Nursing and Midwifery Council Fitness to Practise Committee

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 30 October to 2 November 2017 and 6 to 8 November 2017 And 29 January to 2 February 2018 Nursing and Midwifery Council, George Street, Edinburgh, EH2 4LH Name of registrant: Danielle Allan NMC PIN: 08I1297S Part(s) of the register: Registered Nurse Adult nursing Area of Registered Address: Scotland Type of Case: Misconduct Panel Members: Kathryn Eastwood (Chair, Registrant member) Maureen Gunn (Registrant member) Alex Forsyth (Lay member) Legal Assessor: Graeme Henderson Panel Secretary: Elaine Stewart 1

2 Registrant: Present and represented by Natalie McCartney, Anderson Strathern LLP. Nursing and Midwifery Council: Represented by Stephen McCaffrey, Case Presenter. Facts proved: 3.2, 4, 6 and 9 Facts proved by admission: 1.1, 1.2, 2, 5 Facts not proved: 7, 8 and 10 No case to answer 3.1 and 11 Fitness to practise: Impaired Sanction: Conditions of Practice Order (12 Months) Interim Order: Interim Conditions of Practice Order (18 months) 2

3 Details of charge: That you, while working as a Band 5 Registered Nurse employed by HC-One at The Beeches Care Home in Dunfermline, between approximately 8 January 2015 and 7 February 2015: 1. In relation to Patient A s pressure sore, you failed to: 1.1 accurately complete Patient A s wound assessment chart on one or more occasions, and/or 1.2 document/record wound management in relation to Patient A on one or more occasions including, but not limited to the: a. 11 to 12 January 2015 b. 19 to 21 January Failed to implement a position change chart for Patient A on one or more occasions 3. Failed to carry out a wound swab on Patient A s pressure sore and/or refer to the GP / TVN on one or more occasions, including but not limited to: January January Failed to alert the Tissue Viability Nurse when the wound reached grade 3 5. Failed to complete a Datix for Patient A s deteriorating wound following the development of the Grade 3 pressure sore 3

4 6. Failed to follow up and/or record any follow up of Patient A s deteriorating pressure sore with the Tissue Viability Nurse on one or more occasions 7. Failed to arrange for an alternative mattress selection for Patient A following the deterioration to a grade 3 pressure sore 8. Failed to escalate Patient A s deteriorating condition to management 9. On or around 11 January 2015,on noticing Patient A s loss of body weight, failed to refer and/or initiate a review of Patient A to the GP and / or dietician 10. Failed to take photos and/or tracings of Patient A s wound and make a referral to the TVN on 17 January Your failings at one or more of the above charges 1 to 10, caused and or contributed to the death of Patient A. And, in light of the above, your fitness to practise is impaired by reason of your misconduct. Background The charges arose whilst you were employed as Band 5 Registered Nurse by HC-One at The Beeches Care Home (the Home) in Dunfermline. You worked at The Beeches Care Home from 3 December 2014 until 20 February You were one of the permanent day shift nurses allocated to the Carnegie Unit where Patient A was a permanent resident, having been admitted on 23 July She required support with moving around and was also unable to effectively change position in her bed or chair without the assistance of staff. She also had a number of medical 4

5 conditions requiring nursing care and it was documented on 6 September 2014 that Patient A was at risk of developing pressure ulcers. It is alleged that you were responsible for Patient A s care when she developed a Grade 3 pressure ulcer which worsened. It is alleged that you failed to make the Home Manager aware of this. There are further allegations that you failed to refer to a Tissue Viability Nurse (TVN) and inform the GP. Patient A was admitted into hospital on 6 February 2015 with dehydration and an infected grade 4 pressure ulcer on her sacrum. Patient A died on 14 February 2015 and the port mortem report identified the cause of death as being sepsis and the Grade 4 pressure ulcer. Admission of the charges At the outset of the hearing, Ms McCartney, on your behalf, indicated that you admitted charges 1, 2, and 5. She also told the panel that you admitted that you failed to carry out a wound swab in terms of Charge 3. The panel announced the facts of charges 1, 2, and 5 proved but were unable to find that part of Charge 3 to which you were admitted proved. However the panel noted that the fact that you were prepared to admit that part of Charge 3 may be taken into account at a later stage. Decision and reasons on application to direct disclosure On Day 3 of the hearing, the panel heard an application from Ms McCartney, on your behalf, for the panel to use its discretion to direct that certain documents be disclosed. 5

