Conduct and Competence Committee

Transcription

1 Conduct and Competence Committee Substantive Hearing Consensual Panel Determination 7 January 2016 Nursing and Midwifery Council 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: NMC PIN: David Andrew Dalton 05F0847E Part(s) of the register: Registered Nurse Sub Part 1 Adult Nurse September 2005 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mr Dalton: Nursing and Midwifery Council: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: England Misconduct Richard Khoo (Chair - Registrant member) Monica Daley (Lay member) Janet Leonard (Registrant member) Leighton Hughes Katie O Leary Not present but represented by Oliver Renton, instructed by the Royal College of Nursing Represented by Saima Hirji, counsel, instructed by the NMC Regulatory Legal Team. All N/A Impaired Caution order two years N/A Page 1 of 15

2 Consensual panel determination: At the outset of the hearing, Ms Hirji, on behalf of the NMC, provided the panel with a Consensual Panel Determination: provisional agreement ( CPD ) document. The CPD was signed by Mr Hirji on 6 January 2016 and by Mr Dalton on 6 January Ms Hirji submitted that the agreement provided a proportionate and appropriate disposal for Mr Dalton s case. Mr Renton, on behalf of Mr Dalton, referred the panel to additional documents attached to the CPD, specifically a report written by the Deputy Matron at Nuffied Health Bournemouth Hospital, and a reflective piece written by Mr Dalton. Mr Renton also submitted that the CPD agreement was proportionate and appropriate. The CPD reads as follows: The Nursing and Midwifery Council and Mr Dalton, PIN 05F0847E ( the parties ) agree as follows: 1. Mr Dalton admits the following charges: That you, whilst employed by the University Hospital Southampton NHS Foundation Trust as a band 6 charge nurse and working on Ward F11, on 10 March 2014: 1. At approximately 12:40pm, commenced an infusion of midazolam to Patient A at an incorrect infusion rate, resulting in Patient A receiving an overdose of midazolam. 2. On realising your error as alleged at Charge 1: 2.1. At approximately 14:00, commenced a second infusion of midazolam to Patient A which was not prescribed Failed to escalate to medical staff Failed to take observations of Patient A. Page 2 of 15

3 2.4. Failed to promptly complete an incident report. And, in light of the above, your fitness to practise is impaired by reason of your misconduct. 2. The parties agree that charge 1 should be amended from [sic to ] At approximately 12:40pm, commenced an infusion of midazolam to Patient A at an incorrect infusion rate, resulting in Patient A receiving a 24 hour dose within approximately one hour. to [sic from ] At approximately 12:40pm, commenced an infusion of midazolam to Patient A at an incorrect infusion rate, resulting in Patient A receiving an overdose of midazolam. Mr Dalton accepts that he administered an overdose of midazolam to Patient A on 10 March The NMC s evidence is that an overdose was administered, but is uncertain as to the quantity of that overdose. As such, an application is made under Rule 28 of the NMC Fitness to Practice Rules 2004 for the charge to be amended. No injustice or unfairness would be caused to Mr Dalton by the amendment of the charge; indeed it is agreed by the parties that the charge should be amended. 3. The facts are as follows: 3.1. At the material time, Mr Dalton was employed as a band 6 registered nurse for University Hospital Southampton NHS Foundation Trust. He had worked at the Hospital for 8 years and at the time of the charges was on Ward F11, a 17- bedded elderly care and end-of life ward On 10 March 2014, Mr Dalton was the Nurse in Charge of the early shift. This was his second shift on the ward. Patient A was one of the patients under his Page 3 of 15

