Part(s) of the register: Registered Nurse - Sub Part 1 Adult (14 September 2004) Area of Registered Address: England

Transcription

1 Conduct and Competence Committee Substantive Hearing July 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ 4 8 December 2017 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: Reverend Olufunsho Joseph Ayodele NMC PIN: 04I0478E Part(s) of the register: Registered Nurse - Sub Part 1 Adult (14 September 2004) Area of Registered Address: England Type of Case: Misconduct Panel Members: Paul Morris (Chair, Lay member) Marcia Smikle (Registrant member) Catherine Lamb (Registrant member) Legal Assessor: David McLean Panel Secretary: Amna Khan Olufunsho Joseph Ayodele: Present, represented by Thomas Buxton, Royal College of Nursing (RCN). Nursing and Midwifery Council: Represented by Derek Zeitlin, Case Presenter. Facts proved: 2(a) and 3 Facts proved by admission: 2(b) Facts not proved: 1 and 2(c) Fitness to practise: Impaired Sanction: Conditions of practice order 18 months Interim Order: Conditions of practice order 18 months Page 1 of 27

2 Details of charge: That you, while employed as Deputy Ward Manager of Rusper Ward, Farmfield Hospital ( the Hospital ), 1. On 14 December 2015 failed to follow an instruction, approved by a doctor, to ensure that Patient A was escorted to East Surrey Hospital by no less than three members of staff; [not proved] 2. On 2 May 2016: a. Administered a depot injection (Olanzapine Pamoate) into Patient B s thigh, contrary to the manufacturer s instructions for the injection to be administered in the gluteal area; [proved] b. Incorrectly recorded in Patient B s patient record that you had administered the depot injection in the intradermal site instead of intramuscularly; [proved by admission] c. Failed to ensure that you recorded the administration of the depot injection at the time of the administration or as soon as was possible after the event; [not proved no case to answer] 3. On or around 27 April 2016 inappropriately allocated a student nurse to undertake 2:1 observations of Patient C; [proved] And in light of the above your fitness to practise is impaired by reason of your misconduct Page 2 of 27

3 Background Reverend Ayodele, You were employed at Farmfield Hospital as Deputy Ward Manager of Rusper Ward from 14 April 2014 until you were dismissed on 6 July 2016, following disciplinary proceedings. On 18 May 2016, the NMC received a referral regarding you. This referral was made by the Priory Group, in which allegations were made regarding your clinical practice. It is alleged, on 14 December 2015, that you failed to follow an instruction, approved by a doctor, to ensure that Patient A was escorted to East Surrey Hospital by no less than three members of staff. It is alleged, on 2 May 2016, that you administered a depot injection of Olanzapine Pamoate into Patient B s thigh when the manufacturer s instructions specify that it must be administered into the gluteal area. It is further alleged, that you incorrectly documented that the injection was given transdermally in Patient B s record, and that this record was made approximately 24 hours after the actual injection was administered. It is alleged, on 27 April 2016, that you inappropriately allocated a student nurse to undertake 2:1 observations with a healthcare assistant contrary to the Hospital s Observation and Engagement policy. It has been submitted that Patient C was considered to be a very high risk patient and that student nurses are considered supernumerary. It may have been acceptable for a student nurse to observe Patient C with two other permanent members of staff, however, it was inappropriate for a student nurse to be allocated in place of a suitably qualified, permanent member of staff. Admitted facts found proved At the start of this hearing you made an admission to charge 2(b). Page 3 of 27

4 Charge 2(b) proved by admission On 2 May 2016, incorrectly recorded in Patient B s patient record that you had administered the depot injection in the intradermal site instead of intramuscularly This charge was therefore announced by the panel as proved by your admission. Determination on application to receive evidence by Telephone/WebEx: The panel heard an application made by Mr Zeitlin, on behalf of the NMC, inviting the panel to receive evidence from Ms 1. He advised the panel that Ms 1 is unable to attend the hearing in person, owing to being off-work sick, and therefore submitted an application to adduce her evidence by telephone under the provisions of Rule 31 (1). Such rule states: Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings. This application was opposed by Mr Buxton on your behalf. He submitted that Ms 1 was not formally warned by the NMC to give evidence in these proceedings and therefore it would be inappropriate for her to be called to give evidence at this juncture. He questioned the relevance of Ms 1 s evidence, submitting that Ms 1 did not witness the administration of the injection and it is therefore unsuitable to seek to establish the site of administration through any evidence that she may provide. The panel accepted legal advice from the legal assessor. The panel considered Mr Buxton s question as to whether it is fair to accept Ms 1 s evidence at this stage. It considered further, whether Ms 1 s evidence is relevant to these proceedings, and if so, if it is of value. Page 4 of 27