6 Following the evidence of a number of NMC witnesses and detailed examination of the NMC document bundle, it became apparent to all parties that there were a number of documents either supplied incomplete or missing entirely. Ms McCartney informed the panel that Patient A s daily wellbeing notes were missing on a number of the days relevant to the charges when you knew you had been working in the home. There were also omissions in professional and relatives communication records. It was also requested that handover notes, turn charts and the home diary be obtained and admitted into evidence. Having heard Ms McCartney s submissions, the panel invited the case presenter to comment on the application. He submitted that the panel should not pronounce an order until it was satisfied that such an order was necessary. At this stage, it was not clear whether or not the documents sought on your behalf were in the hands of the NMC. If these documents had been disclosed to the NMC then there would be no need for an order for their production. Having heard parties, the panel adjourned to allow enquiries to be made to ascertain if the documents required were available from the NMC. At the resumed hearing, Mr McCaffrey indicated that, having spoken to the NMC case officer, there were no further documents in the hands of the NMC other than those produced to your representatives. In light of this, there being no objection to the application by Ms McCartney, the panel went on to consider whether it should pronounce an order. The panel heard advice from the legal assessor. He outlined the panel s powers under Article 22(5) of the NMC Fitness to Practice Rules 2004, which states: 6

7 (5) The Committee may of its own motion require a person to attend the hearing to give evidence, or to produce relevant documents. The panel considered the application. The panel determined that the documentation requested was obviously relevant, and the panel was satisfied that it was also in the interest of Registrant B, who was neither in attendance nor represented, for the panel to consider the additional documents requested. Mr McCaffrey had not disputed the potential relevance of the documents. The panel then considered whether any third person was likely to be able to supply the documentation requested. It had regard to the evidence of Ms 1. Although the panel had heard that Ms 1 had carried out a thorough investigation at the time, the panel had not heard her mention handover notes or that she had noticed the gaps in the documents provided. The panel therefore considered that there was a sufficient prospect that Ms 1 may still be able to produce the documents required. The panel also determined that Ms 1 may be able to provide further oral evidence with regards to matters arising from subsequent witness evidence and the information contained in the request documentation. The panel directed, in terms of Rule 22 (5) of the Fitness to Practise Rules 2004 that Ms 1 attend this hearing with all documents in the possession of HC One relative to Patient A for the period from 1 January 2015 to 10 February 2015 including, without prejudice to the general terms of this requirement: 1. Daily Statement of wellbeing record 2. Handover notes 3. Profession Communication/visit record 4. Relatives communication record 5. Assessment chart for wound management 6. Diary 7

8 7. Turn charts The panel directed that all documents retrieved be provided by 9am on Monday 6 November 2017 or, if any documents cannot be recovered by such time, that it be advised whether it appeared that such documentation existed and if so, how long recovery might take. The panel concluded that this direction and any delay caused is proportionate and appropriate, having had regard to the interests of all parties and the public interest, and given the time frame set down. The panel concluded that this course of action would balance fairness to you and Registrant B with the public interest in the expeditious disposal of the case. The panel made a further direction in terms of Rule 22 (5), of its own motion, to require Ms 8, Home Manager at the time period relevant to the charges, to attend the hearing on Monday 6 November 2017 at 1pm. The panel determined that Ms 8 played a crucial role in the events surrounding this case and it required her to give evidence to provide the panel with a full understanding of the circumstances. Decision and reasons on application of no case to answer The panel considered an application from Ms McCartney on your behalf that there is no case to answer in respect of charges 3, 4, 6, 7, 8, 10 and 11. This application was made under Rule 24 (7) of the Rules. Ms McCartney referred the panel to the cases R v Galbraith [1981] 1WLR1O39 and the case of R v Shippey [1988] Crim LR 767 (Crown Court). The 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 8

