Nursing and Midwifery Council: Fitness to Practise Committee

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 9 11 May 2018 Nursing and Midwifery Council, George Street, Edinburgh, EH2 4LH Name of registrant: NMC PIN: Edith Farayi Makwanya 02A1907O Part(s) of the register: Registered Nurse Sub part 1 Adult Nursing (January 2002) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Ms Makwanya: Nursing and Midwifery Council: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: England Misconduct Anne Asher (Chair, Registrant member) Shorai Dzirambe (Registrant member) Peter Swain (Lay member) Maria Clarke Jodie Harrison Present and represented by Marc Walker, What Rights Represented by Michael Smalley, Case Presenter 1a, 1b (ii xx), 1d 1c (no case to answer), 1b (i) (no case to answer) Impaired Suspension order (3 months) N/A 1

2 Details of charge: That you, a registered nurse employed by Pavilion Court Nursing Home (the Home): 1) Between 19 December 2016 and 3 March 2017, whilst the subject of an Interim Conditions of Practice Order ( ICOPO ), as set out in Schedule 1: a) Did not inform Colleague A that you were the subject of an ICOPO; b) Failed to comply with Condition 1 of your ICOPO by working at the Home without placing yourself under supervision for the whole of your shift on the following dates: i) 26 November 2016; ii) 24 December 2016; iii) 25 December 2016; iv) 6 January 2017; v) 14 January 2017; vi) 15 January 2017; vii) 27 January 2017; viii) 28 January 2017; ix) 29 January 2017; x) 3 February 2017; xi) 4 February 2017; xii) 5 February 2017; xiii) 8 February 2017; xiv) 9 February 2017; xv) 10 February 2017; xvi) 11 February 2017; xvii) 12 February 2017; xviii) 17 February

3 xix) 18 February 2017 xx) 19 February 2017 c) Failed to comply with Condition 2 of your ICOPO by not working with your line manager, mentor or supervisor (or their nominated deputy) to create a personal development plan; d) Failed to comply with Condition 3 of your ICOPO by not meeting with your line manager, mentor or supervisor (or their nominated deputy) at least every month to discuss the standard of your performance and you progress towards achieving the aims set out in your personal development plan; AND in light of the above, your fitness to practise is impaired by reason of your misconduct. Schedule 1 1. At any time that you are employed or otherwise providing nursing services you must place yourself and remain under the supervision of a workplace line manager, mentor or supervisor nominated by your employer, such supervision to consist of working at all times on the same shift as, but not necessarily under the direct observation of, another registered nurse who is physically present in or on the same ward, unit, floor or home that you are working on or in. 2. 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. Medicines administration b. Attitudinal issues 3

4 c. Communication and interpersonal skills regarding patients, carers and colleagues d. Record keeping 3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every month to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 4. You must forward to the NMC a copy of your personal development plan within 28 days of the date on which these conditions become effective or the date on which you take up an appointment, whichever is sooner. 5. 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 before any NMC review hearing or meeting. 6. You must notify 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. 7. You must tell the NMC of any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 7 days of you receiving notice of them. 8. You must immediately inform 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: 4

5 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 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) 5

6 Background The NMC received a referral on 21 March 2017 from Pavilion Court Akari Care Limited. You were employed as a registered nurse at Pavilion Court Nursing Home (the Home) and on 18 March 2016 were made the subject of an interim conditions of practice order (ICOPO). Colleague B was your manager at the Home, and was aware that an ICOPO had been placed on your registration. In November 2016 Colleague B left the Home and Colleague A commenced her role as Home Manager on 19 December It is alleged that you did not inform Colleague A that you were the subject of an ICOPO and as a result, did not comply with your conditions during the time that Colleague A was in post. It is alleged that on various dates between 26 November 2016 and 19 February 2017 you worked as the only registered nurse on shift and acted as the supervisor while an agency nurse was on shift, which was in contravention of an indirect supervision requirement as set out in Schedule 1 (1b). Further, it is alleged that you failed to comply with condition 2 as set out in Schedule 1 in that you did not work with Colleague A to create a Personal Development Plan (PDP). In addition, it is alleged that you failed to comply with condition 3 as set out in schedule 1 as you did not attend meetings with Colleague A on a monthly basis while Colleague A was in post as the Home Manager. Colleague A became aware of your ICOPO on 3 February 2017 upon completing a monthly check of staff registrations on the NMC website. Application to adduce further documentary evidence 6

