Conduct and Competence Committee Substantive Hearing

Transcription

1 Conduct and Competence Committee Substantive Hearing Date: 10 to 17 November 2014 The Nursing and Midwifery Council, 20 Old Bailey, London The Nursing and Midwifery Council, 61 Aldwych, London 9 to 11 March 2015 The Nursing and Midwifery Council, 2 Stratford Place, London Name of Registrant Nurse: Emma Scammell NMC PIN: 06G0047E Part(s) of the register: Registered Nurse Sub Part 1 Adult Nursing (September 2006) Area of Registered Address: England Type of Case: Misconduct Panel Members: David Newman (Chair/ Lay member) Michael Libby (Lay member) Julie Tindale (Registrant member) Legal Assessor: Adrienne Morgan Panel Secretary: Tom Stone Representation: Present and represented by Frederick Hookway, Counsel Nursing and Midwifery Council: Represented by Tom Coke-Smyth counsel and Georgia Goring (11 March 2015) Counsel, instructed by NMC Regulatory Legal Team. Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: 1, 2, 3a, 3b(i), 3b(iii), 3b(iv) (by admission) and 3b (ii) and 4 3c Impaired Striking off Order Interim suspension order, 18 months 1

2 Details of charge, as amended: That you, whilst employed by East Sussex Healthcare NHS Trust ( the Trust ) as a Band 6/7 Urology Specialist Nurse working at the Eastbourne District General Hospital ( the Hospital ): 1. On 27 January 2011, attended work under the influence of alcohol; 2. On 10 June 2011, signed an outpatient prescription form for Degarilex in relation to Patient A, when you knew or ought to have known that you were not authorised to sign the prescription; That you, whilst employed by the Trust as a Band 5 Staff Nurse at the Hospital working on the Michelham Unit ( the Unit ): 3. On 4 May 2012, in relation to the administration of Oxycodone, Haloperidol and Midazolam ( the medication ) to Patient B via an Omnifuse syringe pump: a) At approximately 15:49 hours, incorrectly administered the medication at a rate of 24ml over a 1 hour period, when you knew or ought to have known that the medication should have been administered at a rate of 24ml over a 24 hour period (that is, 1ml per hour) b) At approximately 16:28 hours: i. Failed to inform the Nurse in Charge and/or complete an incident report form and/or document your error as set out in 3 a) above ii. Inappropriately topped up the Omnifuse syringe pump with saline and/or water and/or an unknown substance iii. Incorrectly set the infusion rate at 2.4ml per hour for a period of four hours one minute 2

3 iv. Failed to retain the consumables and/or the pump and/or the syringe and/or the extension set of the Omnifuse syringe pump, when you knew or ought to have known that they would need to be retained to investigate an incident/error c) Inappropriately set up the Omnifuse syringe pump on Patient B when you had not received the Trust s mandatory training 4. Your actions as set out in Charge 3 b) ii above were dishonest, in that you attempted to conceal your error as set out in Charge 3 a) AND in light of the above, your fitness to practise is impaired by reason of your misconduct. Decision and reasons on application to amend charge: The panel heard an application made by Mr Coke-Smyth, on behalf of the NMC, to amend the wording of charge 3 (a). The proposed amendment was to correct a typographical error within the charge 3 (a). It was submitted by Mr Coke-Smyth that the proposed amendment would provide clarity and more accurately reflect the evidence. Charge 3 (a) initially read as follows: At approximately 15:49 hours, incorrectly administered the medication at a rate of 24ml over a 24 minute period (that is, 1ml per minute), when you knew or ought to have known that the medication should have been administered at a rate of 24ml over a 24 hour period (that is, 1ml per hour) Charge 3 (a), with the amendment, would read as follows: At approximately 15:49 hours, incorrectly administered the medication at a rate of 24ml over a 1 hour period, when you knew or ought to have known 3

4 that the medication should have been administered at a rate of 24ml over a 24 hour period (that is, 1ml per hour) Mr Hookway, on your behalf, did not object to the proposed amendment. The panel accepted the advice of the legal assessor that 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 was of the view that such a proposed amendment as applied for was in the interests of justice. The panel was satisfied that there would be no prejudice to you and no injustice would be caused to either party by the proposed amendment. It was therefore appropriate to allow the amendment as applied for to ensure clarity and accuracy. Decision on your application to hear evidence from you, regarding impairment, at the facts stage Mr Hookway on your behalf made an application for you to give oral evidence regarding impairment at the facts stage. He submitted that this would be an efficient and expeditious way to deal with the evidence. Mr Hookway accepted that if the panel were to find additional facts proved you might wish to give further evidence relating to those findings at the impairment stage. Mr Coke-Smyth did not oppose the application and stated that giving evidence only once might reduce the stress upon you. 4

