Nursing and Midwifery Council:

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 4 January 2018 Nursing and Midwifery Council, George Street, Edinburgh, EH2 4LH Name of registrant: NMC PIN: Patricia Clarke 08B0344S Part(s) of the register: Registered Nurse Sub part 1 Mental Health Nursing (September 2011) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mrs Clarke: Nursing and Midwifery Council: Consensual Panel Determination: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim order: Scotland Misconduct Noreen Kent (Chair, Registrant member) Mary Hattie (Registrant member) Bill Matthews (Lay member) Graeme Henderson Jonathan Storey Not present but represented by Robbie Wilson of Anderson Strathern LLP, instructed by the Royal College of Nursing Represented by Yusuf Segovia, Case Presenter Accepted All None Impaired Conditions of practice order (18 months) Interim conditions of practice order (18 months) 1

2 Consensual panel determination At the outset of this hearing, Mr Segovia, on behalf of the NMC, informed the panel that, prior to this hearing, a provisional agreement of a consensual panel determination had been reached with regard to this case between the NMC and Mrs Clarke. The agreement, which was put before the panel, sets out Mrs Clarke s full admission to the facts alleged in the charges, that her actions amounted to misconduct, and that her fitness to practise is currently impaired by reason of that misconduct. It is further stated in the agreement that an appropriate sanction in this case would be a conditions of practice order for 18 months. Decision and reasons on application to amend charge and provisional agreement Following its review of the provisional agreement, the panel made a request that the NMC amend the wording of charge 2 to better reflect the evidence contained within the provisional agreement: Original charge 2. On 24 August 2016, when Resident B returned to the Home from hospital, did not: Amended charge 2. On or after 24 August 2016, when Resident B returned to the Home from hospital, did not: Mr Segovia, on behalf of the NMC, and Mr Wilson, on Mrs Clarke s behalf, submitted that they accepted that such an amendment would better reflect the evidence and could be made without prejudice to Mrs Clarke. 2

3 The panel accepted the advice of the legal assessor that Rule 28 of the Rules states: 28. (1) At any stage before making its findings of fact, in accordance with rule 24(5) or (11), the Investigating Committee (where the allegation relates to a fraudulent or incorrect entry in the register) or the Fitness to Practise Committee, may amend (a) (b) the charge set out in the notice of hearing; or the facts set out in the charge, on which the allegation is based, unless, having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice. (2) Before making any amendment under paragraph (1), the Committee shall consider any representations from the parties on this issue. The panel was of the view that such an amendment to charge 2 was in the interest of justice. The panel was satisfied that there would be no prejudice to Mrs Clarke and no injustice would be caused to either party by the proposed amendment being allowed. It was therefore appropriate to allow the amendment and to amend the provisional agreement to reflect the amendment. The panel also enquired about the possibility of amending paragraph 14 of the provisional agreement so as to read: The Registrant accepts that in failing to document Resident A s fall and failing to ensure the appropriate observations, documentation and assessments were conducted for Resident B, she has fallen significantly short of what was required of her as the nurse responsible for the care of both residents. Mr Segovia and Mr Wilson submitted that they agreed that an amendment was required, and amended the provisional agreement accordingly. 3

4 The panel considered the amended provisional agreement reached by the parties. That provisional agreement reads as follows: Fitness to Practise Committee Consensual panel determination: provisional agreement The Nursing and Midwifery Council ( the NMC ) and Patricia Clarke ( the Registrant ), PIN 08B0344S (collectively the parties ) agree as follows: CHARGES That you, a registered nurse, employed by Mansfield Care, working at Belhaven Care Home [ the Home ]: 1. On 11 May 2016, did not document that Resident A had fallen in their daily record. 2. On or after 24 August 2016, when Resident B returned to the Home from hospital, did not: i. Conduct a risk assessment; ii. Update their care plan; iii. Put in place a fluid chart; iv. Put in place an observation chart AND in light of the above, your fitness to practise is impaired by reason of your misconduct. FACTS 1. At the material time the Registrant was employed as a staff nurse at Belhaven Care Home ( the Home ), where she had begun working in January

