Part(s) of the register: RNC Registered Nurse Sub-part 1 Children 19 September 2003 Area of Registered Address:

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1 Conduct and Competence Committee Substantive Hearing 14 February February 2017 Nursing and Midwifery Council 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: Carrie-Anne Nash NMC PIN: 00I4620E Part(s) of the register: RNC Registered Nurse Sub-part 1 Children 19 September 2003 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Miss Nash: Nursing and Midwifery Council: England Misconduct Caroline Healy (Chair, Registrant member) Dr Veronica Offredy (Registrant member) Jacinta Mackie (Lay member) Nicholas Wilcox Atanas Angelov Present and represented by Mr Tom Buxton, Counsel, instructed by the Royal College of Nursing Represented by Lewis MacDonald, Counsel, instructed by NMC Regulatory Legal Team. Facts proved: Facts proved by admission: Facts not proved: 2, 3, 4 a), 4 b), 4 c), 4 d), 4 e), 6 and 7 in its entirety 1, 5 and 7 in part None Fitness to practise: Sanction: Interim Order: Impaired Striking off order Suspension order (18 months) 1

2 Details of charge: That you while working for Nutricia Ltd as a nurse at the Emergency Department A&E of Weston General Hospital; 1. On 24 August 2012 whilst caring for Patient A failed to make appropriate or timely records in particular you failed to 1.1 record risk assessments of the patient 1.2 make a contemporaneous record regarding the care you provided in the Nutricia nurse service record keeping system 2 Inappropriately attempted to replace a balloon gastrostomy tube (button) 3 Forced a balloon gastrostomy tube (button) into Patient A 4 Failed to identify the following red flag signs: a) Pain on feeding b) Signs of distress/physiological instability c) Prolonged or severe pain post procedure d) Fresh bleeding e) External leakage of gastric contents 5 Failed to identify the button was not in the stomach 6 Failed to seek urgent advice on discovering Patient A was in pain and/or bleeding from the gastrostomy site post-tube insertion 7 As a result of your actions above you contributed to the death of Patient A And in light of the above your fitness to practise is impaired by reason of your misconduct 2

3 Background The allegations against you date back to 24 August 2012 when you were working for Nutricia Ltd as a registered nurse and were called in to see Patient A in the Emergency Department of Weston General Hospital ( the Hospital ). It is alleged that you, while caring for Patient A, failed to replace a balloon gastrostomy tube (button) appropriately, that you attempted to force it into Patient A and failed to identify a number of red flag signs that ensued and failed to seek further medical advice. It is alleged that by virtue of your actions you contributed to Patient A s death. It is also alleged that you failed to record a risk assessment of the patient, and make a contemporaneous record regarding the care that you provided to Patient A in the Nutricia Nurse Service Record Keeping System. You had been called to assist on an emergency basis when Patient A was admitted to the Emergency Department of the Hospital. Patient A was a 10-year-old child on long term management as a patient of Bristol Children s Hospital for her mild to moderate chronic renal failure and management of her metabolic abnormalities. The patient was fed through a gastrostomy tube/button which required regular changing which her parents usually carried out. On 24 August 2012 Patient A s parents took her to the Emergency Department of the Hospital. They had been unable to replace the patient s balloon gastrostomy tube (button/bgt) and were advised to go to either the Hospital or Bristol Children s Hospital. You were called in as a specialist nurse to carry out the procedure having been told nobody was present at the Hospital with the knowledge and experience required. You carried out the procedure despite the difficulties that occurred when the tube was being inserted and the warning signs that indicated the misplacement of the tube. Patient A complained about pain from the gastrostomy change during and after the procedure and was admitted to Bristol Children s Hospital the next day due to her health rapidly 3

4 deteriorating at home. She underwent an emergency laparotomy and was found to have significant milk peritonitis. Despite treatment, Patient A died two days after the tube replacement procedure. The matter was investigated by the Bristol Children s Hospital as well as by the Coroner at an inquest in October 2013, who returned a finding that Patient A s death was caused by accident contributed to by neglect. You resigned from your position in January Decision and reasons on application to amend charge The panel proposed, on its own volition, to amend the wording of charge 4. The proposed amendment was to add the word as so that it reads as follows: 4. Failed to identify the following as red flag signs: a) Pain on feeding b) Signs of distress/physiological instability c) Prolonged or severe pain post procedure d) Fresh bleeding e) External leakage of gastric contents The panel considered that this amendment would provide clarity and more accurately reflect the evidence. In reaching its decision the panel invited submissions of Mr MacDonald, on behalf of the NMC and Mr Buxton on your behalf. Mr MacDonald submitted that the intent of the charge would be more clearly exhibited by the proposed amendment being made and endorsed the panel s proposal. Mr Buxton did not object to the proposed amendment. 4

