Nursing and Midwifery Council:

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing October 2017 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Wendy Arlene Stubbs 80I4554E Registered Nurse Adult Nursing England Misconduct Robert Barnwell (Chair, lay member) Sue O Sullivan (Registrant member) Seamus Magee (Lay member) Ben Stephenson Marina Jones Not present and not represented at the hearing Represented by Lara Akande instructed by NMC Regulatory Legal Team. Facts proved by admission: 1.1, 1.2, 1.3, 2.1, 2.2, 3, 4, 5 Facts proved: 1 Fitness to practise: Sanction: Interim order: Impaired Striking off order Interim suspension order (18 months) 1

2 Details of charge (as amended on 09 October 2017): That you, a registered nurse, whilst employed by the Ramsay Weight Loss Service ( the Service ): 1. On or around 4 January 2016: 1.1 Performed a gastric fill and/ or de-fill on Patient A at your residential address, when it was not appropriate to do so; (proved by admission) 1.2 Accepted 50 as payment for the treatment referred to in charge 1.1 above; (proved by admission) 1.3 Failed to document the treatment you gave to Patient A. (proved by admission) 2. Between mid-2014 and January 2016, other than on the occasion in charge 1 above on one or more occasions: 2.1 Performed a gastric fill and/ or de-fill on Patient A at your residential address, when it was not appropriate to do so; (proved by admission) 2.2 Accepted payment from Patient A for altering Patient A s gastric band. (proved by admission) 3. Your actions as described in charges 1.2 and/ or 2.2 above were dishonest in that you accepted payment/s from Patient A, when you knew that you were not entitled to do so. (proved by admission) 4. On 22 June 2016 asked Patient A to handwrite a statement that you had written for Patient A with a view to that statement being sent to the NMC, which contained the narrative in Schedule 1. (proved by admission) 5. Your conduct as referred to in charge 4 above was dishonest in that you knew that the content of the was not true and you were attempting to 2

3 mislead the NMC during its investigation into your fitness to practise. (proved by admission) AND, in light of the above, your fitness to practise is impaired by reason of your misconduct. Schedule 1 Exhibit JW/01- from the registrant to Patient A, dated 22 June

4 Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Mrs Stubbs was not in attendance and that written notice of this hearing had been sent to Mrs Stubbs registered address by recorded delivery and by first class post on 08 September The Royal Mail s track and trace system shows that the notice was signed for on 09 September The notice was also sent to Mrs Stubbs representative, the Royal College of Nursing (RCN), on 08 September The panel took into account that the notice letter provided details of the allegation, the time, dates and venue of the hearing and, amongst other things, information about Mrs Stubbs right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. Ms Akande submitted the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Mrs Stubbs has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Mrs Stubbs. The panel had regard to Rule 21 (2) states: 4

5 (2) Where the registrant fails to attend and is not represented at the hearing, the Committee (a) (b) (c) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or may adjourn the hearing and issue directions. Ms Akande invited the panel to continue in the absence of Mrs Stubbs. Ms Akande referred the panel to a letter dated 04 October 2017 from the RCN, Mrs Stubbs representative. This stated Our member will not be attending the hearing nor will she be represented. No disrespect is intended by her no-attendance Our member is happy for the hearing to proceed in her absence. She is keen to engage with the proceedings We set out below our members representations. Ms Akande submitted, on that basis, that Mrs Stubbs has voluntarily absented herself and there would be no purpose served by an adjournment of these proceedings. The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is not absolute and is one that should be exercised with the utmost care and caution as referred to in the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5. The panel further noted the case of R (on the application of Raheem) v Nursing and Midwifery Council [2010] EWHC 2549 (Admin) and the ruling of Mr Justice Holman that: 5