5 The panel heard and accepted the advice of the legal assessor. The panel has had regard to Rule 24 of The Nursing and Midwifery Council (Fitness to Practise) Rules 2004 which deals with the order of proceedings. It notes that the rules provide for the factual stage and the impairment stage to be dealt with separately and for evidence to be taken at each stage. It further notes that it has discretion under the rules to change the order of proceedings. You accept that there may be the need for you to give evidence at the impairment stage in any case. You may still have to give evidence twice. The panel prefers to hear all the evidence relating to impairment at one time. The panel further believes that it will be able to deal with any issues and questions relating to impairment on a much sounder basis if it has first made all the findings of fact based on the relevant evidence. The application is therefore refused. Background You were employed by Eastbourne District Hospital which is part of the East Sussex Healthcare NHS Trust. The first two charges arise from the time when you were employed as a Band 7 Urology Specialist nurse. You worked in this role between July 2009 and 4 th October Following disciplinary proceedings in relation to the second charge you moved to the Mitchelham Unit ( the Unit ) at Eastbourne District Hospital in March 2012 to work as a Band 5 nurse. The Unit is a 20 bedded private unit caring for patients over the age of 16 admitted to hospital for surgery or any other reason. The Unit is a multispecialty unit in medicine and surgery. 5

6 Charge 1 concerns an incident which occurred on the 27 th January Ms 1, the Senior Nurse within the Uro-Oncology Clinical Nurse Specialists, who supervised and supported you at the time, noticed at about 09:30 that you had not attended work. At this time a text was received by one of the your colleagues, Ms 14, informing her that your car would not start and that you would be getting a lift into work with another colleague. You subsequently arrived at work just before 10:00 and Ms 1 described you as being dishevelled with your hair in a mess and wearing the same clothes as you had worn the previous day. You also smelled strongly of alcohol and when you spoke your speech was slurred. This combined with the smell of alcohol led Ms 1 to conclude that you were under the influence of alcohol whilst on duty. As a result of this Ms 1 contacted Ms 2, your direct line manager to report her concerns. Ms 2 advised that you should be sent home immediately and this was done and you were driven home by Ms 14. Following this incident a meeting was arranged with you and Ms 2 due to concerns about the unprofessional manner in which you had arrived at work on that morning. This took place on 4 th February 2011 and you accepted being under the influence of alcohol at work. Charge 2 relates to a prescription for Degarilex to Patient A which was signed by you on 10 th June Degaralix is a hormone antagonist which is used to treat hormone dependent prostate cancer. It is not a medication routinely prescribed to patients and as a result is not kept in large stock at the hospital pharmacy. On 10 th June 2011 Patient A arrived at the hospital pharmacy to collect his Degaralix medication. Unfortunately due to an administrative error Patient A s prescription had already been dispensed to Patient A s previous ward but had been recalled and returned to stock so that when he attended the pharmacy there was none available to him. 6

7 Mr 4, a dispensary manager at Eastbourne District General Hospital, states that he informed Patient A of this and also that he would need a new prescription as the previous one was for an incorrect dose. He then contacted you to inform you that Patient A did not have a valid prescription for the medication which he had come to collect as the previous prescription was incorrect. You then went to the pharmacy. You, Mr 4 and also Mr 3, the lead Cancer Services Pharmacist, discussed the problem and you were told that Patient A would need a further prescription before he could be given the medication. You then left and returned with a prescription for the drug. The prescription bears your signature in the section marked Doctor s signature. On 15 th June 2011 Ms 1 phoned the hospital pharmacy to confirm the dose of Degarelix, having had an inquiry about this from Patient A s wife. On speaking to the pharmacy she was told by Mr 4 that a prescription for the drug had been signed for by you, not Patient A s consultant. Ms 1 was shocked to find out that you had signed the prescription as she knew you were not a nurse prescriber. Ms 1 then set about obtaining a correctly signed prescription for Patient A. This was done and a prescription issued and signed by a doctor on 15 th June Following this incident, Ms 2, your manager was informed. Ms 2 met with you to discuss the matter. You confirmed that you knew that you should not have signed the prescription as you were not a nurse prescriber, but said that you had signed the prescription in the best interests of the patient. You also said that you thought that the prescription was a request form, which you were authorised to sign. On 6 th July 2011, you were also interviewed by Ms 13, a Clinical Services Manager at the Trust who was appointed to investigate this incident. In this interview you also stated that Mr 3, the lead Cancer Services Pharmacist, had asked you for a signature. You also said that you signed the form without looking. Following the investigation into this incident there was a formal disciplinary hearing on 4 th October You were given a final written warning and allocated to work 7