5 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 (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 an amendment, as particularised above, was in the interest 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 being allowed. It therefore decided that it was appropriate to make the amendment to ensure clarity and accuracy. Decision and Reasons on application pursuant to Rule 31 The panel heard an application made by Mr MacDonald under Rule 31 of the Rules to allow the written statement of Ms 3, Senior Nursing Practitioner at the Hospital, into evidence. He stated that Ms 3 was not present at this hearing and, whilst the NMC had made efforts to secure her attendance, she was unable to attend the dates, on which the hearing was scheduled, to give evidence due to being away from the country on a pre-planned vacation. Mr MacDonald further submitted that whilst she was likely to have returned from that holiday during the course of the hearing the NMC was unable to contact her by telephone. Mr MacDonald submitted that Ms 3 s evidence is clearly relevant as it relates to some of the charges. He also submitted that it is fair to admit Ms 3 s witness statement into 5

6 evidence for the following reasons: Ms 3 s account is not the sole and decisive evidence in this case. She is one of three medical professionals who were present when you were replacing Patient A s gastrostomy tube and her evidence, being secondary in nature, merely served to corroborate Dr 1 s evidence. Ms 3 s witness statement is signed and contains a statement of truth. There is a public interest in the panel considering this case in light of all available evidence. Mr Buxton opposed the application. He submitted that there are discrepancies between Ms 3 s witness statement and your account. He submitted that the only way for these discrepancies to be fully explored would be to secure Ms 3 s attendance at this hearing and cross examine her on the disputed issues. Mr Buxton submitted that the seriousness of the charges and their potential consequences on your career make the testing of Ms 3 s evidence necessary. Accordingly, he submitted that it would neither be in your interests nor in the interests of justice for Ms 3 s witness statement to be admitted into evidence. The panel heard and accepted the legal assessor s advice on the issues it should take into consideration in respect of this application. This included that Rule 31 provides that, so far as it is fair and relevant, a panel may accept evidence in a range of forms and circumstances, whether or not it is admissible in civil proceedings. It also included a reference to the requirement of a good and cogent reason for the absence of any witness as referred to in the case of Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin). The panel gave the application in regard to Ms 3 serious consideration. The panel noted that Ms 3 s statement had been prepared in anticipation of it being used in the criminal proceedings against you, was signed by Ms 3 and contained the following statement: 6

7 This statement (consisting of 22 pages, each signed by me) is true to the best of my information, knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it, anything which I know to be false, or do not believe to be true. The panel considered that the statement is relevant to the proceedings as it related to some of the charges. However, the panel considered that there was no good and cogent reason for Ms 3 s absence as at the time of this decision she had returned from her vacation and was no longer away from the country. It considered Mr Buxton s submission that there are discrepancies between Ms 3 s account in her witness statement and your position and determined that the only way for these discrepancies to be fully explored would be to secure Ms 3 s attendance at this hearing and cross examine her on the disputed issues. Accordingly, the panel considered that it would not be fair to you to accept Ms 3 s untested account into evidence. Further, having identified the source of the information that Ms 3 used to produce her statement, namely handwritten notes, which were now missing, describing the events as discussed at a meeting which took place after Patient A had returned to the Hospital s Emergency Department in cardiac arrest, the panel considered that it would attribute limited weight to it in any event. In these circumstances, the panel decided not to accept into evidence the written statement of Ms 3. Evidence on facts In reaching its decision on the facts, the panel took into account all the oral and documentary evidence in this case. The panel heard oral evidence from 4 witnesses 7

