending your registration for a period of one year is the appropriate and proportionate response to the seriousness of your misconduct and will satisfy the public interest at this time. In deciding that this was the appropriate duration the panel had regard to the nature of the misconduct, the importance of maintaining public confidence by marking the misconduct and the need for proportionality.

18 This suspension order will also provide you with an opportunity to consider the panel s findings, and allow you time to develop and demonstrate your insight and remorse, which was not evidenced to this panel, and to take steps to provide information for a subsequent review of this order. However, this is all a consequence of the panel s decision and not the reason for it. Having come to the provisional view that a suspension order for one year was appropriate and sufficient, the panel nevertheless considered a striking-off order. The panel determined that your misconduct did not warrant such an order at this stage. Although the seriousness of the case overall requires the temporary removal of your name from the Register, the public can be protected and the public interest can be satisfied by a lesser sanction than a striking-off order. Such an order would, therefore be disproportionate at this time and would deprive the public of an experienced Registered Nurse who may be able to return to safe practise at some future date. A suspension order may cause you personal and professional hardship because, whilst in effect, it will prevent you from working as a Registered Nurse, although the extent of any personal hardship may be limited if, as the panel was informed, you are due to commence employment for which registration with the NMC is not required. In any event, applying the principle of proportionality, the panel determined that your private interests were outweighed by the need to protect the public and by the wider public interest, including the need to maintain public confidence in the profession and the NMC as the Regulatory Authority. This suspension order will be reviewed by a fitness to practise panel shortly before it is due to expire. A reviewing panel will be able to impose such further order as it determines is appropriate in light of the information available to it, up to and including a striking-off order or to let the order lapse. The NMC will notify you of the date of that hearing in advance and you will be invited to attend. In the judgment of this panel, the panel reviewing the order will be assisted by your attendance and by receiving information from you to assist in its assessment of your fitness to practise as a Registered Nurse at that time, which

19 you should provide to the NMC in advance of the date of the Review hearing. That information should include the following: a written reflection, employing a recognised model, addressing your personal accountability for your misconduct; evidence of any remediation; up to date references. Decision on current fitness to practise The panel has considered carefully whether your 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 the NMC hearing bundle, your reflective piece, and your training certificates. It has taken account of the submissions made by Ms Richardson on behalf of the NMC and those made by Ms Horren on your behalf. Ms Richardson submitted that your fitness to practise remains impaired as, although there is some evidence of insight and retraining, you have not been able to demonstrate effective and safe practice in a nursing environment as a result of the suspension order. Ms Richardson invited the panel to make a finding of continuing impairment and impose a conditions of practice order for a period of 12 months upon expiry of the current suspension order. Ms Horren submitted that you had remediated your misconduct and that the order should be allowed to lapse upon expiry. She submitted that you have evidenced sufficient insight, remorse, and retraining and should be allowed to return to unrestricted practice. Ms Horren submitted that if the panel are not minded to find no current

20 impairment a conditions of practice order would be the appropriate sanction. She submitted that any conditions should be workable to allow you to return to practise in either a managerial or nursing role. 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 your fitness to practise remains impaired. Regarding your insight, the panel noted that the last panel found that you had limited insight. At this hearing you provided the panel with a reflective piece. The panel was of the view that this evidenced progress from where you were 12 months ago, and that you had now demonstrated developing insight. It noted that you have expressed remorse and provided some indication as how, if the situation were to arise, you would manage things differently in the future. However the panel was mindful that you had not been able, through no fault of your own, to demonstrate this in practice. Accordingly, the panel was of the view that although you have developing insight, and had made progress, you have not demonstrated sufficient remediation of your practice. The last panel determined that you were liable to repeat matters of the kind found proved. This panel has received evidence of training certificates from online courses which are relevant to the areas of concern with your practice. However, the panel was mindful that the training was done online, and each course took approximately an hour to complete. The panel was of the view that given the number of identified failings in your practice, this was not sufficient to satisfy it that you were not liable to repeat matters of the kind found proved. The panel was of the view that it would need to see evidence of successful and safe practice before it could be satisfied that there was no risk of repetition.

21 The panel therefore decided that a finding of continuing impairment is necessary on the grounds of public protection. The panel had borne in mind that its primary function was 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 panel determined that, in this case, a finding of continuing impairment on public interest grounds is not required. The panel considered that you had been suspended for a period of one year, and that this was sufficient to satisfy the public interest in this case, and that their current concerns related principally to the protection of the public. For these reasons, the panel finds that your fitness to practise remains impaired. Determination on sanction Having found your 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 first considered whether to take no action but concluded that this would be inappropriate in view of the risk of repetition identified and seriousness of the case. The panel decided that it would be neither proportionate nor protect the public or be in the public interest to take no further action. The panel decided that a caution order would not be appropriate for the same reasons. The panel considered substituting the current suspension order with a conditions of practice order. The panel was of the view that your misconduct was serious however there has been evidence produced to show that you have developing insight, and have undertaken training. Further the panel considered that you have shown a willingness to comply with conditions, and that it would be possible to formulate practicable and workable conditions, that may lead to your unrestricted return to practice. Such conditions would also serve to protect the public in the meantime.

22 Accordingly, the panel determined, pursuant to Article 30(1) (c) of the Nursing and Midwifery Order 2001, to make a conditions of practice order for a period of 12 months, which will come into effect on the expiry of the current order. The panel was of the view that a period of 12 months would allow you sufficient time to obtain employment and demonstrate compliance with the conditions prior to any review hearing. It decided to impose the following conditions which it considered are appropriate and proportionate in this case: 1. At any time that you are employed or otherwise providing nursing services, you must place yourself and remain under the supervision of a workplace line manager, mentor or supervisor nominated by your employer, such supervision to consist of: a. Weekly meetings to discuss your clinical workload. 2. 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: a. Record keeping b. Care planning c. Safeguarding of vulnerable patients d. Resource management e. Overall management of risk and governance f. Staff training 3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every month to discuss the standards of your performance and your progress towards achieving the aims set out in your personal development plan. 4. 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.

23 5. You must notify the NMC within 14 days of any nursing appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 6. You must inform the NMC of any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 14 days of you receiving notice of them; 7. You must allow the NMC to exchange, as a 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. 8. 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. 9. You must within 14 days of accepting any post or 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. 10. You must immediately inform 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: a. Any organisation or person employing, contracting with, or using you to undertake nursing work;

24 b. Any agency you are registered with or apply to be registered with (at the time of application); c. Any prospective employer (at the time of application) where you are applying for any nursing appointment; and d. Any educational establishment at which you are undertaking a course of study connected with nursing, or any such establishment to which you apply to take such a course (at the time of application). This decision will be confirmed to you in writing. That concludes this determination.