5 The panel accepted that Ms 1 was not formally warned by the NMC, and that this was a procedural error. The panel considered the potential relevance and value of Ms 1 s evidence and determined that it would be relevant and helpful to the panel if she were able to accurately recall the precise location of the injection site and subsequent redness, and to adequately demonstrate this to the panel. On this basis, the panel concluded that the evidence of Ms 1 may elucidate the contested information in relation to charge 2a. The panel determined that this evidence would not unfairly prejudice your case or that of the NMC; the panel was of the view that if Ms 1 were able to demonstrate where, specifically, she recalls that the injection was administered, this evidence could be of value to either or both parties. In the light of this reasoning, the panel determined that giving evidence via the telephone would not be the most appropriate medium through which this evidence should be obtained, owing to discrepancies which may arise out of verbal description. Therefore, to fulfil the purpose of this evidence providing further clarity to the case, and being fair to both parties, the panel determined that it should be admitted either in person or via video link. The panel accepted the application to admit Ms 1 s evidence, however, made this decision on the provision that this is done either by her attendance in person, or via WebEx. Determination on Application to receive evidence by Telephone The panel heard a further application, made by Mr Zeitlin, for Mr 1 to be recalled to give evidence via the telephone. Mr 1 had concluded his evidence in chief, having attending the hearing in person. Mr Zeitlin made this request for Mr 1 to be recalled following Mr Buxton s application to admit a document which the NMC believes reopens the evidence of Mr 1 who gives evidence pertaining to the same charge. Prior to Mr 1 s release in person, both parties had agreed that Mr 1 may be recalled to provide further evidence, pending the production of this document and should subsequent questions arise. Page 5 of 27

6 Mr Zeitlin submitted that it is fair and necessary for Mr 1 to be able to comment on this additional document, owing to the discrepancy in dates on the document produced, and the evidence being submitted speaking to the evidence that Mr 1 gave during his oral testimony. Mr Zeitlin submitted that it was in the interest of fairness for Mr 1 to have sight of this further document and to be able to comment on it. Mr Buxton, on your behalf, did not oppose this application. The panel accepted advice from the legal assessor. The panel is satisfied that this is the best option in balancing the interests of the public, the interests of this witness and fairness to both parties. For these reasons the panel decided that it is fair and in the interests of justice to receive the further evidence of Mr 1 by telephone. Decision and reasons on application of no case to answer At the close of the NMC s case, Mr Buxton made submissions that there was no case to answer in respect of charges 1, 2a and 2c. This application was made under Rule 24 (7) of the Rules. Such rule states: 24 (7) Except where all the facts have been admitted and found proved under paragraph (5), at the close of the Council s case, and (i) either upon the application of the registrant the Committee may hear submissions from the parties as to whether sufficient evidence has been presented to find the facts proved and shall make a determination as to whether the registrant has a case to answer. Mr Buxton referred the panel to the principle set out in the case of R v Galbraith WLR1039. He invited the panel to consider, when reviewing the evidence, that on the balance of probabilities, it cannot be satisfied that the requisite standard of proof had been provided by the NMC. Page 6 of 27

