Nursing and Midwifery Council: Fitness to Practise Committee

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing March 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Ms Carpanini: Nursing and Midwifery Council: Fiona Jane Carpanini 77I3219E RN1, Registered Nurse - Adult RN2, Registered Nurse Adult (Level 2) England Lack of Competence Alexander Coleman (Chair, lay member) Beth Maryon (Registrant member) Kathryn Smith (Registrant member) Stephen Mooney Vicky Green Present and represented by Thomas Buxton, instructed by the Royal College of Nursing Simon Newman Facts proved: 4. a, 4. b, 4. c, Facts proved by admission: 1. a, 1. c, 1. e, 3, 5. b, 7. a, 8. a, 9 Facts not proved: Fitness to practise: Sanction: Interim Order: 1. b, 1. d, 1. f, 2. a, 2. b, 5. a, 5. c, 6, 7. b, 8. b Impaired Conditions of practice order 12 months Conditions of practice order 18 months Page 1 of 35

2 Details of charge That you, whilst working as a band 5 nurse at the Queen Elizabeth Memorial Health Centre, between 14 and 16 September 2015 failed to demonstrate the standards of knowledge, skills and judgement required to practise without supervision as a Band 5 staff nurse in that you: 1) On one or more occasion: a) Did not properly introduce yourself to the patient; b) Did not ask the patient for a clinical history; c) Did not identify who you were and/or what you were doing; d) Apologised to the patient for being new here ; e) Asked a patient to repeat their symptoms; f) Had to be reminded to document certain information from the consultation. 2) Did not manage your time appropriately by: a) Allowing one or more sessions with patients to overrun; b) Not prioritising tasks appropriately. 3) Behaved in an unprofessional manner by speaking about other staff members and/or your treatment by management in an inappropriate way. 4) On 14 September 2015 failed to obtain informed consent: a) Before administering a depot contraceptive injective; b) In relation to a travel immunisation; c) In relation to a whooping cough injection. 5) On 14 September 2015: a) Were unable to demonstrate aseptic techniques for putting on gloves and/or arranging dressing packs appropriately; b) Were unable to remove sutures from a patient adequately; c) Unnecessarily referred a patient to a GP. Page 2 of 35

3 6) On 16 September 2015 thought Symphysis Pubis Dysfunction was the same as Scoliosis. 7) On 16 September 2015 in relation to an unknown patient: a) Failed to hold the auroscope safely; b) Incorrectly advised the patient that they had a perforated ear drum. 8) On 16 September 2015 in relation to an unknown patient: a) Failed to measure the respiratory rate and/or perform chest/respiratory examinations for a patient presenting with respiratory complaints; b) Performed an unnecessary ear examination. 9) Failed a competency assessment. AND, in light of the above, your fitness to practise is impaired by your lack of competence. Page 3 of 35

4 Decision and reasons on application under Rule 19 At the outset of the hearing Mr Newman, on behalf of the Nursing and Midwifery Council (NMC) informed the panel that he intended to make an application to allow the written statements and nursing records into evidence. Mr Newman told the panel that during this application there will be reference to a witness health. In the light of this Mr Newman made a request that any reference to the witness health be heard in private. This application was made pursuant to Rule 19 of the Rules. Mr Buxton, on your behalf, did not oppose the application. 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 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 Page 4 of 35

5 (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) (b) having given the parties, and any third party from whom the Committee considers it appropriate to hear, an opportunity to make representations; and 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. Having heard that there will be reference to a witness health condition, the panel determined to hold such parts of the hearing in private. The panel, during the course of the application under Rule 31, considered that the witness health condition is inextricably linked to the hearsay application, therefore it determined that the whole of this application ought to be heard in private. Page 5 of 35