8 under supervision for the next three months. After this, you were employed at the Mitchelham Unit as a Band 5 staff nurse in March In relation to charge 3, concerns were raised about an incident which occurred on 4 th May 2012 whilst you were working at the Michelham unit. On 4 th May 2012 you were working alongside Ms 7, another Staff Nurse, at the Michelham unit. You and Ms 7 came to treat Patient B who required a syringe driver to be commenced to deliver pain relieving medication. This was to be done by an Omnifuse Syringe Pump which is a device used to administer drugs either intravenously or subcutaneously. The device works by automatically pushing a syringe plunger either over a pre-set time or at a set rate to administer whatever medication is held in the syringe into the patient. To do this a nurse would have to set up the pump, putting the correct dosage of the medication in the correct type and volume of solution into the syringe and setting the rate at which the solution should be administered. The prescribed dose in this instance was a mixture of 5mg Oxycodone, 2.5mg Haloperidol and 5mg Midazolam which was to be made up to a solution of 24ml with H2O, to be delivered subcutaneously. This mixture included controlled drugs. The prescription specified the administration of the solution by the syringe driver at a rate of 24ml over 24 hours, a rate of 1ml per hour. You and Ms 7 came to Patient B at around 15:45 to set up the Omnifuse pump and infusion. You prepared the syringe and placed the medication as is. You found that the syringe driver was empty and therefore a new one needed setting up. You prepared the syringe and placed the medication into it and set up the syringe driver. Both you and Ms 7 signed the prescription chart to say that you had set up the Syringe driver at 15:45. The pump was then to be monitored by nurses every 4 hours, in accordance with the prescription chart, and the quantity of medication left in the syringe driver at the time of the check would be recorded. 8

9 After signing the prescription chart, as the Unit was busy, Ms 7 left you to finish setting up the syringe driver as you had stated that you were happy to do so and you were the more senior of the two nurses. You then handed over to another Staff Nurse, Ms 8, at some time after she had arrived on the unit. The handover was done early as you were leaving to go on annual leave. You told Ms 8 that Patient B was being administered the medication through the syringe pump and that this had been set up by you with the help of Ms 7. During the time which Ms 8 was on the unit from 17:00 to 19:00 she did not check Patient B s syringe driver as the check was due at 19:45, 4 hours after it had last been done. At 19:00 Staff Nurse Ms 9 took over from Ms 8 and was told about the medication being delivered to Patient B. Ms 9 then checked the syringe pump and Patient B at about 20:30 to make sure that it was administering the medication correctly and to see how much was left. On doing so she noticed that of the 24ml which was supposed to have been set up at 15:45 there was only about 12ml left. This was of concern as if set up correctly to administer at 1ml per hour there ought to have been between 5ml and 6ml used whereas in fact over half had been used with about 12ml left. It was then discovered that the syringe driver had been set to 2.4ml per hour and not the prescribed 1ml per hour. As this was a serious medication administration error Ms 9 contacted the doctor on call and site manager. She also stopped the syringe driver administering the medication. On consulting with the on call doctor, a new prescription was provided and Ms 9 was instructed to administer the medication at the correct rate of 1ml per hour via the Omnifuse syringe pump. As a result of this incident investigations were carried out to ascertain whether the syringe pump had malfunctioned or whether there had been an error in its programming. Ms 11, the Medical Services Educator at the hospital who was 9

10 responsible for training staff on the pump, was asked to download the data from the pump from the 4 th and 5 th May She then took the pump to Mr 10, a Principal Technician with the hospital s Electro-mechanical Engineering Department to do this. Mr 10 connected the pump to his computer and using software provided by the pump manufacturers downloaded the technical history of the pump for the 4 th to 5 th May Mr 10 was able to determine that when the first infusion was stopped at approximately 16.28, the syringe was removed from the syringe driver. There was six a minute delay between the end time of the first infusion and the start time of the second infusion of From the LSE value count, I was able to determine that the syringe used for infusion two contained a larger volume of medication than the syringe removed at the end of infusion one. Assessing the technical data provided to her as to the pump s operation, Ms 11 calculated that after the syringe was first removed at 16:28 the volume of infusion left would have been 6.21 ml, but that when the second infusion began the level of infusion was ml. You confirmed, at the investigation meeting on 7 th June 2012, that you had set up the syringe pump to administer the Oxycodone, Haloperidol and Midazolam to Patient B and that you thought you had set the pump to 24 ml over 24 hours. You were told by Patient B s wife that the pump was alarming and on checking the pump realised that you had initially set the pump to 24ml over 24 mins (this does not appear correct as the downloaded data indicated that the rate set had been 24ml over 1 hour). You said there was around ml of medication left in the syringe and that you then set it to infuse at 1 ml per hour. You stated that you intended to report the incident and document it in the patient notes but forgot to do so as you were busy. Having forgotten to pass this on in your handover, you said you remembered the following day as you were in the airport leaving to go on 10

