Nursing and Midwifery Council: Fitness to Practise Committee

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 13 November 16 November 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Ms Sofia Louka: Nursing and Midwifery Council: Facts proved: Facts proved by admission: Ms Sofia Louka 15G0647C RN1, Registered Nurse Adult Greece Misconduct/Lack of competence Eileen Skinner (Chair, Lay member) Amy Lovell (Registrant member) Anthony Griffin (Lay member) Michael Levy Vicki Watts Not present and not represented in absence Represented by Neil Jeffs, instructed by NMC Regulatory Legal Team 1, 2, 3.1[in relation to not recording hourly observations],3.2 [in relation to not recording neurological observations],3.5, 3.6, 4, 5, 6.2, 6.3, None Facts not proved: 3.3, 3.4, 3.7, 6.1 Fitness to practise: Sanction: Impaired Striking off order Interim Order: Interim suspension order -18 Months 1

2 Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Ms Louka was not in attendance and that written notice of this hearing had been sent to Ms Louka s registered address in Greece by international post and by first class post on 12 October 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 Ms Louka s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. Mr Jeffs on behalf of the Nursing and Midwifery Council (NMC) submitted that 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. The panel noted that track and trace document indicated that the letter had not been delivered as the address was incorrect. The address at which the notice was served was the address held on the register for Ms Louka, Ms Louka having failed to notify the NMC of another address. The panel had regard to the guidance in GMC v Adeogba that the question of whether all reasonable efforts have been made to serve the registrant with notice, is to be considered against the backdrop of the requirement on the part of the registrant to provide an address to the NMC for the purposes of communication. In the light of all of the information available, the panel was satisfied that all reasonable efforts had been made to serve Ms Louka with notice of this hearing in accordance with the requirements of Rules 11 and 34. It noted that the rules do not require delivery of the notice and that it is the responsibility of any registrant to maintain an effective and up-to-date registered address. Decision on proceeding in the absence of the Registrant: The panel had regard to Rule 21 (2) (b) which states: Where the registrant fails to attend and is not represented at the hearing, the Committee...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... 2

3 Mr Jeffs invited the panel to continue in the absence of Ms Louka on the basis that she had voluntarily absented herself. Mr Jeffs submitted that there had been no engagement at all by Ms Louka with the NMC in relation to these proceedings. He submitted that as a consequence, there was no reason to believe that an adjournment would secure Ms Louka s attendance on some future occasion. 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 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:...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 noted that there had been no correspondence or indeed any communication from Ms Louka with the NMC in relation to these proceedings. The panel has decided to proceed in the absence of Ms Louka. It has had particular regard to the factors set out in the decision of Jones. 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 Ms Louka; Ms Louka has not engaged with the NMC and has not responded to any of the letters sent to her about this hearing; four witnesses have attended today to give live evidence, another two are due to attend on day two of the proceedings; not proceeding may inconvenience the witnesses, their employers and, for those involved in clinical practice, the clients who need their professional services; further delay may have an adverse effect on the ability of witnesses accurately to recall events; 3

4 there is no reason to suppose that adjourning this hearing to another date sometime in the future would secure Ms Louka s attendance; and there is a strong public interest in the expeditious disposal of the case. There is some disadvantage to Ms Louka in proceeding in her absence. Although the evidence upon which the NMC relies will have been sent to her at her registered address, she has made no response to the allegations. Ms Louka will not be able to challenge the evidence relied upon by the NMC and will not be able to give evidence on her own behalf. However, in the panel s judgment, this can be mitigated. The panel can make allowance for the fact that the NMC s evidence will not be tested by cross examination and, of its own volition, can explore any inconsistencies in the evidence which it identifies. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Ms Louka. The panel will draw no adverse inference from Ms Louka s absence in its findings of fact. 4

5 Charges as read: That you, a registered nurse: 1. On 30 November 2015 altered the observation time of Patient WW recorded by Colleague A. [Proved] 2. On an unknown date in December 2015 left Patient A to wash himself unattended and in a state of undress [Proved] 3. On 13 December 2015: 3.1 Between 07.30am and 12.55pm failed to undertake and/or record hourly observations for Patient PP. [Proved in regard to recording hourly observations] 3.2 Between 07.30am and 11.00am did not undertake and/or record neurological observations for Patient PP.[Proved in regard to recording neurological observations] 3.3 Did not escalate Patient PP s deteriorating condition to a doctor. [Not proved] 3.4 Did not increase Patient PP s observations to every 15 minutes following a Glasgow Coma Score ( GCS ) score of 6 and/or an EWS of 4. [Not proved] 3.5 Miscalculated Patient PP s Early Warning Score ( EWS ) at 11.50am.[Proved] 3.6 Failed to prioritise patient care in accordance with clinical need.[proved] 3.7 Took an excessive amount of time to complete the morning and/or lunch time drug rounds.[not proved] 4. Between 3 August 2015 and 12 February 2016 displayed poor communication skills and an unprofessional attitude towards colleagues and/or patients. [Proved] That you, a registered nurse, failed to demonstrate the standards of knowledge, skill, and judgement required to practise without supervision as a band 5 nurse in that: 5. During a supervised shift on 3 January 2016 demonstrated a lack of understanding of the requirement to assess patients cannulas. [Proved] 6. During a supervised shift on 5 January 2016: 6.1 You demonstrated a lack of understanding of the requirements for patient observations for a patient with an early warning score of 2.[Not Proved] 6.2 You demonstrated a lack of knowledge of a medication, namely fludrocortisone and/or did not attempt to look up the medication in the British National Formulary.[Proved] 6.3 You did not remove your personal protective equipment (PPE) before attempting to leave leaving a patient s bed space. [Proved] And, in light of the above, your fitness to practise is impaired by reason of your misconduct and/or lack of competence. 5