6 ...reference by committees or tribunals such as this, or indeed judges, to exercising the discretion to proceed in the person's absence "with the utmost caution" is much more than mere lip service to a phrase used by Lord Bingham of Cornhill. If it is the law that in this sort of situation a committee or tribunal should exercise its discretion "with the utmost care and caution", it is extremely important that the committee or tribunal in question demonstrates by its language (even though, of course, it need not use those precise words) that it appreciates that the discretion which it is exercising is one that requires to be exercised with that degree of care and caution. The panel has decided to proceed in the absence of Mrs Stubbs. In reaching this decision, the panel has considered the submissions of the case presenter, and the advice of the legal assessor. It has had regard to the overall interests of justice and fairness to all parties. It noted that: no application for an adjournment has been made by Mrs Stubbs; Mrs Stubbs is represented; Mrs Stubbs is happy for the hearing to proceed in her absence; The RCN has provided written representations on behalf of Mrs Stubbs; there is no reason to suppose that adjourning would secure her attendance at some future date; there is a strong public interest in the expeditious disposal of the case. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mrs Stubbs. The panel will draw no adverse inference from Mrs Stubbs absence in its findings of fact and will take into account her version of events within her written representations. 6

7 Background At the relevant time, Mrs Stubbs was employed as a Bariatric Lead Nurse at Ramsay Weight Loss Services. Prior to her employment with Ramsay Weight Loss Services, Mrs Stubbs had owned her own business called the Weight Loss Surgery Group Ltd where she provided postoperative care to Bariatric patients. This business went into voluntary liquidation in June 2014 and Mrs Stubbs began working at Ramsay. Many of the patients who had previously been Mrs Stubbs clients also transferred to Ramsay. Patient A had had a gastric band fitted in 2013 and had been receiving post-operative care through the Weight Loss Surgery Group Ltd, transferring to Ramsay in June It is alleged that around the 04 January 2016, Mrs Stubbs performed a gastric band defill for Patient A at Mrs Stubbs home address. It is alleged that Mrs Stubbs took or accepted 50 from Patient A and failed to document the treatment provided to Patient A. Following an investigation, it was alleged that Mrs Stubbs had accepted payments for performing this on one or more occasions from mid-2014 until January It is alleged that, following Mrs Stubbs referral to the NMC, Mrs Stubbs composed an consisting of a statement that she wished Patient A to send to the NMC. It is alleged that this conduct was dishonest in that the contained a narrative of events that Mrs Stubbs knew to be untrue and was an attempt to manipulate Patient A into giving the NMC a false version of events and to mislead the NMC s investigation. Admissions The panel were told that Mrs Stubbs had made full admissions to all the charges. The panel were provided with written representations from the RCN, contained within the letter date 04 October 2017, which set out Mrs Stubbs full admissions. The panel therefore announced the charges 1, 2, 3, 4 and 5 proved. 7

8 Decision and reasons to withdraw admission Following her opening submissions, Ms Akande indicated that she wished to make an application to amend the charges in order to correct a date outlined in charge 1. She told the panel that, although the evidence was not consistent, it would appear that the date of the events outlined in charge 1 was 04 January 2016 not 05 January However, the panel, at this stage, had already announced the charges proved by way of admission. Ms Akande produced an from the RCN dated 09 October 2017 which stated we agree to withdraw admission to charge one on the basis of incorrect date. We are prepared to admit the same conduct on 04 January The panel heard advice from the legal assessor. The panel agreed to accept the withdrawal of Mrs Stubbs admission to charge 1. Given that the date in charge 1, namely 05 January 2016, appeared to be incorrect, the panel was of the view that to accept the withdrawal of the admission would be the pragmatic and logical way forward in that it would allow for an application to amend the charge to be made. The admission to charge 1 is therefore withdrawn. Decision and reasons on application to amend the charge The panel heard an application made by Ms Akande on behalf of the NMC, to amend the wording of charge 1. She applied to amend the stem of charge 1 from: 1. on 05 January 2016 to: 1. on or around 04 January