5 2. On 11 May 2016 the Registrant was the nurse in charge of the day shift. Resident A had fallen during the course of the shift, and the Registrant provided appropriate care and completed an accident form. The Registrant did not, however, document the fall in Resident A s daily record. 3. The Registrant attended a disciplinary meeting in relation to her failure to document Resident A s fall and received a warning in relation to her conduct. The Registrant was also asked to attend record keeping training. However, prior to completing the training a further incident occurred, concerning Resident B. 4. On the evening of 24 August 2016, Resident B returned to the Home following a hospital admission, where he had been treated for a urinary tract infection with intravenous fluids and intravenous antibiotics. When Resident B returned to the Home he was still being treated with antibiotics. 5. The Registrant was the nurse in charge of the day shift on 25 August 2016, the day after Resident B s return, and was supported by five care assistants in providing care to the 29 residents of the Home. 6. During the course of the shift the Home Manager, Ms 1, asked the Registrant to ensure that all necessary documentation was completed for Resident B. This included updating the care plan, ensuring fluid and observation charts were in place and conducting a risk assessment. 7. Care plans are required to be updated to reflect any acute changes to a resident s care, together with periodic updates every three months. In light of his condition, Resident B also required encouragement to consume a large amount of fluids, and a fluid chart ought therefore to have been implemented. Further, Resident B required daily monitoring of his temperature and pulse. 8. On Resident B s return from hospital, a risk assessment ought to have been conducted in order to determine his moving and handling needs, particularly in light of the fact that Resident B was no longer able to bear weight. Additionally, a risk 5

6 assessment is required to determine whether there had been any change to Resident B s Waterlow score the risk of developing pressure ulcers. 9. As the nurse in charge, it was the Registrant s responsibility to ensure that the appropriate assessments and observations were carried out. The Registrant failed to do so during her shift on 25 August The following day, 26 August, the Registrant was again working as the nurse in charge, supported by five care assistants until 4pm and three care assistants thereafter. Ms 2, the Home s Operations Manager, asked the Registrant whether she had updated the care plan and fluid and observations chart as requested by Ms 1 the previous day. The Registrant responded that she had not had a chance as she had been too busy. Ms 2 offered to do the tea time medication round in the Registrant s place in order to enable her to complete the documentation, and reminded her of the urgent need to do so. 11. On 27 August, Ms 2 noted that an observation chart dated 26 August had been put in place for Resident B, but the care plan had not been updated and there remained no fluid chart on Resident B s file. 12. During a meeting on 29 August, the Registrant accepted that she had not carried out all of the required tasks and again stated that she had been too busy to do so. MISCONDUCT 13. In the case of Roylance v General Medical Council (No.2) [2000] 1 AC 311, Lord Clyde stated that: 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 rules and standards ordinarily required to be followed by the medical practitioner in the circumstances. 6

7 14. The Registrant accepts that in failing to document Resident A s fall and failing to ensure the appropriate observations, documentation and assessments were conducted for Resident B, she has fallen significantly short of what was required of her as the nurse responsible for the care of both residents. Whilst it is accepted that neither resident suffered harm as a result of the Registrant s failings, the potential for harm underlies the seriousness of her failings. 15. It is further accepted that the Registrant has breached the following provisions of the 2015 Code of professional standards of practice and behaviour for nurses and midwives ( the Code ): 1.4 make sure that any treatment, assistance or care for which you are responsible is delivered without undue delay, and 10 Keep clear and accurate records relevant to your practice 10.1 complete all records at the time or as soon as possible after an event, recording if the notes are written some time after the event 10.2 identify any risks or problems that have arisen and the steps taken to deal with them, so that colleagues who use the records have all the information they need IMPAIRMENT 16. The Registrant admits that her fitness to practise is impaired by reason of her misconduct. The NMC have defined fitness to practise as a registrant s suitability to remain on the register without restriction. 17. The parties have considered the factors outlined by Dame Janet Smith in the Fifth Shipman Report, and approved by Cox J in the case of CHRE v Grant & NMC [2011] EWHC 927 (Admin) ( Grant ). 18. The Registrant accepts that as a result of her misconduct she: 7