11 holiday. You stated that at this time you tried to contact the unit manager but were unable to reach her. At the interview on 10 July 2012 Ms 13 suggested to you that extra fluid had been added to the syringe used to top up the infusion. The fluid used for the topping up was not likely to be medication but some other substance, most likely saline or water, as no further drugs were taken out of the controlled drugs cupboard. The nurse in charge was not informed of any error with the pump at and the consumable items used with the pump were not retained. You also incorrectly reset the machine at the 2.4ml rate. The Trust also alleged that you did not receive the mandatary training on the Omnifuse pump prior to using it. Decision on the findings on facts and reasons: In reaching its decisions on the facts, the panel considered all the evidence adduced in this case together with the submissions made by Mr Coke-Smyth, on behalf of the NMC and those made by Mr Hookway, on your behalf. 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 facts will be proved if the panel was satisfied that it was more likely than not that the incidents occurred as alleged. In reaching its decisions on the facts the panel took into account all the oral and documentary evidence in this case. The panel heard oral evidence from five witnesses called on behalf of the NMC: Mr 3, Lead Cancer Services Pharmacist at the Trust; 11

12 Mr 4, Dispensary Manager at the Trust; Ms 6, Uro-Oncology Clinical Nurse Specialist at the Trust; Mr 10, Principle Technician in the Electronics and Medical Engineering department at the Trust; and Ms 11, Medical Devices Educator at the Trust. Agreed written statements of the following were read into the record by Mr Coke- Smyth: Ms 1, Uro-Oncology Cincial Nurse Specialist at the Trust; Ms 2, Clinical Services Manager in the Accident and Emergency Department and Medical Assessment Unit at the Trust; Ms 5, Assistant Director of Nursing at the Trust; Ms 7, Staff Nurse on the Unit; Ms 8, Staff Nurse on the Unit; Ms 9, Staff Nurse on the Unit; Ms 12, Deputy Director of Nursing at the Trust; and Ms 13, Clinical Services Manager of Day Surgery. The panel also heard evidence from you under oath. At the start of this hearing you admitted the following charges; 1, 2, 3a, 3b (i), 3b (iii) and 3b (iv) The panel found these charges proved by way of your admission. The panel then went on to consider the remaining charges. The panel first considered charge 3. b) At approximately 16:28 hours: 12

13 ii) Inappropriately topped up the Omnifuse syringe pump with saline and/or water and/or an unknown substance This charge is found proved. In reaching this decision the panel noted your oral evidence and the copy of the minutes from your interviews with your employer, dated 7 June 2012 and 10 July 2012, and the oral evidence of Mr 10 and Ms 11 and the downloaded data relating to the infusions from the 4 th May to 5 th May In your interview, dated 7 June 2012, you stated that: I inserted the syringe into the pump after flushing through the extension line. Once the pump was running I signed the form to say the green light was flashing and the injection site was patent I left the room to go to the dressings room to dispose of my sharps bin and waste that I had taken with me, the dressing room is a matter of feet from the room that he s in. As I left the dressing room [Patient B] s wife came out of the room and said the pump was alarming. I went back into the room with her immediately and the red light was flashing I stopped the syringe pump, opened the door and took the syringe out. I checked Patient B s site which was not leaking and no signs of any concerns I put the syringe back in to the pump and went through the process of restarting it which involves priming it again. I did this and pressed the start button. As I rechecked the pump I realised it was set to run at 24mls over 24 minutes and it should have been 24mls over 24 hours. I turned the pump the off and completely reset it and I thought for safety reasons I could start from scratch. I turned the pump back on for the prescribed time of 24mls over 24 hours. The syringe had about 22-23mls left in it which would be normal as the line had been primed. I realised that a mistake had been made and I rectified it straight away. You were asked in your interview by Ms 13: 13

14 So when you went back and looked, because you had only just been out of the room for a minute you checked it there was still twenty three mils left in the syringe? Your response was: Twenty two to twenty three mils, Yes You were interviewed on 10 July 2012 by Ms 13 and when reminded that you had said at the previous interview that the pump had alarmed almost immediately, you replied yes I had time to leave the room go to the thing and then come back. The panel was of the view that your responses at those interviews gave the impression that there had only been a very short time between the commencement of infusion one and you returning to assess and restart the pump. The panel was provided with the Omnifuse data downloaded from the pump for 4 May 2012 by Mr 10. He explained that the pump measures the position of the screw that drives the syringe plunger down the barrel of the syringe. The position of the screw in the pump is recorded as an LSE count. The data showed the LSE count as: (infusion 1 start time) 15:49 was ; (infusion 1 stop time) 16:28 was ; (Infusion 2 start time) 16:34 was ; (infusion 2 stop time) 20:36 was ; (Infusion 3 start time) 21:39 was ; and (Infusion 3 suspended, syringe became empty) 08:49 was Mr 10 told the panel that the only alarm that rang was at 08:49 on 5 th May 2012 to indicate that the syringe was now empty. He stated that you may have heard an alert but that this would not be recorded on the data sheet. Mr 10 also told the panel that Patient B s Ominfuse pump had been tested and was working properly. The Omnifuse pump history showed that the first infusion had run for 39 minutes 14