7 In relation to charge 1, Mr Buxton submitted that this charge alleges that you failed to follow an instruction to ensure that patient A was escorted to hospital by no less than three members of staff. He questioned whether the NMC has produced any evidence to demonstrate that you failed to follow an instruction that the patient was to be escorted by no less than three members of staff, in fact, the evidence produced proves that three members of staff had escorted patient A. Mr Buxton submitted that this charge falls under the first limb of Galbraith, namely that there is no evidence, and in any event that it is inherently vague and inconsistent with other evidence. Mr Zeitlin opposed this application. He submitted that the NMC does not have to prove that the patient was sent with only with two escorts. The case is that but for Mr 2 s intervention it would have been only two because you failed to follow the instruction to send three members of staff with patient A. In relation to charge 2a, Mr Buxton submitted that the evidence is confined to pages 10 and 11 of the NMC Hearing Documents Bundle. Mr Buxton submitted that the charge specifies administration contrary to the manufacturer s instructions for the injection to be administered in the gluteal area. He questioned whether sufficient evidence has been produced by the NMC that the injection was administered contrary to the instructions. He stated that the instructions simply say gluteal area. Mr Buxton queried whether there is any clear evidence that the injection was not administered into the gluteal area. He submitted that the term gluteal area is compendious. He advised the panel that it must to be satisfied that the injection was not administered into the gluteal area in order to find this charge proved. He submitted that the evidence produced by the NMC in relation to this is inconsistent and unsatisfactory. Mr Zeitlin opposed this application. He referred the panel to the notes of the investigation in which you referred to a different muscle, the vastus lateralis. He opposed Mr Buxton s submission that the evidence produced by the NMC is insufficient, and submitted that Ms 1 gave clear and reliable evidence that the site that she identified in her evidence was not the gluteal region and is distinguished from where you identified such region by marking it on a diagram submitted to the panel. Mr Zeitlin submitted that there is evidence from you in which you state that you weren t aiming for the gluteal area but rather the vastus lateralis. Mr Zietlin submitted that the submission of no case to answer in relation to charge 2(a) is entirely misconceived. Page 7 of 27

8 In relation to charge 2c, Mr Buxton submitted that it is important to pay particular attention to the wording of the charges. He stated that this charge alleges that you failed to record the administration at the time or as soon as possible thereafter. Mr Buxton submitted that it has been established that there is another record on the same day. He submitted that the prescription chart is a document for recording the administration of the depot injection. He stated that Mr 1 said he could not be sure whether that record had been checked to see if it had been completed. Accordingly, Mr Buxton submitted the failure to record has not been substantiated. He stated that there is no suggestion that the duty could only be complied with by recording in the electronic notes. Mr Zeitlin opposed this application. He submitted that the suggestion is that the administration is recorded in two places. However, the evidence demonstrates that the administration was recorded on the electronic patient record the day after it was given. Mr Zeitlin submitted that one may assume that if you record information in two places, you would make both recordings at the same time. Mr Zeitlin submitted that there is no sense in recording them separately and submitted that the NMC has produced sufficient evidence for the panel to consider and make a finding in relation to this charge. The panel heard and accepted the advice of the legal assessor. In relation to charge 1, the panel determined that there is a case to answer. The panel considered the evidence produced by the NMC and the submissions of both parties. It concluded that sufficient evidence has been provided at this stage, for a panel to consider and carefully assess, to determine on a balance of probabilities, whether or not you failed to follow an instruction, approved by a doctor, to ensure that Patient A was escorted to East Surrey Hospital by no less than three members of staff. Therefore, this application was rejected. In relation to charge 2a, the panel determined that there is a case to answer. The panel accepted Mr Buxton s submission that the gluteal area is a compendious term and that there has been some inconsistency as regards mapping out the precise area on the body. However, the panel determined that sufficient evidence has been provided at this stage for a panel to consider and carefully assess to determine, on a balance of Page 8 of 27

9 probabilities, whether or not you administered the depot injection into Patient B s thigh, contrary to the manufacturer s instructions for the injection to be administered in the gluteal area. Therefore, this application was rejected. In relation to charge 2c, the panel determined that there is no case to answer. The panel determined that it has not had sight of the relevant MAR/prescription chart in respect of this charge, which ought to be filled in at the time of the administration. The panel considered that the NMC has adduced no evidence to demonstrate that this prime document was not completed. It is therefore a matter of speculation as to whether or not it was. The panel determined that the records produced by the NMC are inadequate. It concluded that sufficient evidence has not been produced by the NMC for a panel to consider and carefully assess, on a balance of probabilities, whether or not you failed to ensure that you recorded the administration of the depot injection at the time of the administration or as soon as was possible after the event. Therefore, this application was accepted. Charge 2c is not proved by reason of there being no case to answer in respect of this allegation. Decision on the findings on the remaining facts and reasons: In reaching its decisions on the remaining disputed facts, the panel considered all of the relevant evidence contained in the documentation together with the oral evidence of four witnesses called by the NMC and oral evidence provided by you. The panel gave the evidence such weight as it deemed appropriate. The panel took account of the submissions made by Mr Zietlin 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 the burden of proof in the case rests with the NMC throughout and that you are not obliged to prove or disprove anything. The standard of proof is the civil standard, namely the balance of probabilities. It follows from this that a Page 9 of 27

