Nursing and Midwifery Council: Fitness to Practise Committee

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 9-12 October 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Lynne Renals-O Kane 93C2290E Part(s) of the register: Registered Nurse Sub Part 1 Mental Health Nursing April 2002 Recordable Qualification TCH October 2010 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Ms Renals-O Kane: Nursing and Midwifery Council: Facts proved: England Misconduct Hilary Nightingale (Chair, lay member) Andrew Wimbor (Registrant member) Raymond Marley (Lay member) James Holdsworth Siobhán Hamill Not present and not represented Represented by Mr Michael Smalley, counsel, instructed by NMC Regulatory Legal Team. 1 (in its entirety) Fitness to practise: Sanction: Interim Order: Impaired Striking off order Interim Suspension Order (18 months) Page 1 of 35

2 Details of charge (as amended on 9 October 2017): That you, whilst employed by Berkshire Healthcare NHS Foundation Trust as a ward manger and senior nurse: 1. On various dates between 2004 and 2013 you accessed the following electronic medical records, when you did not have consent and/or clinical justification to do so: 1.1 your own; 1.2 one or more of your family members listed in Schedule 1; 1.3 one or more of your colleagues listed in Schedule 2; 1.4 one or more of the family members of your colleagues listed in Schedule 3; AND, in light of the above, your fitness to practice is impaired by reason of your misconduct. SCHEDULE 1 Patient A Patient B Patient C Patient D Patient E Patient F SCHEDULE 2 Colleague G Colleague H Colleague I Colleague J Colleague K Page 2 of 35

3 Colleague L Colleague M SCHEDULE 3 Patient N Patient O Decision and reasons to amend the wording of charge The panel on its own volition determined that an amendment to the charges was necessary to correct an administrative error. The panel decided to insert the words fitness to into the charge. The charge currently reads: AND, in light of the above, your practice is impaired by reason of your misconduct. Instead the charge will be amended to read: AND, in light of the above, your fitness to practice is impaired by reason of your misconduct. The panel noted Rule 28(1) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended, ( the Rules ) states: At any stage before making its findings of fact the Conduct and Competence Committee may amend (a) the charge set out in the notice of hearing; or (b) the facts set out in the charge, on which the allegation is based, unless, having regard to the merits of the case and the fairness of the proceedings, the required amendments cannot be made without injustice. Page 3 of 35

4 Rule 28 (2) states: Before making any amendment under paragraph (1) the Committee shall consider any representations from the parties on this issue. In the panel s judgment, having regard to the merits of the case and fairness of the proceedings, the amendment can be made without injustice. It is of a clerical or administrative nature and does not materially change the nature of the allegations. Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Ms Renals-O Kane was not in attendance and that written notice of this hearing had been sent to her registered address by recorded delivery and by first class post on 2 August Notice of this hearing was delivered to Ms Renals-O Kane s registered address on 3 August Delivery was signed for in the name of O KANE. The panel took account of the fact that that the notice letter provided details of the allegation, the time, dates and venue of the hearing and, amongst other things, information about Ms Renals-O Kane s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. Mr Smalley submitted that the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Ms Renals- O Kane had been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. Page 4 of 35

5 Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Ms Renals- O Kane. The panel had regard to Rule 21 (2) which states: (2) Where the registrant fails to attend and is not represented at the hearing, the Committee (a) (b) (c) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or may adjourn the hearing and issue directions. Mr Smalley invited the panel to continue in the absence of Ms Renals-O Kane on the basis that she had voluntarily absented herself. He referred the panel to the decision of the previous panel on 13 March 2017 which decided to adjourn due to the ill health of Ms Renals-O Kane at the time. The previous panel also determined to adjourn to allow Ms Renals-O Kane to obtain legal representation for the future substantive hearing. Mr Smalley submitted that there had been engagement by Ms Renals-O Kane with the NMC in relation to these proceedings, in particular in the form of correspondence with the NMC case officer. Mr Smalley referred the panel to the correspondence between Ms Renals- O Kane and her NMC case officer on 9 October 2017 in relation to her attendance at today s hearing: I offered proof to your colleague but he never came back to me. He stated that the letter was signed for but as we have had issues with the mail going missing Page 5 of 35

