Nursing and Midwifery Council: Fitness to Practise Committee Substantive Hearing

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 25 October 2017 Nursing and Midwifery Council, George Street, Edinburgh, EH2 4LH Name of registrant: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Cheryl Louise Johnstone 06B0638S Registered Nurse - Children Nursing Scotland Misconduct Paula Burton (Chair, Lay member) Joanne Lay (Registrant member) Diane Meikle (Lay member) David Clapham Elaine Stewart Present and represented by Laura Bowen, Anderson Strathern Represented by Yusuf Segovia, counsel, instructed by NMC Regulatory Legal Team Consensual Panel Determination: Accepted Facts proved: Fitness to practise: Sanction: Interim Order: All Impaired Conditions of Practice 18 months Conditions of Practice 18 months 1

2 Consensual panel determination At the outset of this hearing, Mr Segovia, informed the panel that a provisional agreement of a consensual panel determination had been reached between the NMC and you. The agreement, which was put before the panel, sets out your full admission to the facts alleged in the charges, that your actions amounted to misconduct, and that your fitness to practise is currently impaired by reason of that misconduct. It is further stated in the agreement that an appropriate sanction in this case would be a Conditions of Practice order for a period of 18 months The panel has considered the provisional agreement reached by the parties. That provisional agreement reads as follows: The Nursing and Midwifery Council and the Registrant, PIN 06B0638S ( the parties ) agree as follows: The Charges 1. The Registrant admits the following charges: That you, while working as a Nurse within the Special Care Baby Unit at the Borders General Hospital: 1. On 23 December 2015, failed to change gloves or wash your hands between changing the nappy of a baby and beginning the baby s nasogastric feed; 2

3 2. On 24 December 2015, failed to change gloves or wash your hands between attempting to obtain aspirate from a baby s nasogastric tube, changing the baby s nappy, and then feeding the baby; 3. On 25 December 2015, placed clean sheets on a soiled bed without cleaning the bed first; 4. On 25 December 2015, dropped equipment, being an apnoea monitor, on the floor, and returned it to a shelf without cleaning it; And, in light of the above, your fitness to practise is impaired by reason of your misconduct. The Agreed Facts 2. The Registrant qualified as a nurse in 2009 and was employed by NHS Borders as a Staff Nurse from February 2009 until June The Registrant was placed on a capability action plan In October 2015 and made subject to conditions which were implemented in accordance with NHS Borders Policy on Managing Employee Conduct. The capability programme required an adherence to policies in relation to the control and prevention of infection. A high level of support was put in place to assist the Registrant with this programme. 3. The Registrant began working in the Special Care Baby Unit of the Borders General Hospital as a Band 5 Staff Nurse in October The Registrant was supervised at all times by another member of staff. This supervision was undertaken by either Ms 1, Charge Nurse or Ms 2, Staff Nurse. The Registrant s manager was Ms 3, a Band 6 Senior Charge Nurse. Notwithstanding the capability plan, the Registrant made four infection control errors in the Special Care Baby Unit on three separate shifts between 23 and 25 December

4 4. On 23 December 2015, Ms 2 was supervising the Registrant, who was Registrant was conducting the baby s cares (observations, feed, for example), when Ms 2 noticed that the Registrant was about to do a nasogastric tube feed without washing her hands or changing her gloves after changing the baby s nappy. Ms 2 immediately pointed this out and the Registrant duly disposed of her gloves, washed her hands, and put new gloves on before continuing with her task. Ms 2 discussed her observations with Ms 3 and completed a Record of Concern as a result. 5. On the night of 24 December 2015, Ms 3 was on duty with the Registrant and Ms 1. The Registrant was looking after a premature baby, who had a nasogastric tube. Ms 3 observed as the Registrant prepared the tube. She had her apron and gloves on, and Ms 3 questioned her as she completed the nasogastric process. The Registrant explained the process and did it correctly. The Registrant couldn t get an aspirate, and so she decided to change the baby s nappy and get them ready for their feed. Once the nappy had been changed, the Registrant laid it to the side, and then went to go back to the nasogastric tube. Ms 3 stopped her, and reminded her that she should change her apron and gloves before going back to the tube. The Registrant should have removed her apron and gloves, and put these in the bin along with the used nappy before washing her hands and reapplying a new set of apron and gloves. The Registrant apologised and did as instructed. 6. On 25 December 2015, the Registrant was being supervised by Ms 1. After 0100 hours Ms 1 asked the Registrant to change the bed of one of the babies, who was wet on this particular shift. Ms 1 then observed as the Registrant stripped the baby s cot and placed the linen in the skip, which was normal procedure. At this time, an apnoea monitor fell to the floor. The Registrant picked this up and placed it back on the shelf without it being washed. Without cleaning the mattress, the Registrant then obtained new linen and placed this on the unwashed mattress. Ms 1 pointed out to the Registrant that this was not correct procedure and advised her to re-strip the bed, clean the mattress, redress the bed and clean the apnoea monitor. Ms 1 then raised her concerns with Ms 3. 4