6 Decision and reasons on application pursuant to Rule 31 [PRIVATE] Page 6 of 35

7 Background The charges arose whilst you were employed as a Registered Nurse by the Ministry of Defence (MoD). After not working as a nurse for some time, while you remained in the employment of the MoD, it is alleged that you failed an assessed nursing assessment in September 2015 and demonstrated a lack of knowledge, skills or judgement. 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 Newman, on behalf of the NMC and those made by Mr Buxton on your behalf. The panel heard and accepted the advice of the legal assessor which included how to address the issue of good character. 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. The panel heard oral evidence from one witness called on behalf of the NMC. In addition, the panel heard oral evidence from you. Witness called on behalf of the NMC was: Ms 2 Regional Clinical Director, Central and Wessex for the Ministry of Defence. The panel first considered the overall credibility and reliability of all of the witnesses it had heard from, including you. Page 7 of 35

8 The panel found Ms 2 s evidence to be balanced, fair and measured. It considered that Ms 2 was, at the time of the incident, attempting to assist you in returning to nursing practise. The panel found you to be a candid and credible witness in what you perceived to have happened. The panel acknowledged that a competence assessment is understandably a stressful environment to any nurse. The panel next went on to consider the credibility and reliability of Ms 1 s Nursing Assessment report. The panel determined that as it is a contemporaneous document, and that there is no evidence of malice, it can be given some weight. Further, the panel was of the view that where Ms 1 has documented that she had to intervene, greater weight will be attached. At the start of this hearing you admitted the following charge: 9) Failed a competency assessment. This was announced as proved by way of admission. During your oral evidence you admitted the following charges: 1) On one or more occasion: a) Did not properly introduce yourself to the patient; c) Did not identify who you were and/or what you were doing; e) Asked a patient to repeat their symptoms; 3) Behaved in an unprofessional manner by speaking about other staff members and/or your treatment by management in an inappropriate way. 5) On 14 September 2015: b) Were unable to remove sutures from a patient adequately; Page 8 of 35

9 7) On 16 September 2015 in relation to an unknown patient: a) Failed to hold the auroscope safely; 8) On 16 September 2015 in relation to an unknown patient: a) Failed to measure the respiratory rate and/or perform chest/respiratory examinations for a patient presenting with respiratory complaints; These were therefore found proved by admission. The panel then went on to consider the remaining charges. The panel considered each charge and made the following findings: Charge 1: That you, whilst working as a band 5 nurse at the Queen Elizabeth Memorial Health Centre, between 14 and 16 September 2015 failed to demonstrate the standards of knowledge, skills and judgement required to practise without supervision as a Band 5 staff nurse in that you: 1. On one or more occasion: Charge 1. b): b) Did not ask the patient for a clinical history; This charge is found not proved. In reaching this decision, the panel took into account of the oral evidence of Ms 2, your oral evidence and the Nursing Assessment report completed by Ms 1. There are no patient records before the panel. Page 9 of 35

10 The panel considered that, in your oral evidence, you provided a range of examples where you obtained clinical history from the patients that you treated during the assessment. The panel preferred your evidence. The panel was of the view that the NMC has not discharged their evidential burden. Accordingly, the panel found this charge not proved. Charge 1. d): d) Apologised to the patient for being new here ; This charge is found not proved. In reaching this decision, the panel took into account of your oral evidence and the Nursing Assessment report completed by Ms 1. The panel had regard to the Nursing Assessment report which stated: she kept apologising to the patients, stating that she was new here In your oral evidence you told the panel that you had told a patient that you were new but not in the context of what has been alleged in the charge. You told the panel that a patient had said that they had not seen you at that clinic before, to which you replied that you were new. The panel determined that the NMC has not discharged their evidential burden and preferred your evidence. Accordingly, the panel found this charge not proved. Charge 1. f): Page 10 of 35

11 f) Had to be reminded to document certain information from the consultation. This charge is found not proved. There are no patient records before the panel. In reaching this decision, the panel took into account your oral evidence and the Nursing Assessment record. The panel had regard to the Nursing Assessment record in which Ms 1 wrote: Documentation content was sub-standard and she often had to be reminded to put in information from the consultation, when this was mentioned she stated that she had forgotten that piece of information; despite it only being 5 mins previously. In your oral evidence you told the panel that you do not know which patient record this relates to and that you have not been provided with any documentary evidence to support this allegation. You told the panel that you do not remember omitting to document information from the consultation. The panel found that the report is not particularised and is very general. The panel preferred your evidence. The panel was of the view that the NMC has not discharged their evidential burden. Accordingly, the panel found this charge not proved. Charge 2. a: That you, whilst working as a band 5 nurse at the Queen Elizabeth Memorial Health Centre, between 14 and 16 September 2015 failed to demonstrate the standards of Page 11 of 35