10 fact will only be found proved if the NMC has satisfied the panel, on the basis of the evidence available, that it is more likely than not that the allegations as charged occurred. The panel heard oral evidence from four witnesses tendered on behalf of the NMC: Ms 1 Ms 2 Mr 1 Mr 2 The panel found that Ms 1 assisted the panel as best as she could in the circumstances. The panel bore in mind that the record Ms 1 provided was written some three weeks after the event in question. The panel determined that Ms 1 co-operated with the panel and did her utmost to assist; however, the panel concluded that her evidence was limited in its scope and significance but nevertheless was very helpful. The panel found Ms 2 s witness statement to be very limited, as was her recall of events. It was concerned about her evidence under cross examination and found that her accounts were inconsistent and lacked credibility. The panel could not be certain that Ms 2 was entirely honest in her evidence and thus it cannot conclude that Ms 2 was a credible or reliable witness. The panel determined that Mr 1 tried to help the panel as far as he could. The panel identified multiple issues with the minutes of the two investigation meetings, for example, they were unsigned, untimed and not verbatim accounts. Mr 1 also provided a written witness statement which the panel found helpful. The panel found Mr 2 to be a credible and reliable witness. It determined that the contemporaneous record made by him corroborates your evidence in relation to charge 1. The panel considered that Mr 2 responded well to questioning and gave detailed, thorough answers, or conceded when he did not know. The panel found that Mr 2 was helpful and knowledgeable about local policies and procedures. The panel determined that Mr 2 was fair and balanced in his evidence and demonstrated no discernible prejudice against you. Overall, the panel determined that the evidence of Mr 2 was both reliable and credible. Page 10 of 27

11 The panel heard evidence from you and determined that it lacked clarity and consistency. It considered your demeanour to be at times arrogant. It observed that you sought to deflect blame onto others instead of taking responsibility for your actions. It considered that you used your state of health as a reason why you did not check the accuracy or challenge the content of the minutes provided by Mr 1. The panel took account of the evidence you gave regarding your health and concluded that your health conditions did not affect your conduct during the interviews. The panel accepted that there was animosity between you and Ms 2 and that your accounts of events on or around 15 December 2015 were inconsistent with each other. The panel determined that your evidence was clear in some areas and convoluted in others. The panel considered the remaining contested charges and made the following findings of fact. Charge 1: On 14 December 2015 failed to follow an instruction, approved by a doctor, to ensure that Patient A was escorted to East Surrey Hospital by no less than three members of staff; [not proved] In considering this charge, the panel considered the evidence given by you, Mr 2 and Ms 2. It determined that Mr 2 did instruct you to send three escorts, as had been advised and approved by a doctor. The panel established that you had a duty to follow the instruction. The panel accepted evidence that you expressed a preference to send two members of staff rather than three. The panel determined that you gave a very credible account about how you tried to overcome the staffing problems, including discussions you had with colleagues. The panel accepted that you eventually agreed to send three members of staff after the professional discussion with Mr 2 in which you were instructed that you ought to send three. Page 11 of 27

