Nursing and Midwifery Council: Fitness to Practise Committee Substantive Hearing 1-2 August 2017

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 1-2 August 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Lerma Perez Lindero 01A1250O Part(s) of the register: RN1, Registered Nurse (sub part 1)- Adult ( 8 January 2001) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Facts proved: Fitness to practise: Sanction: England Misconduct Gill Madden (Chair, lay member) Carolyn Jenkinson (Registrant member) Jocelyn Griffith (Lay member) Neil Mercer Siobhán Hamill Present and represented by Mr Scott Ivill, Counsel, instructed by Royal College of Nursing Represented by Mr Chris Scott, counsel, instructed by NMC Regulatory Legal Team. All (by admission) Impaired Suspension Order (6 months): Review order not necessary in accordance with Article 29 (8A) Interim Order: N/A 1

2 Details of charge (as amended on 1 August 2017): That you, a registered nurse: 1) On or about 21 October 2015, in an application to TFS Healthcare: a) Incorrectly indicated that you: i) Had not been the subject of proceedings regarding professional misconduct and/ or that you had not been suspended or dismissed; ii) Had never been subject to disciplinary action; iii) Were not subject to current disciplinary action. b) Incorrectly stated that your reason for leaving a Senior Staff Nurse role in June 2015 was Full time Agency and/ or did not state that your reason for leaving was dismissal. c) Inappropriately and/ or incorrectly signed the declaration on the form to indicate that the information contained within the form was true to the best of your knowledge. 2) On dates between 22 October 2015 and 21 July 2016, did not inform TFS Healthcare of your referral to the NMC. 3) Your actions at Charge 1 were dishonest in that: a) You knew that you had been dismissed by HCA Healthcare UK in June 2015; b) You knew that you had self-referred to the NMC in April 2015; c) You sought to conceal an ongoing NMC Investigation and/or your dismissal; d) You sought to mislead any individual reading the application form; e) You sought to improve your chances of obtaining employment with TFS Healthcare. AND in light of the above, your fitness to practise is impaired by reason of your misconduct. 2

3 Decision and reasons on application to amend the charge The panel heard an application made by Mr Scott, on behalf of the NMC, to amend the wording of charge 3. The proposed amendment was to delete the wording and/or 2. It was submitted by Mr Scott that the proposed amendment would provide clarity and more accurately reflect the incident. Mr Scott submitted that the dishonesty in charge 3 is in relation to the act detailed in charge 1 only; charge 2 was as a result of the dishonesty in charge 1. Mr Scott submitted that the amendment of the wording in charge 3 would not disadvantage the registrant, the NMC or the public. Charge 3 read: 3) Your actions at Charges 1 and/ or 2 were dishonest in that: Mr Scott applied for charge 3 to read as follows: 3) Your actions at Charges 1 were dishonest in that: Mr Ivill, on your behalf, informed that panel that he agreed with the application and reasons to amend the wording of charge 3. The panel accepted the advice of the legal assessor that Rule 28 of the Rules states: 28. (1) At any stage before making its findings of fact, in accordance with rule 24(5) or (11), the Investigating Committee (where the allegation relates to a fraudulent or incorrect entry in the register) or the Fitness to Practise Committee, may amend (a) the charge set out in the notice of hearing; or 3

4 (b) the facts set out in the charge, on which the allegation is based, unless, having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice. (2) Before making any amendment under paragraph (1), the Committee shall consider any representations from the parties on this issue. The panel decided to grant the amendment. It concluded that the amendment of the wording in charge 3 will cause no prejudice to you. It determined that the amendment will make the charge clearer and that charge 1 is one act of dishonesty and charge 2 was as a result of the continued dishonesty. The panel was therefore satisfied that the amendment properly encapsulates the act of dishonesty. 4

5 Decision on the findings on facts and reasons At the outset of the hearing Mr Ivill informed the panel that you admitted all charges. The charges were therefore found proved by way of admission. Mr Ivill further informed the panel that it should exercise its own judgment on the matter of whether your fitness to practise is currently impaired. 5

