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 3 April 2019 Nursing and Midwifery Council, Temple Court 13a Cathedral Road, Cardiff, CF11 9HA Name of registrant: NMC PIN: Part of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mr King: Nursing and Midwifery Council: Order being reviewed: Outcome: Timothy King 13L0612E RNMH, Registered Nurse (sub part 1) - Mental Health (11 September 2014) Wales Misconduct Elizabeth Burnley (Chair Lay member) Terry Shipperley (Registrant member) Donna Green (Registrant member) Charles Parsley Vicky Green Not present and not represented in his absence Represented by Bryony Dongray Conditions of Practice Order 18 months Suspension Order 12 months to come into effect at the end of 1 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 Mr King was not in attendance, nor was he represented in his absence. The panel was informed that the notice of this hearing was sent to Mr King on 5 March 2019 by recorded delivery and first class post to his registered address. 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 Mr King. 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 Ms Dongray, on behalf of the Nursing and Midwifery Council (NMC). The panel accepted the advice of the legal assessor. The panel noted that there had been no response from Mr King in relation to the notice of hearing. The panel was mindful that Mr King has not engaged with the NMC since the conditions of practice order was imposed in September The panel made enquiries about whether the NMC had attempted to make contact with Mr King to encourage his engagement. Ms Dongray informed the panel that there has been no attempt to contact 2

3 Mr King since October The panel requested that efforts were made to contact Mr King today. After a short adjournment Ms Dongray told the panel that the NMC had tried, unsuccessfully, in response to the panel s request, to contact Mr King on the telephone number provided. She told the panel that the NMC had also sent an to Mr King but no response had been received. Ms Dongray informed the panel that this order is due to lapse at the end of 1 May She submitted that, given the public protection concerns, there is a public interest in reviewing this order before its expiry. Ms Dongray told the panel that if this hearing adjourned today, there would not be sufficient time to serve the notice for a later hearing. Mr King had been sent notice of today s hearing and the panel was satisfied that he was or should be aware of today s hearing and it is of the view that he had chosen not to attend. The panel had no reason to believe that an adjournment would result in his attendance. Having weighed the interests of Mr King with those of the NMC and the public interest in an expeditious disposal of this hearing the panel determined to proceed in Mr King s absence. 3

4 Decision and reasons on review of the current order The panel decided to impose a suspension order for 12 months. This order will come into effect at the end of 1 May 2019 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 Fitness to Practise panel on 28 September 2017 for a period of 18 months. The current order is due to expire at the end of 1 May 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 a Staff Nurse at Ty Catrin Hospital, Cardiff: 1. On 19 October 2016: 1.1. Allowed Patient A to go on Section 17 leave without her Salbutamol inhaler [proved by admission] 1.2. Did not record that Patient A: was refused her Salbutamol inhaler [proved by admission] had gone on Section 17 leave without her Salbutamol inhaler [proved by admission] became breathless during her Section 17 leave [proved by admission] you had undertaken observations on her return from Section 17 leave [proved by admission] 2. On 19 October 2016, did not allow Patient B to use the anti-suicide pen when she was entitled to do so [proved] 4

5 3. On 20 October 2016 incorrectly reported to Colleague A that you were observing Patient C when you were not [proved by admission] 4. Your actions as alleged at Charge 3 were dishonest in that you sought to give a misleading impression to Colleague A that you were observing Patient C when you knew that you were not [proved by admission] 5. On 11 November 2016: 5.1 recorded on Patient D's MAR chart that you had administered Modified Release tramadol 100mg when you had not [proved by admission] 5.2 incorrectly administered two 50mg tramadol tablets to Patient D which belonged to another unknown resident [proved by admission] 5.3 did not report to the prescribing doctor that the incorrect medication had been administered to Patient D [proved by admission] 5.4 did not make a record of the medication error within Patient D's clinical records [proved by admission] 5.5 did not complete an incident report form to report Patient D's medication error [proved by admission] And, for the reasons stated above, your fitness to practise is impaired by reason of your misconduct. The original panel determined the following with regard to impairment: The panel next went on to decide if as a result of this misconduct Mr King s fitness to practise is currently impaired. The panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) 5