6 Background as presented by the NMC Ms Louka commenced employment at the Royal Devon and Exeter NHS Foundation Trust ( the Trust ) on 3 August Following a period of induction she was placed in Okement Ward, which is a gastroenterology ward. Ms Louka was subject to a six month probationary period. Over the following five months there were a number of alleged incidents involving Ms Louka namely: On 30 November 2015, it is alleged that Ms Louka altered an observation time for Patient WW, which had been already recorded by Ms 1, Nursing Auxiliary. Ms 1 challenged Ms Louka about this and re-entered the correct patient observation time and brought the matter to the attention of the Ward Sister. It is alleged that Ms Louka stated she was correcting a mistake in the time of the observation, notwithstanding that Ms 1 was adamant she had recorded the correct observation time. On a date in December 2015, Ms 2, a Staff Nurse on the ward discovered that Ms Louka, whilst undertaking personal care of an elderly and infirm patient, had left the patient sitting in his chair, wearing only pyjama trousers with a wash bowl in front of him. The Patient was extremely distressed that Ms Louka had left him to wash himself and had failed to return to give him the assistance he required. On 13 December 2015, Ms Louka was responsible for caring for and maintaining observations on Patient PP, who had deteriorated significantly overnight and required an escort for a CT Scan. It is alleged that Ms Louka failed to undertake an appropriate level of observations or give the level of care expected. This included failings relating to the assessment and escalation of the patient s condition. Ms Louka also failed to carry out appropriate neurological observations Many of the concerns relating to the shift on 13 December 2015, arose in relation to Ms Louka s use and failings in relation to two specific assessment and observation tools, the Patient Observation Chart/National Early Warning Score ( NEWS ) procedure and the Neurological Observation Chart/Glasgow Coma Scale ( GCS ) procedure. The EWS is part of the hospital s basic induction for all nurses and that there are instructions on the back of the form/charts regarding completion. Guidance 6

7 on its use is available and the form is a document used by nurses every day on their shift. It is also alleged that on 13 December 2015, Ms Louka displayed no concept of team working, prioritisation skills or any ability to establish the main priorities of patient care and safety. Further, it is alleged that she took an excessive amount of time to administer medication and complete the drug rounds. As a consequence of the concerns Ms Louka attended a probationary review meeting on 23 December 2015, which resulted in an Objective Plan being put in place. The objectives included: Assessment of deteriorating patient and ability to respond appropriately to that situation. Understanding of EWS and Glasgow Coma Score; Ability to prioritise patient care in accordance with clinical need; Effective communication and ability to promote ward philosophy of teamwork; and personal and professional development; and administration of medication to patients. Ms Louka attended a further review meeting on 30 December 2015 to discuss concerns about working on Okement Ward. As a result, it was agreed that she would be transferred to work on Lowman Ward from 1 January Ms Louka was to work under supervision in a supernumerary capacity and would continue to work towards achieving the objectives that had previously been set. On 3 January 2016, Ms Louka undertook a supervised shift with Ms 6. It is alleged that Ms Louka did not understand the requirement to asses cannulas and is said to have no expectation of what to do in relation to the same. On 5 January 2016, having been moved for a period of increased supervision and mentoring, Ms Louka performed a drug round with Ms 6. Ms Louka displayed a lack of understanding concerning basic patient observations which it would be considered reasonable for her to know. She also displayed a lack of knowledge in respect of the drugs she was requested to administer and made no attempt, although prompted, to 7