7 Mr Smalley made an application to adduce an additional document into evidence. During Colleague A s evidence she said that the meeting notes contained within the NMC bundle which were in relation to a meeting between you and Colleague A on 14 March 2017 were not complete. Mr Smalley informed the panel that the additional document pertains to the meeting held on 14 March He submitted that it would be fair to adduce the document into evidence in order to allow Colleague A to comment as to whether it is the missing page she is referring to. Mr Walker, on your behalf, submitted that he was neutral to the application. 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 of the Rules 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. The panel came to the view that it would be fair and relevant to accept into evidence the additional document pertaining to the meeting on 14 March 2017 and accepted the application. Decision and reasons on application of no case to answer The panel considered an application from Mr Walker, on your behalf, that there is no case to answer on the facts in respect of all the charges, excluding charge 1a. This application was made under Rule 24 (7) of the Rules. This rule states: 24 (7) Except where all the facts have been admitted and found proved under paragraph (5), at the close of the Council s case, and (i) either upon the application of the registrant 7

8 the Committee may hear submissions from the parties as to whether sufficient evidence has been presented to find the facts proved and shall make a determination as to whether the registrant has a case to answer. In relation to charge 1b (i), Mr Walker submitted that the evidence in respect of this charge is tenuous and contradictory in nature. He directed the panel to the staff rosters which show that on all dates other than 26 November 2016 there were two nurses on duty. He observed that on 26 November 2016 there is only one nurse recorded as on duty and submitted that this is an error. Mr Walker reminded the panel that Colleague A, in her oral evidence, said that she was not the manager at this time and cannot confirm how many nurses were on duty or if the entry is an error. However, in her written statement Colleague A appeared to be clear that you were the only registered nurse on shift that day. Mr Walker submitted that the panel cannot rely on this evidence. In relation to charge 1b (ii xx) Mr Walker explained that condition 1 as set out in Schedule 1 is specific as regard to what supervision should consist of, in that you must work at all times on the same shift with a registered nurse. Mr Walker submitted that according to the staff rosters provided for the panel, you did work at all times on the same shift with a registered nurse as stipulated, therefore you did comply with this specific condition. Mr Walker submitted that Colleague A s lack of knowledge of the ICOPO is irrelevant to this charge. He said that it is not specifically stated in condition 1 that Colleague A as your line manager must be aware of the ICOPO in order for the condition to be met. Mr Walker submitted that by being placed on the rota alongside another registered nurse, condition 1 of the interim conditions of practice order was satisfied. Mr Walker went on to say that the issue of you working while Colleague A was not working, is also not relevant to the charge. He submitted that condition 1 does not specifically require that Colleague A, as your line manager, be present while you are working in order to facilitate that particular condition. He reminded the panel that 8

9 Colleague A accepted that she did not have to be present in the building in order for the condition to be satisfied. In these circumstances, it was submitted that there was no evidence in which the panel can find a case to answer in respect of charge 1b (ii xx). In relation to charge 1c, Mr Walker submitted that the charge specifically states that you failed to create a PDP, and not that you failed to continue reviewing a PDP. Mr Walker submitted that this charge is wholly controverted by the NMC s own evidence from Colleague B. In her statement dated 19 September 2017, Colleague B confirms that a PDP was put in place while she was your line manager. Mr Walker reminded the panel that Colleague B s statement is agreed evidence between you and the NMC therefore the panel must take it at its highest. On this basis, Mr Walker submitted that there is no evidence to suggest that you did not create a PDP and therefore the panel cannot find a case to answer in relation to this charge. In relation to charge 1d, Mr Walker told the panel that a PDP will contain objectives for the individual and dates for which the objectives are to be met. He said that once the dates had passed and the objectives had been met the PDP would then conclude. Upon the conclusion of the PDP the condition in relation to the PDP would then expire. Mr Walker directed the panel to Colleague B s written statement dated 19 September 2017 in which she states The registrant performed well under the PDP As far as I am aware, the registrant was complying with her conditions Mr Walker submitted that Colleague B s use of the word performed indicated that the PDP had concluded and was no longer in place. Mr Walker submitted that condition 3 as set out in Schedule 1 is clearly required to monitor your performance in relation to the PDP. He submitted that the PDP had concluded prior to Colleague A s start date on 19 December 2016 and therefore the condition requiring monthly meetings in relation to the PDP had expired. In these circumstances, Mr Walker submitted that there was no case to answer on the facts of this charge. 9