6 Grant [2011] EWHC 927 (Admin) where she referred to the test formulated by Dame Janet Smith in her Fifth Report from Shipman: Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: 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; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel finds that limbs a, b and d are engaged. Mr King has in the past acted, and is liable in the future to act, so as to put patients at unwarranted risk of harm. He has in the past brought, and is liable in the future to bring, the nursing profession into disrepute and he has in the past acted, and is liable in the future to act, dishonestly. Regarding insight, the panel considered that, whilst Mr King demonstrated some insight into his action by making early admissions to the majority of the charges, some remorse, and his acknowledgement of his current impairment, he has not developed full insight. The panel noted Mr King s remorse, however, it had no evidence before it that Mr King had reflected on or developed any significant insight into the cause of his misconduct, i.e. his poor decision making since the 6

7 time of the internal investigations, the actual and potential effects of his misconduct had on the patients, his colleagues and the nursing profession as a whole. In respect of remediation, the panel considered that, whilst the misconduct found proved is remediable through training, Mr King has failed to provide any evidence of remediation. The panel was concerned that Mr King s actions demonstrate general poor decision making skills, and an over reliance of information received from subordinates, it had no evidence before of any attempts by Mr King to reflect on or improve this deficiency in his practice. In the light of Mr King s incomplete insight and lack of remediation, the panel is of the view that there is a risk of repetition. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection. 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 the wider public interest, which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. The panel determined that, in this case, a finding of impairment on public interest grounds was also required. The panel considered that, given the nature of the misconduct found, having particular regard to the vulnerability of the patients involved and the finding of dishonesty on Mr King s part, public confidence in the NMC as a regulator would be undermined if a finding of impairment on the ground of public interest were not made. Having regard to all of the above, the panel was satisfied that Mr King s fitness to practise is currently impaired. 7

8 The original panel determined the following with regard to sanction: The panel has considered this case very carefully and has decided to make a conditions of practice order for a period of 18 months. The effect of this order is that Mr King s name on the NMC register will show that he is subject to a conditions of practice order and anyone who enquires about his registration will be informed of this order. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case. The panel accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the Sanctions Guidance ( SG ) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel assessed the aggravating and mitigating factors in this case as follow: Aggravating: The incidents put a number of vulnerable patients at risk of harm; There was actual harm caused to Patient A; Mitigating: Mr King made early admissions during the local and NMC investigations; Mr King did not attempt to conceal his misconduct; In respect of charges 2 and 3, Mr King remedied his actions swiftly; Mr King had been in his post for a very short period at the time of the incidents. In relation to the dishonesty found proved, the panel acknowledges that dishonesty can undermined trust of the public in profession. The panel was 8

9 mindful that not all dishonesty is equally serious. To this end it has considered the nature of dishonesty in this case in respect of charges 3 and 4. The panel consider this dishonesty to be on the lower end of spectrum of dishonesty. The panel was of the view that Mr King s conduct was a one-off incident which did not result in personal gain, but rather, the dishonesty came out of a spontaneous and misguided response to a senior manager. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action, nor would it adequately protect the public. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the SG, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that Mr King s misconduct was not at the lower end of the spectrum and that a caution order would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order, nor would it adequately protect the public. The panel next considered whether placing conditions of practice on Mr King s registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the SG, in particular: Conditions may be appropriate when some or all of the following factors are apparent (this list is not exhaustive): no evidence of harmful deep-seated personality or attitudinal problems 9

10 identifiable areas of the nurse or midwife s practice in need of assessment and/or retraining no evidence of general incompetence patients will not be put in danger either directly or indirectly as a result of conditional registration the conditions will protect patients during the period they are in force it is possible to formulate conditions and to make provision as to how conditions will be monitored The panel determined that it would be possible to formulate appropriate and practical conditions, as set out in the SG, which would address the failings highlighted in this case. The panel had regard to the fact that other than these incidents, no concerns have been raised about Mr King s practice. The panel noted Mr King s insight at the time of the incidents in relation to charges 2 and 3 and was satisfied that, with the appropriate training on decision making skills, Mr King would be able to remediate his misconduct fully. The panel was mindful that Mr King s misconduct in relation to charges 1 and 5 related to poor record keeping skills and medication errors. However, it was satisfied that these deficiencies in Mr King s practice could be adequately addressed through retraining. Further, the panel noted that there was no evidence before it of a deep-seated attitudinal problem on Mr King s part. The panel was of the view that it was in the public interest that, with appropriate safeguards, Mr King should be able to practice as a nurse. Balancing all of these factors and after having taken into account both the aggravating and mitigating features of this case, the panel determined that the appropriate and proportionate sanction is that of a conditions of practice order. This will require Mr King to reflect and develop insight into the cause of his misconduct, i.e. his poor decision making, his medication errors and the actual and potential effects that his misconduct had on the patients, his colleagues and 10