6 (see attachments). I have also submitted the letters in July, by post to stop my nurse registration, I have no intention of ever working as a nurse again; and with the constant issues with my health it is unlikely I will ever work again I would ask that there is an adjournment until I receive a reply regarding the retraction of my registration. The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is not absolute and is one that should be exercised with the utmost care and caution. The panel further noted the case of R (on the application of Raheem) v Nursing and Midwifery Council [2010] EWHC 2549 (Admin) and the ruling of Mr Justice Holman that:...reference by committees or tribunals such as this, or indeed judges, to exercising the discretion to proceed in the person's absence "with the utmost caution" is much more than mere lip service to a phrase used by Lord Bingham of Cornhill. If it is the law that in this sort of situation a committee or tribunal should exercise its discretion "with the utmost care and caution", it is extremely important that the committee or tribunal in question demonstrates by its language (even though, of course, it need not use those precise words) that it appreciates that the discretion which it is exercising is one that requires to be exercised with that degree of care and caution. In the particular circumstances of this case, the panel decided that it was fair, appropriate and proportionate to proceed in the absence of Ms Renals-O Kane. The panel was of the view that Ms Renals-O Kane is clearly aware of the hearing. She has explained the reason for her absence in that she did not receive the letter from the NMC and has sought an adjournment. However, she has not indicated to the panel any future availability. In the light of the information before the panel and taking into consideration that Ms Renals-O Kane had previously provided the last panel with a sickness certificate but had not provided one on this occasion, there is no cogent reason to believe that an Page 6 of 35

7 adjournment would secure her future attendance. The panel is satisfied that she has voluntarily absented herself from the hearing today. The panel has decided to proceed in the absence of Ms Renals-O Kane. In reaching this decision, the panel had regard to the overall interests of justice and fairness to all parties. It noted that: although she had sought an adjournment, there is no reason to suppose that adjourning would secure her attendance at some future date; two witnesses have attended today to give live evidence and one other is due to attend tomorrow; not proceeding may inconvenience the witnesses, their employers and, for those involved in clinical practice, the clients who need their professional services; the allegations date back to and further delay may have an adverse effect on the ability of witnesses accurately to recall events; there is a strong public interest in the expeditious disposal of the case. Moreover, Ms Renals-O Kane has provided some written responses to the allegations for the panel s attention. There is some disadvantage to Ms Renals-O Kane in proceeding in her absence. She will not be in a position to test the evidence relied upon by the NMC by asking questions in cross-examination, give evidence in her own defence, and/or make oral submissions. However, this is the consequence of her decision to absent herself from the hearing. She will have been served with the evidence upon which the NMC intends to rely and therefore should know the nature of the case against her. The panel can make such allowance as it decides is necessary and appropriate for the fact that the NMC s evidence will not be tested through cross-examination. Further, the panel can also test evidence itself where appropriate. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Ms Renals-O Kane. The panel will draw no adverse inference from Ms Renals-O Kane s absence in its findings of fact. Page 7 of 35

8 Background A referral was received by Berkshire Healthcare NHS Foundation Trust (the Trust ) regarding Ms Renals-O Kane s practise as a nurse. Ms Renals-O Kane was working as a senior nurse at the Trust when the allegations were raised; at the time she was responsible for a number of different wards. The concerns raised about Ms Renals-O Kane s practice relate to the breaching of the Trusts policies, including: Information Security policy, Health Records Management policy and the Confidentiality Agreement of the GP Gateway system. It is alleged that Ms Renals-O Kane accessed the GP Gateway system to obtain personal health information of staff members within her team, their relatives and her own relatives, as well as with her own personal health information, without a medical justification for so doing. An investigation was undertaken by the Trust into the allegations. This revealed that the Ms Renals-O Kane s log in for GP Gateway, which holds medical records of patients, had accessed her own and those of others on numerous occasions between During the course of the local investigation and in response to the NMC in relation to the allegations, she has admitted accessing her own medical records on a number of occasions and those of one colleague on at least one occasion but denied accessing her family members, those of her other colleagues or of their families. She has further stated that others had used her log in details to access medical records during this time. Decision and reasons on application to receive evidence under the provisions of Rule 19: Rule 19 (1) makes clear that the general presumption is that hearings before the Fitness to Practise panel shall be conducted in public. However, Rule 19 (3) provides the panel with a discretionary power to proceed wholly or partly in private if the panel is satisfied that this is justified (and outweighs any prejudice) by the interests of any party or of any third party (including a complainant, witness or patient) or by the public interest. Rule Page 8 of 35

