Name of Registrant Nurse:

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1 Conduct and Competence Committee Substantive Hearing 3-6 January (Days 1-4) Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ 3 July (Day 5) Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: Jeanette Fox NMC PIN: 78J0227E Part(s) of the register: RN2: Registered Nurse (Sub part 2) RN1: Registered Nurse (Sub part 1) V300: Nurse Independent/Supplementary Prescriber Adult Nursing (level 2) 20 November 1980 Adult Nursing (level 1) 2 October 1993 Nurse Prescribing 24 January 2007 Area of Registered Address: England Type of Case: Misconduct Panel Members: Ian Luder (Chair Lay member) Lynn Smith (Registrant member) Khairun Butt (Lay member) Legal Assessor: Ian Ashford-Thom Panel Secretary: Rob James (Days 1-4) Keyorra Shrimpton (Day 5) Ms Fox: Ms Fox present and not represented (Days 1-4) Ms Fox not present or represented (Day 5) Nursing and Midwifery Council: Represented by Michael Smalley, counsel, instructed by NMC Regulatory Legal Team (Days 1-4) Represented by Jeremy Loran, counsel, 1

2 instructed by NMC Regulatory Legal Team (Day 5) Facts proved: 1.1, 1.2, 1.3, 1.4 in respect of Patients A, C, D, E, H, I & J Facts proved by admission: None Facts not proved: 1.5 in respect of Patients A, C, D, E, H, I & J 1 in its entirety in relation to Patients B, F & G Fitness to practise: Sanction: Interim Order: Impaired Conditions of practice order (12 months) Interim conditions of practice order (18 months) 2

3 Details of charge (as amended): That you, whilst working in your capacity as a nurse prescriber at Dermal Spa and House of Beauty in Merseyside: 1. Between 21 May 2013 and 18 September 2013 you inappropriately prescribed phentermine to one or more of the patients set out in Schedule 1, in that: 1.1 the patient s Body Mass Index (BMI) was below 30; 1.2 You did not adequately record observations; 1.3 You did not adequately record rationale for prescribing phentermine; 1.4 Your clinical notes were not clearly legible; 1.5 You did not adequately record advice given to the patient regarding the risks with this medication; And in light of the above, your fitness to practise is impaired by reason of your misconduct. Schedule 1 Patient BMI (calculated/recorded) Date Patient A / 25 01/02/2012 Patient B / -- 08/12/2012 Patient C / 28 18/09/2013 Patient D 28.7 / -- 04/09/2012 Patient E 23.7 / 24 04/09/2013 Patient F / 29 17/04/2013 Patient G / 24 09/01/2013 Patient H / 27 18/09/2013 Patient I / 24 10/07/2013 Patient J / 25 17/07/2013 3

4 The panel noted that in the above table, BMI calculated/recorded means calculated as by the CQC and BMI recorded refers to the BMI in the patient notes. The dates referred to above are the dates on which the patients first attended the clinic rather than necessarily the dates on which they were seen by you. Decision and reasons on application to amend charge During the evidence of Mr 1, the panel heard an application made by Mr Smalley, on behalf of the NMC, to amend the wording of the charge. The proposed amendment was to amend the commencement date of 1 February 2012 to 21 May It was submitted by Mr Smalley that, after being informed that you started working at Dermal Spa and House of Beauty on 21 May 2013, the proposed amendment would provide clarity and more accurately reflect the evidence. You agreed that this amendment would be appropriate. The panel applied Rule 28 of the NMC (Fitness to Practise) Rules 2004 ( The Rules ) which states: 28 (1) At any stage before making its findings of fact (i) the Conduct and Competence Committee, may amend 4

5 (a) the charge set out in the notice of hearing unless, having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice. The panel was of the view that such an amendment, as applied for, was in the interests of justice. The panel was satisfied that there would be no prejudice to you and no injustice would be caused to either party by the proposed amendment being allowed. It was therefore appropriate to allow the amendment, as applied for, to ensure clarity and accuracy. Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel considered all the evidence adduced in this case together with the submissions made by Mr Smalley, on behalf of the NMC and those made by you. The panel heard and accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the panel was satisfied that it was more likely than not that the incidents occurred as alleged. 5