10 Mr Walker submitted that if the panel is minded to find that there is a case to answer in respect of the charges, there is no case to answer in respect of impairment. Mr Walker told the panel that the original concern which gave rise to the imposition of the ICOPO has concluded and no case to answer was found. He told the panel that the NMC s position is that this case is not being advanced on public protection grounds therefore a finding of public protection cannot be found. As regard to public interest, Mr Walker submitted that there is undisputed evidence that you complied with the terms of the ICOPO until December He said that if facts are found proved in this case, it would have only been a short two month period in which you were not working in compliance with the ICOPO and therefore a finding of impairment cannot be found. Mr Smalley, on behalf of the NMC, submitted that there is a case to answer in respect of all the charges in relation to both the facts of the case and to impairment. In relation to charge 1b (i xx), Mr Smalley respectfully invited the panel to disregard Mr Walker s submission that Colleague A s knowledge of the ICOPO is not required in order to satisfy the supervision requirements in condition 1. Mr Smalley submitted that it is plain common sense that if someone is to be supervised, the person undertaking the supervision must be aware of the requirement in order to carry out the supervision. On this basis, Mr Smalley submitted that there is a prima facie case in respect charge 1b (i xx). In relation to charge 1c, Mr Smalley referred the panel to the stem of the charge. Specifically, that the stem of the charge reads Between 19 December 2016 and 3 March 2017 Mr Smalley submitted that there is no complaint that you were not working in compliance with the ICOPO while Colleague B was your line manager. The complaint is that you did not comply with the ICOPO while Colleague A was your line manager. Mr Smalley submitted that it is not for the panel to consider your compliance with the ICOPO imposed while Colleague B was you line manager, but to consider your 10

11 compliance with the amended ICOPO imposed upon your registration on 5 December 2016 while Colleague A was your line manager. Mr Smalley submitted that it does not matter if the PDP was created while Colleague B was your line manager. What matters is that this requirement formed part of the ICOPO imposed on 5 December 2016 when Colleague B was no longer employed at the Home, and therefore you were required to work with Colleague A to create a PDP while she was your line manager. In relation to charge 1d, Mr Smalley submitted that there is direct evidence from Colleague A that the meetings to discuss the standard of your performance and your progress towards achieving the aims set out in your PDP did not happen. In these circumstances, Mr Smalley submitted that there is a prima facie case in relation to this charge. As regard to Mr Walker s application of no case to answer on impairment, Mr Smalley submitted that the panel has not heard any evidence as yet of your insight or remediation and therefore on that basis it would be improper for it to make a decision on impairment. Mr Smalley drew the panel s attention to The Code: Professional standards of practice and behaviour for nurses and midwives (2015), and outlined where, in the NMC s view, your actions amounted to a breach of the Code. He told the panel that a simple breach of the Code does not necessarily mean serious misconduct, but a breach of the Code does mean there is a prima facie case. Mr Smalley submitted that the charges clearly suggest there has been a breach of the Code. He went on to say that whilst there is no evidence of patient harm and the case is not being advanced on the grounds of public protection, there is a case to answer on the grounds of public interest. Mr Smalley submitted that this case is in relation to upholding the reputation of the profession, and the reputation of the regulator by upholding professional standards. Mr Smalley submitted that this cannot be upheld if conditions imposed by the regulator are not met. 11

