Nursing and Midwifery Council:

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 9 12 October 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Susan Pineda Cavanagh 02J0762O Registered Nurse Adult Nursing (22 October 2002) England Misconduct Panel Members: Martyn Griffiths (Chair) Michael Murphy (Registrant member) Adrian Ward (Lay member) Legal Assessor: Panel Secretary: Mrs Cavanagh: Nursing and Midwifery Council: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: Leighton Hughes Vicki Watts Mrs Cavanagh was not present or represented in her absence Represented by Chris Scott, NMC Regulatory Legal Team. All N/A Impaired Striking off order Interim Suspension Order 18 Months 1

2 Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Mrs Cavanagh was not in attendance and that written notice of this hearing had been sent to Mrs Cavanagh s registered address by recorded delivery and by first class post on 16 August Royal Mail Track and Trace documentation confirmed that the notice of hearing was sent to Mrs Cavanagh s registered address by recorded delivery on that date. The panel took into account that the notice letter provided details of the allegation, the time, date and venue of the hearing and, amongst other things, information about Mrs Cavanagh s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. The Track and Trace documentation also indicated that the notice was received and signed for in the name of Cavanagh on 17 August Mr Scott submitted the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Mrs Cavanagh has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Mrs Cavanagh. The panel had regard to Rule 21 (2) of the Rules which states: (2) Where the registrant fails to attend and is not represented at the hearing, the Committee (a) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; 2

3 (b) (c) may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or may adjourn the hearing and issue directions. Mr Scott invited the panel to proceed in the absence of Mrs Cavanagh. He referred the panel to various correspondence between the NMC and Mrs Cavanagh. He referred the panel to Mrs Cavanagh s response to charges document together with written submissions dated 11 September 2017, in which Mrs Cavanagh denies all of the charges. Mr Scott also referred the panel to Mrs Cavanagh s response to the notice of hearing document in which she confirmed that she would not be attending the hearing, was not seeking a postponement and was satisfied for the panel to proceed in her absence. Mr Scott informed the panel that this information was also confirmed in an to the NMC from Mrs Cavanagh dated 4 October 2017, in which Mrs Cavanagh stated that she was unable to attend the hearing as she was not represented and was unable to travel long distances due to a health condition. Mr Scott submitted that Mrs Cavanagh had had ample time to obtain representation and that there had been no medical evidence provided by Mrs Cavanagh regarding her health condition. Mr Scott submitted that the panel should consider whether to proceed in the absence of Mrs Cavanagh with the utmost care and caution. He submitted that a number of witnesses were warned to attend this hearing, and in all the circumstances, it would be fair to proceed in the absence of Mrs Cavanagh. The panel accepted the advice of the legal assessor, which included reference to the case of General Medical Council v Adeogba [2016] EWCA Civ 162. The panel noted that Mrs Cavanagh had informed the NMC in an dated 4 October 2017 that she would not be attending the hearing as she did not have representation. The panel considered that Mrs Cavanagh has been aware of the dates of this substantive hearing for some time and therefore would have had ample time to obtain representation. The panel was not provided with any further 3

4 information as to the health condition alluded to in Mrs Cavanagh s to the NMC dated 4 October In these circumstances, the panel considered that adjourning this hearing would be unlikely to secure Mrs Cavanagh s attendance at a hearing on a future date. The panel considered that Mrs Cavanagh had voluntarily absented herself from today s hearing. The panel acknowledged that there was a potential disadvantage to Mrs Cavanagh in proceeding in her absence. However, the evidence upon which the NMC relies has been sent to Mrs Cavanagh and she has made detailed responses to each of the allegations. Mrs Cavanagh will not be able to challenge the evidence relied upon by the NMC by cross examination, she will not be able to give evidence. However, in the panel s judgment, this can be mitigated. The panel can make allowance for the fact that the NMC s evidence will not be tested by cross examination and, of its own volition, can explore any inconsistencies in the evidence which it identifies. Furthermore, any disadvantage is the direct result of Mrs Cavanagh choosing not to attend this hearing. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mrs Cavanagh. The panel will draw no adverse inference from Mrs Cavanagh s absence in its findings of fact. 4