9 Ms Akande submitted that this incorrect date stems from a typographical error. She submitted that the amendment, as applied for, more accurately reflects the witness statements and the investigation report. However, she acknowledged that there is some ambiguity as, although the bulk of the evidence refers to 04 January 2016, there is evidence within the NMC s bundle which makes reference to 05 January Therefore, she submitted, her suggested amendment would cover all eventualities. She submitted that there is no prejudice caused to Mrs Stubbs by this amendment and referred the panel to the from the RCN dated 09 October 2017 which stated that Mrs Stubbs admits to the conduct on 04 January She submitted that the conduct reflected in the amended charge remains the same. The panel accepted the advice of the legal assessor. The panel accepted the advice of the legal assessor that Rule 28 of the Rules states: 28. (1) At any stage before making its findings of fact, in accordance with rule 24(5) or (11), the Investigating Committee (where the allegation relates to a fraudulent or incorrect entry in the register) or the Fitness to Practise Committee, may amend (a) (b) the charge set out in the notice of hearing; or the facts set out in the charge, on which the allegation is based, unless, having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice. (2) Before making any amendment under paragraph (1), the Committee shall consider any representations from the parties on this issue. 9

10 The panel decided to accept the amendment. It noted that both the NMC and the RCN were in agreement over the amended charge. It bore in mind that the amendment, as applied for, is merely to correct an incorrect date and the conduct, which has already been admitted, remains the same. The panel was of the view that no prejudice would be caused to Mrs Stubbs as a result of this amendment. The panel therefore granted the application and amended the charge. Given the ambiguity in respect of the dates, the panel determined that, whilst it noted Mrs Stubbs admission, the panel would not announce this charge proved by way of admission but would go on to make a finding in regards to the stem of the charge. 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 Ms Akande on behalf of the NMC and the written representations, which sets out Mrs Stubbs full admissions to all of the charges, from the RCN. In reaching its decisions on the facts, the panel took into account all the oral and documentary evidence in this case, including the reflective statement written by Mrs Stubbs. The panel had before it the witness statements of: Patient A Mr 1- General Manager at Euxton Hall Hospital employed by Ramsay Health Care Group; Mr 2- General Manager at Blakelands Hospital, responsible for Ramsay Weight Loss since March The panel heard and accepted the advice of the legal assessor. 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 10

11 facts will be proved if the panel was satisfied that it was more likely than not that the incidents occurred as alleged. The panel had already found charges 2, 3, 4 and 5 proved by way of admission. The panel went on to consider the remaining charge, charge 1. The panel noted that Mrs Stubbs had made admissions to this charge. However, in light of the discrepancies over the dates, the panel decided to deliberate on this charge. The panel considered each charge and made the following findings: Charge 1: 1. On or around 4 January 2016: 1.1 Performed a gastric fill and/ or de-fill on Patient A at your residential address, when it was not appropriate to do so; 1.2 Accepted 50 as payment for the treatment referred to in charge 1.1 above; 1.3 Failed to document the treatment you gave to Patient A. This charge is found proved. The panel noted that Mrs Stubbs has admitted all of the conduct specified in charges 1.1, 1.2 and 1.3. It therefore considered only the stem of the charge, namely, whether the conduct occurred on or around 04 January The panel noted the evidence in respect of the conduct alleged in 1.1, 1.2 and 1.3 occurring on 04 January The panel noted that Mr 1, in his witness statement, dates the incident as 04 January In the minutes of the meeting held on 18 January 2016, Mrs Stubbs confirmed the date as 04 January The Investigation Report conducted by Ramsay Healthcare and dated February 2016 refers to the 11

12 incident as occurring on 04 January In her dated 19 January 2016, Mrs Stubbs corrects the date of the incident from 05 January 2016 to 04 January However, in her investigatory interview on 29 February 2016, Mrs Stubbs states that this event took place on 05 January In addition, the statement she asks Patient A to send to the NMC also dates the incident as 05 January Patient A could not recall the exact date of this incident. The panel is satisfied that, in all the circumstances, the conduct alleged in 1.1, 1.2 and 1.3 did take place, as alleged, on or around 04 January