6 Background The NMC received a referral in July 2016 regarding Mrs Lindero by TFS Healthcare. Mrs Lindero was engaged by TFS Healthcare as a registered nurse from 21 October It is alleged that Mrs Lindero completed her application form for employment with TFS Healthcare but failed to disclose: that she had been dismissed by her previous employer, had been subject of a regulatory investigation, and had ever been subject to disciplinary action. Mrs Lindero, on the application form, circled no when asked: Have there been any proceedings of medical negligence or professional misconduct against you and have you ever been suspended or dismissed? and declared in regards to the following statement: I confirm that the information given in this registration is, to the best of my knowledge, true and that an attempt to gain placement by deception is a criminal offence. Mrs Lindero knew that this information was incorrect as she was dismissed from her previous role on 23 June 2015 and as a result of this a referral was made to the NMC. It is alleged that it was 9 months after the commencement of her employment with TFS Healthcare that Mrs Lindero alerted her employer about her dishonesty on her application form. 6

7 Evidence: You gave evidence on oath. You provided the panel with your professional background. You told the panel that you qualified as a nurse in the Philippines in 1992, and had arrived in the UK in 2000 commencing employment as a registered nurse. You told the panel that you enjoyed nursing and saw it as a vocation rather than a job. You further told the panel that you do not seek to excuse your dishonesty; however, you were experiencing difficult circumstances in your life. You told the panel that at the time of the incident you were working in the UK whilst your husband and two children were living in the Philippines and you had to provide financial support to them. You said that money was tight as your husband was not working. You said you applied for the job at TFS Healthcare and did not disclose that you were under investigation by the NMC or about your previous dismissal because you needed the job to support your family. You explained that you accept full responsibility and you know what you did was a big mistake. You said that you were really, really sorry. In relation to reflection, you told the panel that your dishonesty would have had an impact on the reputation of the nursing profession, your colleagues and to the wider public. You told the panel that you had benefitted from these proceedings as you have learnt how important trust is in order to be a role model for other nurses and the NMC as a regulator. You said you had felt shame and guilt about your dishonesty and you would not do this again. When asked why you eventually disclosed your dishonesty in the job application, you said it was your conscience which worried you and made you eventually disclose your dishonesty to TFS Healthcare. 7

8 You told the panel that you are currently employed at a care home as a nurse and you had received positive feedback, which was adduced before the panel, you also stated that your honesty has not been called in to question since the incident. The panel heard evidence from Mrs 1 Mrs 1 told the panel that she has been a registered nurse for approximately 30 years, 17 of which have been working in the UK. Ms 1 stated that she knew you in a professional capacity and had worked with you for over 10 years. She found that you were very professional, reliable, accountable and competent as a nurse and she stated that she was very surprised with your dishonesty and this was particularly out of character for you. The panel heard evidence from Mrs 2 Mrs 2 explained to the panel that she met you in 2005 when you began to work together. Mrs 2 said that you were a good person and you helped her settle in when she began working with you. She further detailed that she found that you were a reliable and helpful nurse and you were the type of person that would go the extra mile for anyone. Ms 2 said that it came as a surprise when you told her about your dishonesty. She told the panel that she knew you were going through a difficult time and that your conduct was out of character. Submission on misconduct and impairment: Having announced its finding on all the facts, the panel then moved on to consider, whether the facts found proved amount to misconduct and, if so, whether your fitness to practise is currently impaired. There is no statutory definition of fitness to practise. 8

9 However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Mr Scott referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. In his submissions, Mr Scott invited the panel to take the view that your actions amount to a breach of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ). He 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. This included the need to declare and maintain proper standards and maintain public confidence in the profession and in the NMC as a regulatory body. Mr Scott referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Mr Scott submitted that all four limbs of the Grant test were engaged in this case. Specifically, you acted dishonestly and this resulted in a breach of a fundamental tenet of the nursing profession. Mr Scott explained that, although no patient harm was caused, there was a real risk of harm as you did not give the TFS Healthcare the opportunity to risk assess your nursing practise and if necessary make any appropriate arrangements. In his finishing submissions, Mr Scott concluded that you had been dishonest and your actions fell short of what was expected of a registered nurse and therefore a finding of impairment should be found on the grounds of public interest. Mr Ivill submitted that you had admitted the charges against you and acknowledged that your behaviour amounts to misconduct. He submitted that you have shown significant insight in to your failing which can be seen in both your written and oral evidence. He 9