6 Background You were referred to the NMC by the Care Quality Commission (CQC) following unannounced visits to slimming clinics at Dermal Spa and House of Beauty, Merseyside in October/November 2013 where you were working as a Nurse Prescriber. It was allegedly discovered that you were inappropriately prescribing Phentermine to patients at these slimming clinics. Phentermine is known to reduce people s appetite, so it can lead to weight loss. The CQC took copies of patient records from the clinics and referred its concerns to Mr 1, a registered Pharmacist employed by the CQC as a Regional Medicines Manager for the North of England who reviewed the documents. Mr 1 formed the view that you had inappropriately prescribed Phentermine to a number of patients as identified in schedule 1 of the charge. In reaching its decisions on the facts, the panel took into account all the oral and documentary evidence in this case. The panel heard oral evidence from one witness called on behalf of the NMC, Mr 1. The written statement of Ms 2, the owner of the slimming clinics, was read into the record by Mr Smalley. The panel also heard evidence from you under oath. The panel found Mr 1 to be a knowledgeable and credible witness who was lucid, measured and fair in his answers to questions both in his examination- in-chief and under cross-examination. The panel considered Mr 1 was an expert witness as well as being a witness of fact with regards to this case and considered his opinions as an expert to be very balanced. It noted, in particular, that he readily conceded that, whilst the BMI of a patient is a useful indicator, it is not necessarily an accurate measure of the 6

7 degree of adiposity and therefore the risk to a person s health and well-being. There are other relevant considerations which may affect the reliability of BMI as an indicator, such as the extent to which a person s weight is attributable to musculature, as distinct from adipose or fatty tissue, or whether a person s waist measurement is particularly large. He also recognised that a person s ethnicity may be a relevant consideration. Mr 1 told the panel that the NICE (National Institute for Health and Care Excellence) guidelines: Obesity: identification, assessment and management of overweight and obesity in children, young people and adults and the BNF (British National Formulary) should be applied. However, he also confirmed that it is important to use clinical judgement when making an assessment. Mr 1 also confirmed that while the provided extract from the BNF was from the August 2015 edition, the sections 4.5 Drugs used in the treatment of obesity and 4.52 Centrally acting appetite suppressants had been unchanged in several years and were thus extant in The key recommendation is that an anti-obesity drug should only be considered for those with a BMI of 30 or greater In whom at least three months of managed care involving supervised diet, exercise, and behaviour modification fails to achieve a realistic reduction in weight. In the presence of associated risk factors, it may be appropriate to prescribe an anti-obesity drug to individuals with a BMI of 28kg/m2 or greater. In the BNF guideline Phentermine is not recommended for the treatment of obesity. Phentermine has been associated with a risk of pulmonary hypertension. However, Mr 1 conceded that it was a drug which could be legally prescribed by an authorised person in the UK provided there was a clinical need and a documented assessment of the reason to prescribe. The NICE guidelines confirm that a practitioner should Consider pharmacological treatment only after dietary, exercise and behavioural approaches have been started and evaluated and should also Consider drug treatment for people who have not yet reached their target weight loss or have reached a plateau on dietary, activity and 7

8 behavioural changes. The NICE guidelines only refer to a drug other than Phentermine but indicate that prescription should only be used as part of an overall plan for managing obesity in adults who meet one of the following criteria: A BMI of 28kg/m² or more with associated risk factors A BMI of 30kg/m² or more This parallels the BNF guidelines. The panel noted that there are a number of weight classes based on a person s Body Mass Index (the ratio of a person s height to weight) as follows: Healthy Weight kg/m² Overweight kg/m² Obesity kg/m² There are two further levels of obesity but neither of these were relevant to any of the patients included in the schedule. Mr Smalley submitted that, you, as a Registered Nurse Prescriber, were subject to the NMC The Standards of Proficiency for nurse and midwife prescribers. Mr Smalley contended that the following standards of guidance were particularly relevant in this case: Practice standard 3 Assessment 3.1 In order to prescribe for a patient/client you must satisfy yourself that you have undertaken a full assessment of the patient/client, including taking a thorough history and, where possible, accessing a full clinical record. 3.2 You are accountable for your decision to prescribe and must prescribe only where you have relevant knowledge of the patient/client s health and medical history. 8