4 care; the patient suffered with seizures and had been prescribed an infusion of 30mg Midazolam, to be prescribed over a 24 hour period Mr Dalton and a nurse colleague [Ms 1] changed Patient A s syringe at approximately hours, in line with the prescription, and administered 30mg Midazolam Within an hour, [Ms 1] and another nurse colleague [Ms 2] advised Mr Dalton that the syringe pump was beeping in Patient A s room Mr Dalton attended upon Patient A and decided to replace the syringe. He started a new administration of 30mg Midazolam at approximately hours. This had not been prescribed. Mr Dalton did not first seek an assessment of Patient A by senior medical staff, nor did he have the infusion agreed and formally prescribed by senior medical staff. Mr Dalton did not take observations of Patient A before commencing the second infusion Mr Dalton did not record the second infusion of Midazolam on the patient s drug chart, nor did he promptly complete an incident report form after the event, as required by the Trust s Incident Reporting, Analysis, Investigation and Management Policy. He completed the incident log some 29 days after the incident [Ms 2] escalated the matter to a Sister at the start of the next shift, reporting her concerns that a drug error had possibly occurred An internal investigation commenced, which Mr Dalton engaged with. His account was that the first 30mg administration had not been dispensed fully and that only 5-6mg had gone through. He therefore stopped the infusion and started a fresh infusion of 30mg, believing that Midazolam has only a short-lasting effect. Page 4 of 15

5 3.9. Mr Dalton was dismissed from the Trust and commenced employment as Registered Manager of Beechcroft Green Nursing Home. At the same time, he appealed against his dismissal and was reinstated on the Trust s Cancer Care Ward as a band 5 nurse on 18 February Since October 2015, he has been working at the Nuffield Hospital in Bournemouth as Senior Critical Care Charge Nurse. 4. Mr Dalton admits that the facts amount to misconduct because his actions and omissions fell far short of what would have been proper in the circumstances (Roylance v General Medical Council (no. 2) [1999] 1 A.C. 31) Mr Dalton accepts that his actions resulted in Patient A receiving more Midazolam that prescribed, within a 24 hour period. This error was compounded by Mr Dalton s decision to administer the second dose without completing observations of the patient or escalating the matter to senior medical staff. Having realised his error, he then did not complete an incident form until some 29 days later Mr Dalton accepts that his actions breached the The code: Standards of conduct, performance and ethics for nurses and midwives 2008 and in particular the following parts: Preamble 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. - Work with others to protect and promote the health and wellbeing of those in your care, their families and carers, and the wider community. Page 5 of 15

6 - Provide a high standard of practice and care at all times. Paragraph 21 You must keep your colleagues informed when you are sharing the care of others Paragraph 26 You must consult and take advice from colleagues when appropriate Paragraph 28 You must make a referral to another practitioner when it is in the best interests of someone in your care Paragraph 35 You must deliver care based on the best available evidence or best practice Paragraph 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. Paragraph 43 You must complete records as soon as possible after an event has occurred 5. Mr Dalton admits that his fitness to practise is impaired by reason of his misconduct Since his dismissal from the Trust, Mr Dalton has held three further nursing positions. His first role was as Registered Manager of Beechcroft Green Nursing Home. He then returned to the Trust following his successful appeal against dismissal. This was in a band 5 role on the Cancer Care Ward Matron [Ms 3] of the Cancer Care Ward sent an to the NMC on the 11 April 2015 with an update on Mr Dalton. She confirmed that part of his role was Page 6 of 15

7 the administration of oral and intravenous medication and that he had undertaken various courses Mr Dalton then commenced employment at Nuffield Health Bournemouth Hospital on the 26 October 2015 as Charge Nurse, Critical Care. A report has been provided by Matron [Ms 4] (Appendix One). The report confirms that Mr Dalton informed his employers of the NMC case. It states that there have been no concerns in relation to Mr Dalton s competence, his ability to undertake his role of clinical care and that he has undergone a comprehensive practical and theoretical medicines assessment. He is currently working through a comprehensive medicines competency program with his line manager. The report speaks highly of Mr Dalton s ability to undertake his role It is evident that there has been no repetition in this case and Mr Dalton has undertaken action to remediate the deficiencies in his practice. However, it is agreed between the parties that a finding of impairment is necessary in order to uphold proper professional standards and public confidence in the profession. Mr Dalton s actions and omissions in relation to Patient A were serious and this must be addressed as a matter of public interest. The parties refer to the case of Council for Healthcare Regulatory Excellence v (1) NMC, (2) Paula Grant [2011] EWHC 927 (Admin), in which Mrs Justice Cox emphasized the importance of the public interest at this stage in the proceedings In considering the guidance provided by Dame Janet Smith in her Fifth Shipman Report of December 2004, which has since been endorsed in various cases including, Mr Dalton accepts that the following parts are made out: - Mr Dalton has in the past acted so as to put a patient at unwarranted risk of harm; - He has in the past brought the reputation of the profession into disrepute. - He has breached one of the fundamental tenets of the profession. Page 7 of 15