5 Charges as read: That you, a registered nurse: 1. On 15 February 2015 in respect of Resident A delayed commencing Cardiopulmonary Resuscitation (CPR) contrary to direct instruction on one or more occasion Proved 2. Failed to escalate Resident B s necrotic sacral wound between 19 May 2015 and 26 May 2015 Proved 2. On 13 June 2015 did not contemporaneously record that you had administered one or more of the prescribed medications set out in Schedule 1 Proved AND, in light of the above, your fitness to practice is impaired by reason of your misconduct. SCHEDULE 1 Resident C Senna tablets 7.5mg Resident D Rivastigmine capsules 3mg Peptac Aniseed Oral Liquid Levetiracetam tablets 500mg Paracetamol tablets 500mg Clonazepam tablets 500micrograms Resident E Lactulose solution g / 5ml Dorzolamide Hydrochloride with Timolol Maleate eye drops Resident F Sodium Valporate oral liquid 200mg / 5ml 5

6 Temazepam oral solution 10mg / 5ml Resident G Diazepam tablet 5mg Senna tablets 7.5mg Resident H Diazepam tablets 2mg Resident I Mirtazepine tablets 30mg 6

7 Application to admit hearsay evidence: Mr Scott, on behalf of the NMC, invited the panel to admit the witness statements of Ms 6, Ms 7 and Mr 8 as hearsay evidence. He submitted that the panel had discretion to admit evidence in this manner pursuant to the provisions of Rule 31 (1) of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 ( the Rules ). Rule 31 (1) states: Upon receiving the advice of the legal assessor, and subject only to the requirements of relevance and fairness, a Practice Committee considering an allegation may admit oral, documentary or other evidence, whether or not such evidence would be admissible in civil proceedings. Mr Scott submitted that at the time of the events, Ms 6 was employed at the Home as the Acting General Manager, he submitted that the statement of Ms 6 had been agreed with Mrs Cavanagh and she had confirmed in her to the NMC dated 4 October 2017 that she did not object to the statement being read. Mr Scott further submitted that, in essence, Ms 6 s statement of evidence dated 28 October 2016 sets out the policies in force at the time of the events regarding CPR and Do Not Attempt Resuscitation (DNAR). With regards to Ms 7, Mr Scott submitted that she is employed by Northwest Ambulance Service (NWAS) as a Safeguarding Practitioner and that her statement of evidence dated 7 November 2016 exhibits the transcript of the 999 call made on 15 February Mr Scott informed the panel that Mrs Cavanagh was notified in correspondence on 13 June 2017 that the NMC were intending to rely upon Ms 6 s evidence without calling her to attend the hearing to give evidence. He submitted that the NMC had received no objection to this from Mrs Cavanagh. Mr Scott submitted the Mr 8 was employed as a Locality Manger for South Manchester at Manchester City Council. Mr Scott informed the panel that Mr 8 s statement of evidence dated 18 October 2016 sets out a brief description of a 7