12 knowledge, skills and judgement required to practise without supervision as a Band 5 staff nurse in that you: 2) Did not manage your time appropriately by: a) Allowing one or more sessions with patients to overrun; b) Not prioritising tasks appropriately. This charge is found not proved. In reaching this decision, the panel took into account your oral evidence and the Nursing Assessment report. The panel noted the Nursing Assessment record which stated: Ms Carpanini consistently overran her appointments and had the clinics been fully booked this would have led to significant delays. You told the panel that on one of the days you started the clinic late because of IT issues. For the assessment, you told the panel that you were unable to treat any patients unless Ms 1 was present, this was due to your clearance checks. This meant that you had to stop working on a number of occasions when Ms 1 was called out of the room. You also told the panel that, unlike any other assessment you have had in the past, you were not taken to the room early to prepare. Further, you told the panel that a patient list was not given to you and that you were not informed about what time the clinic was due to finish. The panel was of the view that as you had not been provided with any patient lists and did not know what time the clinic was due to finish, you were not in a position to manage your time. Further, you could not continue with your tasks during the period that Ms 1 was out of the room. Page 12 of 35

13 The panel determined that the NMC has not discharged their evidential burden and preferred your evidence. Accordingly, the panel found this charge not proved. Charge 2. b: There was no evidence in the report of Ms 1 to support this charge. This charge is found not proved. Charge 4. 4) On 14 September 2015 failed to obtain informed consent: Charge 4. a) a) Before administering a depot contraceptive injective; This charge is found proved. In reaching this decision, the panel took into account you oral evidence and the Nursing Assessment record. The panel had regard to the Nursing Assessment record in which it stated the following: Ms Carpanini needed to be reminded to gain informed consent for the actual procedure she was about to undertake (an IM injection), she was distracted by asking [Ms 1] which of the medication risks (eg reduced bone mineral density) she needed to discuss with the patient and needed to be advised that this was the responsibility of the prescriber. In your evidence, you told the panel that you did obtain informed consent before administering the depot contraceptive. Page 13 of 35

14 The panel considered that there is a duty on a band 5 nurse to obtain informed consent. The panel determined, on the balance of probabilities, given Ms 1 s intervention, that it was more likely than not that you failed to obtain informed consent. Accordingly, this charge is found proved. Charge 4. b): b) In relation to a travel immunisation; This charge is found proved. In reaching this decision, the panel took into account you oral evidence and the Nursing Assessment record. The panel had regard to the Nursing Assessment record in which it stated the following: Ms Carpanini whilst seeking consent for the administration (medication was prescribed by GP) did not seek fully informed consent as she failed to mention the risk of serious adverse reactions. [Ms 1] informed the patient of the risk of severe reactions before the procedure was undertaken by Ms Carpanini. In your evidence, you told the panel that you did obtain informed consent before administering the depot contraceptive. The panel determined, on the balance of probabilities, given Ms 1 s intervention, that it was more likely than not that you failed to obtain informed consent. Accordingly, this charge is found proved. Charge 4. c): c) In relation to a whooping cough injection. Page 14 of 35

15 This charge is found proved. In reaching this decision, the panel took into account you oral evidence and the Nursing Assessment record. The panel had regard to the Nursing Assessment record in which it stated the following: informed consent was again not achieved as again the risk of serious adverse reaction was not explained to the patient. In your evidence, you told the panel that you did obtain informed consent before administering the whooping cough injection. The panel determined, on the balance of probabilities (given Ms 1 s intervention), that it was more likely than not that you failed to obtain informed consent. Accordingly, this charge is found proved. Charge 5: 5) On 14 September 2015: Charge 5.a): a) Were unable to demonstrate aseptic techniques for putting on gloves and/or arranging dressing packs appropriately; This charge is found not proved. In reaching this decision, the panel took into account of your oral evidence and the Nursing Assessment report. Page 15 of 35