15 before it was stopped and there was a six minute gap before the pump was restarted. Ms 11 told the panel that, based on the LSE count, the syringe volume reading moved from 6.2mls at 16:28 to 20.9mls at The evidence was that the pump had been stopped for six minutes between and by which time the syringe volume reading had increased by 14.7mls. Mr Hookway suggested that the increased volume in the syringe could have indicated that there was a volume of air in the syringe and not a liquid. Mr 10 accepted that the volume readings did not necessarily indicate that there was a liquid in the syringe and that the syringe s content could also have been air or a mixture of air and liquid. There was no other challenge to the technical data. Ms 11 s evidence was that an alarm would have sounded if there had been air in the syringe. In your oral evidence to the panel you gave a timeline of between five and ten minutes to cover what you did following your setting up of the first infusion. You stated to the panel that first you went to the storeroom. Following this, you stated that you could not remember where you went but you may have gone to see another patient. You stated that following seeing another patient you went back to the storeroom where Patient B s wife came to tell you that the Omnifuse pump was alarming. You stated that you still thought it was a very short period of time, as you had said in interview. You were unable to provide an explanation as to why the data downloaded from the Omnifuse pump showed that the first infusion of the medication lasted for 39 minutes, which is a considerably longer period than indicated by you in your interviews and in your oral evidence to the panel. You said that you did not know whether an alarm would have sounded if there was air in the syringe. The panel heard evidence that it was only you, Patient B and Patient B s wife who were in the room at the time of the incident. Although there were other keys to the Omnifuse pump, you accepted that as far as you were aware that it was only you who had handled Patient B s syringe. 15

16 The panel noted your evidence that you had stopped the machine on two occasions. This does not appear in the technical data which shows only one restart at You could not provide the panel with an explanation for the substantially different position the syringe driver was in between the end of infusion one and the start of infusion two. The panel has reminded itself that the burden of proof rests with the NMC throughout and these are serious allegations which require careful scrutiny. The panel noted that you do not have any criminal convictions or other disciplinary proceedings against you. The panel found Mr 10 to be a credible witness with considerable experience of data produced by the Omnifuse pump; the panel also noted that he was independent of the incident. The panel found that Ms 11 had considerable experience and understanding of the clinical operation of the Omnifuse equipment and that her evidence in relation to it was credible. The panel found that your oral evidence lacked credibility when describing the key stages of the infusion incident. The panel finds that the Omnifuse pump started its first infusion at 15:49 and ran for 39 minutes until it was stopped at Where it conflicts, the panel prefers the evidence of Mr 10 and Ms 11 to your evidence. It did not accept your evidence that the restart happened within a few minutes of the original infusion being started at 15:49. The panel did not accept that there were 22mls to 23mls left in the syringe when you say that you restarted the pump. The panel accepts the technical data. 16

17 The panel accepts that there was an increase in volume in the syringe at the time when the pump was restarted at 16:34 from the volume in the syringe when it was stopped at The panel concludes on the balance of probabilities that the increase in volume was not due to the introduction of air. It accepts the evidence of Ms 11 that the Omnifuse pump would have alarmed if air was in the syringe, and on this specific issue prefers her evidence to that of Mr 10 because of her greater clinical experience. No alarm was recorded during the second infusion. The panel also notes no evidence was provided as to how air might have got into the system. The panel accepted the evidence of Mr 10 that there were six minutes between the time when infusion one stopped and when infusion two began. The panel was of the view that this was sufficient time for you to top up the syringe with a fluid, if necessary by leaving the room briefly. The panel heard no evidence that anyone other than you could have topped up the syringe. The panel concludes on the balance of probabilities that the increase in volume was not due to the introduction of air into the syringe; The increase in volume was due to a liquid being added. Taking all of the above factors into account, the panel was of the view that on the balance of probabilities it was more likely than not that a liquid had been added by you to Patient B s syringe following the Omnifuse pump being stopped at 16:28. Accordingly, the panel finds charge 3b (ii) proved. The panel next considered charge 4. Your actions as set out in Charge 3 b) ii above were dishonest, in that you attempted to conceal your error as set out in Charge 3 a) This charge is found proved. 17