9 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. In relation to this application Ms McCartney urged the panel to consider the quality of the evidence submitted and consider whether there were inconsistencies or inherent weakness. Ms McCartney submitted that there was evidence before the panel that you had received no specific pressure ulcer training and that witnesses had declared your induction to be insufficient, particularly in light of you having never worked in a care home before. Ms McCartney submitted that the GP attended Patient A on 26 January 2015 and this was recorded in Patient A s notes. She also stated that you had spoken to the GP on 27 January She said you had contacted the TVN on 26 January 2015 by telephone but were told you had to with pictures of the wound. You were unable to access the computer to photographs and the camera was locked in the office. She submitted that only managers had access to the computer so no photographs were ed until 3 February 2015 and the TVN nurse attended Patient A on 6 February Ms McCartney submitted that your induction had not included information regarding mattresses for the prevention and management of pressure areas. She said that there was poor communication in the home regarding equipment and there was no clear pathway regarding identifying and obtaining the level of specialist mattress that may be required. With regard to escalating concerns to management regarding Patient A s condition, Ms McCartney submitted that Patient A had been discussed at daily flash meetings. Wound dressings and GP visits for Patient A were recorded on the flash meeting notes on 15, 20 and 26 January 2015 in the presence of the Home manager and deputy manager. Ms McCartney stated that, in her oral evidence, Ms 8, had accepted that you had raised concerns regarding Patient A with her on 30 January. Ms McCartney submitted that you had not been on shift on the Home on 17 January so had no duty in 9

10 respect of charge 10. With regards charge 11, Ms McCartney submitted that there was insufficient evidence to identify any contribution to patient A s death. She submitted that the expert witness Ms 9 would not be drawn on causality and declared that no single nurse bore ultimate responsibility. In these circumstances, it was submitted that these charges should not be allowed to remain before the panel. Mr McCaffrey, on behalf of the NMC, conceded that there were insufficiencies in some of the evidence and that there were concerns regarding training and communication in the home. However, Mr McCaffrey submitted that a registered nurse has a responsibility to ensure they know how to seek help when required and that a lack of training does not absolve them of responsibility. Mr McCaffrey submitted that there had been numerous opportunities to provide better care and earlier intervention. The panel took account of the submissions made and heard and accepted the advice of the legal assessor. In reaching its decision, the panel made an initial assessment of all the evidence that had been presented to it at this stage. The panel was solely considering whether sufficient evidence had been presented, such that it could find the facts proved and whether you had a case to answer. The panel was of the view that, taking account of all the evidence before it, there was not a realistic prospect that it would find the facts of a number of the charges proved. With regard to charge 7, the panel determined that it was unclear what your duty was regarding mattress assessment and provision. There was no evidence of guidance which would require you to obtain a different type of mattress at a particular stage of a developing ulcer. There was no clear pathway to identify what should be provided and at what point, and how this should be accessed. Accordingly it found you have no case to answer in respect of charge 7. 10

11 With regard to charge 8, the panel determined that Patient A s deteriorating condition was raised by you at flash meetings in the presence of both the Home manager and deputy manager. The panel found you have no case to answer in respect of charge 8. With regard to charge 10, the panel were satisfied that all documents recorded on 17 January 2015 were signed by Registrant B and that you did not work on the same shift so it was clear you had no case to answer in respect to charge 10 as the NMC have not provided evidence that you were working in the home on 17 January Given the fact that only one band 5 nurse would have been on duty, the NMC have not provided sufficient evidence to prove this charge. The panel was of the view that there had been sufficient evidence to support charges 3, 4, 5, 8 and 11 at this stage and, as such, it was not prepared, based on the evidence before it, to accede to an application of no case to answer. What weight the panel gives to any evidence remains to be determined at the conclusion of all the evidence when it will also assess the quality of the evidence. Decision and reasons on interim order upon adjournment: The panel now has to consider the matter of an interim order in accordance with Rule 32(5) of the Rules, which states: 32 (5) the Practice Committee shall consider whether or not to make an interim order and shall (a) invite representations from the parties (where present) on this issue; (b) deliberate in private; (c) announce its decision in the presence of the parties (where present); (d) give reasons for its decision; and (e) notify the registrant of its decision in accordance with article 31(14) of the Order. 11

12 Mr McCaffrey, on behalf of the NMC, did not make an application for an interim order. The panel heard and accepted the advice of the legal assessor. The panel took account of the guidance issued to panels by the NMC when considering interim orders and the appropriate test as set out at Article 31 of The Nursing and Midwifery Order 2001 which states that an interim order can be made for a period of up to 18 months on any one of three grounds, namely, if the panel is satisfied that such an order is necessary for the protection of the public, is otherwise in the public interest, or is in your own interests. The panel noted that the NMC had not made an application for an interim order. The panel is yet to make findings on the facts of this case. In the circumstances, the panel is not satisfied that an interim order is necessary for the protection of the public, is otherwise in the public interest, or in your own interests. This case will resume in Edinburgh for four days on 30 January This decision will be confirmed to you in writing. That concludes this determination. The Hearing resumed on Monday 29 January 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 McCaffrey on behalf of the NMC and those made by Ms McCartney on your behalf. 12