8 called on behalf of the NMC: Dr 1, formerly a Locum Middle Grade Doctor in the Minors section of the Emergency Department at the Hospital, Ms 1, Lead Clinical Site Manager, Ms 2, formerly an Interim Head of Nursing for Nutricia Limited and Professor 1, Emeritus Professor of Paediatric Gastroenterology and Nutrition at UCL Institute of Child Health. The panel found all NMC witnesses to be credible, reliable and consistent in their evidence. The panel was particularly assisted by the clinical expertise of Ms 1, Ms 2 and Professor 1. Dr 1 sought to be helpful to the panel in his recollection of the events. However, the panel was conscious that Dr 1 shared some of the responsibility in this case and that the scrutiny and criticism to which he was subjected at previous hearings may have influenced his evidence. The panel also heard evidence from you under affirmation. You told the panel that you felt competent and experienced in all the tasks you undertook in relation to Patient A on 24 August 2012 and that you had previously carried out about 90 other gastrostomy tube replacements. You stated you were fully aware of the risks associated with a replacement of a tube and in particular with the risks of using excessive force doing it. You also stated that you were mindful that there is a two hour time window after which it becomes inappropriate to change a gastrostomy tube, as the stoma tract starts to close. In your witness statement for the Coroner s Court you stated that during the call at 11:51 you understood from the Sister that the button had been out for about 15 minutes. You arrived at the Hospital at around 13:15. According to your notes of 28 August 2012 your first attempt to insert the button was at 13:40 and as the notes say the button had been out for two hours. You stated that when you arrived at the Hospital Patient A was already distressed and she did not want to lay down or to stay still. You were told by the parents that when they had tried to change the tube they had only managed to get the button in halfway. You were also told by the parents of the general history of the gastrostomy. You informed 8

9 the panel that you did not take or record a specific history of the parents unsuccessful attempt to change the gastrostomy or properly record a full risk assessment of Patient A. You informed the panel that you completed a risk assessment in your head. You stated that at approximately 13:40 you examined Patient A and observed that the gastrostomy tube was sitting on top of the stoma tract. You attempted to insert it, but felt resistance and stopped immediately. You told the panel that you removed the gastrostomy tube from the entrance of the stoma tract and saw the introducer was bent. With the consent of Patient A s mother you inserted a Size 8fr naso-gastric tube in the stoma tract in order to keep it open. You stated that you observed a few drops of blood in and around the stoma tract when you were inserting the tube. You told the panel that you were able to pass the tube 3 cm without any resistance. At that time Ms 3 entered the room and you asked her to get Dr 1 to attend to Patient A and check whether the stoma needed dilating. In the meantime you went to your car to get a stoma measuring device as you believed that Patient A might need a longer tube. However, you were unable to insert the stoma measuring device in its entirety. You then proceeded to reinsert a Size 8fr naso-gastric tube in the stoma tract, which again entered without resistance. You asked Ms 3 to call a doctor. In the meantime you removed the 8fr nasogastric tube and replaced it with a 10fr one. You stated that Dr 1 came and informed you that there were no paediatric-sized dilators available to dilate the stoma. He suggested you use the balloon to dilate the stoma tract. Ms 3 then went, on her own volition, to get Entonox, which was administered and caused Patient A to calm down. You told the panel that Dr 1 attempted to insert the stoma measuring device into Patient A s stoma tract, but stopped when he felt resistance. He then stated that Patient A should to go to Bristol s Children s Hospital. You stated that Patient A s mother requested you make another attempt to replace the tube. You then told her that you would try one final time, but if you were unsuccessful then Patient A would need to go to the Bristol Children s Hospital as per Dr 1 s advice. You selected a Size 12fr, 2.3cm gastrostomy tube. 9

10 You said that you pushed the device in the stoma tract, waited a moment to allow Patient A s muscles to relax and then proceeded to apply moderate pressure. You accepted that you felt a very slight resistance, but attributed this to Patient A tensing her muscles and stated the resistance disappeared when Patient A relaxed her muscles. You then attempted to draw some aspirate from Patient A s stomach with a syringe but could not obtain any. You stated that whilst this was a potential indicator that the gastrostomy tube was not in the stomach, at the time it did not cause you concern as Patient A had not had any food since 08:00 that morning, and you attributed the lack of aspirate to Patient A s empty stomach. You stated that you then flushed the tube at which point Patient A cried out and displayed a clear expression of pain. Patient A also told you she felt pain in her chest. You undertook observations of Patient A and noticed that her pulse was elevated. Patient A s pain and elevated pulse were a cause of concern for you and you said you sought advice from Dr 1 as per policy. Dr 1 told you that the pain could be due to bruising caused by the difficult button change. You then decided to give Patient A a 15 minute break with a view to allowing her to have a drink and then attempting to obtain aspirate after the break. Patient A had a hot chocolate drink and after 15 minutes you obtained 0.5ml aspirate. You then ran a ph test and obtained a result of 6. You discarded the first sample and obtained some more aspirate at which point Dr 1 came into the room. You tested the aspirate again and obtained a ph result of 6. You then consulted with Dr 1, who said he was happy for Patient A to be fed. You were aware that the policy was for the ph levels to be below 5.5. However, you attributed the level of 6 to the hot chocolate. Patient A s mother flushed the tube and proceeded to give 60ml of milk feed to Patient A. You stated whilst Patient A showed slight signs of discomfort during feeding it was 10