18 In reaching this decision the panel noted the test for dishonesty as set out in the case of R v Ghosh and subsequently amended in Hussain v General Medical Council C1/2013/3742. The panel first considered whether according to the standards of reasonable and honest nurses your actions in charge 3b (ii) were dishonest. The panel was of the view that you had made a significant error in setting the rate in which the medication was to be transfused to Patient B. The panel heard that whilst there was no evidence that this error caused Patient B any harm, your actions had the potential to cause Patient B serious harm. The panel found that, on discovery of the error, you added additional fluid to the syringe to make it appear as if the fluid had been infused at a slower rate. Further, you took no action to establish what treatment Patient B might require because of the rapid infusion of medication that you had given to Patient B. You did not inform anyone that you had added additional fluid when you reset the pump. The panel heard no evidence of any clinical need or a prescription for the syringe to be topped up. You attempted to hide your actions specified in charge 3b (ii) by not reporting what you had done at the time or at any time afterwards. The panel is of view that a reasonable and honest nurse would think that your actions in adding additional fluid to the syringe were an attempt to cover up your medication error and were therefore dishonest. The panel next considered whether you must have known your actions as set out in charge 3b (ii) were dishonest by the standards of reasonable and honest nurses. The panel was of the view that you would have known as an experienced nurse that what you were doing was wrong in that you were trying to conceal your error as set out in charge 3a. In light of the above, the panel was of the view that your actions in charge 3b (ii) in adding fluid to the syringe in an attempt to conceal your error as set out in charge 3a were dishonest. 18

19 Accordingly, the panel finds charge 4 proved. The panel next considered charge 3c. Inappropriately set up the Omnifuse syringe pump on Patient B when you had not received the Trust s mandatory training This charge is found not proved. Ms 11 described the training which it was necessary for nurses to undergo before being able to use the Omnifuse Syringe Pump. She stated that staff would be required to undergo a mandatory initial class on this device followed by a mandatory 3 yearly update. She stated that although you attended an update session on 22 March 2012, you never attended the mandatory initial session. Part of the mandatory training provided also covered the need to inform the nurse in charge of any mistake with the pump and to complete an incident report. It also included the retaining of consumables from the device if an error occurs. This includes the pump, the syringe and the extension set which is attached to the syringe. This would be to enable later analysis to be as full as possible. In reaching its decision the panel noted the NMC did not provide it with the Trust policy regarding mandatory training in relation to Omnifuse pumps. Further, there was no documentary evidence provided to the panel that you had been told or should have known that the training was mandatory. The panel heard from Ms 11 that nurses are sent reminders about mandatory training, but the panel noted that you did not at the time have access to your s as your password had been changed following your transfer to the Unit. 19

20 You stated that you had undergone training to use the Omnifuse pump but the Trust argued that it was not the required mandatory training. You told the panel that prior to the incident you had spoken to Ms 11, requesting that you undertake training in relation the operation of Omnifuse pumps. You stated to the panel that Ms 11 then scheduled training on the use of Omnifuse pumps with you on the Unit. You told the panel that you completed that training with Ms 11 on a one to one basis and at the time when you finished the training you believed that you were competent in the use of the Omnifuse pump. You also stated that you had observed two operations of the Omnifuse pump carried out by your Matron and that you had yourself had carried out one operation of it under the supervision of your matron. You stated that you were not aware that any further training was required. The panel was of the view that the evidence of Ms 11 was inconclusive as she largely described her normal working practice rather than her direct recollection about your training. There is no contemporaneous record that can corroborate her claim that she checked with you whether you had completed the initial mandatory training. The panel found that your evidence about your training to be persuasive. The panel is not satisfied that on the balance of probabilities you knew at the time of your training that you were not receiving from Ms 11 the mandatory training required by your employer. It is for the NMC to prove the charge. The panel determined that in the circumstances where you have sought the relevant training and then received training by Ms 11, the Devices Educator, it cannot find proved, on the balance of probabilities, that you inappropriately set up the Omnifuse Syringe when you had not received the Trust s mandatory training. Accordingly, the panel finds charge 3c not proved. 20