13 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 Mrs Stubbs 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 her submissions Ms Akande invited the panel to take the view that Mrs Stubbs actions amount to a breach of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 (the Code 2008) for conduct that predates the 31 March 2015 and to The Code: Professional standards of practice and behaviour for nurses and midwives (2015) (the Code 2015) for conduct that post-dated 31 March She then directed the panel to specific paragraphs of both codes and identified where, in the NMC s view, your actions amounted to misconduct. Ms Akande submitted that Mrs Stubbs inappropriately conducted clinical procedures on a patient in her home, thus departing from best practice in treating patients in a clinical environment. Further, honesty, integrity and trustworthiness are the bedrock of the nursing profession and Mrs Stubbs undermined this by acting dishonestly in seeking to influence a patient to write a letter with intention of misleading the NMC s investigation and by prioritising financial incentive over the care of her patient. Ms Akande submitted that fellow nurses would find Mrs Stubbs clinical conduct and her dishonesty deplorable and asked the panel to find that her actions amounted to misconduct. Ms Akande asked the panel that, when considering whether Mrs Stubbs fitness to practise is impaired, it should consider whether her conduct was remediable, has it been remedied and is there a likelihood of it being repeated. She asked the panel to consider the emotional and financial harm caused to Patient A as a result of Mrs Stubbs actions in addition to the potential for physical harm had any complication arisen from the procedures being carried out in a non-clinical setting. In addition, she 13

14 submitted, the failure to complete accurate documentation placed Patient A at a further risk of harm in that it impacted on the continuity of care she could expect to receive. Ms Akande submitted that accepting payments from Patient A and attempting to manipulate her into providing a false account to the NMC breached fundamental tenets of the profession in that nurses are expected to act with integrity and put patients first. Ms Akande submitted that, when considering remediation, the panel should bear in mind that dishonesty is, by its nature, difficult to remediate as it could be suggestive of attitudinal issues. Ms Akande submitted that a finding of impairment is necessary to uphold the public interest. She submitted that not to make such a finding would undermine the confidence the public would have in the profession and the need to uphold proper standards of conduct and behaviour. The panel took account of the written representations from the RCN, which set out that Mrs Stubbs admits misconduct and impairment. The panel also took account of the reflective piece by Mrs Stubbs and the references provided on her behalf. The panel has accepted the advice of the legal assessor. The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, Mrs Stubbs fitness to practise is currently impaired as a result of that misconduct. 14

15 Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of the Code 2008 and 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. The panel was of the view that Mrs Stubbs actions did fall significantly short of the standards expected of a registered nurse, and that her actions amounted to breaches of both codes. Specifically: The Code 2008: The preamble: The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must: make the care of people your first concern, treating them as individuals and respecting their dignity provide a high standard of practice and care at all times be open and honest, act with integrity and uphold the reputation of your profession. The paragraphs: 1 You must treat people as individuals and respect their dignity. 21 You must keep your colleagues informed when you are sharing the care of others. 35 You must deliver care based on the best available evidence or best practice. 42 You must keep clear and accurate records of the discussions you have, the 15

16 assessments you make, the treatment and medicines you give, and how effective these have been. 43 You must complete records as soon as possible after an event has occurred. 57 You must not abuse your privileged position for your own ends. 58 You must ensure that your professional judgement is not influenced by any commercial considerations. 61 You must uphold the reputation of your profession at all times. The Code 2015: 1 Treat people as individuals and uphold their dignity 1.1 treat people with kindness, respect and compassion 1.2 make sure you deliver the fundamentals of care effectively 4 Act in the best interests of people at all times 4.2 make sure that you get properly informed consent and document it before carrying out any action 6 Always practise in line with the best available evidence 8.6 share information to identify and reduce risk 10 Keep clear and accurate records relevant to your practice 10.1 complete all records at the time or as soon as possible after an event, recording if the notes are written some time after the event 10.3 complete all records accurately and without any falsification, taking immediate and appropriate action if you become aware that someone has not kept to these requirements 10.4 attribute any entries you make in any paper or electronic records to yourself, making sure they are clearly written, dated and timed, and do not include unnecessary abbreviations, jargon or speculation 16

17 16 Act without delay if you believe that there is a risk to patient safety or public protection 16.5 not obstruct, intimidate, victimise or in any way hinder a colleague, member of staff, person you care for or member of the public who wants to raise a concern 19 Be aware of, and reduce as far as possible, any potential for harm associated with your practice 19.4 take all reasonable personal precautions necessary to avoid any potential health risks to colleagues, people receiving care and the public. 20 Uphold the reputation of your profession at all times 20.1 keep to and uphold the standards and values set out in the Code 20.2 act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment 20.5 treat people in a way that does not take advantage of their vulnerability or cause them upset or distress 20.6 stay objective and have clear professional boundaries at all times with people in your care (including those who have been in your care in the past), their families and carers 20.8 act as a role model of professional behaviour for students and newly qualified nurses and midwives to aspire to 21 Uphold your position as a registered nurse or midwife 21.3 act with honesty and integrity in any financial dealings you have with everyone you have a professional relationship with, including people in your care In the panel s view, Mrs Stubbs conduct fell far below what would be expected of a registered nurse. 17