12 The panel took account of the submissions made and heard and accepted the advice of the legal assessor. The legal assessor referred the panel to the case of R v Galbraith [1981] 1 WLR In reaching its decision, the panel made an initial assessment of all the evidence that was presented to it at this stage. The panel solely considered whether sufficient evidence has been presented, such that it could find the facts proved and whether you had a case to answer. In relation to charge 1b (i), the panel accepted the legal assessor s advice that it should disregard this charge as the date of the charge precedes the dates within the stem of the charge. The panel therefore found that there is no case to answer in respect of charge 1b (i). Regarding charge 1b (ii xx), the panel is of the view that in order for a person to provide effective supervision, they must be aware that they are the person required to undertake that supervision. The panel bore in mind that as Colleague A was not aware of your ICOPO or the supervision requirement, she was not in a position to inform the registered nurses you worked alongside that they were required to provide you indirect supervision. The panel therefore found that there is a case to answer in respect of charge 1b (ii xx). Regarding charge 1c, the panel is aware that upon reviewing an interim order, a panel is required to evaluate the necessity of the order and take into account all the evidence provided to it that day. The panel bore in mind that the reviewing panel on 5 December 2016 must have considered that it was necessary for condition 2 of the order to remain. However, the panel also noted Colleague B s statement dated 19 September 2017 which was agreed evidence, which stated There was a personal development plan (PDP) put in place, however I do not have a copy of this document, a copy of this would have been kept in the registrant s employee s file As far as I am aware, the registrant 12

13 was complying with her conditions during the time that I was in post, she was also fully supported by us and I had no concerns with her practice. The panel was therefore satisfied based on Colleague B s evidence that a PDP had been created. The panel found that there is no case to answer in respect of this charge. Regarding charge 1d, the panel had no evidence to suggest that your PDP had concluded by the time Colleague A commenced her role as Home Manager. On this basis the panel determined that you still had an obligation to meet with Colleague A to discuss the standard of your performance and your progress towards achieving the aims set out in your PDP. The panel accepted Colleague A s evidence that she did not have monthly meetings with you to discuss the standard of your performance and your progress towards achieving the aims set out in your PDP as she was not aware that there was an ICOPO placed on your registration. The panel therefore found that there is a case to answer in respect of charge 1d. The panel is of the view that there has been sufficient evidence to support some of the charges at this stage and, as such, it is not prepared, based on the evidence before it, to accede to an application of no case to answer. What weight the panel gives to any evidence remains to be determined at the conclusion of all the evidence. As the panel has found that you have a case to answer it was of the view that it could not properly conclude at this stage that there is no case to answer in respect of impairment. Decision and reasons on application to amend the charge Mr Smalley invited the panel to amend the stem of the charge under Rule 28. He noted that the panel had determined that there is no case to answer in relation to charge 1b (i) as the date of the charge precedes the date within the stem of the charge. Mr Smalley submitted that this could be corrected by simply amending the date in the stem of the charge to cover the date in charge 1b (i). 13

14 Mr Smalley submitted however, that he accepted Mr Walker s submissions in relation to charge 1b (i) that Colleague A cannot attest to the accuracy of the staff roster for this date as she was not the Home Manager at that time. Mr Smalley conceded that in those circumstances there is no case to answer in respect of this charge. Even so, Mr Smalley submitted that it seems prudent for the panel to turn its mind to amending the charge before proceeding to hearing your evidence. You objected to the proposed amendment. The legal assessor referred the panel to Rule 28 of the Rules which 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 legal assessor highlighted that the key phrase in Rule 28 (1) is that the panel has the power to amend a charge in accordance with rule 24(5) or (11). She advised the panel that this sets the limits of its powers to amend. As the application relates to Rule 24 (7) the panel does not have the power to amend. Aside from this she advised that it is contrary to the interests of justice for the panel to seek to amend a charge following an application of no case to answer as this would be to step into the role of prosecutor 14

15 in the case and not an independent panel. The legal assessor advised that this would go against the interests of justice. The panel accepted the advice of the legal assessor. It noted that it does have the power to amend a charge in accordance with Rule 24(5) and (11) but determined that it does not have the power to amend the charge in response to a no case to answer application. The panel determined that if it did have the power to amend the charge at this time, it would not be in the interest of justice to do so. The panel rejected the application to amend the stem of the charge. Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel considered all the evidence adduced in this case together with the submissions made by Mr Smalley, on behalf of the NMC and those made by Mr Walker 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. The panel heard oral evidence from one witness tendered on behalf of the NMC. In addition, the panel heard oral evidence from you. Witness called on behalf of the NMC was: Colleague A Home Manager 15