8 i. 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; ii. Has in the past brought, and/or is liable in the future to bring the nursing profession into disrepute; iii. Has in the past breached, and/or is liable in the future to breach one of the fundamental tenets of the nursing profession; 19. The Registrant accepts that her omissions in respect of Residents A and B put both patients at unwarranted risk of harm. This is contrary to a fundamental tenet of the nursing profession: the requirement to make the care and safety of patients a primary concern. In failing to do so, the Registrant has also brought the reputation of the nursing profession into disrepute. 20. The NMC acknowledges that through her written reflection, attached and marked Appendix 1, the Registrant has demonstrated remorse and insight into her failings. 21. Whilst the Registrant s failings are considered to be easily remediable, the Registrant has not worked as a registered nurse since being dismissed from the Home, and as such she has not yet had the opportunity to remedy her misconduct. As a result, the parties agree that until the Registrant can demonstrate that her failings as they relate to record keeping, care plans and the assessment of patients have been fully remediated, a risk of repetition exists. A finding of impairment is therefore required in order to adequately protect the public. 22. The NMC has also considered the comments of Cox J in Grant at paragraph 74: The Committee should therefore have asked themselves not only whether the Registrant continued to present a risk to members of the public, but whether the need to uphold proper professional standards and public confidence in the registrant and in the profession would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case. 8

9 23. The parties agree that in light of the continuing risk to the public a finding of impairment is required in order to declare and uphold proper standards of conduct, and maintain confidence in the nursing profession and in the NMC as a regulator. SANCTION 24. The parties agree that the appropriate sanction is an 18 month conditions of practice order. 25. It is noted that the Registrant has a previously unblemished nursing career and that her failings did not result in actual harm to either Registrant. It is also acknowledged by the NMC that at the time of the incidents the Registrant was experiencing very significant difficulties in her private life. 26. However, it must also be noted that the Registrant s failings in relation to Resident B occurred a short period of time after the Registrant had received a warning in relation to her deficient record keeping concerning Resident A. 27. In light of the ongoing need to protect the public, it is agreed that to take no further action would be an inappropriate sanction in this case. 28. Likewise, a caution order would not serve to restrict the Registrant s practice, and as such, would not adequately protect the public. 29. In light of the clear areas of the Registrant s practice in need of retraining, the parties agree that a conditions of practice order would afford the Registrant the opportunity to address these issues whilst ensuring an adequate level of protection to the public. The Registrant has shown through her reflection the potential and willingness to respond positively to retraining, and has made efforts to keep her clinical care skills up to date by working as a care assistant. 30. It is agreed that the following conditions of practice, imposed for a period of 18 months, would be appropriate and proportionate in all of the circumstances: 9

10 1. You must work with your line manager, mentor or supervisor (or their nominated deputy) to create a personal development plan designed to address the concerns about the following areas of your practice: 1) Record Keeping (including electronic record keeping) 2) Assessing Patients 3) Care Planning 2. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least once a fortnight to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 3. You must forward to the NMC a copy of your personal development plan within 28 days of taking up a nursing appointment. 4. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and your progress towards achieving the aims set out in your personal development plan to the NMC at least 14 days before any NMC review hearing or meeting. 5. You must tell the NMC within 7 days of any nursing appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 6. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 7 days of you receiving notice of them; 7. You must within 7 days of accepting any post or employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, provide the NMC with the name/contact details of the individual or organisation offering the post, employment or course of study; 8. You must immediately tell the following parties that you are subject to a conditions of practice order under the NMC s fitness to practise procedures, and disclose the conditions listed at (1) to (7) above, to them: a. Any organisation or person employing, contracting with, or using you to 10