8 enhance her knowledge. Ms 6 considered Ms Louka s practice as unsafe. Ms Louka also demonstrated a lack of understanding concerning hygiene and infection control. An additional concern throughout Ms Louka s employment between 3 August 2015 and 12 February 2016 was that she displayed poor communication skills and an unprofessional attitude towards colleagues and/or patients. It is alleged that she was rude, confrontational and sarcastic with colleagues and demonstrated a lack of empathy or consideration towards patients. Decision and reasons on application to amend charges 6.3 At the close of the NMC s case, the panel heard an application made by Mr Jeffs, to amend the wording of charge 6.3. Mr Jeffs submitted that the proposed amendment would better reflect the evidence the panel had heard from Ms 6. Following the proposed amendment, charge 6.3 would read: 6.3 You did not remove your personal protective equipment (PPE) before attempting to leave leaving a patient s bed space. The panel accepted the advice of the legal assessor. Rule 28 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended 2012) (The Rules) states: 28. (1) At any stage before making its findings of fact (i) the Conduct and Competence Committee, may amend (a) the charge set out in the notice of hearing unless, having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice. The panel decided to grant the proposed amendment to charge 6.3. It determined that there was no prejudice caused to Ms Louka in amending the charge. It has been told that the amendment to charge 6.3 was to better reflect the evidence in regard to this particular incident. The panel concluded it was therefore appropriate to allow the amendment so as to ensure clarity and accuracy. 8

9 Decision and reasons on the findings of fact: In reaching its decisions on the charges, the panel considered all the evidence adduced together with the submissions of Mr Jeffs, on behalf of the NMC. The panel 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 facts will be found 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 six witnesses called on behalf of the NMC. Their positions at the time of the allegations were as follows: Ms 1, a Nursing Auxiliary, employed by the Trust on Okemont Ward; Ms 2, a Part time nurse, employed by the Trust on Okemont Ward; Mr 3, a Band 5 nurse, employed by the Trust and designated as the Nurse in charge of Okemont Ward on 13 December 2015; Ms 4, a Senior Nurse/Senior Matron, employed by the Trust on Okemont Ward; Mr 5, a Registered Nurse, employed by the Trust on Okemont Ward; Ms 6, a Sister on Lowman Ward where Ms Louka was transferred to and worked for two days. The panel first considered the overall credibility and reliability of all of the witnesses it had heard from. It considered that all the witnesses were reliable and credible and did their best to assist the panel. The evidence of all of the witnesses was consistent with their original statements and they gave clear accounts of events despite the passage of time. The panel assessed the credibility of each witness. It found that none of the witnesses had any motive or intent to give an account other than that which was balanced, honest and fair. The panel considered it was clear from the evidence of Mr 3, Ms 4 and Mr 5 that all overseas nurses employed at the Trust were provided with a very full induction and were offered support from the Trust during their settling in period through a specialist support unit for overseas nurses. In addition, the panel found no evidence to support the suggestion that an unusually high level of nurses from overseas had been unhappy in their employment and had left the Trust. 9

10 The panel has drawn no adverse inference from the non-attendance of Ms Louka. The panel considered the charges and made the following findings: That you, a registered nurse: Charge 1 1. On 30 November 2015 altered the observation time of Patient WW recorded by Colleague A. This charge is proved. In reaching this decision, the panel heard evidence from Ms 1. Ms 1 told the panel that on 30 November 2015, she worked a long day shift with Ms Louka. Ms 1 said that during the shift, she undertook and recorded observations of Patient WW and that Ms Louka had altered the timing of the observation. Ms 1 was unable to say why Ms Louka had changed the timing of the observation. Ms 1 said that she was not happy that Ms Louka had tampered with the timing on the observation chart. Ms 1 said that after she spoke with Ms Louka about changing the time, Ms Louka said that she had simply made a correction to change the time. The procedure for making changes to records had not been followed. Ms 1 said that she informed the Sister on the Ward about her concerns and was asked to produce a written account of the event which she did on 14 January The panel had regard to the Minutes of the Probationary Review Meeting on 27 January 2016, during the meeting, Ms Louka was asked about changing the time on Patient WW s observation chart, it is reported that she said the following in answer to questions put to her: SL: I didn t change her records her obs just the time, because it was incorrect, like I told you. CE: So, you are saying that you did change the time on the charts? SL: the time, it was just the time and I told her about it and she said, no, I don t want you to change this was the time. But I was certain that this was the time it was taken The panel noted that during the meeting on 27 January 2016, Ms Louka confirmed that she altered the time in Patient WW s observation record. Having found Ms 1 to be a credible and reliable witness, the panel accepted the evidence of Ms 1 and determined that on 30 10

11 November 2015, Ms Louka altered the observation time of Patient WW recorded by Ms 1. Accordingly, the panel finds this charge proved. Charge 2 2. On an unknown date in December 2015 left Patient A to wash himself unattended and in a state of undress This charge is proved. In determining this charge, the panel had regard to the oral and documentary evidence of Ms 2. Ms 2 told the panel that whilst working on a shift sometime in December 2015 with Ms Louka, Ms Louka had been caring for Patient A. Ms 2 stated that she checked on Patient A, who was behind closed curtains in a bay on the Ward. Ms 2 said that when she opened the curtains, she found Patient A sitting in a chair. Ms 2 said that Patient A had no top on and had a bowl of water in front of him. Ms 2 described Patient A as being frail and unwell, she said that he would not have been able to wash himself unaided and would have only been able to manage washing his hands and face given how unwell he was. Ms 2 said that when she went in to see Patient A, he was cold and was upset as he said he felt as though he had been abandoned. Ms 2 told the panel that Patient A had said he did not want Ms Louka caring for him anymore. Ms 2 said that she replaced the bowl of water, washed and dressed him before putting him back into the bed so as he could get warm. The panel considered that Ms 2 had a very clear recall of this incident and that it had remained in her mind as Patient A had been distressed at being left to wash himself unaided. The panel had no reason to doubt Ms 2 s evidence, having already found her to be a reliable and credible witness. Further, the panel considered that she has been consistent in her oral and documentary evidence in relation to this charge. Accordingly, the panel finds this charge proved. 11