11 not pain and in any event it stopped when she was repositioned. You told the panel that Patient A s mother then started to give Patient A her medication via the tube. Patient A s mother alerted you to the fact that the gastrostomy tube was leaking. You stated the leakage looked like gastric contents. At this time Patient A was complaining of being very hot and was very distressed. You stated that you sought Dr 1 s advice again. You stated that Dr 1 attributed the leakage to the bruising and trauma of the button change and was happy for Patient A to be discharged. You informed the panel that you made your notes four days later as they were not completed contemporaneously. In your retrospective record of events you state that you advised Patient A s parents to take her straight to Bristol Children s Hospital if there was any further pain or leakage and to dial 999 if there was any evidence of her appearing generally unwell, hot or having any hard swelling. The panel considered that you sought to be helpful in your recollection of the events. However, it found you to be inconsistent in your evidence. It found that your account was materially different from Dr 1 s account. It also identified some discrepancies between your oral evidence and your written account dated 28 August The panel considered that, although retrospective, your notes were written some four days after the events took place and without knowledge of Patient A s death. The panel considered that these notes were more likely to be a true and accurate account of the events and decided to prefer them over your oral account whenever there were discrepancies. Decision on the findings on facts and reasons At the start of this hearing you admitted charges 1, 5 and 7. These were therefore found proved by way of admission. The panel then went on to consider the remaining charges. It heard and accepted the advice of the legal assessor. 11

12 The panel considered each charge and made the following findings: The panel first considered charge 2. That you while working for Nutricia Ltd as a nurse at the Emergency Department A&E of Weston General Hospital; 2. Inappropriately attempted to replace a balloon gastrostomy tube (button) This charge is found proved. In reaching this decision, the panel took into account all the evidence in this case. It had particular regard to the evidence of Ms 1, Professor 1 and your own evidence. Despite accepting that there was some anecdotal evidence to the contrary, Professor 1 was adamant in his evidence that it is inappropriate to attempt reinserting a gastrostomy tube more than 2 hours after the original gastrostomy device had been removed. He told the panel that this is because the fistulous tract starts to close within 1 hour of removal of the gastrostomy tube and reinsertion becomes difficult or impossible after two hours. He also stated that any attempts to reinsert a gastrostomy tube after that two hour window pose clear risks of damaging the fistulous track. This was also supported by the evidence of Ms 1 and Dr 1. By your own account, after unsuccessfully attempting to insert a 12fr 2cm gastrostomy button with the help of an ATM introducer into Patient A s fistulous tract you realised that the stoma tract had become too narrow, as the button had been out for 2 hours. However, despite this you carried out two further attempts of changing the gastrostomy tube. 12

13 The panel considered that a trained and experienced nurse should have known that it was inappropriate to attempt changing a gastrostomy tube more than two hours after the original device had been removed, particularly when there is resistance. Accordingly, it found charge 2 proved. The panel next considered charge Forced a balloon gastrostomy tube (button) into Patient A This charge is found proved. It is accepted by all parties that following your initial unsuccessful attempt to replace the gastrostomy tube Dr 1 attended to Patient A at your request. According to your evidence, Dr 1 attempted to insert a stoma measuring device into Patient A s stoma tract, but felt resistance and immediately stopped. He then suggested that Patient A should to go to Bristol Children s Hospital. You admitted that, at Patient A s mother s request, you agreed to make one final attempt to insert the gastrostomy tube. You told the panel that you selected a Size 12fr 2.3cm gastrostomy tube for that purpose, pushed the device in the stoma tract, waited a moment to allow Patient A s muscles to relax and then proceeded to apply moderate pressure. You accepted that you felt slight resistance, but attributed this to Patient A tensing her muscles and stated the resistance disappeared when Patient A relaxed her muscles. Dr 1 stated that you did not appear to be applying excessive force and there was nothing that caused him any concern. The panel was mindful that in your retrospective written notes of 24 August 2012 you stated that you used reasonable force and that the button did meet some resistance but did otherwise go in easily. 13