8 6. The appropriate sanction in this case is a caution order for 12 months In determining this to be the most appropriate sanction, the parties have considered the NMC s Indicative Sanctions Guidance to panels. The parties have borne in mind that the public interest is at the forefront of any decision as to sanction and in this case, the public interest includes: - Maintenance of public confidence in the professions and the regulatory body - Declaring and upholding proper standards of conduct and behaviour The parties have also balanced Mr Dalton s interests against the public interest and have considered the aggravating and mitigating features of this case. The aggravating features are considered to be as follows: - Mr Dalton s error was a basic failing in his clinical practice - He placed the patient at risk of harm by administered a double dose and not conducting any checks on the patient first or escalating the matter to a senior healthcare professional - His error was compounded by not completing an incident form in a timely manner The mitigating features are considered to be as follows: - This is the only referral against Mr Dalton - The matter took place some 21 months ago. He has been practising since within various nursing environments and no concerns have been raised in relation to his clinical practise - Mr Dalton has provided a reflective piece (Appendix Two), showing insight and remorse into his actions. In this, he has stated as follows: Page 8 of 15

9 Throughout my nursing practice, I have always taken; will always take pride in delivering the very highest standards of care at all times. I have been meticulous in preparing, and administering all medicines oral and intravenous. Not only did I make a clinical error in setting up the infusion which contained a controlled drug incorrectly, but much more significantly I failed to follow correct policy afterwards. I have always upheld the code in being open and honest and have always acted with integrity and uphold the reputation of my chosen profession. What I should have done was, or if I was on duty and anyone else became involved in a drug error, is to immediately take a set of clinical observations, closely monitor the patient and notify the medical team, if necessary the pharmacist, and ask them for advice about the drug involved. If I was not the senior nurse on duty, I would also notify whoever this was and I would then have completed a detailed AER. I would also notify the Ward Manager by in her absence. As part of my reflection and learning I now recognise that in accordance with my duty of candour, that we must be open and honest when something goes wrong with treatment which causes, or has the potential to cause harm or distress. I would If the patient was conscious, explain to them what had occurred and any potential effects and offer an apology or in this case I should have notified the next of kin. Part of my action plan on the AER form would also include involving the Medical Safety Nurse/Matron. As part of my reflection, and to try and find possible causes, and ways to prevent any reoccurrence I also write a route cause analysis. To conclude, the last year and a half has been the most difficult of my entire life. I do not wish to sound in any way bitter, but I cannot begin to explain the consequences that my errors have put on my professional and professional life and family. However, I realise why my employers did what they did, and I fully understand that the NMC by taking the referral to its fullest extent are protecting the public. I have reflected, and will continue to reflect on my nursing practice and the lessons learnt. I am now a considerably more Page 9 of 15