12 Charge 3 3. On 13 December 2015: 3.1 Between 07.30am and 12.55pm failed to undertake and/or record hourly observations for Patient PP. This charge is proved in that hourly observations were not recorded. In reaching this decision, the panel had regard to the evidence of Mr 3. Mr 3 said that the dayshift on 13 December 2015 started at 07:30am and that during the handover, staff were advised that Patient PP had experienced a drastic drop in her Glasgow Coma Scales Score (GCS). Mr 3 told the panel that Patient PP was very unwell and described her as being the sickest person on the ward. Mr 3 stated that as a result of Patient PP s deterioration, it was imperative that observations were carried out every minutes and that Ms Louka had failed to do this. The panel had sight of patient PP s observation chart and determined that there was insufficient evidence to determine that Ms Louka failed to undertake hourly observations for Patient PP. However, the panel considered that on the evidence presented to it, any observations had not been recorded. Accordingly, the panel finds this charge proved as to failing to record hourly observations. 3.2 Between 07.30am and 11.00am did not undertake and/or record neurological observations for Patient PP. This charge is proved in that neurological observations were not recorded. As with charge 3.1, the panel having considered Patient PP s neurological observation chart, determined that there was insufficient evidence before it to determine that Ms Louka did not undertake any neurological oobservations for Patient PP, however, the panel considered that on the evidence presented to it, Ms Louka did not record neurological observations for Patient PP between 07.30am and 11.00am. Accordingly, the panel finds this charge proved as to failing to record neurological observations. 12

13 3.3 Did not escalate Patient PP s deteriorating condition to a doctor. This charge is not proved In reaching this decision, the panel had regard to the documentary evidence regarding Patient PP this showed that sometime between 09:20 and 11:50am this matter had been escalated. Mr 3 told the panel that due to Patient PP s deteriorating condition, she required an urgent CT scan and he requested Ms Louka escort her. The panel also heard evidence that two doctors were involved with the care of Patient PP given the deterioration in her condition. The panel determined that Patient PP was taken for a CT scan at approximately 10:00am, the panel also had regard to the statement to the Trust produced by Ms 3 who stated the following regarding the events on 13 December:...After PP return from her scan, she got reviewed by Medical Registrar. During the review, Dr. 1 got interrupted several times by staff nurse Louka with different prescription requests from different patients, consequently delaying the review and decision making... The panel determined that at some point prior to Patient PP leaving the ward to go for the CT scan, matters had been escalated to a doctor. Further, the panel considered that when Ms Louka returned to the ward after having taken Patient PP for the CT scan, it was clear from Mr 3 s statement regarding the events of that day that two doctors were involved with Patient PP. The panel was not satisfied, on the balance of probabilities, that Ms Louka did not escalate Patient PP s deteriorating condition to a doctor as it was clear from the evidence that two doctors were involved in her care and aware of her deteriorating condition. Accordingly, the panel finds this charge not proved. 13

14 3.4 Did not increase Patient PP s observations to every 15 minutes following a Glasgow Coma Score ( GCS ) score of 6 and/or an EWS of 4 This charge is not proved The panel heard evidence from Mr 3, Ms 4 and Ms 6 that it was good practice to undertake 15 minute observations following a reduced CGS or EWS. However, the panel had regard to the EWS Graded Responses document and considered that there was nothing within the document that stated following a GCS score of 6 or an EWS of 4 that observations should be undertaken every 15 minutes. Accordingly, the panel finds this charge not proved. 3.5 Miscalculated Patient PP s Early Warning Score ( EWS ) at 11.50am. This charge is proved In reaching this decision, the panel had regard to the evidence of Mr 3. Mr 3 told the panel that an EWS is a national scoring system to indicate how unwell a patient is and that it provides an early indication that a patient may be in need of medical intervention. Mr 3 told the panel that at 11:50am, Ms Louka had miscalculated Patient PP s EWS and documented a score of 2. He told the panel that when he looked at Patient PP s observations it was clear that Ms Louka was omitting to score the neurological state of the patient. Mr 3 told the panel that having not taken into account this important factor gave Patient PP a score of 2 when the correct score at 11:50am should have been an overall score of 4-2 for neurological response and 2 for heart rate. Mr 3 informed the panel that having found the error in the calculation, he amended Patient PP s EWS to reflect the correct score of 4. The panel had regard to Patient PP s EWS in which it was clear the score at 11:50am had been changed to read 4. The panel having already determined that Mr 3 was a reliable and credible witness, accepted his evidence in relation to this charge and determined that Ms Louka miscalculated patient PP s EWS at 11:50am. Accordingly, the panel finds this charge proved. 14