5 Misconduct 7. In the case of Roylance v General Medical Council (No.2) [2000] 1 AC 311, Lord Clyde stated that: Misconduct 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. 8. The Registrant admits that her conduct fell seriously short of the standards of behaviour expected of Registered Nurses. 9. The Registrant further accepts that fellow practitioners would regard her actions as deplorable. 10. The Registrant admits that her actions breached the following provisions of The Code, Professional standards of practice and behaviour for nurses and midwives, effective from 31 March 2015 ( the NMC Code ): Standard 1.2: make sure you deliver the fundamentals of care effectively; Standard 3.1: pay special attention to promoting wellbeing, preventing ill health ; Standard 6.2: maintain the knowledge and skills you need for safe and effective practice; Standard 19.1: take measures to reduce as far as possible, the likelihood of mistakes, near misses, harm and the effect of harm if it takes place Standard 19.3: keep to and promote recommended practice in relation to controlling and preventing infection Standard 20: uphold the reputation of your profession at all times. 5

6 11. The Registrant admits her conduct breached the NHS National Infection Prevention and Control Manual. The Registrant accepts responsibility for these infection control errors and acknowledges the importance of hygiene in a unit dealing with vulnerable babies. 12. The Registrant accepts there is an increased need to be vigilant in a unit such as the Special Care Baby Unit where the neonates are at greater risk of infection. Specifically, in relation to Charge 2, the Registrant accepts that if Ms 3 had not stopped the Registrant there was a real potential for infection. She would have been going from the baby s nappy to mouth, and the risk of infection is extremely high. 13. Fortunately, these errors did not result in actual harm as the Registrant was under supervision. The Registrant accepts her actions placed vulnerable babies at risk of harm, as detailed in her Reflective Statement (Appendix 1). 14. In light of the above the Registrant wholly admits that her actions fell far below the standard expected of a registered nurse and therefore amount to misconduct. Current Impairment 15. The Registrant admits that her fitness to practise is currently impaired as a result of her misconduct. 16. In considering the question of whether the Registrant s fitness to practise is currently impaired, the parties have considered the following authorities. 17. In Meadow v GMC [2006] EWCA Civ 1390, the Court of Appeal emphasised that: The purpose of Fitness to Practise proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not 6

7 fit to practise. The Panel thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past. 18. In Cohen v GMC [2007] EWHC 581 (Admin), the court set out three matters which it described as being highly relevant to the determination of the question of current impairment: 1. Whether the conduct that led to the charge(s) is easily remediable; 2. Whether it has been remedied; 3. Whether it is highly unlikely to be repeated. 19. The parties have considered the questions formulated by Dame Janet Smith in her Fifth Report from Shipman, approved in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) ( Grant ) by Cox J. They are as follows: 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.. 7

8 20. The parties have also considered the comments of Cox J in Grant at paragraph 101: The Committee should therefore have asked themselves not only whether the Registrant continued to present a risk to members of the public, but whether the need to uphold proper professional standards and public confidence in the Registrant and in the profession would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case. 21. The parties agree that the Registrant s misconduct has placed the patients in her care at unwarranted risk of harm, brought the reputation of the nursing profession into disrepute and breached a fundamental tenet of the profession. 22. Specifically, the Registrant fully realises and accepts her actions placed the babies in her care at unwarranted risk of harm as a result of her errors in infection control. Furthermore, the Registrant accepts that her failings damaged the reputation of the profession and breached a fundamental tenet of the profession, including a failure to provide a high standard of care and practice at all times. 23. Since these incidents, the Registrant resigned from the Trust and has not practised as a nurse since June The Registrant has submitted a reflective piece (Appendix 1) in which she acknowledges her mistakes could cause actual patient harm which could affect the child and their family for the rest of their lives. She further acknowledges that her poor practice could damage the parents confidence in the nursing profession and states I am now a mother and I know how I would feel if I saw a nurse making the mistakes I did with my precious baby. The parties agree that the Registrant s change in personal circumstances has allowed her to develop insight into her past failings. 24. The Registrant is currently employed in a non-clinical role as Services Manager for McCrea Care Provider. The Registrant accepts that she has not had an opportunity to remediate her practice and would benefit from supervision and support. 8