18 Mrs Stubbs conducted clinical procedures in her home, a non-clinical environmentleading to a significant risk to Patient A in terms of infection control. In addition, not documenting Patient A s treatment placed her at risk as it would mean that another medical professional would not have Patient A s full medical history and this would undermine the continuity of care Patient A would receive. In addition, carrying out procedures in this environment placed Patient A in a situation where she was deprived of dignity and respect and caused significant emotional harm. Patient A described this as embarrassing and demoralising. Mrs Stubbs accepted payment for carrying out clinical procedures on Patient A, which breached professional boundaries. The panel noted that this was not a one off incident but occurred on a regular basis between mid-2014 and January Mrs Stubbs caused financial detriment to Patient A, who indicates that she paid around 750 to Mrs Stubbs over the years. Mrs Stubbs also, by her actions, deprived her employer of income it would otherwise have received. Nurses are expected to be honest and trustworthy at all times and Mrs Stubbs dishonest conduct towards Patient A fell far below this expectation. In conclusion, the panel found Mrs Stubbs conduct, in respect of both her clinical conduct and her dishonesty, to be both inappropriate and grave. The panel concluded that not only would fellow professionals find this conduct to fall significantly short of the standards expected of a registered nurse, they would find such conduct to be deplorable. The panel therefore found that Mrs Stubbs actions are serious enough to amount to misconduct. 18

19 Decision on impairment The panel next went on to decide if as a result of this misconduct Mrs Stubbs fitness to practise is currently impaired. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74 she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but in my 19

20 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. has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel finds that limbs a-d of the above test are engaged, both as to the past and the future. Mrs Stubbs placed Patient A at unwarranted risk of physical harm from treating her in a non-clinical environment and failing to document this treatment. In addition, Mrs Stubbs caused actual emotional harm to Patient A, who was upset by Mrs Stubbs treatment of her. Patient A described Mrs Stubbs clinical treatment in her home as embarrassing and demoralising. Patient A was upset by Mrs Stubbs attempt to coerce her into writing a misleading statement and replied I am really upset as a matter of fact that you blame me. 20

21 Mrs Stubbs has brought the profession into disrepute by treating a patient in a nonclinical environment, breaching professional boundaries and by her dishonest attempts to coerce Patient A into writing a false statement. As honesty, integrity and trustworthiness are considered the bedrocks of the nursing profession, Mrs Stubbs conduct has breached fundamental tenets of the nursing profession. The panel considered Mrs Stubbs level of remorse and insight. Mrs Stubbs reflective statement does address the impact that her actions had on patients, colleagues, the profession, the NMC, her employer and the wider public. It stated I would like to take this opportunity to offer my full unreserved apologies to Patient A for the way I behaved in providing care to her and the way I made her feel as a result I would also like to apologise to the NMC. I accept that the NMC relies on nurses with my experience to set an example for aspiring nurses to look to I apologise to my employer who placed their trust in me to act professionally I struggle to reconcile my actions in relation to Patient A with the nurse I have always thought I was. The panel also considered that Mrs Stubbs shows an understanding of the risks which her conduct presented. Her reflective statement reads I accept that seeing Patient A in my home presented her with unacceptable risks there was a risk of infection providing treatment when I was tired could have increased the risk of mistakes occurring Not documenting details of Patient A s treatment placed her at risk, That any person providing treatment to her later would not be aware of the treatment I provided Had I made a mistake or had Patient A developed an infection, Ramsay Healthcare could have been liable for legal action from Patient A or from other regulatory bodies such as the CQC. I accept that my actions presented a significant risk to the standing of the nursing profession. I accept that as a nurse of nearly 40 years standing, I am expected to set an example of good conduct. Mrs Stubbs reflective statement also demonstrates that she is aware of the importance of the NMC s role in protecting the public and how her conduct could have impeded the investigation. It also shows that she is aware of professional boundaries. It stated If I 21