10 insightful nurse; I am constantly looking to learn new skills. practice will forever be shaped for the better by those errors. My nursing 6.3. The parties note that a caution order is the least restrictive sanction that can be applied and that Mr Dalton s practice will not be restricted for its duration. It is considered that there is a low risk of repetition in this case and so the public would be adequately protected. Mr Dalton is now practising in a senior position and his employers have provided a report speaking highly of him. A caution order would mark Mr Dalton s behaviour in the circumstances of this case to have been unacceptable and act as a mark that is must not happen again The parties have considered the more onerous conditions; a conditions of practice order would be disproportionate as there are now no identifiable areas of Mr Dalton s practice in need of assessment and/or retraining. Removal from the register is also considered to be disproportionate and unnecessary in this case. The parties understand that this provisional agreement cannot bind a panel, and that the final decision on findings impairment and sanction is a matter for the panel. The parties understand that, in the event that a panel does not agree with this provisional agreement, the admissions to the charges set out at section 1 above, and the agreed statement of facts set out at section 2 above, may be placed before a differently constituted panel that is determining the allegation, provided that it would be relevant and fair to do so. Page 10 of 15

11 Decision and reasons on application to amend charge: The panel considered the application to amend charge 1 as outlined in the CPD. The panel accepted the advice of the legal assessor that Rule 28 of the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended) ( The Rules ) states: 28. (1) At any stage before making its findings of fact (i) the Conduct and Competence Committee, may amend (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 in the CPD, was in the interest of justice. The panel noted that the amendment was applied for by agreement between the NMC and Mr Dalton. The panel was satisfied that there would be no prejudice to Mr Dalton and no injustice would be caused to any party by the proposed amendment being allowed. It was therefore appropriate to allow the amendment, as applied for, to ensure clarity and accuracy. Decision and reasons on the consensual panel determination: The panel heard and accepted the advice of the legal assessor. He advised the panel in relation to the consensual panel determination procedure and that any order imposed must reflect the need to protect the public and to maintain public confidence in the profession and declare and uphold proper standards of conduct and behaviour. He reminded the panel that it may accept or reject the provisional agreement. He also advised that the panel may amend the provisional agreement, but that this would only be subject to the agreement of all parties. He referred the panel to the Indicative Sanctions Guidance ( ISG ) and advised that the panel must employ the principles of proportionality, weighing the interests of patients and the public with Mr Dalton s own interests. Page 11 of 15

12 The panel noted that Mr Dalton has admitted the facts of the charge and the factual background. Accordingly the panel is satisfied that the charges are found proved. The panel has exercised its own judgement in reaching its decision on misconduct, impairment and sanction. In relation to misconduct, the panel concurred with the CPD agreement that Mr Dalton s actions amounted to a breach of The code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ). In addition to the paragraphs identified in the CPD agreement, the panel considered that Mr Dalton s actions amounted to a breach of the following paragraphs of the Code: 33 You must inform someone in authority if you experience problems that prevent you working within this code or other nationally agreed standards. 39 You must recognise and work within the limits of your competence. The panel appreciated that breaches of the code do not automatically result in a finding of misconduct, and that there must be an element of seriousness to any departure from the standards expected. However, the panel noted that Mr Dalton has accepted that the facts found proved amount to misconduct. In addition to the aggravating features of Mr Dalton s actions as outlined in Paragraph 6.2 of the CPD, the panel also considered it significant that Patient A was vulnerable, elderly, and receiving end of life care. It bore in mind that Midazolam is a controlled drug, and that Mr Dalton s actions could have caused considerable patient harm. Accordingly, the panel accepted the conclusion of the CPD that Mr Dalton s actions and omissions fell far short of what would have been proper in the circumstances, and as such amounted to misconduct. In relation to impairment, the panel bore in mind that Mr Dalton admits that his fitness to practise is impaired by reason of his misconduct. The panel considered that the misconduct identified in this case is remediable. The panel accepted the supportive report written by Mr Dalton s Deputy Matron, which stated that there have been no Page 12 of 15