9 Therefore, the Registrant accepts that there remains a risk of repetition should she return to practice without restriction. 25. It is agreed that due to the nature of the concerns in respect of basic hygiene failings and the risk caused to vulnerable babies, a finding of impairment is necessary in order to mark the Registrant s conduct as being unacceptable in order to maintain public confidence within the profession. 26. For the reasons above, the parties agree that the Registrant s fitness to practise is currently impaired on both public protection and public interest grounds. Sanction 27. The aggravating features of the case are as follows: Risk of harm to vulnerable patients; Failings in basic nursing practice; Not an isolated incident as similar failings were repeated over the course of three shifts. The failings took place despite the Registrant already being subject to a capability programme which had included a focus on infection control 28. The mitigating features of the case are as follows: No actual harm caused; The Registrant has demonstrated insight and reflection; No previous regulatory proceedings. 29. In considering what sanction would be appropriate the parties began by considering whether this is a case in which it would be appropriate to take no further action. The parties considered the NMC Sanctions Guidance. The parties agree taking no action would be inappropriate as it would not protect against the ongoing risk to patients and would undermine the public trust and confidence in the profession. 9

10 30. The parties next considered whether a Caution Order would be appropriate. The parties noted that a Caution Order will be disclosed to anyone enquiring about a nurse s fitness to practise. The Sanctions Guidance states that a caution 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 parties agree that in this case the conduct involved does not fall at the lower end of the spectrum, there remains a risk of harm to the public and the conduct is of a serious nature. Therefore the public would not be adequately protected nor the public interest served, by a caution order. 31. The parties next considered a Conditions of Practice Order and agree that this is the appropriate order to impose that would adequately protect the public and uphold the public interest. There is no evidence of deep-seated personality or attitudinal problems. There is an identifiable area of practice in need of assessment, namely infection control. There is no evidence of general incompetence. Although the misconduct occurred when the Registrant was subject to a capability programme, the parties agree that an increase in the Registrant s insight means that these clinical errors are not irremediable. 32. The Registrant has stated in her reflective piece she would be willing to comply with conditions of practice and she would welcome the opportunity to demonstrate that she is capable of safe and effective practice. A Conditions of Practice Order will protect patients whilst they are in force and guard effectively against any risk of patient harm. These conditions will provide the Registrant with an opportunity to demonstrate she can practice safely. There is a public interest in the safe return to practice of an otherwise proficient nurse. 33. The conditions formulated are workable, practicable, and measurable, and are a reasonable and proportionate response to the risks identified. They are also sufficient to declare and uphold proper standards and to maintain public confidence in the profession. 10

11 34. The parties agree the appropriate sanction in this case is a Conditions of Practice Order for a period of 18 months. The conditions agreed are as follows: 1. At any time that you are employed or otherwise providing nursing services, you must place yourself and remain under the direct supervision of a registered nurse until you have: a. Successfully undertaken and passed a training course (in person) in infection control (the training course must be assessed and not completed simply through attendance); and b. Been assessed as competent in infection control procedures by a manager, mentor or supervisor. 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. Infection Control; 3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every 4 weeks 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 to the NMC from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your 11

12 performance and confirming your progress with your personal development plan. This report must be submitted prior to any review hearing. 6. You must within 7 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 and contact details of the individual or organisation offering the post, employment or course of study. 7. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 7 days of you receiving notice of them. 8. You must immediately tell the following parties that that you are subject to a Conditions of Practice Order under the NMC s fitness to practise procedures, and disclose the conditions to them: a. Any organisation or person employing, contracting with, or using you to undertake nursing work; 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); 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). 35. A Suspension Order and Striking off Order have both been considered in this case and it is agreed by the parties that imposing such an order would be disproportionate. Although these are serious matters which occurred, they are not considered to be incompatible with the Registrant remaining on the register. Taking into account that no actual harm was caused to patients, this misconduct is not of the most serious type which would call for temporary or permanent removal from the 12

13 register, and there remains a public interest in allowing an experienced nurse to continue to be of service in her career. In light of the above, the parties agree the appropriate and proportionate sanction is a Conditions of Practice Order for a period of 18 months. Interim Order 36. If the panel approves the agreement between the parties, it will follow that it is necessary for the protection of the public and it is otherwise in the public interest for there to be an Interim Conditions of Practice Order on the same terms as above, to cover the period before the substantive order comes into effect and any appeal that may arise. It is agreed that the appropriate length of an interim order is 18 months to last until the conclusion of any such appeal that should be brought. The parties understand that this provisional agreement cannot bind a panel, and that the final decision on findings, 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 above, and the agreed statement of facts set out above, may be placed before a differently constituted panel that is determining the allegation, provided that it would be relevant and fair to do so. Here ends the provisional agreement between the NMC and you, which was signed by you and the NMC on 25 October