8 strategy meeting held on 19 August 2015, at which Ms 1 was in attendance. He also identified caller one in the 999 call transcript as being the voice of Mr 4 and caller two as being that of Mrs Cavanagh. Mr Scott submitted that Mrs Cavanagh had been notified by the NMC in a letter dated 13 June 2017 that the NMC were intending to rely upon the evidence of Mr 8 without calling him to give evidence. He submitted that to date the NMC has received no objection to this course of action from Mrs Cavanagh. The panel accepted the advice of the legal assessor and in relation to each witness it considered whether their evidence was relevant to the issues in this hearing and, if so, whether it was fair to admit the evidence as hearsay. In relation to relevance, the panel determined that the evidence of Ms 6 is relevant and this has been agreed by Mrs Cavanagh. The panel considered that the evidence of Ms 7 was clearly relevant as she produces the contemporaneous transcript of the call made to the emergency services on 15 February The evidence of Mr 8 was relevant, as the information provided by him adds clarity to the transcript of the 999 call as he summarises in the strategy report exhibited to his statement of evidence, the identity of caller one and caller two. In relation to fairness, the panel determined that the allegations are serious and that although a fair hearing would include testing and cross examining the witness, the NMC have advanced good reasons for the statements of Ms 6, Ms 7 and Mr 8 being admitted into evidence without the need for their attendance at this hearing. Further, the panel also noted that Mrs Cavanagh had agreed to the statement of Ms 6 being read and had been informed of the NMCs position with regards to not calling Ms 7 and Mr 8 in a letter dated 13 June 2017 and to which Mrs Cavanagh had raised no objection. The panel determined that Mrs Cavanagh would not be disadvantaged as the panel would have to consider what weight it gave to hearsay evidence which could not be challenged or tested by cross-examination. 8

9 In all of the circumstances, the panel concluded that it would allow the witness statements of Ms 6, Ms 7 and Mr 8 to be admitted as hearsay evidence. Application to admit hearsay evidence 10 October 2017: At the close of the NMC s case, Mr Scott invited the panel to admit an dated 10 October 2017 from the Home Manager, Ms 1, as hearsay evidence in accordance with the provisions of Rule 31 (1) of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 ( the Rules ). Mr Scott informed the panel that following the evidence of Ms 1 on 9 October 2017, the NMC made enquiries with the Home as to whether an appropriately completed DNAR document had been in place in respect of Resident A. He submitted that the received today from Ms 1 confirms that there had not been a DNAR in place in respect of Resident A which was also corroborated by Resident A s GP. Mr Scott submitted that it was relevant and fair to admit the from Ms 1 dated 10 October He submitted that Mrs Cavanagh had not been informed of the NMC s intention to admit the into evidence. The panel accepted the advice of the legal assessor. In relation to relevance, the panel determined that the correspondence received by the NMC today from Ms 1 is relevant as one issue in this case is whether or not there was a DNAR in place for Resident A. In relation to fairness, the panel noted that Mrs Cavanagh had not been notified of the NMC s intention to admit this additional information into evidence. However, the panel determined that Mrs Cavanagh would not be disadvantaged as it was fully aware of her position in regards to this charge. She had formed the view that a DNAR was in place based on the handover report but had never asserted that she had seen a DNAR document in respect of Resident A. In all of the circumstances, the panel concluded that it would be relevant and fair for the of Ms 8 dated 10 October 2017 to be admitted as hearsay evidence. 9

10 Background By way of background, Mrs Cavanagh was employed by Care Concepts Ltd as a registered nurse working at Marion Lauder Nursing Home (the Home) for more than ten years until her suspension on 18 June 2015 and subsequent dismissal for gross misconduct. It is alleged that during a shift at the Home on 15 February 2015, Mrs Cavanagh failed to respond appropriately to Resident A who had been found unresponsive, despite being given clear and repeated instructions during a telephone call to the emergency services. Concerns were raised by paramedics that the patient in question had not received CPR. The paramedics were given the impression that a DNAR notice was in place when in fact it was not. A Safeguarding investigation was launched into this allegation by Manchester City Council. It is further alleged, that between 19 May and 26 May 2015, Mrs Cavanagh failed to escalate Resident B s necrotic sacral wound. It is alleged that Resident B had a Grade 4 ulceration of the sacrum area. It is also alleged that during a night shift on 13 June 2015, Mrs Cavanagh failed to contemporaneously record that she had administered one or more of the medications set out in Schedule 1 to the charges. Evidence adduced: Opening the case for the NMC, Mr Scott took the panel through the charges and identified the evidence that would assist the panel with its determination on facts. The panel read and considered all the written evidence put before it. The panel also heard oral evidence and read statements from the following witnesses: Ms 1 General Manager of the Home since April 2015 Ms 2 Senior Carer at the Home 10