10 stated that you had shown significant understanding and expressed genuine remorse into your conduct. He stated that you had made assurances that you would not repeat this behaviour. Mr Ivill explained to the panel that the act of dishonesty is difficult to remediate; however, a starting point is that you have acknowledged and reflected on your conduct, your honesty has not been questioned since and you have demonstrated that you understand the impact your behaviour had on the nursing profession, your colleagues and the public. Mr Ivill submitted that there is no risk of repetition in this case. Mr Ivill invited the panel to find no current impairment; however, if the panel does make a finding of current impairment then he submitted the reasons for the impairment should be on public interest grounds only. He stated that there was no direct harm to patients and the witnesses had given evidence that your act of dishonesty was very out of character. The panel has accepted the advice of the legal assessor. The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of that misconduct. 10

11 Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of The Code: Professional standards of practice and behaviour for nurses and midwives (2015) Although it was accepted on your behalf, that your behaviour amounted to misconduct, the panel reached its own independent decision on this matter. The panel had regard to the public interest and accepted that there was no burden or standard of proof at this stage and exercised its own professional judgement. The panel was of the view that your actions did fall significantly short of the standards expected of a registered nurse, and that your actions amounted to a breach of the Code. Specifically: Keep to and uphold the standards and values set out in the Code; Act with honesty and integrity at all times The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. In this case, your misconduct amounted to providing false information on an application form in order to gain employment. You entered information that you knew was incorrect and this was dishonest. It was not until several months later that you alerted your employer to your dishonesty and therefore it was dishonesty that spanned over an extended period of time. The panel found that your actions did fall seriously short of the conduct and standards expected of a nurse and amounted to misconduct and breached one of the fundamental tenets of the nursing profession. 11

12 Decision on impairment The panel next went on to decide if as a result of this misconduct your fitness to practise is currently impaired. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74 she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, 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. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but in my 12

13 view the test would be equally applicable to other practitioners governed by different regulatory schemes. 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: a... 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. has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel therefore concluded that your actions had engaged limbs b, c and d in relation to the above case of Grant. The panel determined your dishonest actions have breached a fundamental tenet of the profession and had brought the profession into disrepute. The panel found you to be genuine and sincere in your evidence that you provided on oath and had tried your best to assist the panel. The panel accepted that being a nurse is important to you and that there were difficult circumstances that were occurring in your personal life around that time of the dishonesty. The panel took account of the reflective piece you provided, recent courses which you have completed and the references you provided. The panel heard the oral evidence of 13

14 Mrs 1 and Mrs 2. The panel noted that you eventually made your employer aware of your dishonesty on your own initiative, albeit, 9 months after commencing employment. It accepted that you had made full admissions into your dishonesty. The panel were satisfied that you have shown developing insight into your misconduct, however, were not fully content that you had complete insight into the implications of your dishonesty on patients, your colleagues, the nursing profession, the NMC as a regulator and the public. The panel found there to be no significant risk of repetition in this case and therefore the panel concluded you were not impaired on public protection grounds. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold/protect 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. The panel determined that, in this case, a finding of impairment on public interest grounds was necessary. The panel decided that you were deliberately dishonest on your application form to your employer and did not disclose information that you knew you should. You continued to be dishonest for 9 months whilst you were employed by the agency and therefore the panel decided that because of your act of dishonesty and your continued dishonesty over an extended period of time, this was a breach of a fundamental tenet of the nursing profession. The panel were of the view that if a finding of impairment was not found, public confidence in the profession and in the NMC as a regulatory body could be put in to disrepute. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. 14