14 The panel had regard to the Nutricia Nurse Clinical Practice Protocol/Pathway of Care, which was familiar to you, and noted that it states that if nurses encounter any resistance or pain whilst replacing gastrostomy tubes they must discontinue the procedure immediately. It also had regard to the evidence of Professor 1 who stated that somebody s inappropriate attempts to replace Patient A s gastrostomy tube resulted in the gastrostomy anterior abdominal wall site becoming detached from the stomach wall, which caused peritonitis and ultimately contributed to Patient A s death. The panel was mindful that the only other person who had attempted to change Patient A s gastrostomy tube was Dr 1 and that he had discontinued any attempts as soon as he met resistance. It was also mindful that were no other interventions that could have caused the gastrostomy anterior abdominal wall site becoming detached from the stomach wall other than your last attempt at replacing it. Having had regard to all the evidence, the panel was satisfied that upon encountering resistance you did not discontinue immediately, as per protocol, but instead forced the gastrostomy tube in Patient A s fistulous track. Accordingly, it found charge 2 proved. The panel next considered charge Failed to identify the following as red flag signs: a) Pain on feeding b) Signs of distress/physiological instability c) Prolonged or severe pain post procedure d) Fresh bleeding e) External leakage of gastric contents This charge is found proved. 14

15 The panel was mindful that there were two sets of guidelines you were familiar with: National Patients Safety Agency s Rapid Response Report (Supporting Information) (2010), which outlined the red flag symptoms and prescribed the following course of action for Child inpatients: IF THERE IS PAIN ON FEEDING, OR SIGNS OF DISTRESS/PHYSIOLOGICAL INSTABILITY, OR PROLONGED OR SEVERE PAIN POST-PROCEDURE, OR FRESH BLEEDING, OR EXTERNAL LEAKAGE OF GASTRIC CONTENTS, STOP FEED/MEDICATION DELIVERY IMMEDIATELY. OBTAIN URGENT SENIOR ADVICE ON APPROPRIATE INVESTIGATIONS AND SURGICAL REVIEW. Nutricia also had an adapted NPSA Rapid Response Report guideline for nurses incorporating the red alert symptoms. Insofar as charge 4 a) is concerned, the panel had regard to your retrospective records of 28 August 2012 and noted that you had written the following: The ED doctor then came into Patient A s cubicle and he told Pt A s mother that he was happy for her to give Patient A a flush and a milk feed via her button. Which Pt A s mother did, Patient A again found this painful but after repositioning she found it more tolerable. The panel was mindful that in your oral account you denied the charge and stated that, on feeding, Patient A was feeling mere discomfort as opposed to pain. However, the panel considered that the notes you made described that Patient A was feeling pain. The panel was therefore satisfied that you should have been able to identify Patient A s pain on feeding as a red flag sign. However, you failed to follow the appropriate course of action as prescribed in the NPSA / Nutricia Rapid Response Report. Accordingly, the panel found charge 4 a) proved. 15

16 The panel next considered charge 4 b). It accepted the evidence that Patient A was distressed from the time she first arrived at the Hospital, but considered that her levels of distress increased significantly during her stay. The panel considered that there were a number of evident signs of Patient A s distress and physiological instability namely chest pain, elevated pulse rate and feeling very hot. The panel was satisfied that you should have been able to identify Patient A s signs of distress/physiological instability as a red flag sign. However, you failed to follow the appropriate course of action as prescribed in the NPSA / Nutricia Rapid Response Report. Accordingly, the panel found charge 4 b) proved. The panel next considered charge 4 c). The panel had regard to your notes of 28 August 2012 which identified three separate episodes of pain post procedure, namely when Patient A complained of chest pain, when Patient A started to scream out in pain when her mother flushed the tube and later when Patient A found feeding painful. The panel considered that this equated to a prolonged period of pain. Further, it was satisfied that the pain which caused Patient A to scream out upon the flushing of her tube was on its own sufficiently severe for the purposes of this charge. The panel was satisfied that you should have been able to identify Patient A s prolonged and severe pain as a red flag sign. However, you failed to follow the appropriate course of action as prescribed in the NPSA / Nutricia Rapid Response Report. Accordingly, the panel found charge 4 c) proved The panel next considered charge 4 d). The panel had regard to your notes of 28 August 2012 and identified three episodes of fresh bleeding: 16