16 The panel first considered the overall credibility and reliability of all of the witnesses it had heard from, including you. The panel found Colleague A to be a credible, consistent and reliable witness. It bore in mind that there was confusion regarding the date when Colleague A specifically became aware of the full extent of your ICOPO. However, when challenged, Colleague A conceded that she may have initially made an error with the date. By admitting that she was mistaken, the panel is of the view that this demonstrated her honesty. Colleague A did her best to assist the panel wherever she could and if she did not know something she either referred back to her statement or openly said that she did not know. Overall, the panel found Colleague A to be a credible and reliable witness. The panel noted that during your evidence, when taken to specific parts of the documentary evidence and questioned directly, you made a number of significant concessions. The panel found that you appeared to be naïve and misguided about what your responsibilities were, but accepted that you honestly believed that you were complying with your ICOPO at all times. The panel considered that you were operating within your own, albeit flawed understanding of the requirements of the ICOPO and overall found you to be an honest and credible witness. The panel considered each charge and made the following findings: That you, a registered nurse employed by Pavilion Court Nursing Home (the Home): 1) Between 19 December 2016 and 3 March 2017, whilst the subject of an Interim Conditions of Practice Order ( ICOPO ), as set out in Schedule 1: Charge 1a: a) Did not inform Colleague A that you were the subject of an ICOPO; 16

17 This charge is found proved. In reaching this decision, the panel took into account that during your evidence, you admitted that you did not directly inform Colleague A that you were the subject of an ICOPO prior to 3 February You explained that your expectation was that your ICOPO would have been handed over to Colleague A either by Colleague B or by the Regional Manager for the Home and therefore you did not think that you needed to directly tell Colleague A about the ICOPO as you thought she was already aware of it. The panel heard that your first 1:1 meeting with Colleague A was on 3 February You told the panel that you raised your ICOPO with Colleague A at this meeting. The panel noted that this is contrary to Colleague A s evidence. Colleague A told the panel that she became aware of your ICOPO when she conducted checks of staff registrations. She told the panel that the meeting on 3 February 2017 was as a result of that check. Colleague A told the panel that she raised the ICOPO with you at the meeting on 3 February 2017 but you did not disclose the full extent of the ICOPO with her. Colleague A said that you told her that all that was required was a monthly meeting with you line manager and the ICOPO was only in place due to you mismanaging medication. The panel accepted Colleague A s evidence that she became aware of your ICOPO when she conducted checks of staff registrations against the NMC website and that the meeting on 3 February 2017 was as a result of that check. The panel determined that you did not inform Colleague A that you were the subject of an ICOPO and therefore finds this charge proved. Charge 1b: 17

18 b) Failed to comply with Condition 1 of your ICOPO by working at the Home without placing yourself under supervision for the whole of your shift on the following dates: ii) 24 December 2016; iii) 25 December 2016; iv) 6 January 2017; v) 14 January 2017; vi) 15 January 2017; vii) 27 January 2017; viii) 28 January 2017; ix) 29 January 2017; x) 3 February 2017; xi) 4 February 2017; xii) 5 February 2017; xiii) 8 February 2017; xiv) 9 February 2017; xv) 10 February 2017; xvi) 11 February 2017; xvii) 12 February 2017; xviii) 17 February 2017 xix) 18 February 2017 xx) 19 February 2017 This charge is found proved. In reaching this decision, the panel first considered the wording of the charge. The panel noted that the use of the word failed implies that you had a duty. It referred to condition 1 of the ICOPO, specifically that you must place yourself and remain under the supervision of a workplace line manager, mentor or supervisor The panel is of the 18

