Reasons for the substantive hearing of the Conduct and Competence Committee panel held at NMC, 61 Aldwych, London on March 2011

Transcription

1 Reasons for the substantive hearing of the Conduct and Competence Committee panel held at NMC, 61 Aldwych, London on March 2011 Name: Alison Victoria Marie Barlow PIN: 05A1558E Part (s) of register: Registered Nurse Sub Part 1 Adult Nursing March 2005 Facts proved: 1(a), (b), (c), (d), 2(a), (b), 3 Facts not proved: n/a Fitness to practise: Impaired Sanction: Striking Off Order directed Interim Order: Interim Suspension Order 18 months The registrant attended and was represented by Miss Bridget Petheridge. Miscellaneous reasons The panel heard an application by Counsel for the registrant that these proceedings should be stayed as an abuse of process, on the grounds that the registrant could not receive a fair trial, because an original document was not available. This, she submitted, was crucial to the defence. The panel considered her submissions, the submissions of Counsel for the NMC, and took the legal advice of the Legal Assessor. The Panel was referred to the case of Regina v Boyd, (2002) EWCA Crim 2836, and to summaries of the cases of Ebrahim v Feltham Magistrates Court, and DPP v Hussain, as set out in Archbold. The Panel notes that the burden of proof is on the registrant, and the standard of proof is the balance of probabilities. The defence submitted that, without the original of Patient A s drug kardex for the relevant dates, 29 th and 30 th August 2008, the registrant could not have a fair trial. The registrant denies altering the records as alleged by the NMC, and disputes when, how, and by whom, certain entries were made. A copy of the kardex could not show potential differences in the colour of the ink used. Expert evidence could have been obtained to attempt to show when, by whom, and in what order, the entries were made. This cannot be done using a copy. The defence submit that the absence of the original document deprives the registrant of objective evidence which could have supported her account or undermined the evidence of witnesses called by the NMC. Counsel for the NMC explained that the original document had been requested from the Trust. It had never been in the hands of the NMC. The Trust cannot at present locate it, but are still trying to do so. The NMC did not though make an application for an adjournment. Counsel for the NMC submitted that the NMC proposes to call eye-witnesses who can give evidence as to the state of the drugs kardex on the days in question. In the cases of Dr Mittal and Dr Lee, their recollections are supported by contemporaneous notes, so they are not being required to try to recall matters which date back to 2008.

2 Staff Nurse Odebadejo will give evidence that she saw the registrant get out a pen, and start to alter the drug kardex. All these witnesses can be tested in crossexamination, and by panel questions. He submitted that the panel will, in due course, be able to give that evidence what weight it sees fit. The panel bore in mind that a stay for abuse of process is an exceptional remedy, which should not be granted where the hearing process itself is capable of curing any potential prejudice to the registrant. The panel does not consider that the absence of the original drug kardex means that the registrant cannot have a fair hearing. The evidence will be subject to close scrutiny, and the lack of the document will be borne firmly in mind by the panel. Accordingly, the panel refuses the application. Charges read as follows: That you, a registered nurse, whilst employed as a band D staff nurse at the Christie Hospital, Manchester: 1. On 29 August 2008: (a) administered the drug Isosorbide Mononitrate in error to Patient A; (b) administered the drug Frusemide in error to Patient A; (c) administered the drug Bisoprolol in error to Patient A; (d) failed to ensure that a full set of physiological observations were carried out on Patient A. 2. On 30 August 2008, having been made aware of the drug error set out at (1)(a) to (1)(c) above: (a) (b) failed to report the drug error in line with the Christie Hospital policy for the safe administration of medicines; altered entries on Patient A s drug kardex. 3. Your conduct as set out at 2(b) above was dishonest. AND, in light of the above, your fitness to practise is impaired by reason of your misconduct. Reason for the finding of facts The panel considered very carefully the Charges alleged by the NMC. In reaching its conclusion, the panel considered each Charge, and each limb of each Charge separately, and applied the civil standard of proof. The panel considered the submissions of both parties, and accepted the legal advice of the Legal Assessor. When considering Charge 3, the panel were guided by the case of Ghosh.

