18 Month Interim Suspension Order

Transcription

1 Conduct and Competence Committee Substantive Meeting 14 February 2013 Nursing and Midwifery Council, 20 Old Bailey, London Name of Registrant Nurse: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: Nomqondiso Adelaide Jaceni 01Y0686O Registered Nurse - Mental Health Nursing-(1 October 2001) Registered Nurse Adult Nursing-( 18 June 2004) England Misconduct Edward Lucas (Lay Chair) Teresa Cook (Lay member) Roger Cobley (Registrant member) Trevor Jones Richard Webb All N/A Impaired Striking Off Order 18 Month Interim Suspension Order Proof of Service: Notice of this meeting was sent to Mrs Jaceni on 08 January That notice was sent by recorded delivery and by first class post to her registered address. The notice made clear that the case would be considered shortly after 06 February 2013 at a meeting which would be held in private. The notice also made clear the panel s powers in disposing of the case. The panel accepted the advice of the legal assessor that the documentation relating to service showed that the NMC had complied with the Rules relating to service. The panel concluded that notice of this meeting has been served in accordance with the requirements of Rules 11A and 34 of the Nursing and Midwifery Council Fitness to Practise Rules (2004). Page 1 of 6

2 Details of Charge: That you, whilst employed as a Registered Nurse at the Westacre Nursing Home, Winchester ['the Care Home']: 1. Between around 7 October 2011 and around 10 October 2011, administered Diamorphine to Mrs A on about three occasions but failed to complete the controlled drug register for Mrs A 2. Between around 1 September 2011 and around 31 October 2011, made numerous personal calls to South African telephone numbers on the Care Home's mobile telephone, generating a combined telephone bill of around Were dishonest in respect of allegation 2 above, as you did not intend to pay for the calls. And as a result of the above, your fitness to practise is impaired by reason of your misconduct Determination on Facts: In reaching its decisions on the facts the panel took into account all the evidence in this case. The panel decided what weight, if any, to attach to the evidence put before it. The panel proceeded on the basis that the burden of proof is on the NMC and the standard of proof is the balance of probabilities. This means that a fact will be found proved if the panel is satisfied that it is more likely than not to have occurred. Mrs Jaceni was employed as a Registered Nurse at Westacre Nursing Home, Winchester [the "Care Home"]. A routine drugs audit was carried out at the Care Home on 8 November As a result of this drugs audit it became apparent that 6 ampoules of Diamorphine were unaccounted for. It was established that these 6 ampoules had been administered to a patient ["Mrs A"] and had been noted on her medicine administration record ["MAR"] chart but had not been accounted for on the controlled drug register. It was established that there were three incidents between 7 October 2011 and 10 October 2011 where Mrs A was administered Diamorphine but it was not recorded on the controlled drug register. The only nurse who was on duty for all three of these occasions was Mrs Jaceni. On 14 November 2011, it was brought to the attention of Colleague 1, the Care Home Manager that direct debits had been taken from the Care Home's bank account for monthly telephone bills for the sum of and for September 2011 and October 2011 respectively. This was raised as a concern as usually these telephone bills would be approximately 10 each. The itemised telephone bills showed that numerous calls were made to South Africa from one of the mobile phones the nurses use whilst on duty. In total, 285 telephone calls were made to South Africa telephone numbers in September 2011 and October Mrs Jaceni was on duty when all of the calls to South Africa were made. As Mrs Jaceni was the only nurse on duty for all the dates involved in the Controlled Drug Register error and one of only two nurses who had access to the mobile phone involved in the telephone incident, she was suspended from work pending investigation and interviewed on 24 November At this interview Mrs Jaceni said she knew that the mobile phones were only to be used for "important things, home related" or words to that effect. She then admitted to making all the telephone calls to South Africa apart from telephone calls to nine numbers. Mrs Jaceni said that she thought she was making the telephone calls using a 5 phone card. However, she admitted that she had noticed the credit balance was not reducing. At a disciplinary hearing on 08 December 2011 she also admitted to making calls and sometimes Page 2 of 6