13 The panel heard and accepted the advice of the legal assessor who referred to the case of Kennedy v Cordia Services [2016] UKSC6 in respect of how they were to assess the evidence of an expert witness. He also referred to the case of Kay s Tutor v Ayrshire and Arran Health Board [1987] SC (HL) 145 in respect of causation. 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 eight witnesses tendered on behalf of the NMC. In addition, the panel heard evidence from you under oath. Witnesses called on behalf of the NMC were: Ms 1 Clinical Quality Manager, HC-One; Ms 2 Deputy Home Manager, The Beeches Care Home; Ms 3 Senior Carer, The Beeches Care Home; Mr 4 Care Assistant, The Beeches Care Home; Ms 5 Care Assistant, The Beeches Care Home Ms 6 Registered Nurse agency nurse for Newcross Healthcare who worked at The Beeches Care Home. Ms 7 Care Assistant, The Beeches Care Home; Ms 8 Home Manager, The Beeches Care Home; Ms 9 - Registered Nurse and Tissue Viability Specialist instructed by the NMC to give expert evidence. The panel first considered the overall credibility and reliability of all of the witnesses it had heard from. 13

14 The panel found that in her role as Clinical Quality Manager, Ms 1 viewed events from an organisational perspective on what was expected to be normal practice in relation to organisational policies and procedures. She was unable to speak to the reality of what actually happened in the Home. The panel found Ms 1 to be a credible witness who was knowledgeable and tried to assist the panel but, as her evidence progressed, discrepancies and contradictions became evident. Ms 1 told the panel about induction and training procedures but other witnesses explained that the HC One expectation of training and induction did not take place in the Home. Ms 1 also told the panel that all clinical staff were responsible for making entries on the Datix system but the panel heard subsequent evidence from the Home manager, deputy manager and nurses who said that only management had access to computers to use Datix. She accepted an explanation that neither the manager or deputy manager were aware of the deterioration of Patient A s condition. Her findings were contrary to the evidence the panel heard. The panel found Ms 1 to be credible but that her evidence was not wholly reliable and the panel was not convinced that she had adopted a robust methodology. The panel heard evidence from Ms 2, Deputy Home manager. The panel found Ms 2 to be cautious in her evidence and found that, while her evidence was reliable regarding procedures and processes that should be in place, she was somewhat detached in her view on events and her responsibility as a clinical leader in the home. The panel found Ms 2 did not take responsibility for training new staff, support or supervision and had little insight into the significance of her role in the events of this case. Ms 2 was made aware of the extent of the sore but attempted to downplay her responsibility by claiming she knew nothing about it. The panel found Ms 3 to be a credible and reliable witness who had extensive experience in the Home. Ms 3 was clear in her evidence that she reported Patient A s pressure sore to the Home Manager. The panel found Mr 4 to be a credible witness but his recollection was limited due to the passage of time. 14

15 The panel noted that Ms 5 tried to assist the panel but that she was unable to recall specific details which impacted upon the reliability of her evidence. The panel found Ms 6 to be a credible and reliable witness. The panel noted that Ms 6 was wholly consistent in her account and her evidence was supported by the care documents. The panel noted Ms 6 s clear and balanced account and found she had a good recall of events. The panel found the evidence of Ms 7 to be of limited use due to both her level of involvement and her recollection of events. However the panel found her to be a credible witness who did her best to assist the panel. The panel found Ms 8 to a credible witness with regard to matters of day to day processes within the Home. However, the panel found her to be evasive at times and lacking recall regarding her involvement in the management of the pressure sore. The panel found Ms 8 to be guarded in her responses and demonstrated little insight into the significance of her role in events. The panel found TVN specialist Ms 9 to be a credible and reliable witness who had produced a very detailed and considered report. She revised her view on some facts after having sight of further documents produced by the NMC in the course of the hearing. Ms 9 accepted that her knowledge was limited by the fact she had not had sight of the wound but she was able to offer her opinion on areas of good or insufficient practice based on guidelines. The panel found Ms 9 s evidence to be useful but were minded that her expectations were of an advanced standard with regards to tissue viability care. The panel had to consider the standard expected of a registered nurse who had not received advanced training in tissue viability nursing. Ms 9 had been provided with and commented on documents that the panel had not seen. To that extent, she provided the panel with evidence of fact. In reaching her conclusions, she relied on some evidence that was different evidence to that seen by the panel and did 15