15 Determination on sanction: Having determined that Mrs Lindero s fitness to practise is currently impaired, the panel considered what sanction, if any, it should impose on her registration. The panel considered the case and all the evidence before it and decided to make a suspension order for a period of 6 months. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case. The panel accepted the advice of the legal assessor. The panel has borne 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 Indicative Sanctions Guidance ( ISG ) 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 following aggravating and mitigating factors: Aggravating You were deliberately dishonest on your job application for personal advantage ; You continued to be dishonest for a period of 9 months. Mitigating You have fully engaged with the NMC, attended the hearing and given evidence; You have made full admissions regarding your dishonesty; You have provided evidence that you are highly regarded by other registered nurses; You have provided a number of positive references; You have demonstrated some insight into the impact of your dishonesty; There is no risk to patient safety; The panel heard evidence to suggest that this behaviour was out of character; 15

16 You were experiencing difficult personal circumstances when the incident occurred. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the ISG, 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 your misconduct was not at the lower end of the spectrum. In view of the seriousness of the case, the panel considered that it would be neither proportionate nor in the public interest to impose a caution order. The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel determined that as the concern in your case is in relation to your dishonesty; such an order would be inappropriate and impracticable as no workable conditions could be formulated for the act of dishonesty. The panel also concluded that a conditions of practice order would not satisfy the public interest. The panel then went on to consider whether a suspension order would be an appropriate sanction, it took note of the following paragraphs of the ISG: 68.1 A single instance of misconduct but where a lesser sanction is not sufficient 68.2 No evidence of harmful deep-seated personality or attitudinal problems No evidence of repetition of behaviour since the incident The panel is satisfied that the nurse has insight and does not pose a significant risk of repeating behaviour. 16

17 The panel determined that, although there had been a clear breach of a fundamental tenet of the profession, the mitigating factors in your case substantially outweigh the aggravating factors. The panel noted you had made full admissions into your dishonesty and you made your employer aware by your own initiative. This was a one off incident, there were no clinical concerns regarding your competence as a nurse and you were experiencing difficult personal circumstances during this period of your life. The panel had no evidence before it that you had repeated this misconduct or that your honesty had been called into question since this incident. The panel noted that you had shown some insight into your misconduct and it was of the view that there was no significant risk that you would repeat this behaviour. As such, the panel considered that, in your case, the misconduct was not fundamentally incompatible with remaining on the register. The panel further considered whether a striking-off order would be proportionate in your case. Taking account of all the information before it, and taking account of all the mitigation provided to the panel on your behalf, the panel concluded that it would be disproportionate. The panel determined that to strike you off from the register would deny the public a committed, capable and highly regarded nurse. Whilst the panel acknowledges that a suspension may have a punitive effect, it was of the view that I would be unduly harsh in your case to impose a striking off order. Balancing all of these factors the panel has concluded that a suspension order would be the appropriate and proportionate sanction. The panel noted the hardship such an order will inevitably cause you. However this is outweighed by the public interest in this case. The panel considered that this order is necessary to 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 required of a registered nurse. 17

18 The panel determined that a suspension order for a period of 6 months was appropriate in this case to mark the seriousness of the misconduct. In accordance with Article 29 (8A) of the Order the panel may exercise its discretionary power and determine that a review of the substantive order is not necessary. Article 29 (8A) states: 8A) If, at the time of making an order under paragraph (5)(b) or (c), the Fitness to Practise Committee is satisfied that, with effect from the date of the expiry of that order, it will not be necessary to (a) extend the period of the order; (b) vary the order; or (c) make any other order falling within article 29(5), the Committee may decide that article 30(1) does not apply to that order. The panel determined that it made the suspension order having found your fitness to practise is currently impaired by the public interest only. The panel was satisfied that the suspension order will satisfy the public interest in this case and will maintain public confidence in the profession as well as the NMC as the regulator. Further, the suspension order will declare and uphold proper professional standards. Accordingly, the current substantive order will expire, without review, at the end of 1 March Determination on Interim Order No further applications were made. That concludes this determination. 18