9 19 (3) requires that before a panel reaches a decision as to whether to exercise its discretion to proceed in private, it shall give the parties, and any third party from whom it considers it appropriate to hear, an opportunity to make representations; and obtain the advice of the Legal Assessor. Mr Smalley made an application under Rule 19 of the Rules; he invited the panel to consider parts of the evidence from the live witnesses in private when referring to the names of the patients whose medical records were accessed. The panel accepted the advice of the Legal Assessor. The panel decided to proceed in private under the provisions of Rule 19 (3) when evidence was presented regarding the names of the patients whose medical records were accessed. In the panel s judgement, those patients have a right to confidentiality. Evidence The panel received evidence by affirmation from the following witnesses: Mrs 1, Interim Clinical Director for Children and Young People s Services for the Trust at the time; now substantive Clinical Director for Children and Young People s Services at the Trust ; Mr 2, IT Systems Manager at the Trust; Colleague H, employee at the Trust. The panel heard evidence from Mrs 1 Mrs 1 told the panel that she was the investigating officer at the trust into the allegations against Ms Renals-O Kane. She explained to the panel that the investigation was not conducted in a usual manner; instead she sent questions over to Ms Renals-O Kane via , who had explained that she did not feel well enough to attend, and Ms Renals- O Kane then sent responses to these questions. Page 9 of 35

10 She took the panel through the Trust policies, including Health Records Management, Information Security and GP Gateway Confidentiality policies. She told the panel that although the polices produced post-dated the allegations in question, the previous policies were, in essence, the same and conformed with the Caldicott Principles relating to the accessing and handling of confidential patient information. She explained to the panel that if a new Trust policy is imposed, it is placed on the intranet system and communications are sent out to staff through staff meetings, patient and quality meetings and weekly bulletins. She was asked whether she followed up on the claim that someone had used Ms Renals-O Kane s log in to access medical records, she said that she had not. She explained that it was possible for this to happen. However, for security reasons the system required the individual involved to change their password every 60 days and therefore it was unlikely, in her view, unauthorised access had been obtained on all these occasions, over a 9 year period. The panel heard evidence from Mr 2 Mr 2 took the panel through the documents he adduced of the audit he conducted for the Trusts investigation into the allegations against Ms Renals-O Kane. He was able to tell the panel about access to the GP Gateway system which holds medical records of all patients at the Trust. He further explained that, in order to obtain access to the system, staff were required to complete a confidentiality agreement. He explained that if a staff member did not complete this, then they were unable to access the system. He further described the process by which staff were required to change their passwords every 60 days. Page 10 of 35

11 The panel heard evidence from Colleague H Colleague H told the panel that she has worked for the Trust for 14 and a half years and that she was aware that Ms Renals-O Kane had been accessing medical records without authority. She explained that she had been made aware by the Trust that her medical records had been accessed by Ms Renals-O Kane. She gave the panel the identities of a number of individuals whose records Ms Renals-O Kane had accessed. When asked about why she thought Ms Renals-O Kane had looked at the medical records, she explained possibly just looked at them for the sake of looking at them. She further explained that Ms Renals-O Kane would access medical records of her staff members when they were ill or if they were under investigation. She said that Ms Renals-O Kane would check the records to see if they were telling the truth. She told the panel about a conversation she had with Ms Renals-O Kane. She explained that she had told Ms Renals-O Kane that we are not meant to be doing this in relation to accessing medical records when there was no medical justification for doing so, and said that Ms Renals-O Kane responded well we don t tell anybody. Decision and reasons on application pursuant to Rule 31 The panel heard an application made by Mr Smalley under Rule 31 of the Rules to allow the written statements of Colleague K, Colleague L and Colleague M to be admitted in to evidence as hearsay. Mr Smalley submitted that they were not warned for the hearing as their witness statements were agreed prior to these proceedings. Mr Smalley submitted that the evidence they provide in their witness statements was relevant in that it was their records which were allegedly accessed, by Ms Renals-O Kane. He further submitted that admitting Colleague K, Colleague L and Colleague M s witness statements into evidence as hearsay would not cause prejudice to Ms Renals- O Kane, given that she had voluntarily absented herself from this hearing and had been provided the witness statements in advance of the hearing and had provided no objection to the contents. Page 11 of 35

