Nursing and Midwifery Council: Fitness to Practise Committee. Substantive Order Review Hearing

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 27 November 2017 Nursing and Midwifery Council, George Street, Edinburgh, EH2 4LH Name of Registrant Nurse: NMC PIN: Craig Black 96C0191S Part(s) of the register: Registered Nurse (sub part 1) Mental Health Nurse September 1999 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Order being reviewed: Scotland Misconduct Maureen Gunn (Chair, Registrant member) Natasha Duke (Registrant member) Julius Komorowski (Lay member) Gerard Coll Elaine Stewart Represented by Laura Bowen, solicitor, Anderson Strathern, instructed by Royal College of Nursing Represented by Yusuf Segovia, counsel, instructed by NMC Regulatory Legal Team. Conditions of Practice 12 months Outcome: Conditions of Practice Order (amended) - 24 months to come into effect upon the expiry of the existing order in accordance with Article 30 (1) 1

2 Decision and reasons on review of the current order: The panel decided to vary and continue this conditions of practice order. This order will come into effect at the end of 6 January in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the second review of an order imposed by a panel of the Conduct and Competence Committee. The original order was one of Conditions of Practice for a period of 12 months on 7 December 2015, varied and extended for a further 12 months on 28 November The current order is due to expire on 6 January The panel is reviewing the order pursuant to Article 30(1) of the Order. The charges found proved by way of admission which resulted in the imposition of the substantive order were as follows: That you, whilst employed by NHS Greater Glasgow & Clyde as a Band 5 Charge Nurse based on Ward 4, Larkfield Unit on 17 October 2013: Inappropriately restrained Patient A. Admitted and found proved 3. Failed to treat Patient A with dignity and respect in that you, after you restrained Patient A to the floor: 3.1. did not ensure that she was assisted to get up off the floor Admitted and found proved Failed to carry out observations and/or a physical examination of Patient A after you restrained her, or, in the alternative, failed to record in Patient A s notes that you had carried out observations and/or a physical examination. 2

3 Admitted and found proved And in light of the above your fitness to practise was impaired by reason of your misconduct. The first reviewing panel determined the following with regard to impairment: The panel had regard to all the documentation that had been placed before it, including the written submissions from Mr Black s representatives in a letter dated 24 November The panel noted that Mr Black has engaged with the NMC throughout these proceedings. The panel noted that Mr Black has been unable to obtain employment as a registered nurse, despite making attempts to do so. Although Mr Black has indicated that he is remorseful, there is no evidence to support this, nor any evidence of remedial steps taken. Further there is no evidence before the panel today of any change since the order was first imposed that would enable the panel to conclude that Mr Black s fitness to practise is no longer impaired. The panel had no information before it to conclude that the risk of repetition which was identified at the time of first order, no longer exists. The panel also considered that, if a finding of continuing impairment was not made, public confidence in the profession and in the NMC as its regulator would be undermined. The panel therefore concluded that Mr Black s fitness to practise remains impaired. The first reviewing panel determined the following with regard to sanction: 3

4 The panel first considered whether to let the current order lapse with no further action. However, it decided that it would not be appropriate in this case, as it would not protect patients nor would it be in the public interest. The panel then went on to consider a caution order. The panel concluded that for the same reasons a caution order would also not be an appropriate sanction. It would not restrict Mr Black s practice and this would not protect patients, nor would it be in the public interest as it would not be sufficient to maintain confidence in the profession or to uphold standards of professional conduct. The panel next considered whether it would be sufficient to continue with a conditions of practice order. It bore in mind that any conditions imposed would need to be appropriate, proportionate and workable. The panel recognised Mr Black s indication that he is keen to return to practice and is willing to take any necessary steps to do so. There are identifiable areas which can be addressed by Mr Black working under a period of restricted practice and undertaking the necessary training. Conditions are the least restrictive order the panel could impose, which would provide an adequate level of protection but be proportionate when balanced against Mr Black s interests and allowing him to continue to safely practice. For these reasons, the panel considered that a conditions of practice order would be appropriate. Mr Black has not complied with conditions of one and two of the current conditions of practice order. The panel considered that if Mr Black wishes to remain on the register and return to practice one day in the future, it is in his interests to comply with the conditions. The panel decided to amend condition one to further clarify Mr Black s obligations prior to the next hearing. The panel concluded that the conditions below would protect the public and serve the public interest. It decided to extend the order for a further 12 months to provide Mr Black with a opportunity to send a reflective piece, complete the 4

5 TMAV training in order to remediate his practice and to potentially obtain employment. 1. You must successfully complete a TMAV training course or equivalent and send a copy of your results to the NMC at least 14 days before any NMC review hearing or meeting. 2. You must produce a written reflective piece which demonstrates sufficient insight into the impact of your acts and omissions. The reflective piece should address how the incident with Patient A arose; the impact of your actions and responses on Patient A and the reputation of the nursing profession; and how you would manage a similar situation were it to recur. This is to be submitted to the NMC at least 14 days before any NMC review hearing or meeting. 3. At any time that you are employed or otherwise providing nursing services, you must place yourself and remain under the supervision of a workplace line manager, mentor or supervisor nominated by your employer. Such supervision to consist of working at all times on the same shift as, but not necessarily under the direct observation of, another registered nurse who is physically present in or on the same ward, unit, floor or home that you are working in or on. 4. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every month to discuss the standard of your clinical practice in general and, in particular, the management of patients displaying challenging behaviour. 5. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your clinical practice in general and, in particular, the management of patients displaying challenging behaviour at least 14 days before any NMC review hearing or meeting. 5