16 The panel had regard to Ms 1 s comments contained within the Nursing Assessment record: Ms Carpanini had difficulties with the aseptic technique procedure, in particular she was unable to put on the sterile gloves effectively and also arrange her dressing pack to ensure aseptic technique was preserved. You told the panel that as you had not been given the opportunity to set up the clinic and prepare, you were unfamiliar with the equipment in the room. You demonstrated to the panel how the layout of dressing kits varied. You told the panel that notwithstanding the difficulties you experienced, the pack remained aseptic. Further, you told the panel that Ms 1 did not intervene to provide a new pack which you said she would have done if she observed that the pack was not sterile. The panel considered the non-intervention of Ms 1 significant and preferred your evidence. The panel was of the view that the NMC has not discharged their evidential burden. Accordingly, the panel found this charge not proved. Charge 5. c): 5) On 14 September 2015: c) Unnecessarily referred a patient to a GP. This charge is found not proved. In reaching this decision, the panel took into account of your oral evidence and the Nursing Assessment report. Page 16 of 35

17 The panel had regard to the Nursing Assessment record in which it stated the following: referred to GP by Ms Carpanini, which although was safe practice was unnecessary Subsequent feedback from the duty GP was that it was an unnecessary referral. You told the panel that you did refer this patient to a GP but you disputed that it was an unnecessary referral. The patient that you referred to a GP had suffered a head injury and lost consciousness as a result of this. In your previous experience as a nurse you had been instructed to always refer patients who have lost consciousness following head trauma to the GP. The panel was mindful that the GP s feedback was third hand hearsay which they attached little weight to. As an autonomous nurse you took a clinical decision which you felt was in the patient s best interests. In consequence, the panel find that this decision cannot be described as unnecessary. Accordingly, the panel found this charge not proved. Charge 6: 6) On 16 September 2015 thought Symphysis Pubis Dysfunction was the same as Scoliosis. This charge is found not proved. In reaching this decision, the panel took into account your oral evidence and the Nursing Assessment report. The panel noted the Nursing Assessment record which stated the following: Page 17 of 35

18 Ms Carpanini sought to clarify the patient telling her that she had SPD again by asking oh, so it s a scoliosis? to the patient. She was informed by [Ms 1] of what SPD is and what steps needed to be taken by her (referral to GP). You told the panel that you did not think that Symphysis Pubis Dysfunction (SPD) was the same as Scoliosis. When the patient entered the clinic, you said that she uttered the abbreviation SPD which you did not understand. You asked if she had said Scoliosis and when you understood that the patient had said she had SPD you told her that you were not familiar with this and referred her to a GP. The panel preferred your evidence and considered this to be miscommunication. The panel was mindful that SPD is a condition which is associated primarily with midwifery practice and is not a condition which all Band 5 nurses are familiar with. Accordingly, the panel found this charge not proved. Charge 7. b): 7) On 16 September 2015 in relation to an unknown patient: b) Incorrectly advised the patient that they had a perforated ear drum. This charge is found not proved. In reaching this decision, the panel took into account of your oral evidence and the Nursing Assessment record. The panel had regard to the Nursing Assessment record in which it stated the following: [you] told the patient that she thought his eardrum (TM) was perforated and this is why he is in pain. Examination by [Ms 1] indicated Otis externa and the TM was not visible due to inflammation. The patient was safely referred to the duty GP by Ms Carpanini where Otis externa was diagnosed, the duty GP confirms Page 18 of 35

19 that the TM was not visible, therefore, it was not possible to determine if a perforation was present. You disputed the allegation that you advised the patient that they had a perforated ear drum. You told the panel that you examined the patient s ear and identified that there was an abnormality which could have been a perforated ear drum. You told the panel that you needed a second opinion and referred the patient for further checks. The panel preferred your evidence. The panel was of the view that the NMC has not discharged their evidential burden. Accordingly, the panel found this charge not proved. Charge 8. b): 8) On 16 September 2015 in relation to an unknown patient: b) Performed an unnecessary ear examination. This charge is found not proved. In reaching this decision, the panel took into account of your oral evidence and the Nursing Assessment record. The panel noted the Nursing Assessment record which stated the following: she instead performed an unnecessary ear examination). In your oral evidence, you admitted performing an ear examination, but dispute that it was unnecessary. You told the panel that the patient was presenting with dizziness and that, in your experience as a nurse, the cause of this can sometimes be determined by examining the ears. Page 19 of 35