13 concerns in relation to Mr Dalton s practice, and that he has subsequently undergone a comprehensive practical and theoretical medicines assessment. The panel also accepted the submission of Mr Renton that Mr Dalton now has developed an understanding of the importance of maintaining and enhancing good communication at work. The panel found that Mr Dalton has remedied his misconduct, and that he has demonstrated a high level of insight into his misconduct, as evidence by his detailed reflective piece. The panel accepted from the finding of the CPD agreement that there has been no repetition of the misconduct identified in this case, and the panel considered that the risk of repetition is low. The panel accepted the conclusion of the CPD that whilst there was a low risk of repetition, a finding of impairment was necessary on the grounds that it was otherwise in the public interest. The panel considered that a finding of no impairment would be insufficient to declare and uphold standards and would undermine public confidence in the profession and the NMC as its regulator. Accordingly, the panel found that Mr Dalton s fitness to practise is currently impaired by reason of his misconduct. In relation to sanction, the panel considered the ISG. The panel took into account the aggravating and mitigating factors identified in the CPD agreement. It considered that an additional mitigating factor in this case was that Mr Dalton was working a day shift on a newly opened ward at the time of the incident, and was only on his second shift, the first shift being on night duty. The panel considered that the circumstances in which the misconduct arose, which have been set out in the CPD agreement, are such that public interest considerations are engaged in this case. The panel first considered whether to take no action but determined that this would be would be insufficient to maintain public confidence in the nursing profession, and in the NMC as its regulator. Page 13 of 15

14 Next, in considering whether a caution order would be appropriate, the panel had regard to paragraph 6.3 of the CPD. It took into account the ISG, which states as follows: a caution may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. It might be appropriate where the nurse or midwife s history is such that the panel is confident that there is no risk to the public or to patients which requires the nurse or midwife s practice rights to be restricted. The panel again took into account the supportive reference from Mr Dalton s Deputy Matron and Mr Dalton s reflective piece. In light of Mr Dalton s high level of insight into his misconduct and that he has taken considerable steps to remedy his practice, the panel considered that there is a low level of risk to patients. The panel considered that a caution order would mark Mr Dalton s behaviour as unacceptable. With regards to the public interest, the panel considered that a caution order would mark the importance of maintaining public confidence in the profession and to send to the public and the profession a clear message about the standard of behaviour expected of a registered nurse. The panel also considered whether this matter should be more appropriately dealt with by way of more restrictive sanction, and whether placing conditions of practice on Mr Dalton s registration would be a the appropriate sanction. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel accepted the reasoning set out in paragraph 6.4 of the CPD that there were no longer any identifiable areas of Mr Dalton s practice in need of assessment or retraining. The panel was of the view that there were no practicable, workable or measurable conditions that could be formulated or that were necessary in this case. The panel went on to consider whether a suspension order would be an appropriate sanction. Given Mr Dalton s high level of insight and remediation, the panel was of the view that there is a low risk of repetition. The panel considered that, although Mr Page 14 of 15

15 Dalton s actions were below that expected of a registered nurse, the low risk of repetition was such that a suspension order would be disproportionately punitive. Further, the panel considered that Mr Dalton has been working without further concern prior to and since the incident, and his current employer speaks highly of him, his excellent leadership skills and his practice. The panel considered that suspending Mr Dalton would not be in the public interest as it would prevent an otherwise good nurse from continuing to practice. Having determined that a caution order was the appropriate and proportionate sanction, the panel considered the length of time over which a caution order should be imposed. Whilst Mr Dalton s misconduct could be appropriately addressed through a caution order, the panel considered that a one year caution order would be an insufficient response. The panel noted that Mr Dalton s actions were serious, and it considered that a one year caution order did not adequately address the public interest in declaring and upholding standards and marking the seriousness of his misconduct. The panel considered that a two year caution order would be more appropriate and adequately reflect the level of misconduct found in this this case. Mr Renton, on behalf of Mr Dalton, agreed to the panel s proposed amendment to the CPD. As such, the panel accepted the CPD agreement, with the amendment that the appropriate sanction in this case is a caution order for two years. This decision will be confirmed to Mr Dalton in writing. That concludes this determination. Page 15 of 15