11 the nursing profession as a whole. Further, it will enable Mr King to provide evidence of reflection as to how in the future he would ensure that he does not put an over-reliance on unreliable information. The panel was of the view that to impose a suspension order or a striking off order would be wholly disproportionate and would not be a reasonable response in the circumstances of Mr King s case. The panel considered that to remove Mr King from the register either temporarily or permanently would not allow Mr King the opportunity to remediate his misconduct and develop his decision making skills. It determined that a conditions of practice order would not only be proportionate but will be sufficient to protect patients and will mark the importance of maintaining public confidence in the profession. The panel determined that the following conditions 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: i. Working at all times on the same shift as, but not necessarily under the direct observation of a nurse of a more senior grade than you, who is physically present in or on the same ward, unit, floor or home that you are working in or on. 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: i. Medicine management and administration ii. Record keeping iii. Decision making, in particular: 11

12 a. the consequences of poor decision making on patients, colleagues and your nursing practice; b. the assimilation, assessment and use of information to inform decisions. 3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every two weeks for the first two months, and thereafter monthly, to discuss the standard 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. 5. 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. 6. You must not work as the nurse in charge of a ward or area until your supervising manager is satisfied that you have met the goals set out in your personal development plan and has signed to confirm this. 7. a) You must not carry out medicines administration unless directly supervised by another nurse until you have completed a medicines administration course and have been signed off as competent by your supervisor. 12

13 b) You must keep a personal development log recording every time you have undertaken medicines administration which must be signed by the person who supervised you, and contain that person s comments on how you carried out the procedures until you have been deemed competent by your supervisor. 8. 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. 9. 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. 10. 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. 11. 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 (10) above, to them 1. Any organisation or person employing, contracting with or using you to undertake nursing or midwifery work 13

14 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 18 months. Before the end of the period of the order, a panel will hold a review hearing to see how well Mr King has complied with the order. At the review hearing the panel may revoke the order or any condition of it, it may confirm the order or vary any condition of it, or it may replace the order for another order. Any future panel reviewing this case would be assisted by your attendance at the review hearing, evidence of professional development; including documentary evidence of completion of the above mentioned courses, a reflective piece demonstrating your insight into your misconduct and testimonials from a line manager or supervisor detailing your performance. 14

15 Decision on current fitness to practise The panel has considered carefully whether Mr King 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 which included an from Mr King to the NMC dated 3 April This was received during the hearing in response to attempts to contact Mr King by the NMC at the start of the hearing. The panel has taken account of the submissions made by Ms Dongray on behalf of the NMC. Ms Dongray outlined the background of the case and took the panel through the determination from the substantive hearing which concluded in September She directed the panel to the relevant documentation in the NMC bundle. Ms Dongray submitted that, in the absence of any new information about Mr King s circumstances, his fitness to practise remains impaired on public protection and public interest grounds. Ms Dongray, in the circumstances, submitted that sanction is a matter for the panel s professional judgement. The panel noted the from Mr King to the NMC dated 3 April 2019 in which he stated: [PRIVATE]. I have given up on being able to follow my career as a nurse. Although I would love to be vindicated I have no faith that this will occur. The NMC has a vested interest in working with and supporting hospitals and the public over and above nurse's. I understand this and accept that their (sic) is little I can do other than accept the outcome. Page 15 of 19