20 The panel accepted your clinical justification for carrying out the ear examination. Accordingly, the panel found this charge not proved. Submission on lack of competence and impairment Having announced its findings on the facts, the panel then considered whether, on the basis of the facts found proved, your fitness to practise is currently impaired. The panel took into account all the evidence before it. The panel also noted the submissions made by Mr Buxton, on your behalf and those made by Mr Newman, on behalf of the NMC, and heard and accepted the legal assessor s advice. Mr Newman addressed the panel on the matter of lack of competence, and referred the panel to the cases of Holton v GMC [2006] EWHC 2960 (Admin); Vali v GOC [2011] EWHC 310; Calhaem v GMC [2007] EWHC 2606 (Admin). Mr Newman referred to paragraphs of The Code: Professional standards of practice and behaviour for nurses and midwives (2015) (the Code) and identified where your actions amounted to a lack of competence. Mr Newman told the panel that the facts found proved in relation to your competence showed a pattern of elementary and wide ranging failures. He invited the panel to find that your actions amounted to lack of competence. Mr Newman 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. He referred Page 20 of 35

21 the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) and submitted that the first three questions posed in Grant are engaged. These relate to the risk of harm to the public; bringing the profession into disrepute; and breaching a fundamental tenet of the profession. Mr Newman acknowledged that you had made some admissions and been candid in giving your account. He accepted that your lack of competence is remediable, although in the context of your case full remediation has not yet been achieved. Consequently, there remains a risk of repetition and a consequent risk of harm to patients if you were permitted to practise without restriction. Mr Newman further submitted that public confidence in the regulator and in the profession would be undermined if you were permitted to practise unrestricted. He therefore invited the panel to find that your fitness to practise is impaired on both public protection and public interest grounds. Mr Buxton acknowledged that you had in fact accepted that you could not practise without restriction, he therefore simply made a number of observations about the charges, and questioned whether they all amounted to evidence of lack of competence. The panel heard and accepted the advice of the legal assessor. Decision on lack of competence The panel adopted a two stage process, as advised. First, the panel must determine whether the facts found proved amount to a lack of competence. Secondly, only if the facts found proved amount to a lack of competence, the panel must then decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of that lack of competence. When determining whether the facts found proved amount to a lack of competence the panel had regard to the terms of the Code. Page 21 of 35

22 The panel, in reaching its decision, has had regard to the public interest and accepts that there is no burden or standard of proof at this stage and exercised its own professional judgment. The NMC has defined a lack of competence as: A lack of knowledge, skill or judgment of such a nature that the registrant is unfit to practise safely and effectively in any field in which the registrant claims to be qualified or seeks to practice. The panel first considered each charge individually and which, of the charges found proved, amounted to lack of competence: 1) On one or more occasion: a) Did not properly introduce yourself to the patient; c) Did not identify who you were and/or what you were doing. The panel considered these two sub charges to be effectively the same. The panel was of the view that neither 1.a) nor 1. c) amounted to lack of competence. It determined that these charges relate to basic communication and while it may be considered that your greeting was not professional, it does not demonstrate a lack of skill, knowledge or judgement. e) Asked a patient to repeat their symptoms. The panel, in its finding of facts, found this charge proved. The panel had regard to your oral evidence and noted that you admit to asking the patient to repeat their symptoms because you did not understand their accent. The panel determined that, in the circumstances, it was wholly appropriate and correct to ask the patient to repeat their symptoms. Accordingly, the panel found that this charge does not amount to lack of knowledge skill and judgement. Page 22 of 35