16 not have an opportunity to speak to any of the witnesses. The panel was more concerned with assessing the reasons by which she came to conclusions than the conclusions themselves. In making it s finding on fact, the panel were assisted by her assessment of documentary evidence but the panel did not always agree with her conclusions. The panel found you to be credible but noted that you did not always answer the question asked of you. When you could not recall details, you relied upon general responses rather than providing details specific to your own actions. However the panel found you to be straightforward and consistent in your account and noted your efforts to assist the panel. The panel found your evidence, in respect of the grade of the pressure sore, to be wholly unreliable. Despite compelling evidence to the contrary, you insisted that the pressure sore was a grade 2 the whole time you were treating Patient A. You told the panel you qualified as a nurse in 2011 and, until you began working at The Beeches Care Home in December 2014, you had primarily worked with individual young adults with brain and spinal injuries. You said that your position at The Beeches was your first in a care home and you left in February You began working at a Barchester Care Home in October You have no managerial role in this post but are employed as a staff nurse in charge of a unit of between 24 to 35 residents supported by 6 carers and sometimes another staff nurse. You said you feel well supported in this role and are confident seeking help if needed. You said you have received a week of induction training and spent two weeks shadowing the head of a Unit. You said you had received a basic training update on caring for pressure sores and feel confident doing so. You said you were aware of the company policy in your new Home and you would consult management and seek specialist advice if a new sore were to develop. You told the panel that when you began at The Beeches, you received no formal induction training and spent two days shadowing Ms 6, an agency nurse who worked regularly at the Home. You completed some elearning on infection control and fire 16

17 safety and were shown the care plans and Boots medication administration documentation by Ms 6. You said no pressure care training was provided. You told the panel that you remembered Patient A and the first time you were aware of a pressure sore was around mid-december 2014 when it was passed to you at handover. You said that the first time you dressed the wound you asked Ms 2, though you later conceded that this could have been Ms 6, to assist you and advise on how best to dress it. You said at this point it was a small sore and that every time you observed or redressed the sore, you documented it in Patient A s notes. You said the need to change dressings was discussed at the daily flash meetings so everyone, including management, was aware of the sore. You told the panel that the wound worsened in mid-january 2015 and was causing Patient A pain and increased agitation. You said you discussed this with the GP on 26 January 2015 but he refused to check the wound. You said you noticed the wound worsening on 26 January 2015 and called the TVN but were told you could not make a referral by phone but you should photograph the wound and make a referral via . You said you could not photograph the wound or send an as the camera and computer were locked in the manager s office and you had no access. You said you handed over the necessity for the photograph to colleagues by writing it in the Home diary and sought permission from family to photograph the wound on 30 January You told the panel that you assessed the wound on 28 January 2015 and recorded the recorded the wound depth as 2cm. You said that you believed it was still a grade 2 pressure sore. You said that you had sought advice from colleagues who agreed with you regarding the grading. You recorded Patient A as having two significant weight losses in January 2015 and said that you told the family that you referred Patient A to the dietician on 30 January You said you had spoken to the Home Manager following the first weight loss 17

18 recording on 11 January 2015 and said you were told to commence a food and fluid chart and continue to monitor Patient A. You said you were on annual leave for around a week during which time Patient A s health deteriorated and she was hospitalised. You said when you returned to work you were told to attend a meeting with Ms 1 though you said you were not told at the time that this was an investigation meeting. You said you were saddened to hear that Patient A had passed away and were shocked to hear how much the pressure wound had deteriorated while you were on leave. You said you were very clear that the wound was only ever a Grade 2 sore while Patient A was in your care. At the start of this hearing you admitted the following charges; 1. In relation to Patient A s pressure sore, you failed to: 1.1 accurately complete Patient A s wound assessment chart on one or more occasions, and/or 1.2 document/record wound management in relation to Patient A on one or more occasions including, but not limited to the: a. 11 to 12 January 2015 b. 19 to 21 January Failed to implement a position change chart for Patient A on one or more occasions 5. Failed to complete a Datix for Patient A s deteriorating wound following the development of the Grade 3 pressure sore These were therefore announced as proved. 18