12 The panel heard and accepted the legal assessor s advice on the issues it should take into consideration in respect of this application. This included that Rule 31 provides that, so far as it is fair and relevant, a panel may accept evidence in a range of forms and circumstances, whether or not it is admissible in civil proceedings. The panel noted that Colleague K, Colleague L and Colleague M s evidence is not sole and decisive to the charges in question. The panel considered that the statements being admitted as hearsay evidence does not prejudice Ms Renals-O Kane, given that she has voluntary absented herself from the proceedings, and therefore she would not have been able to question the witnesses in any event. The panel also considered that she had sent in a detailed response to the charges and had not objected to the contents of these statements having been afforded the opportunity to do so. The panel therefore did not consider that admitting the evidence of Colleagues K, L and M would cause any prejudice to Ms Renals-O Kane. In these circumstances, the panel found that this evidence is relevant to the proceedings and that it would be fair to accept it into evidence. The panel noted that it can give this evidence such weight that it deems appropriate once all the evidence has been heard and evaluated. Determination on the Facts: In reaching its decisions on the facts, the panel took into account all the oral and documentary evidence in this case. The panel heard and accepted the advice of the legal assessor. It noted the burden of proof in this case rests with the NMC throughout and that Ms Renals-O Kane is not required to prove or disprove anything. The standard of proof is the civil standard, namely the balance of probabilities. This means that a fact will only be found proved if the panel concludes, on the basis of the evidence available, that it is more likely than not that what is alleged occurred. Page 12 of 35

13 In reaching its decisions on the facts, the panel considered all the relevant evidence contained in the documentation, the statements of the witnesses and the oral testimony. The panel gave the evidence such weight as it deemed appropriate. The panel also took account of the submissions made by Mr Smalley on behalf of the NMC together with Ms Renals-O Kane s written representations. The panel considered the charges separately. It drew no conclusions adverse to Ms Renals-O Kane as a consequence of her absence. The panel first considered the overall credibility and reliability of the NMC s witnesses. The panel found that all three witnesses did their best to assist the panel. Mrs 1 was a credible, consistent and reliable witness. She assisted the panel regarding the Trust s investigation into the allegations against Ms Renals-O Kane and the Trust s policies. She was not a direct witness of the incidents. However she gave a straightforward account of the elements of the case in which she was involved. The panel had no reason to doubt the veracity of her evidence. The panel found Mr 2 to be a credible, consistent and fair witness. He assisted the panel with the documents adduced. He provided the panel with insight regarding the GP Gateway system. The panel had no reason to doubt Mr 2 s evidence. The panel found Colleague H to be reliable, honest and credible. It was clear to the panel that she was nervous and had been clearly affected by the events and by today s proceedings. She did her best to assist the panel in recalling incidents from several years ago; she did not seek to embellish her story. The panel had no reason to doubt Colleague H s evidence. Page 13 of 35

14 The panel considered each charge and made the following findings: Charge 1 in relation to On various dates between 2004 and 2013 you accessed the following electronic medical records, when you did not have consent and/or clinical justification to do so: 1.1 your own; This charge is found proved. In reaching this decision, the panel took into account the documentary evidence and oral evidence before it, including the oral evidence of Mrs 1, Mr 2 and Colleague H and Ms Renals-O Kane s written response to the allegations. The panel accepted that as this charge is in relation to Ms Renals-O Kane accessing her own medical records, she would not need to gain consent. Therefore, the panel sought to discern whether Ms Renals-O Kane had clinical justification to access her own medical records. The panel heard and accepted the evidence of Mr 2, the Trust s IT systems manager. He provided the panel with a compiled report detailing Ms Renals-O Kane s access to the GP Gateway system. The report provided evidence that Ms Renals-O Kane s log in had accessed her own medical records on a number of occasions between the years of Mr 2 told the panel that it was possible for someone else to change staff member s passwords if they knew the username details. However, he further explained that the system required staff to change their password every 60 days which would preclude unauthorised access after that time period. Although Mrs 1 was not an eye witness to the incident, the panel found her evidence of assistance in assessing, on balance of probabilities, whether what is alleged occurred. She explained to the panel that she was aware that Ms Renals-O Kane had suspected Page 14 of 35