23 3) Behaved in an unprofessional manner by speaking about other staff members and/or your treatment by management in an inappropriate way. The panel was of the view that this charge although clearly unprofessional, and potentially indicative of misconduct, depending upon context, was not a competency issue. 4) On 14 September 2015 failed to obtain informed consent: a) Before administering a depot contraceptive injective; b) In relation to a travel immunisation; c) In relation to a whooping cough injection. The panel considered these charges 4.a, b and c together as these sub charges share the same regulatory concern. The panel was of the view that a band 5 nurse is expected to have knowledge of informed consent and to obtain this consent before administering medication. The panel judged that you fundamentally did not understand what Ms 1 was saying to you. The panel therefore determined that these sub charges, both individually and collectively, amount to a lack of skill, knowledge and judgement. 5) On 14 September 2015: b) Were unable to remove sutures from a patient adequately. The panel noted that you tried to remove the sutures without wearing your fine detail glasses which made it difficult for you to see clearly. Since you knew this, this heightened the issue. The panel was of the view that you should have ensured that you could carry out the procedure safely before you attempted it. Safely removing suture is a basic skill expected of a band 5 nurse. The panel concluded that this charge does amount to a lack of knowledge, skill and judgement. 7) On 16 September 2015 in relation to an unknown patient: a) Failed to hold the auroscope safely. Page 23 of 35

24 The panel acknowledged your explanation as to how this charge arose. Notwithstanding that you were unfamiliar with this clinic, the panel was of the view that it was still a clinical environment and you are a trained professional. If the equipment was set out in such a way that you could not carry out the examination safely then you should not have attempted it. Accordingly, the panel determined that this charge amounts to a lack of knowledge, skill and judgement. 8) On 16 September 2015 in relation to an unknown patient: a) Failed to measure the respiratory rate and/or perform chest/respiratory examinations for a patient presenting with respiratory complaints. The panel heard your rationale for not carrying out the assessment. However the panel felt that you should have carried out this basic procedure as it was the presenting problem and the reason for the patient s referral to the clinic. The panel found that this charge amounted to a lack of knowledge, skill and judgement. 9) Failed a competency assessment. The panel considered that this charge indicates a summary of your lack of competence in that you failed this assessment as admitted by you. The panel has taken into account the following paragraphs of the Code: 1.2 make sure you deliver the fundamentals of care effectively; 4.2 make sure that you get properly informed consent and document it before carrying out any action; 6.2 maintain the knowledge and skills you need for safe and effective practice. The panel appreciated that breaches of the Code do not automatically result in a finding of lack of competence. Page 24 of 35

25 In considering whether the facts found proved amount to a lack of competence, the panel concluded that you breached the aforementioned paragraphs of the Code, which is the standard by which every registered nurse is measured. The panel bore in mind, when reaching its decision, that you should be judged by the standards of the reasonable average band 5 Registered Nurse and not by any higher or more demanding standard. Taking into account the reasons given by the panel for the findings of the facts, the panel has concluded that your practice was below the standard that one would expect of the average Registered Nurse acting in the role that you were in. In all the circumstances, the panel determined that your performance demonstrated a lack of competence. Decision on impairment The panel next went on to decide if, as a result of your lack of competence, your fitness to practise is currently impaired. Again, this is a matter for the panel s professional judgement. The panel was mindful of the need to consider not only whether you continue to present a risk to members of the public, 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 of this case. The panel had regard to the guidance given in the judgment of Mrs Justice Cox in the case of Grant. She cited with approval an approach to the assessment of impairment which had been advanced by Dame Janet Smith in the Fifth Shipman Report. The approach is set out at paragraph 76 of the Grant judgment: 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: Page 25 of 35