14 Decision and reasons on the consensual panel determination: The panel decided to accept the agreement. The panel heard and accepted the legal assessor s advice. He reminded the panel that they could accept or reject the provisional agreement reached between the NMC and you. Further, the panel should consider whether the provisional 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 professions and the regulatory body, and declare and uphold proper standards of conduct and behaviour. The panel noted that you admitted the facts of the charges. Accordingly the panel was satisfied that the charges are found proved by way of your admission as set out in the signed provisional agreement. The panel then went on to consider whether your fitness to practise is currently impaired. Whilst acknowledging the agreement between the NMC and you, the panel has exercised its own independent judgement in reaching its decision on impairment. In respect of misconduct the panel determined that your conduct fell short of the standard expected of a registered nurse and exposed vulnerable patients in your care to serious risk of harm. In this respect the panel endorsed paragraphs 7 to 14 of the provisional agreement. The panel then considered whether your fitness to practise is currently impaired by reason of your misconduct. The panel determined that your fitness to practise is currently impaired as, by failing to follow essential infection control procedures, you put patients at unwarranted risk of harm, brought the nursing reputation into disrepute and breached one of the fundamental tenets of the profession. The panel noted that you have not practised as a nurse since June 2016 and as such have been unable to 14

15 remediate your practice. The panel took into account your detailed reflective statement demonstrating insight and remorse regarding your misconduct. Further, the panel considered the submissions of Ms Bowen on your behalf regarding your early admissions and full engagement with the regulatory process. In this respect the panel endorsed paragraphs 15 to 26 of the provisional agreement. Having found your fitness to practise currently impaired the panel went on to consider whether the sanction set out in the provisional agreement, a conditions of practice order, was appropriate and proportionate. The panel was of the view that simply to take no action would be inappropriate in view of the seriousness of misconduct and also that a caution order would be insufficient since the misconduct in this case could not be said to be at the lower end of the spectrum. The panel next considered whether placing conditions of practice on your 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 Sanctions Guidance ( SG ) and determined that the proposed conditions of practice were appropriate and would address the failings highlighted in this case. The panel accepted that you would be willing to comply with conditions of practice. The panel had regard to the fact that these incidents happened over a 3 day period nearly 2 years ago during a difficult time in your personal life. The panel was of the view that it was in the public interest that, with appropriate safeguards, you should be able to return to practise 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 that the appropriate and proportionate sanction is that of a conditions of practice order. 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 15

16 circumstances of your case as your misconduct is not at the most serious end of the spectrum and is remediable. The panel determined your actions were not fundamentally incompatible with remaining on the register. Having regard to the matters it has identified, the panel has concluded that a conditions of practice order will mark the importance of maintaining public confidence in the profession, and will send to the public and the profession a clear message about the standards of practice required of a registered nurse. The panel determined that the following conditions are appropriate and proportionate: 1. At any time that you are employed or otherwise providing nursing services, you must place yourself and remain under the direct supervision of a registered nurse until you have: a. Successfully undertaken and passed a training course (in person) in infection control (the training course must be assessed and not completed simply through attendance); and b. Been assessed as competent in infection control procedures by a manager, mentor or supervisor. 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. Infection Control; 3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every 4 weeks to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 16

17 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 to the NMC from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and confirming your progress with your personal development plan. This report must be submitted prior to any review hearing. 6. You must within 7 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 and contact details of the individual or organisation offering the post, employment or course of study. 7. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 7 days of you receiving notice of them. 8. You must immediately tell the following parties that that you are subject to a Conditions of Practice Order under the NMC s fitness to practise procedures, and disclose the conditions to them: a. Any organisation or person employing, contracting with, or using you to undertake nursing work; 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); 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). The period of this order is for 18 months. 17

18 Before the end of the period of the order, a panel will hold a review hearing to see how well you have 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 with another order. You may request an early review hearing if you feel it is necessary. Any future panel reviewing this case may be assisted by evidence of professional development; documentary evidence of completion of any relevant training courses, testimonials regarding your current work practices Determination on Interim Order The panel has noted the agreement that an interim order should be made on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. The panel took account of the fact that it was agreed by both parties in the provisional agreement. The panel was satisfied that an interim conditions of practice order is necessary for the protection of the public and is otherwise in the public interest. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. To do otherwise would be incompatible with its earlier findings. The conditions for the interim order will be the same as those detailed in the substantive order. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. 18

19 If no appeal is made, then the interim order will be replaced by the conditions of practice order 28 days after you are sent the decision of this hearing in writing. That concludes this determination. 19