3 making no attempt to use the phone card. There were also concerns that given the timings of the telephone calls, it was not possible for Ms Jaceni to have made all of them on her allotted breaks and as a result would have been making calls when she should have been working and caring for Residents. At this hearing Mrs Jaceni also admitted to administering Diamorphine to Mrs A on 7, 9 and 10 October 2011 and she confirmed in the interview that she did not make an entry on the controlled drug register. At the disciplinary hearing Mrs Jaceni was dismissed with immediate effect on the grounds of gross misconduct and it was decided that a referral would be made to the NMC. In relation to Charge 1, the drug reporting error was in clear contravention of the Care Home s Medications Policy and Procedure which has been produced to the panel today. The panel also had sight of the MAR charts for Mrs A and Controlled Drug Register for patients at the Care Home. The MAR charts clearly show that Diamorphine had been administered to Mrs A on three occasions, between 7 October 2011 and 10 October 2011, whereas the Controlled Drug Register had not been completed to reflect this. The panel also noted that, in her witness statement, Colleague 1 provides direct reference to Mrs Jaceni being the only nurse on duty for all three occasions. Further to this, Colleague 2 states that Mrs Jaceni admitted to this error in the disciplinary hearing. The panel were provided with the notes from this hearing in which Mrs Jaceni accepts that she did not make an entry in the controlled drug register. The panel had regard to Westacre Nursing Home s Medications Policy and Procedure which states that the Controlled Drug Register must be updated when any patient has been administered a controlled drug, such as Diamorphine. In light of all the above the panel finds Charge 1 proved. The panel next considered Charge 2 and were mindful that Mrs Jaceni admits to making personal calls to South African telephone numbers on the Care Home's mobile telephone. Colleague 2 recalls Mrs Jaceni s response during the Care Home s disciplinary hearing when questioned about the calls, and states that Mrs Jaceni conceded what she had done was very stupid and that she recognised that she did a silly thing. The panel have no evidence to suggest that the calls were not being made by Mrs Jaceni for non-personal reasons and, on the balance of probabilities, find this charge proved. The panel considered the dishonesty alleged in Charge 3 in relation to Mrs Jaceni s actions set out in Charge 2. The panel had in mind the advice of the legal assessor who referred to the case of R v Ghosh [1982] Q.B The panel find no evidence to say that Mrs Jaceni made payments to the Care Home for the personal calls she made to South Africa or that she intended to pay for these calls. The panel is in no doubt that reasonable and honest people would regard Mrs Jaceni s conduct in respect of Charge 2 as dishonest. The panel then considered whether Mrs Jaceni herself must have realised that, by those standards, her actions were dishonest. The panel was in no doubt that Mrs Jaceni s actions were dishonest. There are a large number of telephone calls in a short period of time and the panel does not accept the explanation provided by Mrs Jaceni s in her disciplinary hearing. The panel noted that Mrs Jaceni neither spoke to her managers about any personal matters nor sought authorisation to make the calls let alone any arrangement to pay for them. The panel conclude therefore that Mrs Jaceni knew what she was doing was wrong and had no intention to pay for the cost of the many calls she was making at that time. For these reasons, the panel found this charge proved. Page 3 of 6

4 Misconduct and Impairment: Having found all the charges in this case proved, the panel next considered whether the facts found proved amount to misconduct and, if so, whether Mrs Jaceni s fitness to practise is currently impaired. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel has accepted the advice of the legal assessor. He referred to the case of CHRE v (1) NMC (2) Grant [2011] EWHC 927 (Admin). The panel adopted a two stage process. Firstly, the panel determined whether the facts found proved amounted to misconduct. Secondly, if they do amount to misconduct it must consider whether Mrs Jaceni s fitness to practise is currently impaired. This is a matter for the panel exercising its professional judgement. The panel has had careful regard to its findings of fact. The panel has also taken into account the seriousness of Mrs Jaceni s dishonest behaviour and finds that she has breached fundamental tenets of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the code ), as stated below: Be open and honest, act with integrity and uphold the reputation of your profession. 61 You must uphold the reputation of your profession at all times. The panel are mindful that, in the eyes of the public, it would not be expected of a registered nurse to act in the manner set out in charges 2 and 3. It has previously found that Mrs Jaceni was making a large number of personal calls whilst on duty at the Westacre Care Home. The panel have found that this conduct was dishonest. The panel have concluded that Mrs Jaceni s actions fell seriously short of the standards expected of a registered nurse and were sufficiently serious that they can properly be described as misconduct. The panel has had regard to the issue of remediability and has considered whether Mrs Jaceni s misconduct is remediable, whether it has been remedied, and whether it is likely to recur. The panel has also considered the broader public interest; the need to uphold proper professional standards and maintain public confidence in the profession and its regulator. The panel considered the misconduct as a whole. The charges that have been found proved include repeated dishonesty and a failure to comply with the proper recording procedures for administering a controlled drug. The panel acknowledge that Diamorphine was administered to Mrs A and recorded in her MAR chart by Mrs Jaceni correctly and that no patient was put at significant risk as result of her actions. However the panel found that the frequent personal calls, made by Mrs Jaceni during work hours, meant that she was neglecting patient care and that residents at the Care Home were exposed to risk as a result of her neglecting her duties. The panel acknowledge the difficulty for a registrant to show that dishonesty has been remedied. However the panel notes that Mrs Jaceni s dishonesty was not an isolated incident and was repeated frequently over a period of time. In this case, for the reasons set out above, the panel finds that Mrs Jaceni s dishonesty has not been remedied and therefore there is a reasonable risk of repetition. Moreover, the panel concluded that the misconduct in this case is serious and that to make a finding of no impairment would undermine the public s confidence in the profession and the NMC as its regulator. The panel finds that Ms Jaceni s fitness to practise is impaired by reason of her misconduct. Page 4 of 6