26 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. [ ] In light of its findings of fact, the panel determined that your actions had engaged the first three limbs of the guidance in Grant. The panel concluded that you have in the past acted so as to put patients at unwarranted risk of harm. Furthermore, your clinical failings related to basic and fundamental aspects of nursing practice and demonstrated a lack of competence, liable to bring the nursing profession into disrepute because of the negative impact your actions could have had on public confidence in the profession. The panel was mindful that the issue it had to determine was that of current impairment as of today. It therefore had to consider the risk of repetition. Any decision about the risk of repetition in this case would be informed by consideration of the level of insight you have demonstrated and by whether your lack of competence is capable of being remedied and, if so, whether it has been remedied. The panel considered that your level of insight into your clinical shortcomings was developing and that you have demonstrated some level of awareness of your clinical limitations. This was evident in your oral evidence. You have taken ownership and not sought to pass blame on to any other parties. With regard to remediation, the panel formed the view that your clinical failings are remediable. The panel considered that, as you have not practised as a nurse since the allegations, you have not been able to address your clinical shortcomings. Further, the panel noted that you acknowledge that you need supervision on any return to nursing. Page 26 of 35

27 The panel concluded that, your lack of competence has not yet been remedied and, consequently, there is a potential risk of repetition. Therefore, the panel concluded that a finding of impairment on the grounds of public protection is necessary. In addition, the panel bore in mind the overarching objective of the NMC: to protect, promote and maintain the health, safety and well-being of the public and patients and 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. In the judgement of the panel, public confidence in the profession and the regulator would be undermined if a finding of impairment was not made in the particular circumstances of your case. The practice failings were significant and repeated, and a greater level of reassurance needs to be provided to the public as to your ability to practise safely and effectively without restriction before confidence in you can be fully restored. Further, the need to uphold and declare appropriate nursing standard would also be undermined if a finding of current impairment was not made. Having regard to all of the above, the panel has concluded that your fitness to practise is currently impaired by reason of lack of competence. Page 27 of 35

28 Determination on sanction In his submissions, Mr Newman outlined some of the aggravating and mitigating circumstances in this case. He invited the panel to have regard to its earlier decision at the impairment stage and referred the panel to the NMC s Sanctions Guidance. Mr Buxton, on your behalf, informed the panel that you are a nurse of longstanding qualification who, despite your best efforts, have been unable to put your clinical experience into practice. He submitted that a period of suspension would not assist you in taking steps to remediate the deficiencies in your clinical practice. In reaching its decision, the panel had regard to all the evidence that had been adduced in this case including your oral evidence, together with the submissions made by Mr Newman, on behalf of the NMC, and those made by Mr Buxton, on your behalf. The panel accepted the advice of the legal assessor. The panel bore in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the Sanctions Guidance published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel considered the aggravating factors in this case were: your clinical errors were wide-ranging and fundamental in nature; your actions, in relation to clinical errors, had the potential for serious consequences; you demonstrated significant gaps in your awareness as regards assessing risk in your nursing practice. The panel considered the mitigating factors in this case were: you have developing (but not complete) insight; you have made admissions to some of the charges; Page 28 of 35

29 you have been a nurse for a substantial period of time with no previous findings against you by your regulator. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. 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 in the circumstances, the panel took into account the Sanctions Guidance, which states that a caution order 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 considered that lack of competence has not been remediated and that a caution order would be inappropriate. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order because this would provide no protection to the public and would not give you the opportunity to demonstrate improvements in your practice. The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be relevant, proportionate, workable and measurable. The panel took into account the Sanctions Guidance regarding when conditions of practice may be appropriate, in particular: no evidence of harmful deep-seated personality or attitudinal problems; identifiable areas of the nurse or midwife s practice in need of assessment and/or retraining; no evidence of general incompetence; potential willingness to respond positively to retraining; The panel concluded that the above factors were engaged. The panel considered that there were identifiable failings in relation to your practice which could be addressed through training, mentoring and support. It determined that it may be possible to formulate appropriate and practical conditions, as set out in the Page 29 of 35