15 3.6 Failed to prioritise patient care in accordance with clinical need. This charge is proved In reaching this decision, the panel had regard to the evidence of Mr 3. He described Patient PP, the patient to whom this charge relates as being very unwell and in need of a CT Scan, given the deterioration in Patient PP s condition. Mr 3 told the panel that as the designated nurse in charge of the shift, he decided that Ms Louka should escort Patient PP to have the CT scan. In his oral evidence, Mr 3 told the panel that when he asked Ms Louka to attend the CT scan with Patient PP she was very reluctant to do so and told Mr 3 that she was very busy to do that. Mr 3 told the panel that he had to explain to Ms Louka on more than one occasion that she needed to escort Patient PP and that he and Mr 5 would look after her patients whilst she was away from the ward. The panel considered that in light of the evidence, it was apparent that Patient PP was very unwell having been described as the sickest patient on the ward and that Ms Louka failed to prioritise patient care in accordance with clinical need. Accordingly, the panel finds this charge proved. 3.7 Took an excessive amount of time to complete the morning and/or lunch time drug rounds. This charge is not proved In reaching this decision, the panel has heard differing evidence as to how long drug rounds should take. The panel considered it was not clear from the evidence precisely at what time Ms Louka commenced the morning or lunchtime drug rounds or what time would have been reasonable for her to complete them as different witnesses held differing opinions. The panel had regard to the fact that Ms Louka was off the ward for a period of around 15 minutes from approximately 10:00am, when she accompanied Patient PP to have a CT Scan, and that there may have been other clinical issues requiring her attention which may have extended the time taken to complete the drug round. Accordingly, the panel finds this charge not proved 15

16 Charge 4 4 Between 3 August 2015 and 12 February 2016 displayed poor communication skills and an unprofessional attitude towards colleagues and/or patients. This charge is proved In reaching this decision, the panel had regard to the evidence of Mr 3, Ms 4, Mr 5 and Ms 6. The panel noted that the witnesses all gave similar accounts of Ms Louka having a tendency to be abrupt, defensive in her manner, to argue with her colleagues (both senior and junior) and to talk over people when matters were being discussed with her. Ms 6 gave an example of Ms Louka being asked to wash a patient who was deemed to be relatively independent. Ms 6 told the panel that Ms Louka said that she was going to give him a bed bath which indicated that she had not read his notes, or listened to the summary. Ms 6 reported that Ms Louca didn t really know what to do and that there was a breakdown in communication in that she did not speak to the patient. Further, Ms 6 reported Ms Louca s manner as being abrupt. Mr 3 has provided the panel with an account whereby Ms Louka refused an instruction from him to take a very unwell patient (Patient PP) from the ward for a CT scan and that she was not willing to listen to Mr 3 causing him to have to explain several times to her that she was required to undertake this urgent clinical duty. Ms 4, carried out the Trust investigation and gave examples of when raising issues of concern with Ms Louka how she would interrupt, become defensive and talk over her. Ms 6 gave an example to the panel of Ms Louka s interaction with a dementia patient. Ms 6 explained that the patient was confused and at this point Ms Louca stood at the end of his bed and asked whether the patient required paracetamol. Due to his confused state, he was unable to reply. Ms 6 said that she challenged Ms Louka about her manner towards this patient which she described as abrupt and uncompassionate. Ms 6 stated in her evidence that it was almost as though the patient was irritating Ms Louka. 16

17 The panel having found all of the NMC witnesses reliable, credible and honest in their oral and documentary evidence considered they had no reason to embellish their accounts of Ms Louka s behaviour. Accordingly, the panel finds this charge Proved Charge 5 That you, a registered nurse, failed to demonstrate the standards of knowledge, skill, and judgement required to practise without supervision as a band 5 nurse in that: 5 During a supervised shift on 3 January 2016 demonstrated a lack of understanding of the requirement to assess patients cannulas. This charge is proved. In reaching this decision, the panel had regard to the evidence of Ms 6. Ms 6 worked on two occasions with Ms Louka when she was transferred to the Lowman Ward where she was the Sister. Ms 6 had no information about Ms Louca other than that she was not to administer medication whilst unsupervised. Ms 6 told the panel that during a supervised shift with Ms Louka on 3 January 2016, it was apparent that Ms Louka did not know how to assess cannula s. Ms 6 told the panel that most patients admitted onto a Ward will usually have a cannula in place. Ms 6 told the panel that assessment of cannulas was a basic and fundamental element of nurse training. Ms 6 said that she observed Ms Louka as having no concept of how to assess patient s cannulas. Ms 6 said that she would expect a nurse to ask does it look ok?; Is there any redness? Is it comfortable?; How long has it been there?. Ms 6 said that she asked Ms Louca if she knew how to assess cannulas and to routinely check them and Ms Louca replied no. The panel having found Ms 6 to be a reliable and credible witness had no reason to doubt her assessment of Ms Louka s understanding of cannulas and determined that Ms Louka demonstrated a lack of understanding of the requirement to assess patients cannulas. Accordingly, the panel finds this charge proved 17