17 1) At approximately 13:15 When I removed the button from the stoma tract, the tract started to bleed, therefore I applies [sic] gauze to the site. 2) At approximately 13:40: I inserted a 8fr naso-gastric tube 3cm into Patient A s stoma, which I inserted without any resistance or difficulty. The stoma site again bled approx. 5 mls. 3) At approximately 13:55: The stoma site was still oozing small amounts of blood at this point. The panel noted your oral account of spots of blood, but your notes of 28 August 2012 are clear and the panel is satisfied that there was evidence of fresh bleeding. Accordingly, the panel found charge 4 d) proved. The panel next considered charge 4 e). In your oral evidence you accepted that following administration of medication to Patient A, her gastrostomy tube had started to leak. The panel considered that you should have been able to identify the external leakage of gastric contents as a red flag sign. However, you failed to follow the appropriate course of action as prescribed in the NPSA / Nutricia Rapid Response Report. Accordingly, the panel found charge 4 e) proved. The panel next considered charge Failed to seek urgent advice on discovering Patient A was in pain and/or bleeding from the gastrostomy site post-tube insertion This charge is found proved. 17

18 The panel had already established that Patient A s state of pain and bleeding from the gastrostomy site post-tube insertion were red flag signals which you should have been able to identify and escalate. It was mindful that the NPSA / Nutricia Rapid Response Report prescribed that in case of pain on feeding or fresh bleeding the nurse must obtain urgent senior advice. Professor 1 had stated that such an advice must be obtained from a fully trained individual in a permanent position or a specialist acting up who had completed training. The panel considered that Dr 1 was neither, and therefore it was not appropriate to escalate the matter to him. Whilst your evidence was that you alerted Dr 1 to all symptoms outlined in charge 4, which included pain and bleeding, the panel considered that, as a trained nurse with experience in changing gastrostomy tubes, your responsibilities went beyond just telling him and accepting his decision. The panel concluded that you should have known from your expertise and training that these signs, both individually and collectively, were indicators of a misplaced tube and should have escalated the matter appropriately. Further, whilst the appropriate testing to determine the correct siting of the tube was not referred to in the charges the panel heard extensive evidence about the importance of ph testing of the gastric contents to ascertain the location of the gastrostomy tube. In Patient A s case there were two ph readings which in the panel s view were an additional indication that the gastrostomy tube was in an incorrect position. Further, the panel considered that you should have ensured that appropriate action was taken to ascertain the location of the gastrostomy tube. Accordingly, the panel found charge 6 proved. The panel next considered charge As a result of your actions above you contributed to the death of Patient A 18

19 The panel was mindful that you admitted that by failing to identify that the gastrostomy tube was not in Patient A s stomach you contributed to her death. Charge 7 was therefore found proved by admission in respect of charge 5. However, in light of its findings in charges 2, 3, 4 and 6 the panel decided to revisit the charge and consider whether any of the other charges that were found proved could have contributed to the death of Patient A. The panel was mindful that the post-mortem had established that Patient A had widespread acute peritonitis that developed as a complication of a routine gastrostomy tube replacement procedure. Having had regard to all the evidence before it the panel was satisfied that by virtue of your failures as particularised in charges 2, 3, 4 and 6 you contributed to the death of Patient A. Accordingly, the panel found charge 7 proved in its entirety. Submissions on misconduct and impairment Having announced its finding on all the facts, the panel then moved on to consider, whether the facts found proved amount to misconduct and, if so, whether your fitness to practise is currently impaired. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Mr MacDonald provided written submissions on behalf of the NMC. He referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 which defines misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. In his written submissions Mr MacDonald invited the panel to take the view that the conduct found proved fell far short of the standards expected of a registered nurse and therefore amounted to serious misconduct. 19

20 He then moved on to the issue of impairment, and addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards and maintain public confidence in the profession and in the NMC as a regulatory body. Mr MacDonald referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Mr Buxton made no submissions on misconduct and impairment. He provided the panel with your reflective account, which he stated had been completed on Sunday, 19 February The panel heard and accepted the advice of the legal assessor which included reference to a number of relevant judgments. The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of that misconduct. Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of The code: Standards of conduct, performance and ethics for nurses and midwives 2008 (the Code). The panel, in reaching its decision, had regard to the public interest and accepted that there was no burden or standard of proof at this stage and exercised its own professional judgement. 20