3 The NMC called Dr Mittal, who was a Senior House Officer at the Christie Hospital, Staff Nurse Veronica Oyebadejo, Dr Rebecca Lee, also a Senior House Officer at the Christie Hospital, and David Pickersgill, who was ward Manager of Ward 4 of the Christie Hospital at the relevant time. The registrant gave evidence on her own behalf. The panel took into account the admissions and documentary evidence placed before it. It is agreed between the parties that at the material times in the charges that Patient A was seriously ill, suffering from complex health conditions, and that his blood pressure was labile. The records show that at on 29 th August, his MEWS score was 4. The registrant came on duty at on that day. At 08.35, Patient A s Mews score was 3. In view of that score, in accordance with the Trust policy, full observations should have been carried out at least 4 hourly. It is also accepted that the registrant was employed as a Band D staff nurse at the Christie Hospital at the relevant time. She was working on Ward 4, a 24 bedded oncology unit. This was her first hospital appointment as a trained nurse. Charges 1 (a), (b), and (c) The panel considered the evidence for each of these Charges separately, but its conclusions for each Charge are the same. On at least two occasions, on 28 th -29 th August, Doctors Mittal and Lee had been called to carry out assessments on Patient A. At about noon on 28 th August, Dr Mittal judged that consideration be given to withholding Isosorbide Mononitrate (ISMN), Frusemide, Bisoprolol and Perindopril, due to the fact that patient A s blood pressure was already low and that these drugs might depress it further. The next dosage of these medications was to be given at the next morning, 29 th August. Dr Mittal said that he marked patient A s drug kardex to show that the ISMN, Frusemide and Bisoprolol should not be given on 29 th and 30 th August, having changed his mind about Perindopril, which was maintained for therapeutic reasons. The registrant was responsible for Patient A s care from on 29 th, when she came on duty for the early shift. She accepted in her evidence that when she came to carry out the drug round, she adopted her usual practice of marking up the kardex drug record at the point of dispensing drugs into the pots for administration, rather than at the point of actual drug administration. The registrant accepted in her evidence before us that she made a mistake in her recording, when she initialled the relevant box for ISMN, Frusemide and Bisoprolol against 30 th August rather than 29th. Notwithstanding that it was 29 th August, she utilized the first fresh column on the drug kardex which was for the 30 th, and failed to appreciate that entries had been made with a cross by Dr Mittal indicating that some drugs were to be withheld on 29 th. She accepted that Frusemide and Bisoprolol had been so marked, but said that there was no entry on 29 th for ISMN, the box being blank. Her evidence was that, having made this administrative mistake, when she got further down the drug record, she realised that mistake, and realised that Frusemide and Bisoprolol should be withheld. She further told us that she made a clinical assessment of Patient A s condition, and decided not to administer the ISMN. She told us that she threw away the medication which had already been placed in the dispensing pot. She told us that she then sought advice from two doctors, one a ward doctor, and the

4 other a new doctor who came onto the ward, about what action should be taken to correct the record. Unfortunately, the registrant has been unable to identify either of the doctors, one of whom she said had later amended the kardex. She told us that when she finished her shift at 15.30, the record had been adjusted so that there was a heavy cross over her initials for ISMN and Frusemide, and a O over Bisoprolol. She said that earlier she had changed the date headings to the columns and written the word error against 29 th August. She told us that at no stage did she believe it was necessary or appropriate to escalate matters within her own line management or to record these matters in the nursing notes or to complete a clinical incident form. During the night of 29 th August 2008, S.N. Oyebadejo was responsible for the care of Patient A. There came a time when his MEWS score was such as to trigger Dr Lee to review him because of low blood pressure. Part of her review led her to look at the drug kardex. She told us in evidence that the kardex presented to her led her to conclude from the initials on the kardex against ISMN, Frusemide and Bisoprolol that these medications had been given when they should not have been. She wrote a query to that effect on the kardex, and wrote in the medical notes? if was given frusemide + antihypertensives today was crossed off however someone has written tomorrow s date and signed as given Her recall was that the heavy crosses and O were not on the kardex when she saw it during the night, when carrying out the assessment. She gave particular detailed instruction for Patient A s future care, and added a further column to the drug kardex headed 30 th, and marked on it that ISMN, Frusemide and Bisoprolol were to be withheld. We were told that she saw the record again on the following night, when her query on the drug record had been crossed out, and that the heavy crosses and the O had by then appeared on the drug record. Having considered all the evidence, the panel concludes that the registrant did administer the drugs to Patient A. The evidence of Dr Lee was credible, cogent and compelling and materially supported by the evidence of Dr Mittal. The panel did not accept the evidence of the registrant. It was of the view that she did administer the three drugs and that she did not come to appreciate her error until 30 th August Charge 1 (d) The panel was shown the Physiological Observation Track and Trigger System record for Patient A. The panel acknowledges that the registrant has not been charged with failure to make a record of observations, but with failing to ensure that a full set of physiological observations were carried out on Patient A. On 29 th August 2008, the registrant was mentoring a student radiographer. He carried out a full set of physiological observations on Patient A at 08.35, and recorded his MEWS score as 3. The next observations were taken at and initialled by the registrant. She accepts that she wrote Sats only on the record, and recorded patient A s sats and O2 route. She did not record any other observation. No MEWS score was noted. She gave evidence that the student radiographer carried out the other observations in her presence, and that she expected him to record them. The panel does not accept the evidence of the registrant. The panel does not accept