9 3.3 You must ensure a risk assessment has been undertaken in respect of the patient/client s current medication and any potential for confusion with other medicines. Practice standard 4 Need 4.1 You must only prescribe where there is a genuine clinical need for treatment. Practice standard 7 Record keeping 7.2 You should ensure records are accurate, comprehensive, contemporaneous and accessible by all members of a prescribing team Guidance Records should include the prescription details, together with relevant details of the consultation with the patient/client. Practice standard 13 Evidence-based prescribing 13.1 You should be aware of, and apply, local and national prescribing guidelines 13.2 Prescribing practice should be evidence-based and respond to relevant national guidance Guidance You should be familiar with current guidance published in the British National Formulary, including the use, side effects and contra-indications of the medicines that you prescribe. You gave evidence under oath. You confirmed that you were aware of the NICE and BNF guidelines but advised the panel that in your view, having read other medical literature, Phentermine was a safe drug to prescribe and did not accept that it had been associated with any material risk of pulmonary hypertension. 9

10 You further told the panel that the BMI of a patient was not always indicative of a patient s need for weight-loss medication and that other factors were involved including those of a psychological nature. You explained that the BMI was also not the most effective way to measure a person s fat content and to add context to this point informed the panel that you would expect the average BMI of a player in the Liverpool Football team to be in the region of 30, which would put them in the obese bracket; whereas they are not in fact overweight, but fit and heavily muscled. You explained to the panel that when patients attended the clinic, they were first seen by another member of staff, who was usually a nurse, who made and recorded various clinical measurements such as height and weight. These were passed to you when the patient consulted you. You informed the panel that you advised people who came to the clinic to review their lifestyles and consider their diet, level of exercise and, where relevant, to stop smoking. You further stated that patients knew that, if prescribed drugs, they could not stay on them for long and that drugs were part of the overall treatment programme. You said that your work was about teaching people to look after their mind and their body and that the industry that you work in is growing. You commented that it was sad that the CQC did not initially regulate the clinic as you feel it would have led to improvements and when referring to Phentermine, stated that it had been approved in America by the FDA. When referring to the specific charges you stated that in regards to charge 1.2, you had only been working at the clinic for a few months and had not by then had the time to devise and introduce a specific template to record the observations made by you following consultation with patients. Therefore you had continued to use the template that had been devised by your predecessor, a medical doctor, even though you made no entries under CVS and Eyes. 10

11 In referring to charge 1.3, you stated that although there may not be a clinical need for weight loss, patients who attended the clinic were seeking appetite suppression medication as they felt they needed help to lose weight. This was a self-esteem issue and was a psychological need which justified the prescription. You told the panel that you considered your notes to be legible, that you could read your writing. When challenged on this, you told the panel that there was only one word in 20 that you struggled with, despite these being photocopies and you therefore refuted charge 1.4. You said that this was why it was generally agreed that electronic note taking is the way forward and that if that had been available at this time there would have been no problem in that regard. In considering charge 1.5, which involved adequately recording the advice given to patients with regards to risks associated with the medication, you stated that an information leaflet was provided to patients. You told the panel that you always ensured that you spoke to your patients about the possible side effects of taking Phentermine. On a number of occasions you advised the panel that the NICE and BNF guidelines only applied to the NHS and not to a private clinic in your industry. The panel considered the charge and made the following findings: The panel disagreed with your analysis of the applicability of the BNF and the NICE guidelines as only applying to the NHS. Whilst both are guidelines, rather than necessarily being proscriptive, as a Nurse Prescriber you are required to apply them by Practice Standard 13 unless there is an appropriate clinical reason to depart from them. Such reasoning must be appropriately documented. This also accords with the evidence of Mr 1. 11

12 As a Nurse Prescriber, you were entitled to take account of clinical measurements made by others but in so doing, you were assuming responsibility for them and you had a duty to check for any obvious errors or omissions and to make and record any further relevant observations, whether of a clinical nature such as waist measurement or a general health matter such as breathlessness. The panel first considered the heads of charge without reference to the specific patients included in the schedule and determined whether, if those were found proved, you would have acted inappropriately in prescribing Phentermine on those occasions. It first considered head of charge the patient s Body Mass Index (BMI) was below 30; The panel noted Mr 1 s evidence that the BMI is not the sole determinant in assessing the needs of a patient with regards to weight-loss. The panel further considered the guidelines that state that while Phentermine should not usually be prescribed to anyone with a BMI of under 30, it may be suitable, on occasion, if the BMI is 28 or greater depending on other factors involved. The BNF indicates clearly that an anti-obesity drug should only be considered for those in whom at least three months of managed care fails to achieve a realistic reduction in weight. 1.2 You did not adequately record observations; 12