15 that someone had changed her password for the GP Gateway system. However, as the investigating officer she concluded that even in such a case, the sheer amount of times her records were accessed, made it unlikely that it was someone else other than Ms Renals-O Kane who was accessing the system on each and every occasion. This was particularly in the light of the fact that the password had to be changed every 60 days by Ms Renals-O Kane. In her written statement Colleague H explained that she had been an eye witness to Ms Renals-O Kane accessing medical records: I am aware that Lynne accessed my medical records and I witnessed her accessing the records of other members of staff. When I saw this happening Lynne told me not to tell anyone what I d seen. Colleague H told the panel that she had seen Ms Renals-O Kane do this frequently over the years she worked with her. The panel noted the Trust policies, namely, the Trust s Health Records Management policy and the Information Security Policy. However, the panel did accept that these policies were not in force during the period of and were only in place from 2014 and Mrs 1 told the panel that she was not aware of precisely what the previous policies stated. However, she stated that the principles were the same. In her written representations to the NMC in response to the allegations, Ms Renals- O Kane detailed: I have looked at my own results sometimes, but certainly not the number that the report is showing Ms Renals-O Kane goes on to explain in her written representations that someone had been using her login to access the system, she stated: Page 15 of 35

16 I have exclaimed on so many occasions that someone had changed my password as I had routinely been locked out by the system which I called and asked IT was informed that this can only happen is someone else had tried to login or my password had been changed. The panel noted that Ms Renals-O Kane s medical records had been accessed by her user log in on a number of occasions. She disputed the number of times they had been accessed by her. The panel rejected her account that for the most part someone had changed her password and that is why her own personal medical records had been accessed on so many occasions. The panel concluded that, even if it was the case that someone else had changed her password to the system on occasions; this would only have compromised her access for 60 days, when she would have been able to change her password again in accordance with the systems guidelines. The panel accepted the evidence from Colleague H in that she witnessed Ms Renals-O Kane using the GP Gateway system to access medical records inappropriately. Notwithstanding the absence of the evidence of the previous local policies that were in place at the material time, the panel accepted that spirit of the policies was the same or similar in previous versions. The panel was of the view that someone of such a senior level as Ms Renals-O Kane should have been aware of the correct and appropriate access of medical records. The panel is satisfied, on the balance of probabilities, that Ms Renals-O Kane had accessed her own medical records between without any clinical justification to do so. Charge 1 in relation to 1.2 of Schedule 1: 1.2. one or more of your family members listed in Schedule 1; This charge is found proved. Page 16 of 35

17 In reaching this decision, the panel bore in mind the report generated detailing the searches made by Ms Renals-O Kane s log in to the GP Gateway system. In the report, it is clearly documented that her login accessed medical records of the family members of Ms Renals-O Kane as set out in schedule 1. The panel were satisfied that this provided evidence that she accessed these records persistently over a long period of time. The panel took account of the evidence provided by Colleague H, who stated that she witnessed Ms Renals-O Kane inappropriately accessing medical records on a number of occasions whilst working with her. The panel also took account of the evidence provided by Ms Renals-O Kane in relation to accessing the records of her family members, she stated that: With regards to my family s results- I tend to know my in-laws, as they always informed me and asked my advice. results were never sent to Reading (RBH) and always went to Oxford ; so there would be no results for me to view anyway. We do not have family members called Jeffery Renals and so I can only assume someone was searching for [PRIVATE]. Obviously I am concerned about someone accessing my results and indeed staff, which is I request my gp gateway account was closed. She further stated: it was and is common practice for ward managers etc to give out their login etc to qualified staff. The panel again rejected the account of Ms Renals O Kane in which she stated that someone else was using her log in to the GP Gateway system to access the records of her family members. Given the clear evidence from the report detailing the searches made from Ms Renals-O Kane account, the eye witness evidence from colleague H and the admission by Ms Renals-O Kane in accessing her own and one of her colleagues medical records, the panel determined that it was more likely than not that it was Ms Page 17 of 35

18 Renals-O Kane that had accessed her family member s medical records. Further, given that the individuals involved were her family members, it was more likely that Ms Renals-O Kane was the person that accessed the records. The panel was therefore satisfied that it was more likely than not that Ms Renals- O Kane had accessed the medical records of one or more of her family members without consent/and or medical justification in doing so. Charge 1 in relation to charge 1.3 of Schedule 2: 1.3. one or more of your colleagues listed in Schedule 2; This charge is found proved. The panel took account of the oral and documentary evidence before it in the case. The panel had regard to the report compiled by the Trust listing the records accessed by Ms Renals-O Kane s GP Gateway account; it shows that the records of the colleagues listed in schedule 2 had been accessed on a number of occasions. The panel heard evidence from Colleague H, who alleged that she had been witness to Ms Renals-O Kane accessing the medical records of colleagues frequently over the years she worked for her. The panel determined that the evidence she provided was consistent and reliable. In her written witness statement to the NMC dated 10 October 2017, she detailed: I am aware that Lynne accessed my medical records and I witnessed her accessing the records of other members of staff Lynne would look up the records of staff members to see if they were lying about being off sick or to check if their tests matched up with their sickness reasons. Page 18 of 35