19 view that condition 1 clearly and firmly places the duty of being placed under supervision with you and not on anybody else. The panel took account of the staff rosters. The panel considered the staff rosters to be the most contemporaneous record of staff on duty at that time and gave them significant weight. The staff rosters show that you did work on all the dates listed in charge 1b (ii xx) and further that there was a registered agency nurse on duty with you on each date. You told the panel that you cannot remember the exact dates that you worked and who you were working alongside but conceded that the staff rosters were likely to be correct. The panel is of the view that according to condition 1, it was your duty to place yourself under the supervision of a workplace line manager, and that it was Colleague A s responsibility as your line manager to arrange suitable indirect supervision for you by a registered nurse while you were on shift. However, as Colleague A was not aware of your ICOPO and was not aware that indirect supervision was a requirement as part of that ICOPO, she was unable to fulfil that role. Consequently, Colleague A was not in a position to inform staff working alongside you that they were required to indirectly supervise you. You told the panel that you did not tell any of the staff you were working with that you were the subject of an ICOPO as your understanding was that they would have been made aware of the ICOPO by management. You accepted that it would not be possible for someone to effectively supervise you, without being aware that it was a duty they were required to fulfil. The panel noted that Colleague A became aware of your ICOPO in February 2017 and arranged a meeting with you to discuss the ICOPO on 3 February The panel accepted Colleague A s evidence that you did not disclose the full extent of your ICOPO at this meeting. On this basis, the panel considered that Colleague A did not know the full extent of the ICOPO until after 19 February 2017 and you therefore failed to comply 19

20 with condition 1 by working at the Home without supervision during the dates specified in head 1b (ii xx). The panel finds this charge proved. Charge 1d: d) Failed to comply with Condition 3 of your ICOPO by not meeting with your line manager, mentor or supervisor (or their nominated deputy) at least every month to discuss the standard of your performance and you progress towards achieving the aims set out in your personal development plan; This charge is found proved. In reaching this decision, the panel took into account your evidence that monthly meetings did not take place between you and Colleague A, as your line manager, to discuss the standard of your performance and your progress towards achieving the aims set out in your PDP. This was confirmed by Colleague A. You told the panel that you completed your PDP in November 2016 and therefore believed that there was no requirement for you to meet with Colleague A on a monthly basis. The panel bore in mind that it was your duty to ensure that you were complying with all of the conditions that formed the ICOPO. As condition 3 remained as part of the ICOPO after the review on 5 December 2016, you were therefore obligated to continue meeting with your line manager on a monthly basis. By not doing so, you failed to comply with condition 3 of the ICOPO. Accordingly, the panel finds this charge proved. Submission on misconduct and impairment: 20

21 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. There is no statutory definition of fitness to practise. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. In his submissions Mr Smalley invited the panel to take the view that your actions amount to a breach of The Code: Professional standards of practice and behaviour for nurses and midwives (2015). He then directed the panel to specific paragraphs and identified where, in the NMC s view, your actions amounted to misconduct. Mr Smalley 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. He then moved on to the issue of impairment, and addressed the panel on the need to have regard to 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 Smalley referred the panel to the cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) and Cohen v GMC [2008] EWHC 581 (Admin). Mr Smalley submitted that the misconduct in this case is remediable. However, you have not demonstrated remediation or full insight. He submitted that the panel may take the view that you demonstrated the beginnings of insight in respect of your personal responsibility and ensuring you were complying with the conditions imposed by the NMC. Mr Smalley went on to say that in the absence of full insight, there is a risk of repetition and as a result of that risk, impairment can be found. Mr Walker invited the panel to take the view that the facts found proved do not amount to misconduct and consequently do not amount to impairment. Mr Walker submitted that 21