21 The panel was of the view that your actions fell significantly short of the standards expected of a registered nurse, and that your actions amounted to breaches of the Code. Specifically: Preamble The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must: work with others to protect and promote the health and wellbeing of those in your care, their families and carers, and the wider community provide a high standard of practice and care at all times 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 appreciated that breaches of the Code do not automatically result in a finding of misconduct. The panel therefore had regard to the circumstances of this case and considered the charges separately. The panel found that your failure to make appropriate and timely records of the risk assessments and the care provided to Patient A to be a serious departure from the standards expected of a registered nurse. It considered that record keeping is fundamental to the nursing profession and concluded that your failure to maintain timely and appropriate records was sufficiently serious to amount to misconduct. The panel also found that your failings as particularised in charges 2, 3, 4 and 5 fell significantly short of the standards expected of a registered nurse. You were employed in a specialist capacity and had undergone training and supervision to practise in 21

22 compliance with the recognised national guidelines regarding the gastrostomy procedures. You were also trained in the early detection of complications after gastrostomy. The panel concluded that these failings related to fundamental clinical skills of a registered nurse with your training and were therefore sufficiently serious to amount to misconduct. Insofar as charge 6 is concerned, the panel considered that your failure to recognise the the seriousness of the symptoms exhibited by Patient A throughout the time that you cared for her and your failure to seek urgent advice from an appropriately trained medical practitioner fell far short of the standards expected of a registered nurse. Accordingly, the panel found that charge 6 was sufficiently serious to amount to misconduct. The panel considered that you failed to step back and gain an overview of Patient A s condition; you failed to acknowledge the red flag signs that were increasingly present which indicated that the tube was not correctly sited. It was of the view that had a properly documented risk assessment been undertaken, followed by a contemporaneous record of the events that took place, this would have helped to illustrate the deteriorating condition of Patient A. Additionally, a proper discharge review would also have highlighted Patient A s condition before she went home. The panel was mindful that Dr 1 and Ms 2 also shared some responsibility with regard to the proper assessment of Patient A at admission and discharge and the documentation of these assessments. However, the panel concluded that as a registered nurse you are personally accountable for your actions and omissions. The panel concluded that your actions and omissions, as particularised in the charges were particularly grave and both individually and collectively amounted to serious misconduct. Decision on impairment 22

23 The panel next went on to decide if as a result of your 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. Nurses must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision. In paragraph 74 she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox commended the following as the appropriate test for panels: Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or 23

24 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. The panel found that your misconduct engaged limbs a), b) and c) of the above test. It considered that by virtue of your actions and omissions you put Patient A at unwarranted risk of harm, brought the profession into disrepute and breached fundamental tenets of the nursing profession. Regarding insight, the panel considered your reflective account which you had completed prior to its decision on facts. However, the panel found that you still lack insight into the seriousness of your failings. The panel was particularly concerned by your statement that you still think the insertion of the button occurred within policy and with due consideration and that you attempted to justify your actions. In light of your lack of insight, the panel considered that there remains a real risk of repetition of the misconduct found proved. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection. The panel bore in mind that its primary function is to protect patients and the wider public interest, which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and behaviour. Having regard to the principles set out in Grant, the panel was in no doubt that confidence in the profession would be undermined if having regard to the serious nature and consequences of your misconduct a finding of impairment were not to be made. The panel is therefore satisfied that your fitness to practise is currently impaired by reason of your misconduct. 24

25 Determination on sanction: The panel has considered this case very carefully and has decided to make a strikingoff order. It directs the registrar to strike you off the register. The effect of this order is that the NMC register will show that you have been struck off the register. The panel heard submissions from Mr MacDonald on behalf of the NMC and from Mr Buxton on your behalf. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case. The panel accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the Indicative Sanctions Guidance ( ISG ) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel considered the aggravating and mitigating factors in this case. It found the following to be aggravating factors: 1. There were multiple gross failures in an area in which you were trained and experienced. 2. Your advice to Patient A s parents to take her straight to Bristol Children s Hospital if there was any further pain or leakage demonstrated that you had the knowledge and skills to identify complications of gastrostomy. However, you failed to properly assess the seriousness of Patient A s condition and to exercise your expertise and training and placed an inappropriate level of confidence in the clinical judgments of Dr 1. 25