19 Colleague H told the panel that she had witnessed Ms Renals-O Kane access the medical records of fellow staff members, including hers, without permission or clinical justification for doing so. She explained to the panel that she was aware that Ms Renals-O Kane had accessed Colleague G s, Colleague J s, Colleague K s and Colleague L s medical records and that she had witnessed some of the incidents in which Ms Renals-O Kane accessed these. The panel also noted the witness statements of Colleagues K, L and M that had been admitted as hearsay evidence. In their statements they stated that they were unaware that their records had been accessed and had not given Ms Renals-O Kane permission to access the records of these individuals. Further, in the light of Ms Renals-O Kane s denial that she had accessed these records, it is implicit that she did not have and knew she did not have their consent to do so. The panel took account of Ms Renals-O Kane s response to this charge, in which she states: I did not access staff or their family s results - there would be no reason or rationale to do such a thing. This is completely bizarre. She further stated that she had, however, looked up the medical records of Colleague G as she begged me to look up her results regarding her blood sugar and cholesterol. In regards to doing this, Ms Renals-O Kane explained: This is an action I bitterly regret, I never did it since and would never do in the future. Taking into account all of the evidence including the fact that Ms Renals-O Kane admitted to having accessed the records of Colleague G, the panel was satisfied, on the balance of probabilities, that Ms Renals-O Kane had accessed the medical records of one or more colleagues outlined in schedule 2 without consent or any clinical reason or purpose for so doing. Charge 1 in relation to charge 1.4 of Schedule 3: Page 19 of 35

20 1.4 one or more of the family members of your colleagues listed in Schedule 3; This charge is found proved. The panel took regard to all the evidence before it. The panel had regard to the evidence provided in the report detailing the access by Ms Renals-O Kane s log in, which provides evidence that the medical records of patient N and O were accessed. The panel took account of the evidence provided by Mr 2 who assisted the panel with the workings of the GP Gateway system. In his oral evidence he explained to the panel that in order to find a patient, you can search by their surname or even part of a surname or NHS number and this will bring up results of that patient in the system. The panel also noted the evidence from Colleague H who stated in her oral evidence that Ms Renals-O Kane had on one occasion accessed the medical records of a colleague s son after receiving a telephone call regarding him. The panel considered the written submissions provided by Ms Renals-O Kane in relation to the charge, she stated: With regards to [Colleague L] s son and husband didn t actually even known [sic] what her husband was called. [Colleague L] was very private and I didn t discuss her family or private life with staff. I knew she was married, I knew she had twin sons. I didn t know their names. The panel rejected Ms Renals-O Kane s account that she did not know the names of Colleague L s family members and that it was therefore not possible to access their medical records. The panel was satisfied that in order to access the records of any individual, the only information necessary was their surname; it concluded that this was information she was in all probability aware of. The panel also accepted the evidence Page 20 of 35

21 provided by Colleague H who stated she witnessed Ms Renals-O Kane accessing patient O s medical records on one occasion. The panel was satisfied that the medical records of one or more of the family members of Ms Renals-O Kane s colleagues were accessed by her. The panel concluded that on the balance of probabilities, Ms Renals-O Kane had accessed these records without consent and without medical justification for doing so. Submission on misconduct and impairment: Having announced its finding on all the facts, the panel then moved on to consider, whether the facts found proved amounted to misconduct and, if so, whether Ms Renals- O Kane s fitness to practise is currently impaired. There is no statutory definition of fitness to practise. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Mr Smalley referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. In his submissions Mr Smalley invited the panel to take the view that Ms Renals- O Kane s actions amount to a breach of The NMC code of professional conduct: standards for conduct, performance and ethics 2002 and the Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ). He then directed the panel to specific paragraphs and identified where, in the NMC s view, Ms Renals-O Kane s actions amounted to misconduct. He further referred the panel to guidance produced by the NMC in which Ms Renals-O Kane failed to comply with, namely, Guidelines for records and recording keeping (2002) and Record Keeping: Guidance for nurses and midwives (2009). He then moved on to the issue of impairment, and addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards and maintain public confidence in the Page 21 of 35