21 Decision to adjourn and on Interim Order and reasons: The panel, having heard all the evidence in relation to impairment, has decided to adjourn this hearing today as there would be insufficient time to conclude your case. The panel has considered the submissions made by Mr Coke-Smyth that an interim suspension order for 18 months should be made on the grounds that it is necessary for the protection of the public and otherwise in the public interest. Mr Coke-Smyth submitted that now that the panel has handed down its decision on the facts, the position has changed. He submitted that the charges that have been admitted and found proved are serious. Those charges include a serious medication error which involved a patient being receiving 24 times the dosage of controlled medication for a period. He submitted that this was made more serious, both by your failure to report your error and the topping up of the syringe to dishonestly conceal your error. Mr Coke-Smyth submitted that there is a risk of harm given your lack of insight in relation to your dishonesty and your concealment. He submitted that there are further references by your nursing agency to medication errors made by you since the incident that gave rise to the charges. Further, he submitted that your actions would have an impact on public confidence in the profession and that it was in the public interest for the panel to impose an interim order. The panel took account of the submissions made by Mr Hookway, on your behalf, that no interim order should be imposed. He submitted that an interim order needed to be demonstrably necessary rather than merely desirable. Mr Hookway submitted that whilst a risk of harm had arisen no harm came to the patient from your medication error. He submitted that there has not been a change 21

22 of circumstances since the start of this hearing sufficient to justify imposing an interim order. Mr Hookway submitted that there was a lack of a risk of repetition in that you have been practising since this incident and there has been no evidence of any further dishonesty. In relation to public interest, Mr Hookway submitted that it was an isolated incident of dishonesty and not a repeat pattern of behaviour. Further, he submitted that you are currently on maternity leave and you wished to return work as soon as possible. Mr Hookway submitted that, if the panel were not with him on his primary submission that no order should be imposed, the panel should consider imposing an interim conditions of practice order. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim order was necessary for the protection of the public and otherwise in the public interest. The panel had regard to the seriousness of the facts admitted and found proved. In particular the medication error in relation to charge 3a was a serious one and the resultant risk of harm to the patient was significantly increased by you not reporting the error and attempting to conceal it by topping up the syringe pump. Charge 2 and charge 3b (iii) were also medication errors. The panel was also concerned that you have continued to deny the dishonest topping up of the syringe pump. The panel has concluded that there remains a real risk of harm to patients were you to continue to practise unrestricted. Further, given the combination of medication errors and dishonesty, it is necessary in the public interest to restrict your practice in order to maintain public confidence in the profession. 22

23 Taking into account the finding of dishonesty in a matter directly related to a risk of harm faced by a patient, the panel did not consider that any conditions of practice would be sufficient to protect the public or meet the public interest. The panel therefore decided that only an interim suspension order would be sufficient to protect the public. Such an order is also necessary to maintain public confidence in the profession. The period of this order is for 12 months to allow for the conclusion of your case. The interim suspension order will take effect immediately. That concludes this determination. Determination on misconduct and impairment (March 2015) Having announced its findings on fact, the panel then moved on to consider firstly whether the facts found proved amount to misconduct and, if so, secondly whether your fitness to practise is currently impaired. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Prior to hearing submissions on impairment, you informed the panel, through Mr Hookway, that you now admitted charge 3 (b) (ii). You also provided the panel with a letter of reference, dated 18 February 2015, from Ms 15, a senior staff nurse at the Chasely Trust, your current employer. The panel heard the submissions of Mr Coke-Smyth, on behalf of the NMC, and Mr Hookway on your behalf. The panel has accepted the advice of the legal assessor. 23

24 The panel adopted a two stage process in its consideration. It accepted that there was no burden or standard of proof at this stage and exercised its own professional judgement. Decision on whether the facts found proved amount to misconduct: When determining whether the facts found proved amount to misconduct the panel took into account that any misconduct by you must amount to serious misconduct to give rise to impairment. The panel had regard to the terms of The code: Standards of conduct, performance and ethics for nurses and midwives ( the Code ) in force at that time, namely the May 2008 edition. The panel is of the view that your actions amount to serious misconduct and fall significantly short of the standards expected of a registered nurse. Your actions have breached the preamble to the Code: 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 work with others to protect and promote the health and wellbeing of those in your care, their families and carers, and the wider community provide a high standard of practice and care at all times be open and honest, act with integrity and uphold the reputation of your profession. As a professional, you are personally accountable for actions and omissions in your practice, and must always be able to justify your decisions. The panel also considered that your actions breached the following paragraphs of the Code: 24

25 26 You must consult and take advice from colleagues when appropriate. 32 You must act without delay if you believe that you, a colleague or anyone else may be putting someone at risk. 39 You must recognise and work within the limits of your competence. 43 You must complete records as soon as possible after an event has occurred. 54 You must act immediately to put matters right if someone in your care has suffered harm for any reason. 55 You must explain fully and promptly to the person affected what has happened and the likely effects. 61 You must uphold the reputation of your profession at all times. The panel appreciated that breaches of the code do not automatically result in a finding of misconduct. In relation to charge 1, the panel is of the view that by attending work with the intention of caring for patients, whilst under the influence of alcohol, you put patients at serious risk of harm. The panel was particularly concerned with your level of intoxication, in that you slurred your words and that other members of staff could smell alcohol on your breath. The panel concluded that your actions amounted to serious misconduct. In relation to charge 2, the panel is of the view that by signing a prescription for Degarilex when you knew, or ought to have known, that you were not authorised to sign the prescription, you put Patient A at serious risk of harm. The panel notes that Degarilex is a toxic cancer treating drug that if prescribed incorrectly could 25