26 3. By virtue of your misconduct you contributed to the death of a particularly vulnerable child patient. 4. You have shown some insight into the consequences of your actions but limited insight into your clinical failings. The panel found the following to be mitigating factors: 1. The incident occurred on a single shift in your otherwise unblemished career. 2. The panel accepted that you had Patient A and her family s interests in mind when carrying out the gastrostomy tube replacement procedure. 3. At the relevant time you were working in an environment and set of circumstances which were unique for you in that you were called to change the gastrostomy tube of a patient in the A&E department of the Hospital as opposed to the community setting to which you were accustomed. 4. Although you failed to obtain appropriate senior you did consult a doctor in some aspects of the care of Patient A. 5. You have shown considerable remorse for your failings and have been deeply affected by the death of Patient A and the subsequent criminal and regulatory proceedings that followed. 6. You have fully engaged with the NMC throughout the regulatory proceedings. The panel considered each of the sanctions in ascending order. 26

27 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 ISG, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that your 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 took into account the ISG, in particular: 64.8 It is possible to formulate conditions and to make provision as to how conditions will be monitored. The panel is of the view that there are no practical conditions that could be formulated, given the nature and seriousness of the charges in this case as well as the time that you have been out of practice. In any event the panel concluded that the placing of conditions on your registration would not adequately address the seriousness of this case and would not protect the public. The panel then went on to consider whether a suspension order would be an appropriate sanction. Paragraph 67 and 68 indicate that a suspension order would be appropriate where (but not limited to): 27

28 67 When considering seriousness, the panel should take into account the extent of the departure from the standards to be expected and the risk of harm to the public interest caused by that departure, along with any particular factors it considers relevant on each case. 68 This sanction may be appropriate where the misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register. This is more likely to be the case when some or all of the following factors are apparent (this list is not exhaustive): 68.1 A single instance of misconduct but where a lesser sanction is not sufficient No evidence of harmful deep-seated personality or attitudinal problems The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour. The panel took account of all the mitigating factors in this case. It took into acount the failures of other clinical practitioners in the A&E department, the blurring of the roles and the confusion as to who was responsible for the care of Patient A. It also had regard to the fact that you had undergone a lengthy criminal trial and have been subject to an interim suspension order between 18 March 2014 and 16 September 2016 and to an interim conditions of practice order thereafter. It had regard to the case of Kamberova v Nursing and Midwifery Council [2016] EWHC 2955 (Admin) as referred to by Mr MacDonald, which indicated that a panel should take into account the effect of interim orders or restrictions on a registrant s practice when assessing the proportionality of a sanction. This panel was mindful that you had already been the subject of fitness to 28

29 practice proceedings for the past five years and have been subject to an interim order since March It was also mindful that you deeply regret your failings and their consequences for Patient A and her parents. However, in this particular case, the panel determined that a suspension order would not be a sufficient, appropriate or proportionate sanction. Whilst the panel was sympathetic to your personal hardships following the incident on 24 August 2012 it considered that your grave failures, as particularised in the facts found proved, were a significant departure from the standards expected of a registered nurse and contributed to the death of a particularly vulnerable patient. The panel decided that the serious breach of the fundamental tenets of the profession evidenced by your actions is fundamentally incompatible with your remaining on the register. The panel considered that the only order available to it was that of a striking off order. It considered the following paragraphs of the ISG to be engaged: 71.1 Is striking-off the only sanction which will be sufficient to protect the public interest? 71.2 Is the seriousness of the case incompatible with ongoing registration? 71.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register? 72 This sanction is likely to be appropriate when the behaviour is fundamentally incompatible with being a registered professional, which may involve any of the following 29

30 72.1 Serious departure from the relevant professional standards as set out in key standards, guidance and advice 72.2 Doing harm to others or behaving in such a way that could foreseeably result in harm to others, particularly patients or other people the nurse or midwife comes into contact with in a professional capacity, either deliberately, recklessly, negligently or through incompetence, particularly where there is a continuing risk to patients. Harm may include physical, emotional and financial harm. The panel will need to consider the seriousness of the harm in coming to its decision. The panel concluded that your misconduct was extremely serious and to allow you to return to practice would put patients at unwarranted risk of harm and would undermine public confidence in the profession and in the NMC as a regulatory body. Balancing all of these factors and after taking into account all the evidence before it during this case, the panel determined that the appropriate and proportionate sanction is that of a striking-off order. Having regard to the matters it identified, in particular the effect of your actions in bringing the profession into disrepute by adversely affecting the public s view of how a registered nurse should conduct herself, the panel has concluded that nothing short of this would be sufficient in this case. The panel considered that this order was necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standards of behaviour required of a registered nurse. 30