30 Sanctions Guidance, which would address the failings highlighted in this case. The panel also accepted that, due to your level of engagement with these proceedings so far, you would be willing to comply with conditions of practice. The panel noted that in your oral evidence you told the panel that you would need supervision and training in order to enable you to return to safe nursing practice. The panel concluded that the conditions of practice order was appropriate and proportionate. The panel was mindful that the charges found proved represented a departure from the standards expected of a registered nurse and it did consider whether a suspension order was necessary to mark the seriousness of the lack of competence. It also took into account the admissions and concessions made during your evidence and your willingness to remediate. In light of these factors, the panel decided that a member of the public, in full possession of the facts of this case, would think a suspension order was disproportionate and unduly punitive. Further, the public can be protected by a lesser order. There is also a public interest in returning a fully remediated nurse back to safe practice. The panel therefore determined that the appropriate and proportionate sanction was that of a conditions of practice order. It decided that this order would provide a proper level of public protection, whilst at the same time it would allow you to return to practice in a structured manner. The order would also mark the importance of maintaining public confidence in the profession, and would send to the public and the profession a clear message about the standards of practice required of a registered nurse. Accordingly, the panel determined that the following conditions were appropriate and proportionate in this case: 1. 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: Page 30 of 35

31 a) Working at all times under the direct observation of a registered nurse until signed off as competent for the relevant band 5 competencies as prescribed by your employer; b) Once signed off as competent in all of the relevant band 5 competencies you must work at all times on the same shift as, but not necessarily under the direct observation of, a registered nurse who is physically present in or on the same ward, unit, floor, or home that you are working in or on. 2. You must work with your line manager, mentor or supervisor (or their nominated deputy) to create a personal development plan designed to address the concerns about the following areas of your practise: a) Band 5 competencies; b) Ensuring informed consent; c) Safe working practices; d) Assessment of nursing risk; e) Your ability to raise concerns immediately whenever you come across situations that put patients or public safety at risk. 3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every week until your band 5 competencies are signed off and thereafter every month to discuss and document the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 4. You must forward to the NMC a copy of your personal development plan within 28 days of the date on which these conditions become effective or the date on which you take up an appointment, whichever is sooner. 5. You must send a report from your line manager mentor or supervisor (or their nominated deputy) setting out the standard of your performance and your Page 31 of 35

32 progress towards achieving the aims set out in your personal development plan to the NMC at least 7 days before any NMC review hearing or meeting. 6. You must allow the NMC to exchange, as necessary, information about the standard of your performance and your progress towards achieving the aims set out in your personal development plan with your line manager, mentor or supervisor (or their nominated deputy) and any other person who is or will be involved in your retraining and supervision with any employer, prospective employer, and at any educational establishment 7. You must disclose a report not more than 28 days old from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and your progress towards achieving the aims set out in your personal development plan to any current and prospective employers (at the time of application) and any other person who is or will be involved in your retraining and supervision with any employer, prospective employer, and at any educational establishment. 8. You must tell the NMC within 7 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. 9. 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. 10. a) You must within 7 days of accepting any post of 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. Page 32 of 35

33 b) You must within 7 days of entering into any arrangements required by these conditions of practise provide the NMC with the name and contact details of the individual/organisation with whom you have entered into the arrangement. 11. You must immediately tell the following parties 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 (10) above, to them: 1. Any organisation or person employing, contracting with or using you to undertake nursing work 2. Any agency you are registered with or apply to be registered with (at the time of application) to provide nursing services 3. Any prospective employer (at the time of application) where you are applying for any nursing appointment 4. 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 a course (at the time of application). The period of this order is for 12 months. The panel considered that this would give you sufficient time to obtain a clinical post as a nurse and provide evidence of your ability to work safely and effectively as a Registered Nurse. Before the end of the period of the order, a panel will hold a review hearing or meeting to see how well you have complied with the order. At the review hearing the panel may revoke the order or any condition of it, it may confirm the order or vary any condition of it, or it may replace the order with another order. This panel considered that a future panel may be assisted by a written reflective piece from you that addresses the failures in your practice in each of the charges that have been found proved and how your practice has moved forward. Page 33 of 35

34 Determination on Interim Order The panel has considered the submissions made by Mr Newman that an interim conditions of practice order should be made on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. Mr Buxton did not oppose the application. The panel accepted the advice of the legal assessor. Page 34 of 35

35 The panel was satisfied that an interim conditions of practice order is necessary for the protection of the public, is otherwise in the public interest. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. To do otherwise would be incompatible with its earlier findings. The conditions for the interim order will be the same as those detailed in the substantive order. 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 conditions of practice order 28 days after you are sent the decision of this hearing in writing. That concludes this determination. Page 35 of 35

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