26 have caused Patient A serious harm. In doing what you did you put Patient A at risk of harm. The document which you signed was called an Out-patient Prescription Form and the panel took the view that as an experienced registered nurse you would have known that this form was a prescription and not a requisition form. The panel determined that, if you were unsure as to how to obtain the drug, you should have sought advice from the patient s consultant or registrar. This is standard practice of which you, as an experienced nurse, would have been aware. You accepted that the prescription should be signed by a doctor but that you signed it in the space marked Doctor s Signature. The panel determined that you were reckless in signing the form and not seeking further clarification. You said the drug was known to you and the panel accepted that your intention was not to act maliciously but to give Patient A his medication as soon as possible. However, you did not have the clinical training and authority to prescribe the medication. The panel is therefore of the view that you acted in a way that put Patient A at risk of harm and that your actions amounted to serious misconduct. In relation to charge 3 (a), the panel is of the view that by administering the medication (which included controlled drugs) at a rate of 24ml over a 1 hour period, for 39 minutes, when you knew or ought to have known that the medication should have been administered at a rate of 24ml over a 24 hour period (that is, 1ml per hour), you put Patient B at severe risk of harm. The panel accepted that it had no evidence of any actual harm to Patient B but determined that by putting Patient B at severe risk of harm your actions amounted to serious misconduct. In relation to charge 3 (b) (i), the panel is of the view that by not immediately reporting your medication error you greatly increased the risk of harm to Patient B and demonstrated that you had no real concern for Patient B s safety or the effects of your mistake. The panel was of the view that your actions in this regard amounted to serious misconduct. 26

27 In relation to charge 3 (b) (ii), the panel is of the view that by dishonestly concealing your serious medication error, by topping the omnifuse syringe pump with saline or water or some other substance, you demonstrated a total disregard for patient safety and an entirely selfish focus on avoiding the consequences of your actions. The panel is of the view that your actions amounted to serious misconduct. In relation to charge 3 (b) (iii), the panel is of the view that having made your first serious medication error you then went on to make a subsequent medication error. The panel is of the view that this subsequent medication error put Patient B at further risk of harm, by restarting the pump at an incorrect dosage for a second time in the same care episode. The panel determined that your actions amounted to serious misconduct. In relation to charge 3 (b) (iv), the panel is of the view that your actions, whilst not necessarily intending to prevent a full investigation, did in fact have that consequence. The panel determined that when a serious medication error occurs, such as set out in charge 3 (a), it is the responsibility of a registered nurse to ensure that all evidence is retained for any investigation. Your failure to do so could have impacted on any investigation and potentially put further patients at risk of harm. The panel is of the view that your actions amounted to serious misconduct. In relation to charge 4, the panel is the view that by dishonestly trying to conceal your actions in charge 3 (a) you did not make Patient B your first concern and demonstrated a total disregard for patient safety and an entirely selfish focus on avoiding the consequences of your actions. To act dishonestly in this way amounted to serious misconduct. The panel finds that your actions fell seriously short of the conduct and standards expected of a nurse and amounted to serious misconduct. 27

28 Decision on impairment: The panel next went on to decide whether as a result of this misconduct your fitness to practise is currently impaired. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional. 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 provide a high standard of practice and care at all times and 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 Nursing and Midwifery Council and Grant in reaching its decision; in paragraph 74 she stated: 74. 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: 76. I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes. Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or 28

29 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. In relation to charge 1, the panel is of the view that when questioned, by the panel, you were unable to give sufficiently detailed answers to demonstrate any genuine insight into your behaviour or to show any understanding of your shortcomings. The panel accepted that there were personal circumstances that led to your actions in charge 1. Further, since the change in personal circumstances there is no evidence before the panel that you have repeated your actions in charge 1.The panel was of the view that the risk of repetition of your actions in charge 1 is low and that in the future you are unlikely to put patients at unwarranted risk of harm by repeating this behaviour. On the basis of this charge alone, the panel would have concluded that your fitness to practise is not currently impaired. However, taken with the other charges, the panel has found there is a pattern of behaviour which includes the misconduct referred to in this charge, in which you have shown a disregard for the safety for the patients in your care. The panel has therefore taken this charge into account in reaching its decision on impairment. In relation to charges 2 and 3, the panel is of the view that your actions are underpinned by a pattern of behaviour which can be described as reckless and arrogant. Throughout your live evidence to this hearing you sought to minimise the impact of your errors. 29