18 Charge 6 6 During a supervised shift on 5 January 2016: 6.1 You demonstrated a lack of understanding of the requirements for patient observations for a patient with an early warning score of 2. This charge is not proved In reaching this decision, the panel had regard to the evidence of Ms 6 who told the panel that during a supervised shift on 5 January 2016 a patient scored EWS 2 and that Ms Louka appeared anxious about this and wanted to know from Ms 6 whether she should re-take the observations. The panel considered this charge in the context of all the documentary and oral evidence it has heard. The panel determined that during the shift on 5 January 2016 when Ms Louka was being supervised having been transferred from Okemont Ward it is entirely feesable given the concerns that had been raised about her whilst working on Okemont Ward particulary around her observations of EWS, that she may well have become flustered at observing a score of 2. Further, the panel considered that Ms Louka had been told many times whilst working on Okemont that if she was ever unsure of anything she should ask. The panel was not satisfied, on the balance of probabilities, that Ms Louka demonstrated a lack of understanding of the requirements for a patient with an EWS of 2 and concluded that it was more likely than not that Ms Louka was asking for confirmation that she was doing the right thing. Accordingly, the panel finds this charge not proved. 6.2 You demonstrated a lack of knowledge of a medication, namely fludrocortisone and/or did not attempt to look up the medication in the British National Formulary. This charge is proved In reaching this decision, the panel had regard to the evidence of Ms 6. Ms 6 told the panel that during a supervised shift with Ms Louka which had included a drug round, Ms 6 asked Ms Louka whether she knew what the medication Fludrocortisone was used for. Ms 6 described Ms Louka as shrugging her shoulders and responding by saying I think it s for pain. Ms 6 said she was taken aback by Ms Louka s response. She said that she would have expected Ms Louka not to have guessed what the drug was but instead to have looked 18

19 up the medication in the British National Formula or by using the online system (Medusa). Ms 6 said that later during the shift, she asked Ms Louka to look up the drug and its use. When Ms Louka was asked about this allegation during the Meeting on 27 January 2016, she stated: SL: I was only two and half shifts in Lowman and the first one. I didn t do anything in regard to medication, I didn t do anything so I am guessing this must be on the second shift, when I started doing a few of these. I was with Ms 6. The only time that she would ever ask me about any medication, it was just once. I remember, and it was kind of weird that she asked me about hydrocortisone. She is saying to me, why is he taking it, why do you think he could be takin it? I started to tell her because it is hydrocortisone, it is for adrenal insufficient adrenal function and I kept on going. Saying about settling of an inflammation because it is a hydrocortisone. She said no it not for that. I was kind of shocked, but I was kind of sure about it. I never administered hydrocortisone before, but this is what my knowledge was. I said to her, ok, so what is it because at that point, I was indeed kind of challenging because I was sure I knew the correct answer. She said we ll see it later in the BNF. We never saw it in the BNF but I asked for my colleague, where the BNF is, later on and I checked it... Ms Louka s response to the Meeting on 27 January in relation to this charge was put to Ms 6 during her evidence. Ms 6 was adamant that the medication concerned was Fludrocortisone and not Hydrocortisone as suggested by Ms Louka during the meeting. The panel considered that Ms 6 has been consistent throughout her initial statement to the Trust which was written several weeks after the event that the medication referred to was Fludrocortisone. The panel preferred Ms 6 s account in relation to this charge and rejected Ms Louka s account given during the meeting on 27 January The panel therefore determined that, Ms Louka demonstrated a lack of knowledge of a medication, namely fludrocortisone and that she did not attempt to look up the medication in the British National Formula. Accordingly, the panel finds this charge proved. 19

20 6.3 You did not remove your personal protective equipment (PPE) before attempting to leave leaving a patient s bed space. This charge is proved. In reaching this decision, the panel had regard to the evidence of Ms 6. Ms 6 told the panel that when working with Ms Louka on Lowman Ward, Ms 6 requested that she assist a patient with his personal hygiene. Ms 6 said that Ms Louka only had a bowl of water and had not prepared hygiene items and did not have any flannels or fresh clothes for the patient. Ms 6 said that she asked Ms Louka to go and get the items she needed and that Ms Louka asked her in an abrupt manner whether she was required to take off her PPE before leaving the patient s bedside. Ms 6 told the panel that removing PPE before leaving a patient s bedside is a requirement of infection control unless carrying soiled items, when elbows would be used to exit out from behind the curtains. Ms 6 said that Ms Louka would have been expected to remove her PPE, use gel on her hands, go to collect the items she required and then reapply the PPE. The panel had regard to Ms Louka s response to this allegation during the meeting on 27 January 2016 when she stated: SL Everybody was coming and they would see me changed gloves between patients and wash my hands because this is what we do in Greece; we gel only when it s something, like an emergency, when I really have to go from this bed to this bed and I don t have time to change gloves and wash my hands in between. You ask any Greek nurse, this is what we do The panel noted Ms Louka s account given during the Probationary Review Meeting on 27 January The panel noted that Ms Louka had been employed by the Trust for approximately six months, would have undertaken a full induction and therefore would have been accustomed to the practices regarding PPE in the hospital. Having found Ms 6 to be a credible and reliable witness the panel accepted her evidence and determined that it was more likely than not that Ms Louka attempted to leave the patient s bed space without removing her PPE. Accordingly, the panel finds this charge proved. 20