22 had behaved this way during a criminal investigation I could have been charged with perverting the course of justice although this is not a criminal matter, I accept that my actions were potentially criminal in nature and therefore incredibly serious. The reflective statement and her full admissions demonstrate that Mrs Stubbs now has some insight into, and remorse for, her misconduct, which contrasts with the information the panel has regarding her response initially at Ramsay Healthcare s investigation. With this insight, the panel considered that it would be possible for Mrs Stubbs to remediate the clinical concerns in this case. The panel noted that dishonesty is harder to remediate. Mrs Stubbs has provided a number of references but all, save one from a student nurse, are from patients. The panel has no information regarding Mrs Stubbs current employment, nor any from any senior colleagues or managers who can speak to Mrs Stubbs honesty and integrity. The panel was concerned that the referees whose statements Mrs Stubbs has provided may not have been aware of the full extent of the allegations against Mrs Stubbs. Mrs 3, in her reference dated 06 April 2017, stated I am fully aware of the allegations against Wendy Stubbs. These being the taking of the money- not providing documentation for patient records and coercing a patient with her words. Mrs 3 goes on to say I am aware that Mrs Stubbs has admitted that she helped a patient who was in need of emergency care outside the normal bounds of governance within Ramsay Healthcare. However Mrs Stubbs tell [sic] me that she was acting on what she thought was her manager s instructions and a duty of care. I have no doubt that this was the case. In the panel s judgement, Mrs Stubbs has a degree of insight into and remorse for her conduct. However, she has provided insufficient evidence to demonstrate that she has remediated it. The panel agrees with the submission of the RCN that although she clearly has some distance to go, Mrs Stubbs has demonstrated the early stages of remediating her conduct. In the circumstances, the panel therefore found that there is 22

23 a risk of repetition and found that Mrs Stubbs fitness to practise is impaired on the ground 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 also considered that a finding of impairment was necessary in the public interest. Mrs Stubbs conduct was extremely serious and, as the panel have already found, her treatment of Patient A would be considered deplorable by fellow practitioners and by the wider public. In the circumstances, the panel found that Mrs Stubbs fitness to practise is impaired on the grounds that such a finding is necessary in order to uphold public confidence in the profession and maintain the proper professional standards. Having regard to all of the above, the panel found that Mrs Stubbs fitness to practise is currently impaired. 23

24 Determination on sanction: The panel has considered this case very carefully and has decided to make a strikingoff order. The effect of this order is that the NMC register will show that Mrs Stubbs has been struck-off the register. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case. It had regard to the submissions of Ms Akande and the written representations submitted by Mrs Stubbs. 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 NMC s Sanctions Guidance. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel first considered the aggravating and mitigating factors in this case. It identified the following aggravating factors: Mrs Stubbs misconduct was serious; Mrs Stubbs abused her position of trust; There was a risk of physical harm to Patient A; Actual emotional and financial harm was caused to Patient A; The conduct took place over a period of at least 18 months and was therefore not isolated in nature; The dishonesty was repeated; Mrs Stubbs has not remediated her conduct; Mrs Stubbs full admissions came late. The panel identified the following mitigating factors: Mrs Stubbs has demonstrated a degree of insight; Mrs Stubbs has shown remorse; 24

25 Mrs Stubbs has engaged with the NMC and has now admitted all the charges; There are positive character references from patients and a student nurse; Mrs Stubbs has had a lengthy previously unblemished nursing career. The panel first considered whether to take no action but concluded that this would be wholly inappropriate. To take no further action would not impose restrictions on Mrs Stubbs practice and so would not protect the public. In addition, it would not uphold the public interest given the seriousness of this case. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the Sanctions Guidance, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that Mrs Stubbs misconduct was not at the lower end of the spectrum and was extremely serious. Therefore a caution order would be inappropriate. A caution order would place no restrictions on Mrs Stubbs practice and so would not protect the public. It would also not satisfy the public interest in this matter given the seriousness of the case. The panel next considered a conditions of practice order. There are some aspects of Mrs Stubbs misconduct that could be remediated. For example, the clinical matters surrounding infection control and failure to keep accurate records. However, other aspects of Mrs Stubbs conduct, such as her dishonesty and abuse of trust, are not so easy to remedy. Whereas the panel could formulate conditions that would address the clinical deficiencies, the panel could formulate no workable conditions that would adequately protect the public from the risk of Mrs Stubbs repeating her dishonest conduct. In any event, the panel was of the view that the misconduct in this case was extremely serious and imposing a conditions of practice order would not satisfy the public interest. The panel determined that a conditions of practice order would not be appropriate or proportionate. 25