13 The panel considered that, in order to prescribe Phentermine in an appropriate manner, it was important that observations, including changes in a patient s condition and lifestyle were recorded both in order to remind yourself and also to ensure that colleagues were able to keep up to date on the current status of the patient. The panel considered that, as the Prescribing Nurse, it was your duty to record observations of your patients and noted that at times there had been limited observations made when a patient had been seen by you several months or even more than a year after an initial consultation. The panel also considered that observations relevant to any decision to depart from the NICE guidelines such as waist measurements or a patient's ethnicity, needed to be recorded. The panel noted your oral evidence that you had used a tape measure to take waist measurements. However, in no case was this measurement recorded. 1.3 You did not adequately record rationale for prescribing phentermine; The panel considered the recording of the rationale for prescribing to be of great importance, particularly when the prescribing had departed from the relevant guidelines such as the BMI being under 30. The panel considered that Practice Standard 4 was particularly relevant to this head of charge. The panel noted your assertion that by attending the clinic, patients demonstrated a desire to lose weight, (even if it was not clinically necessary), which was a matter of self-esteem and a psychological condition which justified the prescribing of anti-obesity medication. However, in none of the notes of the patients detailed in the schedule to the charge, is this psychological need recorded by you as a rationale justifying the prescribing of Phentermine. 13

14 1.4 Your clinical notes were not clearly legible; The panel had been provided with your notes following your consultation with patients and had found difficulty in reading them, even allowing for the fact that these were photocopies. It considered the importance of note taking and communication with colleagues at the clinics that you were employed. The panel determined that to be fit for purpose, your notes needed to be legible and that at times this was clearly not the case. You accepted that your handwriting could be better but the panel found that it was below an acceptable level and was not good enough for a colleague or the patient to decipher. 1.5 You did not adequately record advice given to the patient regarding the risks with this medication; You stated that you discussed, with the patients, the risks associated with the medication which you were prescribing and the panel observed that your notes echoed this. The panel then went to look at each head of charge in relation to each patient included on the schedule and determined whether the charge could be found proved when applied on a case by case basis. Patient A 14

15 The panel noted that Patient A had been seen by you in August and September 2013 having initially visited the clinic in 2012 before you were working there. It noted that you had not recorded a new BMI after it had initially been recorded at 25. The panel considered that there may have been health changes in the 18 months between Patient A first coming to the clinic and then returning in August 2013 and you failed to record whether any new observations were made and what they were. Further, it considered that your notes in this case were largely illegible and did not include any rationale for why Phentermine had been prescribed by you. The panel noted within the part of the notes which it was able to decipher, that you had made a note about discussing the risks involved with taking this medication. Consequently, it was satisfied this had been recorded. The panel found the charge in respect to Patient A proved by virtue of the first four heads of the charge. Patient B During your evidence you told the panel that this had not been a patient who you had seen and that the writing included on the clinical notes was not yours. You were unable to recall who would have seen the patient had it not been you. Mr Smalley conceded that, in the circumstances, the NMC accepted that it may not be your handwriting. The panel found that accordingly, no parts of the charge were proved in relation to this patient. Patient C 15

16 The panel noted the BMI of Patient C was 28, which is below the guideline for prescribing anti-obesity drugs. In any event, the guideline is clear that drugs should not be prescribed before at least three months of managed care has been implemented and monitored. Despite this, the panel noted that you had prescribed the tablets at the first consultation. The panel considered the notes and ascertained an absence of any recorded observation which might have justified departing from the guidelines, such as waist measurement. The panel noted that the clinical notes included references to family history, lifestyle and risks and potential side effects of the medication and therefore concluded that your advice had been adequately recorded. The panel found the charge in respect to Patient C proved by virtue of the first four heads of the charge. Patient D The panel noted that you had not recorded the BMI for the patient but it had been calculated as It noted again that Phentermine had been prescribed at the patient s first consultation at the clinic and that proper rationale for prescribing the tablets had not been documented, save for a cursory reference to lifestyle. The panel again, considered that your notes were, for the most part, illegible and that you had not adequately recorded observations, in that there was no BMI or any explanation to what the reference to smoke meant. The panel did however, conclude that you had adequately recorded that you had given advice to the patient patient on the risks and side-effects of the medication. The panel found the charge in respect to Patient D proved by virtue of the first four heads of the charge. 16