12 The panel accepted that three members of escorted Patient A. This has been agreed and corroborated by all the witnesses who spoke to this charge, apart from Ms 2 who gave conflicting evidence which the panel did not accept. Therefore, the panel determined that you fulfilled your obligation. The panel determined that you had the right to express your professional opinion about how many members of staff should go and that ultimately, three people went and thus you fulfilled your duty to ensure that this was the case. Therefore, this charge is not proved. Charge 2a: On 2 May 2016, administered a depot injection (Olanzapine Pamoate) into Patient B s thigh, contrary to the manufacturer s instructions for the injection to be administered in the gluteal area; [proved] The panel did not have the benefit of any expert witness evidence or photographic/documentary evidence of Patient B which might have been of assistance in coming to the decision made. The panel determined that the manufacturer s instructions were for the depot injection to be administered for deep intra-muscular gluteal injection only. The panel noted from the patient s clinical notes, your recording that you administered this injection in the right thigh. This was corroborated by minutes of the investigation meeting. The panel heard evidence from Ms 1 via WebEx, the only live witness to this charge, who saw the injection site and redness. She told the panel that this area was in the thigh region. The panel accepted her evidence, in which Ms 1 stated that she was adamant that the injection was administered lower down than the gluteal muscles. She stood and demonstrated to the panel, by placing her hand on her right thigh, the region in which she observed the area of redness. This was contrary to your evidence and was not in the ventro-gluteal region. The panel considered Mr 1 s evidence, and whilst it has recognised the shortcomings in the documentary records that he provides, it accepts his evidence that the injection was administered in the patient s thigh. Page 12 of 27

13 The panel considered the evidence from the GP examined the patient the following day. His clinical findings on 4 May 2016 were right leg, area of hotred skin, upper end (proximal end) (of quads muscle. The panel considered that your account conflicted with the above evidence. It found that it was more likely than not, on a balance of probabilities, that you did administer a depot injection (Olanzapine Pamoate) into Patient B s thigh, contrary to the manufacturer s instructions for the injection to be administered in the gluteal area. Therefore, this charge is found proved. Charge 3: On or around 27 April 2016 inappropriately allocated a student nurse to undertake 2:1 observations of Patient C; [proved] In considering this charge the panel had regard to the policy documents provided in relation to this charge. It found that the policy very clearly states at 4.4 and 4.6 that staff allocated to observations must be suitably qualified and experienced and that students should not undertake observations unless under supervision of a permanent member of staff. The Level of observations required of Patient C shows 2:1 in the constant observations sheet and the effect of the policy is that the student nurse should not be part of the 2. The panel heard uncorroborated evidence from you in which you stated that you were not the nurse in charge of the ward on that day you state that you were the unit coordinator. You gave evidence that the student nurse was allocated by the nurse in charge but because you were her mentor, you went in with her to supervise her observing the patient. The panel considered evidence produced by the NMC that states that you were the deputy ward manager at the time and that you were the student nurse s mentor. This is corroborated by Mr 1 s evidence where he stated Olu informed me that on three occasions on 27 April 2016 Olu had allocated (student) to carry out constant observations on a named patient. The panel considered your own admissions in Page 13 of 27

14 interview about allocating the student nurse and that you allowed her to conduct observations. The panel determined that the documentary evidence and witness evidence produced in this case corroborate each other and form the view that you allocated the student nurse to undertake 2:1 observations of Patient C. Moreover, this has been documented in the observation sheet, on three separate occasions. The panel considered whether this allocation was done so inappropriately and determined that it was as it goes against the hospital s policy. The panel therefore concluded or around 27 April 2016 you inappropriately allocated a student nurse to undertake 2:1 observations of Patient C. Therefore, this charge is found proved. Submissions on misconduct and impairment: Having announced its finding on the facts, the panel 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, however, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Mr Zeitlin 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. He submitted that, considering all the information before it, including The Code: Professional standards of practice and behaviour for nurses and midwives (2015) (the Code) and the NMC standards for medicines management, the facts found proved are capable of amounting to misconduct. Mr Zeitlin invited the panel to take the view that your actions were serious, and amounted to breaches of the Code. He directed the panel to specific paragraphs and Page 14 of 27

15 identified where, in the NMC s view, your actions amounted to misconduct. He referred the panel to the standards for medicines management. Mr Zeitlin addressed the panel on current impairment, and 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 Buxton, on your behalf, submitted an impairment bundle to the panel which included fitness for work certificates and a reflective piece written using the Gibbs reflective cycle. He stated that you do not accept the panel s finding for charge 2a and that the admitted charge 2b might not amount to misconduct on its own. The panel accepted the advice of the legal assessor which included reference to Roylance v GMC, Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin), Cohen v GMC [2008] EWCH 581 (Admin) and Cheetle v General Medical Council 2009 EWHC 645 (Admin). 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. Decision on misconduct: When determining whether the facts found proved amount to misconduct the panel had regard to the terms of the Code. The panel, in reaching its decision, 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. Page 15 of 27