22 it was clear from the outset that you did not personally inform Colleague A that you were the subject of an ICOPO. Mr Walker submitted that you thought Colleague A would have been made aware of the ICOPO when she commenced her role. Mr Walker submitted that in many instances this was a perfectly reasonable assumption to make. Colleague A ought to have been told during her handover that she would be line managing someone who was the subject of an ICOPO. He submitted that not informing Colleague A of the ICOPO was an honest mistake rather than a deliberate flouting of your regulator. Mr Walker said that an honest mistake of this type does not constitute deplorable behaviour. He submitted that while the panel may consider that you should have taken steps to inform Colleague A about the ICOPO, given the circumstances, it was not deplorable behaviour that you did not do so. He reminded the panel that you fully disclosed the ICOPO to your employer and to Colleague B who confirmed that you were in compliance with your ICOPO while she was your line manager. Mr Walker submitted that it was your understanding that your PDP had concluded in November 2016 prior to Colleague A commencing her role as your line manager. He said that it was reasonable for you to conclude that condition 3 of the order was directed toward the progress of the PDP and was therefore reasonable to assume that once the PDP had concluded, monthly meetings were no long required. Mr Walker submitted that this too was a mistake on your part. Mr Walker submitted that if the panel is minded to find misconduct, there is no current impairment. He told the panel that it is unlikely that you will be the subject of an ICOPO in the future and unlikely that you will not fully abide by any conditions placed on your registration. He reminded the panel that in your evidence you accepted that it was for the NMC to say when conditions have expired and submitted that this demonstrates your insight into the need to abide by such conditions. He submitted that there is no evidence to suggest that you have not continued to work safely and effectively and you are not someone who does not respect your regulator or the regulators rules and conditions. He submitted that a right minded member of the public upon hearing all of the circumstances of this case would not require a finding of impairment. 22

23 The panel has accepted the advice of the legal assessor which included reference to a number of judgments which are relevant. These included: Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin), and Cohen v GMC [2008] EWHC 581 (Admin). 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, you 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: Professional standards of practice and behaviour for nurses and midwives (2015) (the Code). The panel, in reaching its decision, had regard to the public interest and accepted that there was no burden or standard of proof at this stage and exercised its own professional judgement. The panel was of the view that your actions fell significantly short of the standards expected of a registered nurse, and that your actions amounted to a breach of the Code. Specifically: 8 Work cooperatively To achieve this, you must: 8.2 maintain effective communication with colleagues 23

24 8.6 share information to identify and reduce risk 20 Uphold the reputation of your profession at all times To achieve this, you must: 20.1 keep up to and uphold the standards and values set out in the Code 23 Cooperate with all investigations and audits To achieve this, you must: 23.3 tell any employers you work for if you have had your practice restricted or had any other conditions imposed on you by us or any other relevant body. The panel appreciates that breaches of the Code do not automatically result in a finding of misconduct. However, the panel was of the view that not complying with conditions imposed by your regulator, whether mistakenly or deliberately, is a serious breach of the Code. You made a number of breaches of your ICOPO in that you did not inform Colleague A that you were the subject of an ICOPO, you did not ensure that you were being effectively supervised at all times, and did not have monthly meetings with Colleague A as stipulated within your ICOPO. The panel considered that on the one hand, you did not deliberately flout the conditions imposed by your regulator and you made a series of honest mistakes. However, you clearly knew that the ICOPO had been reviewed and was still in effect from 5 December The panel considered that when line management arrangements change it must be your responsibility to ensure that the new manager is aware of the ICOPO arrangements in place and not assume that they had already been told by someone else. Further, when the ICOPO was renewed on 5 December 2016 and when Colleague A began her role as your line manager on 19 December 2016, you should have asked Colleague A whether she thought it was necessary to continue holding monthly 24

25 meetings with you. It was not for you to decide in isolation that the meetings were not required. The panel is of the view that it is a fundamental breach to work outside of your registration status and to assume that the employer is taking responsibility for the necessary arrangements, when that responsibility is yours personally. The panel found that your actions did fall seriously short of the conduct and standards expected of a nurse and amounted to serious professional misconduct. Decision on impairment The panel next went on to decide if 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 and to maintain professional boundaries. Patients and their families must be able to trust nurses with their lives and the lives of their loved ones. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74 she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession 25

26 would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes. Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. 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 finds that limbs b and c are engaged as a result of your past misconduct. 26