17 Patient E The Panel noted that the BMI had been recorded on the clinical notes as 24 and that an adequate record had not been provided as to why Phentermine had been prescribed or the observations justifying same. Further, it noted that this was Patient E s first visit to the clinic and that the guideline relating to a three month period before the tablets were prescribed was not followed. The panel considered your notes to be illegible for the most part but was able to decipher that you had recorded that you gave advice given to the patient concerning risks. The panel found the charge in respect to Patient E proved by virtue of the first four heads of the charge. Patient F During your evidence you told the panel that this had not been a patient who you had seen and that the writing included on the clinical notes was not yours. You were unable to recall who would have seen the patient had it had not been you. Mr Smalley conceded that, in the circumstances, the NMC accepted that it may not be your handwriting. The panel found that accordingly, no parts of the charge were proved in relation to this patient. Patient G 17

18 During your evidence you told the panel that this had not been a patient who you had seen and that the writing included on the clinical notes was not yours. You were unable to recall who would have seen the patient had it had not been you. Mr Smalley conceded that, in the circumstances, the NMC accepted that it may not be your handwriting. The panel found that accordingly, no parts of the charge were proved in relation to this patient. Patient H Your written records suggest Patient H had a family history of CVD, however this is not elaborated upon. The panel considered you should have asked Patient H to return on monthly visits to the clinic to monitor the impact of lifestyle changes but the rationale for why this did not happen was not recorded. Other measurements would have been essential when determining Patient H s suitability for Phentermine but, if these took place, they were not recorded. The panel found that in terms of recording important information that needed to be communicated to other members of staff, your clinical notes failed as a medical record. It further noted that this was Patient H s first appointment at the clinic and that you prescribed Phentermine which may have been inappropriate in the circumstances and no cogent rationale for your departure from the guidelines was given. The panel considered your notes to be illegible for the most part but was able to decipher that you had recorded that you gave advice to the patient regarding the risk that medication of this nature can have. The panel found the charge in respect to Patient H proved by virtue of the first four heads of the charge. Patient I 18

19 Taking account of the records made by you, Patient I was a young female with a recorded BMI of 24 (although properly calculated it was 22.63), a healthy blood pressure and no obvious signs of a weight problem. Your evidence was that Patient I was Asian but the clinical notes do not record this important observation. Even adjusting BMI targets for this patient s presumed ethnicity, her BMI was substantially below the guideline of 30 for prescribing anti-obesity drugs. Your clinical notes were, for the most part, illegible and did not include the rationale for your prescribing of Phentermine. The panel noted that you had recorded, in some part, the risk regarding taking the medication. The panel found the charge in respect to Patient I proved by virtue of the first four heads of the charge. Patient J Patient J was a young woman who had just turned 18 and while she had a stated desire to lose a few pounds had a relatively normal BMI. Her recorded BMI was 25 although recalculated it was Either level of BMI was significantly below the threshold at which anti-obesity drugs should have been prescribed. The panel further noted that there did not appear to be issues with Patient J s blood pressure as recorded in the notes and that the rationale for deviating from the guidelines and prescribing Phentermine was not appropriately recorded. Furthermore, this patient had already commenced a programme of cycling and the panel was concerned that you had not followed the guideline of three months managed care before resorting to drug therapy. Finally, in this case what had been recorded in the 19

20 clinical notes was, for the most part, illegible and there appears no reference to encouraging this patient to continue with lifestyle changes. The panel considered that the risks of taking the medication had however been explained to the patient and recorded as such. The panel found the charge in respect to Patient J proved by virtue of the first four heads of the charge. Application for Interim order under Rule 32(5) Following the handing down of the determination on the facts, it was established that it would not be possible to conclude the hearing within the allocated timeframe and the chair asked Mr Smalley if he would be making an application for an interim order. Mr Smalley submitted that, in light of the charge being found proved on all but one head for seven of the ten patients included in the schedule, an interim order was necessary to protect the public and was otherwise in the public interest. Mr Smalley submitted that, given your attitude to the NICE guidelines and the BNF, there was a risk that further inappropriate prescribing of medication could take place. 20