16 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 Mr King s fitness to practise remains impaired. The panel noted that other than the that was sent today, Mr King has not engaged with the NMC since the substantive hearing. The panel noted the original panel s determination, in particular: The panel was concerned that Mr King s actions demonstrate general poor decision making skills, and an over reliance of information received from subordinates, it had no evidence before of[sic] any attempts by Mr King to reflect on or improve this deficiency in his practice... The panel has received no new information from Mr King, other than his , to be considered at this hearing. It was of the view that the concerns were and still are remediable, but that Mr King has not provided any evidence to demonstrate that he has taken action to address the concerns. Having regard to the from Mr King, the panel considered that he may not have fully understood how he could demonstrate to a panel that he was willing to, and had taken steps to, address the concerns in order to demonstrate that his fitness to practise was no longer impaired. The panel considered that in the absence of any further information or compliance with the conditions of practice order, that there remains a real risk of repetition. The panel noted the original panel s determination in relation to Mr King s insight: the panel considered that, whilst Mr King demonstrated some insight into his action by making early admissions to the majority of the charges, some remorse, and his acknowledgement of his current impairment, he has not developed full insight. The panel noted Mr King s remorse, however, it had no evidence before it Page 16 of 19

17 that Mr King had reflected on or developed any significant insight into the cause of his misconduct, i.e. his poor decision making since the time of the internal investigations, the actual and potential effects of his misconduct had on the patients, his colleagues and the nursing profession as a whole. This panel found that as a result of his lack of engagement, it had no evidence that Mr King s level of insight has developed further and, accordingly, Mr King is liable to repeat matters of the kind proved. The panel therefore decided that a finding of continuing impairment is necessary on the grounds of public protection and in the public interest which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance. For these reasons, the panel finds that Mr King s fitness to practise remains impaired. Determination on sanction Having found Mr King 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 first considered whether to take no action but concluded that this would be inappropriate in view of the risk of repetition identified if Mr King were able to practise without restriction. 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 but concluded that this would be inappropriate in view of the risk of repetition identified if Mr King were able to practise without restriction. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order. Page 17 of 19

18 The panel next considered extending the conditions of practice order. Mr King has not engaged with the NMC or the conditions of practice order imposed in September He has not provided any evidence of insight into his failings or remediation. The panel noted from Mr King s of 3 April 2019 the implication that he is not currently working as a registered nurse or seeking employment in this capacity. On this basis the panel concluded that a conditions of practice order is no longer practicable. In all the circumstances the panel considered that a conditions of practice order is no longer the appropriate order in this case. The panel concluded that on the basis of current information no workable conditions of practice could be formulated. The panel determined therefore 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 impose a suspension order for the period of 12 months. It considered this to be the most appropriate and proportionate sanction available. This suspension order will take effect upon the expiry of the current conditions of practice order, namely on 1 May 2019 in accordance with Article 30 (1) of the Nursing and Midwifery Order The panel considered that a striking off order would be disproportionate at this stage. The panel noted the from Mr King to the NMC dated 3 April 2019, in particular: I would love to be vindicated I have no faith that this will occur. The panel was of the view that Mr King may not be able to be vindicated. However, he should understand that he does have the opportunity to demonstrate insight and provide evidence of remediation to the next reviewing panel. If a reviewing panel were satisfied that Mr King has fully remediated his practice, demonstrated full insight into his failings and no longer presents a risk of harm to patients, then it could be possible for him to return to unrestricted practice in the future. The panel was mindful that there is a public interest in returning a fully remediated nurse to unrestricted practice. Page 18 of 19

19 At the end of the period of the suspension order, another panel will review the order. At the review hearing the panel may revoke the order, confirm the order, replace the order with another order or it may impose a striking off order. Any future panel will be greatly assisted by: Mr King s engagement with the NMC during the period of this order; Mr King s attendance at the next review hearing; References from past and/or current employers, paid or unpaid. This could include non-clinical work, and in particular, any work in a healthcare setting as an unregistered member of staff (eg. HCA); Evidence of any learning and training including self-directed study and reflection, and online course(s) to keep skills and knowledge up to date and to address the areas of concern identified; A reflective piece, using a recognised model, which demonstrates Mr King s ongoing and developing insight into his failings. The panel noted that if there is a change in circumstances, Mr King, or the NMC, can request an early review hearing. This decision will be confirmed to Mr King in writing. That concludes this determination. Page 19 of 19