11 undertake nursing work; b. Any agency you are registered with or apply to be registered with (at the time of application) to provide nursing services; c. Any prospective employer (at the time of application) where you are applying for any nursing appointment; and d. Any educational establishment at which you are undertaking a course of study connected with nursing or midwifery, or any such establishment to which you apply to take such a course (at the time of application). 31. The parties agree that there are no deep-seated attitudinal problems that would justify the imposition of a suspension order, and neither is the risk to the public so great as to require the Registrant s temporary removal from the register. 32. Equally, the Registrant s misconduct is considered entirely remediable and is not incompatible with her continued presence on the register. As such, a striking-off order would be disproportionate in the circumstances. 33. The parties agree that the order should be reviewed prior to its expiry. INTERIM ORDER 34. Due to the basis upon which impairment has been agreed by the parties, it is further agreed that an interim order is necessary for the protection of the public and that it is otherwise in the public interest. 35. The parties have determined that a conditions of practice order for a period of 18 months would be appropriate to cover the 28 day period before the substantive order takes effect and also in the event of an appeal. 36. The parties agree that the interim order should be in the same terms as the substantive order proposed at paragraph 30 above. 11

12 The parties understand that this provisional agreement cannot bind a panel and that the final decision on findings, impairment and sanction is a matter for the panel. The parties understand that, in the event that a panel does not agree with this provisional agreement, the admissions to the charges set out at the first section above, and the agreed statement of facts set out at the second section above, may be placed before a differently constituted panel that is determining the allegation, provided that it would be relevant and fair to do so. Here ends the provisional agreement between the NMC and Mrs Clarke. The provisional agreement was signed by Mr Wilson on Mrs Clarke s behalf, and Mr Segovia on behalf of the NMC on 4 January

13 Decision and reasons on the consensual panel determination The panel decided to accept the amended provisional agreement. The panel heard and accepted the legal assessor s advice. He reminded the panel that they could accept, amend or outright reject the provisional agreement reached between the NMC and Mrs Clarke. Further, the panel should consider whether the provisional agreement would be in the public interest. This means that the outcome must ensure an appropriate level of public protection, maintain public confidence in the professions and the regulatory body, and declare and uphold proper standards of conduct and behaviour. The panel noted that Mrs Clarke admitted the facts of the charges. Accordingly the panel was satisfied that the charges are found proved by way of Mrs Clarke s admissions as set out in the signed provisional agreement before it. The panel then went on to consider whether Mrs Clarke s fitness to practise is currently impaired. Whilst acknowledging the agreement between the NMC and Mrs Clarke, the panel exercised its own independent judgement in reaching its decision on impairment. In respect of misconduct, the panel determined that, in failing to document Resident A s fall and failing to ensure the appropriate observations, documentation and assessments were conducted for Resident B, Mrs Clarke fell significantly short of what was required of her as a registered nurse, and as the nurse responsible for both residents. In this respect, the panel endorsed paragraphs 14 and 15 of the provisional agreement in respect of misconduct, as well as the provisions of the Code contained within paragraph 15. The panel then considered whether Mrs Clarke s fitness to practise is currently impaired by reason of her misconduct. The panel considered that Mrs Clarke s misconduct was serious. Although Mrs Clarke has provided a reflection to the panel, she has not worked 13