21 Mr Smalley further submitted that an order of six months duration would be appropriate given the canvassed dates for the resumed hearing. You told the panel that you are currently undertaking a non-nursing post graduate degree but also work in primary care at different GP surgeries where you work as an Advanced Nurse Practitioner and a Prescribing Nurse. You also advised the panel that you continue to provide self-employed aesthetic services which includes prescribing. You told the panel that you do use the NICE guidelines and BNF and are well read. You further stated that no issues had been raised regarding your prescribing of medication prior to this referral and that you have a reputation for championing care and services. You further stated that it would be a travesty if you were unable to practise and that you have a reputation for working for change in the interest of patients. You told the panel that your current roles would not be workable if conditions of practice were put in place that restricted your ability to prescribe. The panel heard and accepted the advice of the legal assessor. The panel recognised that its primary concern was the protection of the public but that it also had a duty to balance the public interest with your own interests. It also had to act in a manner which was proportionate in all the circumstances. The panel is of the view that, based on the information before it, there is a real risk of the repetition of inappropriate prescribing of medication which could result in significant 21

22 harm to patients. The panel therefore concluded that some form of interim order is necessary on the grounds of public protection and that an interim order is also otherwise in the public interest, in order to maintain confidence in the professions and the NMC as regulator. The panel next considered whether to impose an interim conditions of practice order. It determined that while the charge referred to your inappropriate prescribing of medication, there had been no issues with your general practice as a Registered Nurse. Accordingly, the panel decided that there were workable conditions that could be formulated that would sufficiently protect the public and also satisfy the public interest in the case. The panel considered whether an interim suspension order was necessary but determined this would be disproportionate at this time. Accordingly, the panel has determined that the following conditions are proportionate and appropriate: 1. You must not practise as a Nurse Prescriber. 2. 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/contact details of the individual or organisation offering the post, employment or course of study. 22

23 3. 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. 4. 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 listed at 1 to 3 above, 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) to provide nursing services. (c) Any prospective employer (at the time of application) where you are applying for any nursing appointment. (d) Any educational establishment at which you are undertaking a course of study requiring a nursing or midwifery registration, or any such establishment to which you apply to take such a course (at the time of application). The hearing has been provisionally rescheduled to resume on 3 April 2017 for a duration of two days. At that hearing, the panel would find it useful to be provided with: a written note of the work you have undertaken since 1 January 2016; up to date references from your employers and their professional clients; 23

24 written evidence of the courses that you have undertaken. 24

25 This hearing resumed on 3 July 2017 for Day 5 of this substantive hearing. Decision on Service of Notice of Hearing: Ms Fox was not in attendance and was not represented. Written notice of this hearing had been sent to Ms Fox s registered address by recorded delivery and by first class post on 23 February Royal Mail Track and Trace documentation confirmed that the notice of hearing was sent to Ms Fox s registered address by recorded delivery on that date. The panel took into account that the notice letter provided details of the time, dates and venue of the resumed hearing. The panel noted that Track and Trace states that that notice was returned to sender. However, the panel noted that under Rule 34(5) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ), where any notice is sent under the Rules, it shall be treated as having been served on the day after it was sent by delivery service. Mr Loran submitted the NMC had complied with the requirements of Rules 32(3) of the Rules. The panel accepted the advice of the legal assessor. The panel took into account that Ms Fox had changed her registered address as it appears on WISER on 27 April 2017, however, the panel was satisfied that the notice of this hearing for the resuming dates of July had been sent to Ms Fox s registered address as at 23 February Accordingly, in the light of all of the information available, the panel was satisfied that Ms Fox had been served with notice of this hearing in accordance with the requirements of Rule 32(3). 25