21 Submissions and Reasons on Misconduct, Lack of Competence and Impairment. The panel went on to consider first whether the facts found proved amount to misconduct and/or lack of competence, and if so, whether Ms Louka s fitness to practise is currently impaired by reason of either or both. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel took into account all the evidence before it. It has noted the detailed written submissions provided by Mr Jeffs on behalf of the NMC who referred the panel to what he considered to be the relevant breaches of the The Code: Professional standards of practice and behaviour for nurses and midwives (2015) the Code (2015). Misconduct (Charges 1 4) In his submissions Mr Jeffs reminded the panel of the comments of Lord Clyde in Roylance v General Medical Council [1999] UKPC 16 which provided assistance when seeking to define misconduct: [331B-E] Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rule and standards ordinarily required to be followed by a [nursing] practitioner in the particular circumstances. Mr Jeffs submitted that, when considering whether the facts proved amount to misconduct, the panel is requested to consider that Ms Louka s acts and omissions were serious in that: (a) The patients in question were vulnerable due to their health needs. Okemont Ward was a gastroenterology ward and Lowman Ward was an endocrinology ward. Patient A was vulnerable and not able to independently complete all of his own personal care. Patient PP was extremely unwell at the material time and required appropriate care and treatment. (b) The conduct had the potential for serious, unwarranted harm to the individual patient(s) referred to in the charge(s) and to others, including other patients and colleagues. The failure to deliver timely and appropriate care has the potential to impact upon the ability to adequately deliver care to others in need, as does the failure to communicate in a professional manner. (c) The conduct was highly inappropriate and had the potential to undermine trust and confidence in, and has a damaging effect on, the nursing profession. 21

22 Mr Jeff s submitted that in all the circumstances, Ms Louka s conduct fell far below the standards which would be considered acceptable to the profession and that the facts found proved amount to misconduct. Lack of Competence (charges and 6.3) Mr Jeff s submitted that, lack of competence includes a nurse demonstrating a lack of knowledge, skill or judgement showing they are incapable of safe and effective practice. Mr Jeffs submitted that Ms Louka was appointed as a Band 5 Nurse. He submitted it follows that her competence should be judged against the standards expected of a Band 5 Nurse and the standard of professional work reasonably expected of such a practitioner. Mr Jeffs submitted that the evidence adduced demonstrates that, at the time of the events referred to in the charges found proved, some of Ms Louka s colleagues did not consider her to be practising competently and safely at the level of a Band 5 Nurse, or indeed be in a position to practise safely without supervision. Moreover, the charges found proved suggest that Ms Louka was/is not a safe and competent practitioner. Impairment In relation to impairment, Mr Jeffs submitted that if the panel are satisfied that the matters found proved do amount to misconduct and/or lack of competence the panel must consider whether Ms Louka s fitness to practise is currently impaired by reason of that misconduct and/or lack of competence. He reminded the panel that impairment is forward looking and therefore the question for the panel is whether Ms Louka is impaired as at today s date, as per the case of Cohen v General Medical Council [2008] EWHC 581 (Admin). Mr Jeffs submitted that in line with rule 31(7)(b) of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, a departure from the Code is not of itself sufficient to establish impairment of fitness to practise; that question, like misconduct and lack of competence, is a matter for the panel s professional judgment. He submitted that the panel is likely to find the questions outlined by Dame Janet Smith in the 5th Shipman Report (as endorsed in the case of Council for Healthcare Regulatory 22

23 Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) instructive. The panel accepted the advice of the legal assessor. In respect of all the charges the panel adopted a two stage process. First, the panel must determine whether the facts found proved amount to misconduct and/or lack of competence. Secondly, only if the facts found proved amount to misconduct and/or lack of competence, the panel must then decide whether, in all the circumstances, Ms Louka s fitness to practise is currently impaired as a result of that misconduct and/or lack of competence. Decision on misconduct: In considering whether the facts found proved amount to misconduct the panel determined that Ms Louka had breached a number of paragraphs of the NMC Code The panel found Ms Louka s failings included breaches of the following provisions of the Code: 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. 1.4 Make sure that any treatment, assistance or care for which you are responsible is delivered without undue delay. 2. Listen to people and respond to their preferences and concerns. 2.1 work in partnership with people to make sure you deliver care effectively. 2.2 recognise and respect the contribution that people can make to their own health and wellbeing 2.6 recognise when people are anxious or in distress and respond compassionately and politely 6. Always practise in line with the best available evidence 6.2 maintain the knowledge and skills you need for safe and effective practice 23