14 as a registered nurse since being dismissed from the Home. As such, the panel considered that Mrs Clarke has not had the opportunity to successfully remediate her misconduct in a clinical setting. The panel therefore determined that Mrs Clarke s fitness to practise is currently impaired on the ground of public protection, and is otherwise in the wider public interest to declare and uphold the proper standards of conduct, and maintain confidence in the nursing profession. In this respect, the panel endorsed paragraphs 16 to 23 of the provisional agreement. Having found Mrs Clarke s fitness to practise currently impaired, the panel went on to consider what sanction, if any, it should impose in this case. The panel bore in mind that any sanction imposed must be appropriate and proportionate. The purpose of any sanction is not intended to be punitive even though it may have a punitive effect. Decision on sanction is a matter for the panel exercising its own independent judgement. The panel considered this case very carefully and decided to make a conditions of practice order. The effect of this order is that Mrs Clarke s name on the NMC register will show that she is subject to a conditions of practice order and anyone who enquires about her registration will be informed of this order. The panel accepted the advice of the legal assessor. The panel had careful regard to the Sanctions Guidance (SG) published by the NMC. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the SG, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must 14

15 not happen again. The panel considered that Mrs Clarke s misconduct was not at the lower end of the spectrum and that a caution order would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order. The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel determined that it would be possible to formulate appropriate and practical conditions, which would address the failings highlighted in this case. The panel accepted that Mrs Clarke would be willing to comply with conditions of practice. The panel had regard to the fact that these incidents happened in 2016 and that, other than these incidents, Mrs Clarke had an unblemished career as a nurse. The panel was of the view that it was in the public interest that, with appropriate safeguards, Mrs Clarke should be able to return to practice as a nurse. The panel was of the view that to impose a suspension order would be wholly disproportionate and would not be a reasonable response in the circumstances of this case. The panel considered that Mrs Clarke has insight into her actions and the failings identified were discrete and related solely to clinical failings which are remediable. Balancing all of these factors, and after having taken into account both the aggravating and mitigating features of this case identified in paragraphs 25 and 26 of the provisional agreement, the panel determined that the appropriate and proportionate sanction is that of a conditions of practice order. The panel also concluded that a conditions of practice order will mark the importance of maintaining public confidence in the profession, and will send to the public and the profession a clear message about the standards of practice required of a registered nurse. 15

16 The panel determined that the following conditions are appropriate and proportionate in this case: 1. You must work with your line manager, mentor or supervisor (or their nominated deputy) to create a personal development plan designed to address the concerns about the following areas of your practice: a. Record Keeping (including electronic record keeping) b. Assessing Patients c. Care Planning 2. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least once a fortnight to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 3. You must forward to the NMC a copy of your personal development plan within 28 days of taking up a nursing appointment. 4. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and your progress towards achieving the aims set out in your personal development plan to the NMC at least 14 days before any NMC review hearing or meeting. 5. You must tell the NMC within 7 days of any nursing appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 6. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 7 days of you receiving notice of them; 16

17 7. You must within 7 days of accepting any post or employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, provide the NMC with the name/contact details of the individual or organisation offering the post, employment or course of study; 8. You must immediately tell the following parties that you are subject to a conditions of practice order under the NMC s fitness to practise procedures, and disclose the conditions listed at (1) to (7) above, to them: a. Any organisation or person employing, contracting with, or using you to undertake nursing work; b. Any agency you are registered with or apply to be registered with (at the time of application) to provide nursing services; c. Any prospective employer (at the time of application) where you are applying for any nursing appointment; and d. Any educational establishment at which you are undertaking a course of study connected with nursing or midwifery, or any such establishment to which you apply to take such a course (at the time of application). The period of this order is for 18 months. Before the end of the period of the order, a panel will hold a review hearing to see how well you have complied with the order. At the review hearing the panel may revoke the order or any condition of it, it may confirm the order or vary any condition of it, or it may replace the order for another order. Any future panel reviewing this case would be assisted by evidence of continued professional development, including documentary evidence of completion of the above conditions, and testimonials from a line manager or supervisor that detail your current work practices. 17

18 Determination on interim order In accordance with the provisional agreement as amended, the panel decided to impose an interim conditions of practice order for 18 months on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. To do otherwise would be incompatible with its earlier findings. The conditions for the interim order will be the same as those detailed in the substantive order. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by the conditions of practice order 28 days after Mrs Clarke is sent the decision of this hearing in writing. That concludes this determination. 18