26 Decision on application under Rule 19: During the course of proceedings the panel, of its own volition, decided, under Rule 19 of the Rules, to hold those parts of the hearing related to Ms Fox s personal circumstances and health in private, on the basis of the documentation before it. Mr Loran, on behalf of the NMC, did not object to this application. The panel therefore decided that those parts of the hearing which related to Ms Fox s personal circumstances and health should be held in private. Decision on proceeding in the absence of the Registrant and application to postpone this hearing by the Registrant: Mr Loran, on behalf of the NMC, invited the panel to consider the documentation from Ms Fox which was ed to the NMC on 28 June 2017, as well as the NMC s written response to her dated 30 June 2017, which indicates that the NMC does not oppose her application to postpone this hearing. Mr Loran outlined the background to Ms Fox s application. [PRIVATE] Mr Loran told the panel that Ms Fox is also studying the GDL and has a continuous exam period from April until August 2017, and has also asked for an adjournment on this basis. [PRIVATE] Mr Loran told the panel that Ms Fox has consented to the extension of her current interim conditions of practice order by the NMC. The panel heard and accepted the advice of the legal assessor. 26

27 The panel had regard to Rule 32 (2) and (4) which states: 32. (1) [ ] (2) A Practice Committee considering an allegation may, of its own motion or upon the application of a party, adjourn the proceedings at any stage, provided that (a) no injustice is caused to the parties; and (b) the decision is made after hearing representations from the parties (where present) and taking advice from the legal assessor. (3) [ ] (4) In considering whether or not to grant a request for postponement or adjournment, the Chair or Practice Committee shall, amongst other matters, have regard to (a) (b) the public interest in the expeditious disposal of the case; the potential inconvenience caused to a party or any witnesses to be called by that party; and (c) fairness to the registrant. The panel has taken into account all the information before it. The panel considered that Ms Fox has been engaging with the NMC processes. [PRIVATE] The panel also took into account that Ms Fox is in the middle of her law studies until August

28 The panel noted that Ms Fox has consented to the NMC s application to extend the current interim conditions of practice order, imposed by this panel on 6 January The panel therefore considered that the public protection element in this case has been met. The panel accepted that there is a public interest in the expeditious disposal of this case. However, the panel was satisfied that this consideration was outweighed by Ms Fox s own interests and fairness to her, particularly as it was likely that a postponement would result in Ms Fox s attendance at a later date on or after September Given that Ms Fox has indicated that she may be able to attend a hearing after September 2017, the panel recommended that the NMC contact the necessary parties to agree a reschedule of this hearing for a date on or after September Accordingly, the panel decided to grant Ms Fox s application to adjourn this hearing. This hearing will be adjourned until November This will be confirmed to Ms Fox in writing. That concludes this determination. 28

29 The hearing resumed on 13 November 2017 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 amount to misconduct and, if so, whether your 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. Upon resumption of the hearing the panel was provided with on-table documents which included various references, some of which referred to your clinical practice. You called five witnesses. Most of these witnesses were able to comment on your general qualities but were not aware of the detail of the charges that had been found proved. Their evidence is more likely to be of assistance to the panel in the event that your fitness to practise is found to be impaired. However, it was of limited assistance at this stage, because the panel was primarily assessing your outlook as a clinician. The panel, was, however, assisted at this stage by the evidence of Dr 3. She was able to address clinical issues, both in written and oral evidence, and also commented on your reflections on your failings. The panel considered Dr 3 to be open and helpful in relaying how you had discussed with her the issues that had arisen from the facts found proved. You also gave evidence at the impairment stage. You explained that you have examined the issues that arose at the time. You told the panel that you have spent a lot of time reflecting since the imposition of the interim conditions of practice order and did not want to go back to working in the area of aesthetics. You said that you would much prefer to work in a GP s surgery as an Advanced Nurse Practitioner and feel that primary care is the avenue that you would prefer to base your nursing practice. You stated that you had last worked as a Registered Nurse at a GP s surgery in January You advised the panel that you recognised your actions had been misguided. 29

30 You stated that working in a GP s surgery would mean that you were surrounded by other members of staff that would be able to help you and that it would also mean that you would be able to work with digital records, though you did state that your handwriting has improved. In her submissions Ms Smith, on behalf of the NMC, invited the panel to take the view that your actions amount to a breach of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ) and that of the NMC Standards of Proficiency Nurse and Midwife Prescribers. She then directed the panel to specific paragraphs and identified where, in the NMC s view, your actions amounted to misconduct. Ms Smith 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. Ms Smith submitted that your actions amount to misconduct due to the clear departure from the guidelines that you were supposed to be working under. She 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 profession and in the NMC as a regulatory body. Ms Smith referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Ms Smith submitted that it was a matter for the panel to decide if your fitness to practise was impaired on the ground of public protection. She further submitted that, as you lost your job following the interim conditions of practice being imposed, remediation has not been possible. The panel has accepted the advice of the legal assessor. The panel adopted 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 30