19 The panel then went on to consider the remaining charges. The panel considered each charge and made the following findings: Charge 3: 3. Failed to carry out a wound swab on Patient A s pressure sore and/or refer to the GP / TVN on one or more occasions, including but not limited to: January 2015 Found Proved in respect of the wound swab but NOT proved in respect of reference to the GP/TVN January 2015 Found PROVED in respect of the wound swab and reference to the TVN but NOT proved in respect of reference to the GP In reaching this decision, the panel took into account your admission that you failed to carry out a wound swab and your submission that at the time you did not believe it to be necessary. With regard to 26 January 2015, the panel accepted your evidence that you attempted to refer Patient A to the TVN but were told to the referral and take photographs and were unable to access the camera. This evidence was confirmed by Ms 6. The panel also accepted your evidence that the GP attended Patient A on 26 January 2015 and declined to observe the wound. Accordingly, the panel find that this part of the charge is not proved. With regard to 28 January 2015, you assessed the wound and recorded a deterioration in the wound with regards to depth, from 1cm to 2cm. You also noted signs of infection. The panel agreed with the view of Ms 9, which was supported by HC-One policy, that given the deterioration, you had a duty to complete the TVN referral at this time. 19

20 The panel determined that there was it reasonable that you would not have called the GP again within 48 hours, particularly following his comments and wound care being a nurse s job. The panel found that you did fail to contact the TVN on 28 January and that charge 3.2 is found proved to that extent. Charge 4: 4. Failed to alert the Tissue Viability Nurse when the wound reached grade 3 This charge is found proved. In reaching this decision, the panel took into account your evidence and assertion that you did not consider the sore to be a grade 3 sore at any point. However the panel also considered the care plan for Patient A which detailed that the wound was assessed as a grade 3 sore on 8 January On 28 January 2015 you documented in the wound assessment chart the wound as being 2cm in depth. The panel noted the evidence of Ms 9 who quoted national guidance on pressure sores: The National pressure ulcer advisory panel/ European pressure ulcer advisory panel/ Pan Pacific pressure injury alliance (NPUAP/ EPUAP/ PPPIA (2014) guidance advocates to categorise the depth of tissue damage. The depth of tissue damage is dependent on the anatomical position of the ulcer. There are six categories used. a) Category/ Grade 1 is non-blanching red tissue, which is unbroken. b) Category/ Grade 2 is partial thickness skin loss or blister. c) Category/ Grade 3 is full thickness skin loss with fat visible. d) Category/ Grade 4 is full thickness skin loss extending down to bone, tendon and muscle. 20

21 e) Deep tissue injury is a purple or maroon localized area of discoloured intact skin or blood- filled blister due to damage of underlying soft tissue from pressure and/or shear. f) Unstageable: Depth Unknown is full thickness tissue loss in which the base of the ulcer is covered by slough (yellow, tan, gray, green or brown) and/ or eschar (tan, brown or black) in the wound bed. The panel considered your description of the depth of the wound and national guidance evidenced by Ms 9. The panel was of the view that given your assessment of a 2cm deep wound, it is more likely than not that that this would be a full thickness skin loss with fat visible and this would be indicative of grade 3 pressure sore. Therefore, in keeping with HC-One policy on wound management, and in view of the ongoing wound deterioration, you should have alerted the TVN. Charge 6 6. Failed to follow up and/or record any follow up of Patient A s deteriorating pressure sore with the Tissue Viability Nurse on one or more occasions This charge is found proved. The panel noted that there was no record of communication with the TVN in Patient A s professional communication/visits records. The panel accepted your evidence that you attempted to contact the TVN on 26 January 2015 but found no evidence of further follow up or record of any communication with the TVN following your documented deterioration of the wound on 28 January The panel found that the HC-One policy states that a grade 3 wound must be referred to a TVN and that you had a duty as a registered nurse to follow up on your attempted referral and to record your actions and communication with the TVN in Patient A s records. Charge 9 21

22 9. On or around 11 January 2015, on noticing Patient A s loss of body weight, failed to refer and/or initiate a review of Patient A to the GP and / or dietician. This charge is found proved. The panel noted that you assessed Patient A s weight on 11 January 2015 using the MUST tool and recorded that Patient A had a weight loss of 5.8kg. This level of unplanned weight loss as defined in the MUST tool indicates a high risk of malnutrition. The MUST form that you completed clearly states that this high risk score must be referred to a dietician. You recorded the need to Treat on the form. However, the panel heard your evidence that you did not refer Patient A to the dietician until there was a further high risk score identified on 30 January You told the panel that you had escalated your concern to the home manager who said you should start food and fluid charts and continue to monitor the situation. The panel determined that, as a registered nurse, you had an obligation to refer Patient A to a dietician upon identifying the high risk score as defined in the tool on 11 January 2015 and this charge is therefore found proved. Charge Your failings at one or more of the above charges 1 to 10, caused and or contributed to the death of Patient A. This charge is found NOT proved. The panel noted that the post mortem report for Patient A shows the primary cause of death was sepsis as a result of a grade 4 pressure sore. The panel found that you failed to ensure Patient A s pressure wound was assessed by a TVN at an early stage but the panel noted the evidence of Ms 9 that most serious deterioration of the wound 22