24 7. Communicate clearly 7.2 take reasonable steps to meet people s language and communication needs, providing, wherever possible, assistance to those who need help to communicate their own or other people s needs 7.4 check people s understanding from time to time to keep misunderstanding or mistakes to a minimum 8 Work cooperatively 8.1 respect the skills, expertise and contributions of your colleagues, referring matters to them when appropriate 8.2 maintain effective communication with colleagues 8.5 work with colleagues to preserve the safety of those receiving care 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 sometime after the event 13 Recognise and work within the limits of your competence 13.1 accurately assess signs of normal or worsening physical and mental health in the person receiving care 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 The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. The panel considered the areas of concern identified within Ms Louka s practice, in relation to the facts found proved (Charges 1 4), and went on to consider whether these were serious enough to amount to misconduct. The panel considered that Ms Louka s omissions were fundamental in nature and related to basic nursing practice including; record keeping, basic hygiene care, patient assessment and respecting the dignity of the patients in her care. The panel determined that Ms Louka a conduct placed vulnerable patients in Ms Louka s care at significant risk of unwarranted harm. 24

25 The panel also considered that Ms Louka s attitude towards patients and her colleagues, as particularised in charges 2, 4 and 3.6 was unacceptable, particularly in relation to charge 2 which caused distress to Patient A and resulted in him not wanting her to care for him again. In all the circumstances, the panel concluded that the charges found proved, when viewed individually and collectively, amounted to serious misconduct. Decision on lack of competence: (Charges 5, 6.2 and 6.3) When determining whether the facts found proved (charges 5, 6.2 and 6.3) amount to a lack of competence the panel accepted that there is no burden or standard of proof at this stage and exercised its own professional judgment. In considering whether the facts found proved amount to a lack of competence the panel had evidence of Ms Louka s poor practice during a period of supervised practice. The panel considered that the level of competence Ms Louka failed to achieve related to fundamental aspects of nursing. Ms Louka was receiving supervision during the two shifts she worked on Lowman Ward on 3 and 5 January In relation to charge 5, the panel heard evidence from Ms 6 that Ms Louka was unable to demonstrate any understanding regarding assessment of cannulas. The panel had heard evidence that this was a basic area of nursing practice in need of constant assessment, as if the cannula was not assessed, it could lead to infection. The panel considered that in respect of charge 6.2, Ms Louka did not acknowledge that she knew what the drug referred to was used for and failed to demonstrate any willingness to look up the drug concerned. Instead Ms Louka chose to guess what the drug was used for and was blasé in her answers when asked by Ms 6 about the drug. The panel considered that charge 6.3 relating to infection control was similarly a basic and fundamental aspect of nursing which the panel heard from Ms 4 would have most certainly been covered in Ms Loua s induction when she commenced employment at the Trust. Taking into account the reasons given by the panel for the findings of facts, the panel concluded that Ms Louka s practice fell far below the standard that one would expect of the average Registered Nurse. In all the circumstances, the panel determined that Ms Louka s performance demonstrated a lack of competence. 25

26 Decision on impairment: The panel next went on to consider whether Ms Louka s fitness to practise is currently impaired by reason of her misconduct and lack of competence. In considering the issue of impairment not only in relation to misconduct but also in relation to lack of competence, the panel kept at the forefront of its mind its duty to protect the public maintain confidence in the profession and uphold proper standards of conduct and behaviour. The panel had regard to all the relevant information available to it and to the submissions made by Mr Jeffs on behalf of the NMC, and took into account the advice of the legal assessor. In reaching its conclusion the panel took account of the guidance given by Dame Janet Smith in her Fifth Shipman Report, cited with approval by Mrs Justice Cox in the case of Grant. Accordingly, the panel considered whether Ms Louka had in the past and/or were liable in the future to act in such a way as to: Put a patient or patients at unwarranted risk of harm; and/or Bring the profession into disrepute; and/or Breach one of the fundamental tenets of the profession. The panel considered that those three limbs of that guidance were engaged by Ms Louka s misconduct. Whilst no actual harm has been reported, the panel found that the circumstances surrounding the charges found proved had the potential to place vulnerable patients at a risk of significant harm. Further, the panel considered that Ms Louka demonstrated a persistent lack of understanding of the risks to the patients in her care. When considering whether Ms Louka has demonstrated insight, the panel took into account the Remediation and insight guidance published by the NMC (dated 24 June 2016). In particular: Demonstrating insight 28 Before effective steps can be taken to remedy concerns, the nurse or midwife must recognise the problem that needs to be addressed. Therefore insight on the part of the nurse or midwife is crucially important. 26