26 The panel next considered imposing a suspension order. In considering whether to impose a suspension order, the panel assessed the level and seriousness of Mrs Stubbs dishonesty. It had regard to the NMC s Sanctions Guidance on dishonesty and bore in mind that not all dishonesty is equally serious. Mrs Stubbs dishonesty was not spontaneous and was in order to conceal that she had been regularly treating Patient A outside of a clinical environment and financially benefitting from doing so. Her dishonesty was an abuse of her position of trust. It was premeditated, systematic and long standing. The care received by Patient A caused her clear emotional harm and put her at risk of physical harm. In addition, Mrs Stubbs dishonesty was directly related to her clinical practice. The panel therefore concluded that Mrs Stubbs dishonesty was particularly serious. The panel took this into account when considering whether to impose a suspension order. It also took account of the fact that Mrs Stubbs misconduct in treating Patient A at her home in return for money had been occurring for at least 18 months and therefore there was not an isolated instance of misconduct. Whilst there is no evidence of repetition since January 2016, there is also no evidence of remediation and so, as the panel has previously found, the risk of repetition remains. The nature of the misconduct found suggests the presence of attitudinal issues. Mrs Stubbs was accepting payment to treat a patient, putting that patient at direct risk of physical harm and causing emotional and financial harm. In addition, her attempt to conceal her conduct by trying to manipulate Patient A to create a misleading statement is suggestive of attitudinal issues which cannot be easily resolved. In addition, the panel is of the view that a suspension order would not satisfy the public interest. The misconduct in this case is serious and, the panel concluded, public confidence in the profession and in the NMC as a regulator would not be maintained if Mrs Stubbs were to be given a period of suspension. 26

27 The panel therefore moved on to consider a striking off order. Mrs Stubbs has caused emotional harm to Patient A and, by her conduct, placed her at risk of physical harm by carrying out clinical procedures in a non-clinical environment in her own home. Mrs Stubbs abused her position in financially profiting from Patient A on a regular basis, the total amount estimated by Patient A being 750. She exacerbated this further by attempting to manipulate Patient A into providing a misleading statement to the NMC. Mrs Stubbs has significantly departed from the standards of conduct and behaviour that the public would expect of a registered nurse and her misconduct is at the higher end of the spectrum of seriousness. The panel decided that Mrs Stubbs conduct is fundamentally incompatible with her remaining on the NMC s register. In the circumstances, the panel was of the view that public confidence in the profession, and in the NMC as its regulator, could not be maintained unless Mrs Stubbs was removed from the register. Not to strike her off the register would reflect poorly on the nursing profession and would undermine the NMC as a regulator. Mrs Stubbs conduct was wholly unacceptable and a striking off order is the only order that could satisfy the public interest in this case. The panel therefore directs that Mrs Stubbs name be struck off the NMC s register. 27

28 Determination on Interim Order The panel has considered the submissions made by Ms Akande that an interim order should be made on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. The panel accepted the advice of the legal assessor. The panel was of the view that an interim order is necessary for the protection of the public and is otherwise in the public interest. The panel considers that an interim conditions of practice order was not sufficient to protect the public or to satisfy the public interest, for the same reasons as set out in the substantive determination. The panel was of the view that an interim suspension order is necessary. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision for the substantive order in reaching the decision to impose an interim suspension order. To do otherwise would be inconsistent with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by the striking-off order 28 days after Mrs Stubbs is sent the decision of this hearing in writing. That concludes this determination. 28