6 6. You must tell the NMC within 14 days of any nursing appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 7. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 14 days of you receiving notice of them. 8. a) You must within 14 days of accepting any post or employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, provide the NMC with the name/contact details of the individual or organisation offering the post, employment or course of study. b) You must within 14 days of entering into any arrangements required by these conditions of practice provide the NMC with the name and contact details of the individual/organisation with whom you have entered into the arrangement. 9. 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 (8) above, to them. Any organisation or person employing, contracting with, or using you to undertake nursing work. Any agency you are registered with or apply to be registered with (at the time of application) to provide nursing or midwifery services. Any prospective employer (at the time of application) where you are applying for any nursing or midwifery appointment. Any educational establishment at which you are undertaking a course of study connected with nursing or midwifery, or any such establishment to which you apply to take such a course (at the time of application). The panel also gave consideration to the imposition of a suspension order. However, it considered that such an order would be disproportionate and 6

7 punitive, given that it has found that the public can be adequately protected by these conditions of practice. Whilst this panel cannot bind the decision of any future panel, this panel would wish to remind Mr Black that dependent upon the evidence provided on the next occasion, all sanctions remain available to the next panel. Decision on current fitness to practise The panel has considered carefully whether Mr Black s fitness to practise remains impaired. Whilst there is no statutory definition of fitness to practise, the NMC has defined fitness to practise as a registrant s suitability to remain on the register without restriction. In considering this case, the panel has carried out a comprehensive review of the order in light of the current circumstances. It has noted the decision of the last panel. However, it has exercised its own judgment as to current impairment. The panel has had regard to all of the documentation before it, including the NMC bundle and a letter from Mr Black s GP. It has taken account of the submissions made by Mr Segovia on behalf of the NMC and those made by Mr Black s representative, Ms Bowen, on his behalf. Decision and reasons on application under Rule 19 Before making her submissions, Ms Bowen made a request that the hearing of Mr Black s case be held in private on the basis that proper exploration of his case involves information regarding his health condition. The application was made pursuant to Rule 19 of the Rules. Mr Segovia indicated that he supported the application to the extent that any reference to Mr Black s health condition should be heard in private. The legal assessor reminded the panel that while Rule 19 (1) provides, as a starting point, that hearings shall be conducted in public, Rule 19 (3) states that the panel may 7

8 hold hearings partly or wholly in private if it is satisfied that this is justified by the interests of any party or by the public interest. Rule 19 states 19 (1) Subject to paragraphs (2) and (3) below, hearings shall be conducted in public. (2) Subject to paragraph (2A), a hearing before the Fitness to Practise Committee which relates solely to an allegation concerning the registrant s physical or mental health must be conducted in private. (2A) All or part of the hearing referred to in paragraph (2) may be held in public where the Fitness to Practise Committee (a) having given the parties, and any third party whom the Committee considers it appropriate to hear, an opportunity to make representations; and (b) having obtained the advice of the legal assessor, is satisfied that the public interest or the interests of any third party outweigh the need to protect the privacy or confidentiality of the registrant. (3) Hearings other than those referred to in paragraph (2) above may be held, wholly or partly, in private if the Committee is satisfied (a) having given the parties, and any third party from whom the Committee considers it appropriate to hear, an opportunity to make representations; and (b) having obtained the advice of the legal assessor, 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. (4) In this rule, in private means conducted in the presence of every party and any person representing a party, but otherwise excluding the public. 8

9 Having heard that there will be reference to Mr Black s health condition, the panel determined to hold parts of the hearing in private. The panel determined to rule on whether or not to go into private session as and when such issues are raised. Ms Bowen submitted that [PRIVATE]. Mr Black s GP stated that he is unable to attend this hearing and is currently unfit for work. Ms Bowen told the panel that Mr Black has been signed off work for around 8 weeks and she has no indication when he will be fit to return. She said that Mr Black has not worked as a registered nurse since 2013 and been working in the banking sector since he was dismissed by NHS Greater Glasgow and Clyde. Ms Bowen told the panel that Mr Black is still fully engaged with the regulatory process and that his noncompliance with the conditions of practice is due to the nature of his health condition. She submitted that Mr Black reflects on his nursing practice regularly and wishes to comply with the conditions of practice and return to nursing when his health has improved. Ms Bowen invited to the panel to continue the conditions of practice order to allow Mr Black the opportunity to address the matters of health and return to nursing practice. The panel heard and accepted the advice of the legal assessor. In reaching its decision, the panel was mindful of the need to protect the public, maintain public confidence in the profession and to declare and uphold proper standards of conduct and performance. The panel considered whether Mr Black s fitness to practise remains impaired. The panel determined that Mr Black remained impaired for the reasons identified by the last reviewing panel. Regarding his insight, the panel noted that the last panel found that Mr Black to have limited insight. This reviewing panel heard from Mr Black s representative that he frequently reflects on his practise but there is no documentary evidence of this before 9