16 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 the following area: Practise effectively You assess need and deliver or advise on treatment, or give help (including preventative or rehabilitative care) without too much delay and to the best of your abilities, on the basis of the best evidence available and best practice. You communicate effectively, keeping clear and accurate records and sharing skills, knowledge and experience where appropriate. You reflect and act on any feedback you receive to improve your practice take all reasonable personal precautions necessary to avoid any potential health risks to colleagues, people receiving care and the public. Promote professionalism and trust You uphold the reputation of your profession at all times. You should display a personal commitment to the standards of practice and behaviour set out in the Code. You should be a model of integrity and leadership for others to aspire to. This should lead to trust and confidence in the profession from patients, people receiving care, other healthcare professionals and the public. The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. The panel accepted that the admission in relation to charge 2b does not, on its own, constitute misconduct. However, in view of your other failings at charges 2a and 3 it determined that collectively the charges found proved are serious and fall far below the standards expected of a registered nurse. The panel determined that your failure at charge 3 especially, put staff and a patient at serious risk of harm. By inappropriately allowing a student nurse to undertake observations as a member of the 2:1 regime you put the student and her safety at risk as you allowed her to undertake close observations on a patient who is known to be violent and this contravened the hospital s observation and engagement policy. Moreover, this action also put the patient under your care at risk of harm by allowing these observations to be taken without Page 16 of 27

17 certainty as to whether they would be appropriately conducted. The panel determined that such disregard for the hospital s policy put patients and those under your mentorship at unwarranted risk of harm. The panel considered that your failing at charge 2a was ill-advised. This might have been seen as an error of judgement, however, was vehemently deflected by you as you sought to discredit witnesses, blame others for your mistake and attempt to justify your actions. The panel determined that your failings fell significantly short of the standards expected of a registered nurse and that the charges found proved amounted to misconduct. 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. Page 17 of 27

18 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 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. 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. [ ] The panel found limbs a, b and c to be engaged in this case at the time of the events. In relation to limb (a), the panel was clear that your misconduct not only put patients and colleagues at risk of harm arising out of your failing at charge 3, but also caused Patient B to receive medical attention in respect of charge 2a. Page 18 of 27

19 In relation to limb (b), the panel was clear that your misconduct which involved a flagrant disregard for hospital policy and put patients and a student at unwarranted risk of harm will have brought the profession into disrepute. In relation to limb (c), the panel determined that your actions constituted a breach of fundamental tenets of the profession, such as, administering medications to the standards required and following hospital policies and procedures. The panel therefore determined that your fitness to practise was impaired at the time of the allegations. The panel considered your current fitness to practise. In forming its view, it had regard to insight, remediation and the risk of repetition. The panel determined that your insight is limited. Notwithstanding that you have produced a reflective piece at this hearing regarding your admitted charge 2b, during your oral evidence you maintained a demeanour that was not only deflective but also failed to take any responsibility for your actions. Indeed, you advised the panel at the impairment stage of this hearing that you do not accept its findings in relation to charge 2a, you accused the witnesses of lying and continue to absolve yourself from any responsibility in relation to this charge. The panel determined that your insight is limited because you did not demonstrate an understanding of how your actions can adversely impact on patients, the public and the reputation of the nursing profession. The panel considered likewise in respect of remediation. You have failed to take any responsibility as regards your medication administration error in relation to charge 2a and as a consequence cannot at this time provide evidence of education, training or steps to be taken taken to remedy that failing. The panel appreciated that you have not worked as a registered mental health nurse since the events in question. Therefore, the panel determined that there remains a risk of repetition of your misconduct, which in effect would put patients and the public at risk of harm. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection. Page 19 of 27