5 that a registered nurse would not ensure that the observations of a seriously ill patient were recorded, if they had in fact been done. Accordingly, the panel is satisfied that this Charge is proved. Charge 2 (a) The registrant accepted that she did not report a drug error. She gave evidence that no drug error had occurred, and therefore she did not need to report anything. The panel does not accept the evidence of the registrant, and concludes that there was a drug error and that she should have reported it, as provided in Section C, paragraph 15.2 of the Christie Hospital NHS Trust s policy for the safe administration of medicines. The charge is proved. Charge 2 (b) The panel accepts the evidence of S.N. Oyebadejo, who gave a clear account of seeing the registrant on the morning of 30 th August getting out a pen and starting to alter Patient A,s drug kardex. S.N. Odebadejo told the registrant to stop altering the kardex, and that a doctor had already documented it. She describes the registrant as meddling and fiddling with it. She told the panel that the registrant said Don t worry, don t worry. The registrant denies that this ever happened, and alleged that S.N. Oyebadejo was lying. The panel notes that S.N. Oyebadejo does not know the registrant well, and has no reason to lie about her. The panel further notes that S.N. Oyebadejo made two mistakes in her original statement given to the NMC, but this does not undermine in its view, her credibility with regard to what she observed on 30 th August. Further, the evidence of Dr Lee confirms that the amendments were not made until the morning of 30 th August, which supports the proposition that they were made by the registrant at a time on that day when the error became clear to her. The panel does not accept the registrant s evidence that one of the unknown doctors made the alterations. Accordingly, the panel finds this Charge proved. Charge 3 The panel is satisfied that, in altering the entries on Patient A s kardex, the registrant acted dishonestly. There is no other rational explanation for her actions. This matter is also proved. Reason for the finding of impairment The panel has considered very carefully whether the registrant s fitness to practise is impaired by reason of her misconduct, and has concluded that it is. The panel has no doubt that the registrant s fitness to practise was impaired in August By her misconduct, she was in breach of the NMC s Code of Conduct. This provides that a registered nurse must share information with her colleagues, and facilitate students to develop their competence. A registered nurse must work effectively as part of a team, and keep clear and accurate records. She must keep clear and accurate records of the discussions she has, the assessments she makes, the treatment and medicines she gives, and how effective these have been. She must not tamper with original records in any way. A registered nurse must act with integrity, and uphold the reputation of her profession.

6 The panel heard further evidence from the registrant, who told us that she has been practising continuously as a registered nurse since 2008, and has completed a number of relevant courses. However, she continues to lack insight and denies dishonesty. Accordingly, the panel has concluded that her fitness to practise is currently impaired. Reason for the sanctions The panel considered what sanction, if any, to apply, and has decided to impose a Striking Off Order. In reaching this decision, the panel took into account the submissions of both parties, and took the Legal Advice of the Legal Assessor. Counsel for the NMC referred us to the cases of Tait v The Royal College of Veterinary Surgeons, and Parkinson v the Nursing and Midwifery Council, which indicate that dishonesty in a professional person is a serious matter that lies at the top end of the spectrum of gravity of misconduct. This case is too serious to impose no sanction. The panel considered a Caution Order and rejected it. There was evidence that the registrant s misconduct could have caused direct patient harm. The registrant administered inappropriate drugs to a vulnerable, seriously ill patient. There was no early admission of the facts. On the contrary, the registrant sought to cover up her mistakes, tried to blame others and accused a colleague of lying. This was an isolated incident, but the dishonesty was deliberate. The registrant expressed some regret about her failings in record-keeping, but none about her dishonesty. There was no suggestion that the registrant was acting under duress. The panel accepts that the registrant has a previous good history, and that there has been no repetition of the misconduct. The panel received references and testimonials from colleagues and friends, but none from the registrant s current employer, or her previous one. In spite of the positive elements in the registrant s case, the panel does not consider that a Caution Order is a sufficient sanction to reflect the gravity of the registrant s misconduct. The panel then considered a Conditions of Practice Order, and rejected it. A Conditions of practice Order is not capable of addressing dishonesty, which is a matter of character, not competence. The panel considered a Suspension Order, and rejected it. The registrant s dishonesty is fundamentally incompatible with continuing to be registered with the NMC. The panel has decided to make a Striking Off Order. The registrant s misconduct represents a serious departure from the relevant standards set out in the Code. Confidence in the Council would be undermined if she were not struck off. The panel considers that this is the only appropriate and proportionate sanction to protect the public, maintain public confidence in the profession and the NMC, and to declare and uphold proper standards of conduct. Reason for the interim order: The panel was invited by the NMC case presenter to consider making an interim

7 suspension order in this case. The registrant s advocate questioned the need for such an order. The panel received and accepted legal advice from the Legal Assessor. For the reasons previously given about the seriousness of the default in this case the panel considers that the making of such an order is necessary for the protection of the public and is otherwise in the public interest.