22 profession and in the NMC as a regulatory body. Mr Smalley referred the panel to the cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) and Cohen V GMC [2007] EWHC 581 (Admin). Mr Smalley submitted that Ms Renals-O Kane s conduct fell seriously short due to the extensive repetition of the breaches over a prolonged period of time, which breached fundamental tenets of the nursing profession and brought the nursing profession into disrepute. Mr Smalley submitted that Ms Renals- O Kane had demonstrated no insight and as such the risk of repetition was high. The panel has accepted the advice of the legal assessor which included reference to a number of judgments which are relevant, these included: Cohen V GMC [2007] EWHC 581 (Admin) and Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). The panel was advised to adopt a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, Ms Renals-O Kane s fitness to practise is currently impaired as a result of that misconduct. Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of The NMC code of professional conduct: standards for conduct, performance and ethics (2002) (the Code) and The code: Standards of conduct, performance and ethics for nurses and midwives The panel also had regard to the NMC Guidelines for records and recording keeping (2002) and Record Keeping: Guidance for nurses and midwives (2009). Page 22 of 35

23 The panel, in reaching its decision, had regard to the public interest and accepted that there was no burden or standard of proof at this stage and exercised its own independent judgement. The panel was of the view that Ms Renals-O Kane s actions did fall significantly short of the standards expected of a registered nurse, and that her actions amounted to breaches of the Codes. The panel determined that Ms Renals-O Kane had failed to comply with the following guidelines: NMC Guidelines for records and record keeping (2002): Security, access and confidentiality: Although patient and clients expect their health records to be accessed by different members of the inter-professional health care team, this should only be done where necessary. You have a duty to protect the confidentiality of the patient and client record Record Keeping: Guidance for nurses and midwives (2009): The Data Protection Act 1998 define a health record as consisting of information about the physical or mental health or condition of an identifiable individual made by or on behalf of a health professional in connection with the care of that individual Confidentiality: 17. You need to be fully aware of the legal requirements and guidance regarding confidentiality, and ensure your practice is in line with national and local policies. Page 23 of 35

24 Access: 26. You should not access the records of any person, or their family to find out personal information is not relevant to their care. Information systems: 30. Smartcards or passwords to access information systems must not be shared. Similarly, do not leave systems open to access when you have finished using them. 31. You should take reasonable measures to check that your organisations systems for recording and storing information, whether by computer, , fax or any other electronic means, are secure. You should ensure you use the system appropriately, particularly in relation to confidentiality The panel determined that Ms Renals-O Kane s actions did fall significantly short of the standards expected of a registered nurse, and that her actions amounted to a breach of the Codes. Specifically, from the 2002 Code: As a registered nurse, midwife or specialist community public health nurse, you are personally accountable for your practice, in caring for patients and clients, you must: Respect the patient or client as an individual Protect confidential information 1.2 As a registered nurse, midwife or specialist community public health nurse, you must: Act is such a way that justifies the trust and confidence the public have in you Page 24 of 35

25 Uphold and enhance the good reputation of the profession 3.3 When obtaining valid consent, you must be sure that it is: Given by a legally competent person Given voluntarily Informed 5 As a registered nurse, midwife or specialist community public health nurse, you must protect confidential information 5.1 You must treat information about patients and clients as confidential and use it only for the purposes or which it was given You must guard against breaches of confidentiality by protecting information from improper disclosure at all times. 7.1 You must behave in such a way that upholds the reputation of the professions. Behaviour that compromises this reputation may call your registration into question even if not directly connected to your professional practice. The panel determined that Ms Renals-O Kane s actions did fall significantly short of the standards expected of a registered nurse, and that her actions amounted to a breach of the Codes. Specifically, from the 2008 Code: The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must: make the care of people your first concern, treating them as individuals and respecting their dignity Page 25 of 35

26 be open and honest, act with integrity and uphold the reputation of your profession. 1. you must treat people as individuals and respect their dignity. 5. you must respect people s right to confidentiality. 6. you must ensure people are informed about how and why information is shared by those who will be providing their care. 27. You must treat colleagues fairly and without discrimination. 47. You must ensure all records are kept securely. 57. You must not abuse your privileged position for your own ends. 61. You must uphold the reputation of your profession at all times. The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. In this case, Ms Renals-O Kane deliberately accessed her own medical records and those of her family members, her colleagues and their family members without their consent or any clinical justification for doing so. She only admitted to accessing her own medical records on a handful of occasions and those of Colleague G when she were asked to do so on one occasion. She has refuted all other charges. The panel determined that the absence of respect for patient s confidential medical records this in itself constituted a very serious departure from the standards expected of a registered nurse. However, the extent to which Ms Renals-O Kane accessed these records and the prolonged period over which this conduct repeatedly occurred heightened the seriousness of the misconduct to a very significant degree. In these circumstances, the panel found that her actions did fall significantly short of the conduct and standards expected of a registered nurse and amounted to misconduct. Page 26 of 35