20 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 and 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 owing to the public protection concerns identified in your case a finding of impairment was also required on public interest grounds. Having regard to all of the above, the panel was satisfied that your fitness to practise is impaired by reason of your misconduct on both grounds of public protection and the wider public interest. Determination on Sanction: Having found that your fitness to practise is currently impaired by reason of your misconduct, the panel considered what sanction, if any, should be imposed in respect of your registration. The panel had regard to all of the relevant information available to it. Mr Zeitlin invited the panel to have at the forefront of its thinking the NMC s overarching functions. There include the need to protect the public and maintain public confidence in the profession and the regulatory process, by declaring and upholding proper standards of professional conduct and behaviour. Mr Buxton, on your behalf, invited the panel to consider your reflection and on-going engagement with the regulatory process. He provided a further character reference to the panel. He submitted that you have demonstrated some insight, that your failings were remediable, and referred to a previous regulatory finding against you at this stage in which it was demonstrated that you complied with the conditions of practice that were imposed. He reminded the panel that a sanction ought not to be punitive but sufficient to protect the public and the public interest. In view of his submissions, Mr Buxton submitted that a conditions of practice order would be the most appropriate and proportionate sanction in this case. Page 20 of 27

21 The panel accepted the advice of the legal assessor. The decision as to which sanction, if any, to impose is a matter for the panel s independent judgment. The panel applied the principle of proportionality, weighing the interests of the public with your own interests. As the case started before 28 July 2017, it referred to the NMC s Indicative Sanctions Guidance. The panel considered the sanctions available in ascending order of severity. It noted that it must impose the least restrictive sanction necessary to protect patients and maintain public confidence in the profession and the NMC as its regulator. The panel had in mind that the purpose of imposing a sanction is not to be punitive, although some sanctions may have a punitive effect. The panel had regard to the aggravating and mitigating features of the case which it identified as relevant, as follows: Aggravating features: The injection that was administered to Patient B was conducted as part of a training exercise for students and was not in keeping with best practice. The impact of this patient observation situation on the student nurse. You have demonstrated very limited insight during these proceedings. You have had previous regulatory findings against your practice. Mitigating features: You made an early admission to one of the charges against you. You have engaged with the NMC process throughout. You have complied with the conditions of practice order imposed during your previous regulatory proceedings. Training records and references were handed up to the panel. References related to your previous regulatory proceedings and pre-date these incidents. Page 21 of 27

22 The panel first considered, but rejected, taking no action. In coming to this view, the panel had regard to the seriousness of this case, and the need to protect the public and maintain public confidence in the profession and the NMC. The panel next considered a caution order. This would not restrict your practice nor is the case at the lower end of the spectrum. In the panel s judgement, there remains a risk of repetition because of your limited insight and insufficient evidence of remediation. For this reason, a caution order would not be appropriate or sufficient to protect the public nor would it satisfy the public interest in the case. The panel next considered imposing a conditions of practice order. Conditions of practice are primarily designed to satisfy the public interest by protecting the public and the wider public interest. Conditions of practice are also designed to address the matters giving rise to the finding of impairment but may also support a registrant in addressing their learning needs and thereby facilitate an eventual return to safe and unrestricted practice. A conditions of practice order may be appropriate where there is no evidence of harmful deep-seated personality or attitudinal problems, or of general incompetence and where there are identifiable areas of the nurse s practice in need of assessment and/or retraining, where patients will not be put in danger either directly or indirectly as a result of conditional registration and where it is possible to formulate conditions and to make provision as to how they will be monitored. The panel concluded that the following factors were particularly relevant to its appraisal of the suitability of a conditions of practice order in the particular circumstances of your case: There is no evidence of harmful deep-seated personality problems; There are aspects of your practice, namely medication administration and adherence to policy and/or risk management, which could be remedied, developed and assessed; Relevant, workable, practicable, proportionate and measurable conditions can be formulated which will protect patients. The panel identified areas in your practice Page 22 of 27

23 that are deficient, namely, medication administration, adherence to policies and procedures and risk management Having reached a provisional view that a conditions of practice order appeared to be appropriate and proportionate in this case, the panel considered the sanction of a suspension order. The panel had regard to the need to act proportionately. Any restrictions placed on a registrant s ability to practise must be no more than necessary to satisfy the public interest, which includes the protection of the public. It must strike a fair balance between the rights of the registrant and the public interest. In the panel s judgement the temporary removal of your name from the Register is not required either to protect the public or satisfy the public interest. The panel considered a suspension order to be inappropriate in view of it being a sanction that would neither address nor remedy the deficiencies in your practice. There are clear areas in your practice which ought to be remedied and thus, a period of suspension is not the appropriate sanction in this case. The panel directs that for a period of 18 months your registration will be made subject to the following conditions of practice: 1. You must notify 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. 2. 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. 3. You must within 14 days of accepting any post or employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, provide the NMC with the name and contact details of the individual or organisation offering the post, employment or course of study. Page 23 of 27