23 did not take place until after your last day of care on 30 January Although she was asked to comment on causation, Ms 9 was unable to form a view on whether your actions or inactions caused or directly contributed to the death of Patient A. You began a week s annual leave on 1 February Patient A was admitted to hospital on 6 February 2016 and died on 14 February On 3 February 2015 the wound was assessed as having grown considerably in size and the infection and tissue state had worsened considerably. The panel accepted that you were on annual leave at this time and had no further involvement in Patient A s care. The panel accepted your evidence that you had escalated your concerns about Patient A s deteriorating health to management and attempted to contact the TVN. The panel also accepted your evidence that you had spoken to the GP about your concerns regarding Patient A s pain, agitation and sacral sore. The panel accepted the evidence of Ms 9 that you had breached company policy and your actions had fallen in short in some areas but that in other areas you had shown evidence of good practice in your attempts to escalate your concerns about Patient A s weight loss and your referral to the dietician. Ms 9 also noted you had shown good practice in your efforts to manage the wound care, particularly regarding pain relief and had recorded this in Patient A s records. The panel also accepted Ms 9 s evidence that management knew of the pressure sore but failed to take any action with regards to ensuring the appropriate level of assessment and treatment were provided. The panel accepted that the evidence that the home management failed to support inexperienced staff and that there were systemic leadership, management and clinical support failures within the home which led to failings in the care provided to Patient A. The panel was of the view that there was no evidence to support a finding that your failings caused or contributed to the death of Patient A. Under cross examination, Ms 23

24 Ovens was asked if any earlier involvement by the TVN could have made a difference to the ultimate outcome. Ms 9 said No, I couldn t comment either way. The panel accepted Ms 9 s statement in her report in which she states that there were several contributory factors that led to Patient A s infected Grade 4 pressure ulcer and subsequent death. In my opinion these were not specifically and solely related to the registrants. It is not possible for this panel to form a concluded view on the issue of contribution. As such, the NMC has failed to discharge the burden of proof upon it and this charge has not been proved. 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. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. In his submissions Mr McCaffrey 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 directed the panel to specific paragraphs and identified where, in the NMC s view, your actions amounted to misconduct. Mr McCaffrey 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 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 McCaffrey referred the panel to the 24

25 cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Ms McCartney submitted that your conduct may have breached sections of the code but invited the panel to consider that the conduct is not serious enough to be considered misconduct. Ms McCartney submitted that you accept full responsibility for your actions. She said that you accept that your record keeping was not sufficient but submitted that you were unaware of some of the documentation until it was pointed out to you by night staff. She submitted that, as a new nurse within the home who had received a very basic level of induction support, it was not reasonable to expect you to know of all the documentation required or to expect you to know where to find it. Ms McCartney submitted that with regards to the failure to take a wound swab, you had consulted with other nurses who had not suggested a swab was necessary and that the procedures in the home for taking a swab were unclear. Ms McCartney submitted that although you admitted to failing to make a Datix entry, the panel had heard evidence that it was a managerial responsibility to complete this and your failure could not amount to misconduct in this regard. Ms McCartney submitted that you accept the panel s findings with regard to the grade of the pressure sore, and you now accept that it must have been a grade 3 sore. You accept that you should have acted earlier with regard to the TVN but that, as a nurse inexperienced in pressure wound care, you sought advice from colleagues who supported your assessment and therefore believed at the time that a grade 2 assessment was correct. Ms McCartney invited the panel to consider the context of the events and your lack of specific training and knowledge at the time. She said that you have progressed in your career in the three years since the events of this hearing. She submitted that you have 25