27 Decision on impairment The panel next went on to decide if as a result of this misconduct Ms Renals-O Kane s fitness to practise is currently impaired. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard 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) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74 she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, 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. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but in my Page 27 of 35

28 view the test would be equally applicable to other practitioners governed by different regulatory schemes. 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. The panel find that there was no evidence of significant harm caused to patients. However, it finds that Ms Renals-O Kane s actions engaged limbs b and c in relation to the above case of Grant. The panel determined that through her actions Ms Renals- O Kane had failed to uphold the responsibilities of a nurse and abused her position by accessing medical records without authorisation or clinical justification in doing so and this had subsequently breached fundamental tenets of the profession and brought the nursing profession into disrepute. In reaching its decision, the panel considered the case of Cohen and, in particular, the three matters which are described as being highly relevant to the determination of the question of current impairment, namely: 1. Whether the conduct that led to the charge(s) is remediable? 2. Whether it has been remedied? Page 28 of 35

29 3. Whether it is highly unlikely to be repeated? In relation to the charges found proved, whilst the panel found Ms Renals-O Kane s misconduct was capable of remediation, the abuse of position and attitudinal issues in Ms Renals-O Kane s conduct has led the panel to the conclusion that remediation will be particularly difficult in this case. The panel paid particular attention to Colleague H s evidence that when Ms Renals-O Kane accessed medical records she told Colleague H not to tell anyone what she had seen. It is clear to the panel that Ms Renals-O Kane deliberately embarked on this course of conduct knowing fully well that it was wrong. The panel then went on to consider whether the conduct is likely to be repeated. The panel had no information before it to suggest that Ms Renals-O Kane had taken steps to remediate her failings in relation to the charges that have been found proved and amount to misconduct. In relation to the single occasion on which she admitted to accessing Colleague G s medical records, she said the following: This is an action I bitterly regret, I never did it since and would never do in the future. However, Ms Renals-O Kane has continued to refute the other charges found proved against her and the extent to which she accessed medical records. In the circumstances, the panel found that Ms Renals-O Kane had no more than very limited insight into her conduct. Although, she has been able to identify some of her conduct as wrong, she has wholly failed to reflect on the impact this conduct could have had on her colleagues or the patients whose medical records were accessed, or on the reputation of the nursing profession as a whole. Instead, the panel was of the view that Ms Renals-O Kane sought to put blame upon others. In all the circumstances, the panel has concluded that it is highly likely that this conduct would be repeated. In the absence of any remediation, limited insight and minimal remorse, and given the panel has found there is a risk of repetition, the panel concluded that a finding of current impairment is necessary on public protection grounds. Although, the panel has already found that there was no significant patient harm caused this case, there is the potential for serious emotional and psychological harm to those affected if medical records were in the future to be accessed and disseminated without authority or consent. Page 29 of 35

30 The panel then considered whether a finding of impairment was also necessary to maintain public confidence in the profession and the NMC. The panel was in no doubt that given the extensive and prolonged conduct of Ms Renals-O Kane s actions, public confidence in the profession would be seriously damaged if a finding of current impairment was not made. Given the circumstances of this case, and the seriousness of the misconduct identified, the panel has also concluded that public confidence in the NMC as a regulator would be undermined if a finding of current impairment was not made. The panel has therefore decided that a finding that Ms Renals-O Kane s fitness to practise is currently impaired both on public protection grounds and is in the wider public interest to maintain public confidence in the profession and the NMC as its regulator. Determination on sanction: The panel has considered very carefully the question of what sanction, if any, should be imposed in this case and has decided to make a striking off order. The panel took into account the submissions from Mr Smalley. It also had regard to all the information that has been placed before it during the course of the hearing. The panel has accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be appropriate and proportionate. The purpose of any sanction is not intended to be punitive even though it might have a punitive effect. The panel had careful regard to the Sanctions Guidance (SG) published by the NMC in July The panel identified the mitigating and aggravating factors of the case. It has recognised that the decision on sanction is a matter for the panel exercising its own independent judgement. The panel considered the following aggravating and mitigating factors: Page 30 of 35