24 4. You must confine your practice to mental health nursing for the duration of time that this order remains imposed on your registration. You must restrict your practice to working in a mental health hospital, mental health unit, or mental health setting. You must not work as an agency nurse. 5. 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 practice: administration of intra-muscular injections, managing risk and the importance of policies in the protection of patients, colleagues and the public. 6. You must at all times place yourself and remain under the indirect supervision of a workplace line manager, mentor or supervisor nominated by your employer. 7. You must attend education and further training on: Intra-muscular injections and must be observed giving them by a manager, mentor or supervisor (or their nominated deputy) and assessed as competent. You must attend an up to date mentorship course. 8. You must produce a reflective piece that addresses the following learning points: a. Administration of intra-muscular injections b. Managing risk c. The importance of policies in the protection of patients, colleagues and the public 9. You must send a report from your manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance in relation to the areas identified under conditions 7 and 8 competency in relation to condition 7 to the NMC at least 14 days before any NMC review hearing or meeting. Page 24 of 27

25 10. You must immediately inform 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 (9) above, to them: a. any organisation or person employing, contracting with, or using you to undertake nursing work; b. any prospective employer (at the time of application); c. 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 such a course (at the time of application). This conditions of practice order will be reviewed by a fitness to practise panel shortly before the end of the period of conditional registration. A reviewing panel will be able to impose such further order as it determines is appropriate in light of the information available to it. The NMC will inform you of the date of that hearing in advance and you will be invited to attend. In considering the case, the panel reviewing the order will be assisted by your appearance in person, any references or testimonials addressing your practice whilst under these conditions. Right of Appeal: You will have 28 days from the date when written notice of the result of this hearing is deemed to have been served upon you in which to exercise your statutory right of appeal. You will be provided with a note explaining your right of appeal. Unless you exercise that right, the direction imposing a conditions of practice order for a period of twelve months will take effect 28 days from when written notice of the decision is deemed served upon you. Page 25 of 27

26 Determination on Interim Order: Having already determined to impose a substantive conditions of practice order, the panel has now also decided to impose an interim conditions of practice order, in the same terms as those of that substantive order, for a period of 18 months and directs the Registrar accordingly. In reaching its decision, the panel applied the principle of proportionality. Mr Zietlin sought an interim conditions of practice order for 18 months to cover your statutory 28 day appeal period and the duration of any appeal which might be made. He sought the order on the basis that it is necessary for the protection of the public and is otherwise in the public interest because of the risk of repetition identified by the panel. Mr Buxton, on your behalf, did not oppose this application. The panel accepted the legal assessor s advice. The panel noted that an interim order is not to be imposed automatically following the imposition of its substantive order and can only be made on one or more of three grounds, namely that: it is necessary for the protection of the public; and/or it is otherwise in the public interest; and/or it is in the registrant s own interests. The panel concluded that an interim order in this case is both necessary for the protection of the public, given the issued raised and is otherwise in the public interest in order to maintain public confidence in the profession and the regulatory process. The panel also determined that an interim conditions of practice order in the same terms as those of the substantive order is necessary, appropriate and proportionate in the circumstances of this case. Page 26 of 27

27 The period of this interim conditions of practice order is 18 months, notwithstanding that its substantive order is made for a lesser period. This is because the interim order is intended to cover an appeal period and, in the event that an appeal is lodged, that may be a significantly longer period, pending the resolution of any such appeal. In coming to its conclusion that 18 months is the appropriate period, the panel had regard to the length of any appeal process, noting that this includes the time likely to elapse before any appeal is listed and determined by the High Court, which may be significant. If there is no appeal, this interim conditions of practice order will lapse at the end of the 28 day appeal period, when the panel s substantive conditions of practice order for 18 months takes effect. In the event that an appeal is lodged but concluded before the expiration of 18 months, this interim conditions of practice order will lapse at the conclusion of the appeal. If an appeal is lodged but not concluded within the period of 18 months, it will be necessary for the NMC to apply to the High Court for an extension of this interim conditions of practice order. The panel s decisions in this case will be confirmed in writing. That concludes this hearing. Page 27 of 27