26 demonstrated insight and spoken of how you would act in the future to ensure similar issues did not arise. Ms McCartney submitted that you have worked as a nurse since these events without incident and have reflected on your failings. She told the panel of your remorse about the death of Patient A and that you are currently employed in a care home and providing care to patients with pressure sores without any concerns regarding your practice. Ms McCartney invited the panel to consider that you have demonstrated insight, remorse and remediation and to find that, even if the panel were to find misconduct, your fitness to practice is not currently impaired. She referred to the case of Cohen v GMC [2008] EWHC 581 (Admin) and she invited the panel to consider that the conduct which gave rise to the charges being found proved was unlikely to be repeated. The panel has accepted the advice of the legal assessor which included reference to a number of judgments which are relevant, these included: Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, R (Calhaem) v GMC [2007] EWHC 2606 (Admin). The panel adopted a two-stage process in its consideration, as advised. First, the panel had to determine whether the facts found proved amounted to misconduct. Secondly, only if the facts found proved amounted to misconduct, the panel then had to decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of that misconduct. 26

27 Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of The Code: Standards of conduct, performance and ethics for nurses and midwives 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. 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: To justify that trust, you must: work with others to protect and promote the health and wellbeing of those in your care, their families and carers, and the wider community provide a high standard of practice and care at all times As a professional, you are personally accountable for actions and omissions in your practice, and must always be able to justify your decisions. 4 You must act as an advocate for those in your care, helping them to access relevant health and social care, information and support. 22 You must work with colleagues to monitor the quality of your work and maintain the safety of those in your care. 28 You must make a referral to another practitioner when it is in the best interests of someone in your care. 35 You must deliver care based on the best available evidence or best practice. 38 You must have the knowledge and skills for safe and effective practice when working without direct supervision. 27

28 61 You must uphold the reputation of your profession at all times. The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. However, the panel was of the view that your actions fell below the standard expected of a registered nurse. The panel acknowledges that your failings in respect of some of the charges, namely with regard to non-completion of the Datix and the failure to take a wound swab did not amount to misconduct. The panel determined that, following your assessment of the wound and your subsequent treatment with regard to dressing changes, as a registered nurse you should have been familiar with Patient A s care documentation. The panel determined that reading and completing care documentation is a fundamental part of nursing practice, for which you are accountable, and failing to utilise them correctly is a serious falling short in the expected standard of a registered nurse. Further, the panel determined that your failure to escalate your concerns regarding wound deterioration and weight loss were a significant departure from the standards expected of a registered nurse. The panel found that your actions did fall seriously short of the conduct and standards expected of a nurse and 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. The panel considered the test set out in Paragraph 76 of Grant: 28

29 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. has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel finds that the first three limbs of Grant are engaged in this case with regard to both the past and the present. Regarding insight, the panel considered that you made some admissions at the outset of the hearing and have demonstrated an understanding of why what you did was wrong. You expressed remorse for your failings and when questioned during the course of this hearing about how you would handle the situation differently in the future, you were able to provide sufficiently detailed answers. By accepting the panel s findings, your insight continues to develop. In its consideration of whether you have remedied your practice the panel took into account that you have received some additional basic training relevant to tissue viability. The panel were concerned that you have not fully evidenced that you have remedied your practice in this area. You were still of the view in your evidence that Patient A s 29

30 pressure sore was only grade 2 when the evidence reflected a more serious sore. The panel noted your submission that you would seek advice earlier if you were treating a pressure sore but the panel was of the view that you needed to develop your knowledge and skills in this area to enable you to make confident decisions on wound management and to seek advanced care when appropriate. The panel is of the view that there is some risk of repetition based on your lack of full remediation with regards to tissue viability care. The panel determined that until you have developed your knowledge and skills in tissue viability care, and are able to demonstrate a full understanding of your accountability, there remains a risk of harm to patients in your care. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection. 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 required due to the significant departure from expected standards of care. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. Determination on sanction: The panel has considered this case very carefully and has decided to make a conditions of practice order. The effect of this order is that your name on the NMC register will show that you are subject to a conditions of practice order and anyone who enquires about your registration will be informed of this order. 30

31 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 Sanctions Guidance ( SG ) 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 relevant aggravating and mitigating factors in reaching its decision on the appropriate sanction The panel found the mitigating factors to be: you made early admissions in respect of a number of the charges you were working unsupported in a challenging environment with systemic organisational failures you have developing insight into your failings you have expressed genuine remorse you have worked without incident since these events and have provided positive references The panel found the aggravating factors to be: your lack of recognition and poor judgment regarding the grading of the pressure sore your lack of remediation through appropriate training in the prevention and management of pressure ulcer care while you have been working as a nurse in the three years since the events of this case the patient in your care was frail, elderly and vulnerable the misconduct charges disclose failings in fundamental areas of your nursing practice 31