27 Regarding insight, the panel took into account the concessions you made during your live evidence and further that you told the panel that when the ICOPO was imposed you took it very seriously and believed that you were complying with it. However, the panel was mindful that during your evidence there were repeated attempts by you to transfer the responsibility of your own practice to your employer. The panel is not convinced that you fully understand that it is your personal responsibility to ensure that you are complying with the conditions imposed upon your registration and that you cannot delegate that responsibility away from yourself to your employer. The panel finds that your insight is developing but is not yet complete. In its consideration as to whether you have remedied your practice, the panel noted that it has not been presented with any kind of reflection from you or any training in relation to accountability or personal responsibility. There has also been no demonstration of remorse. For these reasons, the panel determined that there is a residual risk of repetition in the future. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold/protect the wider public interest, which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. The panel bore in mind that this case has been advanced on the grounds of public interest only. The panel considered that the public would expect professional nurses to understand the conditions imposed by their regulator and to work within the limits of their registration. The panel determined that, in this case, a finding of impairment on public interest grounds only was required. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired on the grounds of public interest only. 27

28 Determination on sanction: The panel has considered this case very carefully and has decided to make a suspension order. The effect of this order is that the NMC register will show that your registration has been suspended. You gave evidence at this stage under oath. You told the panel that you accept that it was your responsibility to inform the new manager that you were the subject of an ICOPO. You apologised for not doing that at the time and for breaching the conditions set out in the ICOPO. You explained that as a registered nurse you are supposed to comply with your regulator so that the public can continue to have confidence in the NMC as regulator. You reassured the panel that you will not breach the NMC s regulations again if you become the subject of a sanction in the future. You explained that if you were in the same situation again you would ensure that management are aware of the ICOPO. You said you would properly discuss the ICOPO with your manager and go through the relevant documentation to make sure that you are able to comply with the conditions. In terms of your colleagues, you said that you would let them know that you are on an ICOPO and ask them to help support you in complying with the conditions. Mr Smalley informed the panel that the NMC s sanction bid in this case is that of a suspension order for a period of six months in order to maintain public confidence in the profession and declare and uphold the standards expected of a registered nurse. Mr Smalley submitted that given the panel s concerns regarding your insight and lack of remediation, he invited the panel to order a review. He said that the concerns highlighted by the panel can be overcome by a period of suspension. He also submitted that a striking-off order would be disproportionate. Mr Walker submitted that the panel can be confident that you will not in the future behave in a way that would require further regulatory proceedings. He said there is a minimal risk of repetition and the risk of harm to the public interest is not such that 28

29 requires a sanction greater than a caution order. Mr Walker submitted that a caution order would be adequate to declare and uphold the standards expected of a registered nurse and maintain public confidence in the regulator. Mr Walker went on to say that the misconduct is far from the most serious end of the spectrum and that a suspension order would be grossly disproportionate. He submitted that there must be some room at the top of the scale for the more serious cases. He outlined the financial hardship you will face if the panel are minded to impose a suspension order. 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 Sanctions Guidance ( SG ) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. Before making its determination on sanction, the panel first identified what it considered to be the aggravating and mitigating features in this case: Aggravating: When the existence of the ICOPO was first raised with you by Colleague A you did not disclose the full extent of the conditions You have demonstrated a limited understanding of your professional responsibilities Mitigating: You made a full disclosure of the ICOPO to your previous manager, Colleague B You did not deliberately flout the order The change of ownership and management of the Home were not of your making 29

30 The panel first considered whether to take no action but concluded that this would not adequately mark the public interest considerations of this case. Further, it considered that to take no further action would be contrary to its decisions so far. 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 not happen again. The panel considered that your misconduct was not at the lower end of the spectrum. The panel considered that if used appropriately a caution order could mark the public interest in this case. There is no suggestion that you did not fully comply with the ICOPO while Colleague B was your manager and when Colleague A became your manager you did not deliberately breach the ICOPO imposed. You continued to work on the assumption that Colleague A was aware of the ICOPO and that nothing had changed. However, the panel was mindful that you have not demonstrated full insight into your misconduct. Your insight is still developing and as such there is a residual risk of repetition. The panel was not satisfied that a caution order would adequately address the risk of repetition. The panel bore in mind that a caution order would not in the circumstances provide the necessary reassurance that your insight is fully developed at this stage as it would not provide the opportunity for a further review at which you could demonstrate your understanding of your professional responsibilities and accountability. The panel decided that it would be neither appropriate 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. 30