10 the panel. The previous reviewing panel stated that a reflective statement should be provided prior to this review. Mr Black s GP identified that he would have difficulty producing a reflective statement [PRIVATE] In its consideration of whether Mr Black has remedied his practice, the panel took into account that he has not undertaken the Therapeutic Management of Aggression and Violence (TMAV) course required by the conditions of practice order. The panel acknowledges that this may be due to Mr Black s health condition but should he continue to be unable to complete the necessary training, a future panel will require clear evidence as to why this is the case. This panel has no information before it to conclude that the risk of repetition identified by the first panel no longer exists. In light of this the panel determined that a finding of continuing impairment is necessary on the grounds of public protection. The panel had borne in mind that its primary function was to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance. The panel determined that, in this case, a finding of continuing impairment on public interest grounds is required. For these reasons, the panel finds that Mr Black s fitness to practise remains impaired. Determination on sanction Having found Mr Black s fitness to practise currently impaired, the panel then considered what, if any, sanction it should impose in this case. The panel noted that its powers are set out in Article 30 of the Order. The panel has also taken into account the NMC s Sanctions Guidance (SG) and has borne in mind that the purpose of a sanction is not to be punitive, though any sanction imposed may have a punitive effect. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the risk of repetition identified and seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. 10

11 The panel then considered whether to impose a caution order but concluded that this would be inappropriate in view of the risk of repetition identified and seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order. The panel next considered whether it would be appropriate to continue with a conditions of practice order. The panel was of the view that a conditions of practice order is sufficient to protect patients and the wider public interest and that conditions could be formulated which are appropriate, proportionate and workable and would protect patients during the period they are in force. The panel acknowledged Mr Black s indication that he is keen to return to practice and noted that due to the time elapsed, he will now require to complete a Return to Nursing Practice course. The panel noted that by successfully completing this course, Mr Black will have worked under supervision and demonstrated that his knowledge and skills are up to date. Completion of the course will satisfy the goals of several of the existing conditions. The panel decided to amend the current conditions of practice order to reflect this. The panel considered that, in the eventuality of Mr Black being unable to complete the TMAV training, full evidence of the reason for this must be provided at a future hearing. The panel determined that, by imposing the new conditions of practice order for a period of two years, it afforded Mr Black the opportunity to access and complete a return to nursing practice course which it acknowledge may take some time in light of his health condition. The panel also gave consideration to the imposition of a suspension order but determined that in light of all the circumstances, this would be unduly punitive as the public can be adequately protected by the conditions of practice order. However, the panel would wish to remind Mr Black that all sanctions remain open to a future reviewing panel and it is in Mr Black s interest, should he wish to remain on the register, to comply with this conditions of practice order. Accordingly, the panel determined, pursuant to Article 30(1) (c) of the Nursing and Midwifery Order 2001, to make a conditions of practice order for a period of 2 years, 11

12 which will come into effect on the expiry of the current order. It decided to impose the following conditions which it considered are appropriate and proportionate in this case: 1. You must successfully complete a TMAV training course or equivalent and send a copy of your results to the NMC at least 14 days before any NMC review hearing or meeting; failing which, you must provide an explanation with supporting documentation demonstrating why you have been unable to do so, such explanation and documentation to be sent to the NMC at least 14 days before any review hearing or meeting 2 You must produce a written reflective piece which demonstrates sufficient insight into the impact of your acts and omissions. The reflective piece should address how the incident with Patient A arose; the impact of your actions and responses on Patient A and the reputation of the nursing profession; and how you would manage a similar situation were it to recur. This is to be submitted to the NMC at least 14 days before any NMC review hearing or meeting. 3 You must tell the NMC within 14 days of any nursing appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 4 You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 14 days of you receiving notice of them. 5 a) You must within 14 days of accepting any post or employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, provide the NMC with the name/contact details of the individual or organisation offering the post, employment or course of study. b) You must within 14 days of entering into any arrangements required by these conditions of practice provide the NMC with the name and contact 12

13 details of the individual/organisation with whom you have entered into the arrangement. 6 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 (5) above, to them. Any organisation or person employing, contracting with, or using you to undertake nursing work. Any agency you are registered with or apply to be registered with (at the time of application) to provide nursing or midwifery services. Any prospective employer (at the time of application) where you are applying for any nursing or midwifery appointment. Any educational establishment at which you are undertaking a course of study connected with nursing or midwifery, or any such establishment to which you apply to take such a course (at the time of application). Shortly before the expiry of this order, a fitness to practice panel will hold a review hearing to evaluate Mr Black s progress in these matters. The panel reminded Mr Black that he may request an early review of his case should he deem it necessary. At any review hearing the panel may revoke the order, amend or change the type of order imposed. This decision will be confirmed to Mr Black in writing. That concludes this determination. 13