31 the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of that misconduct. 31

32 Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of the code: Standards of conduct, performance and ethics for nurses and midwives 2008 and the NMC Standards of Proficiency Nurse and Midwife Prescribers as referred to by Ms Smith. 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 professional judgement. The panel was of the view that your actions did fall significantly short of the standards expected of a registered nurse, and that your actions amounted to a breach of the Code. Specifically: 35. You must deliver care based on the best available evidence or best practice. 36. You must ensure any advice you give is evidence-based if you are suggesting healthcare products or services. 39. You must recognise and work within the limits of your competence. 42. You must keep clear and accurate records of the discussions you have, the assessments you make, the treatment and medicines you give, and how effective these have been. So far as 39 is concerned, the panel was of the view that, while you breached that provision, you did so having researched the position and formed your own judgement. The breach therefore arose from misplaced self-confidence. Further, it agreed with Ms Smith s submissions that the following paragraphs from the NMC Standards of Proficiency Nurse and Midwife Prescribers had been breached: Practice Standard 1 Licence as a prescriber You may only prescribe from the formulary linked to your recorded qualification and must comply with the statutory requirements applicable to your prescribing practice; 32

33 Practice Standard 3 Assessment In order to prescribe for a patient/client you must satisfy yourself that you have undertaken a full assessment of the patient/client, including taking a thorough history and, where possible, accessing a full clinical records; You are accountable for your decision to prescribe and must prescribe only where you have relevant knowledge of the patients/clients health and medical history; You must ensure a risk assessment has been undertaken in respect of the patient/clients current medication and any potential for confusion with other medicines; Practice standard 4 Need You must only prescribe when there is a genuine clinical need for treatment Practice standard 7 Record keeping The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. However, the panel was of the view that your actions, in prescribing medication outside of the recognised guidelines, met the criteria of misconduct. The panel had regard to the fact that national guidelines are set to protect not only the practitioner but also the patient in that practitioner s care. A patient needs to be confident that the Registered Nurse who is caring for them at the time is adhering to appropriate guidelines unless there is good reason not to do so. Further, if a nurse decides not to adhere to the guidelines, the reason for not doing so must be carefully discussed and agreed with the patient, recorded and if necessary appropriate advice sought. There is no evidence that you did so. You chose to use your own judgement. There were clear problems with the prescribing of this drug as it was not licensed in this country. You chose to not only prescribe it to your patients but to do so outside of the relevant guidelines. The panel found that your actions did fall seriously short of the conduct and standards expected of a nurse and amounted to misconduct. 33

34 Decision on impairment The panel next went on to decide if as a result of this misconduct your 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. 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 34

35 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 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 finds that your actions, in prescribing medication contrary to the guidelines that were in place, put patients in your care at risk of harm. Further, the panel found that in doing this, you brought the profession into disrepute and breached a fundamental tenet of the nursing profession. 35

36 The panel considered that your insight is developing but that you have not yet realised the full extent of your failings. It took account of the fact that you have spent an amount of time reflecting and had recognised that you were misguided in prescribing medication against the recognised guidelines. The panel further took account of the fact that you no longer wish to work in aesthetic practice and see yourself moving into primary care if you are able to continue working as a Registered Nurse. The panel had regard to the fact that your misconduct is remediable but was not satisfied that you have yet fully remediated the failings which led to your inappropriate prescription of Phentermine. The panel concluded that there remains a risk of repetition based on the fact that you have not yet developed full insight into your failings, given that there were times in your evidence when you seemed to stray into a justification of the errors that resulted in this referral. 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/protect 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 required. It determined that a patient expects a Registered Nurse to act in their best interests and advise them when something is unsafe or not in their best interests. Further, a patient would expect national guidelines to be followed. When committing the misconduct in the charges found proved you did not ensure either of these. The panel determined that a member of the public would be concerned to hear that this was the course of action that you had chosen to take. 36

37 Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. 37