5 Decision on sanction: In reaching its decision on sanction the panel has had regard to its previous findings and to the evidence in this case. The panel has accepted the advice of the legal assessor and has taken account of the NMC Indicative Sanctions Guidance (2012). The panel had in mind the relevant case law including the case of Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin). The panel has borne in mind that any sanction imposed must be appropriate and proportionate, and that sanctions are not intended to be punitive but may have a punitive effect. It has recognised that the decision on sanction is a matter for the panel exercising its own independent judgement. The panel considered all of the sanctions available, starting with the least restrictive. It also considered the principle of proportionality in its findings. The panel has considered this case very carefully and has decided to impose a striking off order. The effect of this order is that Mrs Jaceni s name will be removed from the Nursing Register and she will not be able to apply for restoration until five years after the date that this order comes into effect. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of Mrs Jaceni s misconduct and her dishonesty. The panel decided that it would be neither proportionate nor in the public interest to take no further action. Next, in considering whether a caution order would be appropriate, the panel took into account the Indicative Sanctions Guidance, which states that 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. The panel is of the view that the misconduct in this case is too serious for a caution order. It would not be in the public interest given the finding that Mrs Jaceni s fitness to practise is currently impaired as a result of dishonesty and that there is a risk of repetition of such behaviour. The panel next considered whether placing conditions of practice on Mrs Jaceni s registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the Indicative Sanctions Guidance, in particular the following: 67.8 It is possible to formulate conditions and to make provision as to how conditions will be monitored The panel found that it would not be possible to construct any conditions that would address the serious nature of the misconduct, namely the dishonesty Mrs Jaceni has displayed. There are no conditions that could adequately address the issue of her dishonesty and be appropriate and proportionate to the public interest in this case to maintain and uphold proper professional standards. The panel next considered whether a suspension order would be an appropriate sanction. Paragraph 71 (of the Indicative Sanctions Guidance) indicates that a suspension order would be appropriate where there is (but not limited to); 71.1 A single instance of misconduct but where a lesser sanction is not sufficient The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour. The panel has already identified that Mrs Jaceni s dishonesty was not an isolated incident but was sustained and took place over a prolonged period of time. The panel are also mindful that Mrs Jaceni has not fully engaged with these proceedings and there is no evidence provided to it of insight or remediation. Overall, the panel cannot be persuaded Mrs Jaceni s dishonesty would not be repeated. Page 5 of 6

6 The panel is of the view that there remains a risk, if Mrs Jaceni were allowed to remain on the register, in that there could be a repetition of her dishonesty. Balancing all of these factors, the panel has determined that a suspension order would not be an appropriate or proportionate sanction. In considering a Striking-off Order the panel took note of the following paragraphs of the Indicative Sanctions Guidance: 39 Dishonesty, even where it does not result in direct harm to patients but is related to matters outside of a nurse or midwife s professional practice, for example, fraudulent claims for monies, is particularly serious because it can undermine the trust the public place in the profession. Honesty, integrity and trustworthiness are to be considered the bedrock of any nurse or midwife s practice. 40 In Parkinson v NMC, 1 Mr Justice Mitting said: A nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register. A nurse who has acted dishonestly, who does not appear before the Panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than direct erasure Is striking-off the only sanction which will be sufficient to protect the public interest? 74.2 Is the seriousness of the case incompatible with ongoing registration 74.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register? The panel concluded that Mrs Jaceni s misconduct displays a significant departure from the standards expected of a registered nurse and that it is fundamentally incompatible with her remaining on the register. The panel finds Mrs Jaceni s dishonesty to be persistent and repeated with no evidence of insight and that there is a risk of repetition. She has clearly breached a fundamental tenet of the profession. In the absence of Mrs Jaceni s engagement with the process the panel has not been provided with detail of her current circumstances. The panel has taken into account the impact such an order may have on Mrs Jaceni but concluded that the public interest outweighs her interest in this regard. The panel is of the view that to allow Mrs Jaceni to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body. The panel has determined that the only appropriate and proportionate sanction is a striking-off order. Decision on Interim Order: The panel next considered whether it was necessary to impose an interim order. The panel has accepted the advice of the legal assessor. The panel is satisfied that an interim suspension order is otherwise in the public interest to declare and uphold proper professional standards of conduct and behaviour. In reaching the decision to impose an interim order, the panel has had regard to the seriousness of the facts found proved and the reasons set out in its decision for the striking-off order. Not to impose such an order would be incompatible with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made then the interim order will be replaced by the striking-off order 28 days after Mrs Jaceni is sent the decision of this hearing in writing. That concludes this meeting. Page 6 of 6