11 Ms 3 Care Assistant at the Home Mr 4 Registered Nurse at the Home Ms 5 Clinical Lead for Tissue Viability Nursing Service Ms 6 - Acting General Manager at the Home (Statement read) Ms 7 NWAS Safeguarding Practitioner (Statement read) Mr 8 - Business Lead for Health and Social Care, Systems and Processes at Manchester City Council (Statement read) The above titles refer to the individuals positions at the time of the charges. 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 Scott, on behalf of the NMC, and the written submissions of Mrs Cavanagh. The panel accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the panel was satisfied that it was more likely than not that the incidents occurred as alleged. The panel has drawn no adverse inference from the non-attendance of Mrs Cavanagh. However, it did mean that Mrs Cavanagh had presented no oral evidence to undermine or contradict that adduced by the NMC. Witness Evidence Ms 1, was employed at the Home as the General Manager from 28 April 2015, Ms 1 was initially supernumerary until her first day as a Manager in 11

12 approximately the middle of May The panel had regard to the fact that Ms 1 took up her post at the home between the dates in charges 1 and 2, which the panel considered was clearly a difficult time for the Home and would have explained why during some parts of Ms 1 s evidence to the panel, she came across as slightly defensive. However, despite this, the panel considered Ms 1 was a credible, reliable and balanced witness. The panel considered that Ms 1 did her best to assist the panel. Ms 2, was employed at the Home as a Senior Carer and had been working with Mrs Cavanagh for around ten years. The panel considered that Ms 2 gave her evidence in a straight forward way. The panel determined that she was able to say when she was unable to remember something and did not speculate. Ms 2 was consistent in her oral evidence and documentary evidence that her perception of Mrs Cavanagh was that as the nurse, she felt she knew better than the carers. However, the panel did not consider that Ms 2 had an axe to grind and was open and candid in her evidence. Ms 3, was employed at the Home as a Care Assistant and had been in that role at the time of the events for approximately four years. The panel considered that Ms 3 was clear in her recollection of events and that she did her best to assist the panel. Mr 4, was employed at the Home as a Senior Registered Nurse and had been in that role at the time for events for 11 years and had worked with Mrs Cavanagh for 10 years. The panel considered that Mr 4 was at times vague during his evidence and appeared to have difficulty when recalling some events. However, the panel considered that Mr 4 was candid in asserting that his memory of things was quite faint particularly around the DNAR status of Resident A. On the whole, the panel considered that Mr 4 spoke positively about Mrs Cavanagh whom he had known professionally for approximately 10 years. The panel did not consider that Mr 4 in any way tried to pass any blame onto Mrs Cavanagh regarding the events on 15 February 2015 and the panel considered they could place reliance on the narrative of the accounts given by him. 12

13 Ms 5, was employed by South Manchester NHS Trust as the Clinical Lead for Tissue Viability Nursing Services. The panel considered Ms 5 was open in her evidence to the panel, she changed parts of her evidence in light of some of the questions put to her in questions by Mr Scott and the panel, which the panel considered was to her credit. Ms 5 spoke positively of Mrs Cavanagh whom she had known professionally for around 10 years. The panel considered Ms 5 to be a reliable and credible witness who was doing her best to assist the panel. The panel considered each charge and made the following findings: That you, a registered nurse: 1. On 15 February 2015 in respect of Resident A delayed commencing Cardiopulmonary Resuscitation (CPR) contrary to direct instruction on one or more occasion This charge is found proved. In reaching this decision, the panel first considered whether Mrs Cavanagh had been given direct instruction to commence CPR. Mr 4 told the panel that on the 15 February 2015, he was working with Mrs Cavanagh and that he was with her in the office when a call came through for assistance as Resident A had collapsed in the ground floor toilets. Mr 4 said that he and Mrs Cavanagh immediately went to the toilets where they found Resident A in a state of collapse. He said that he went to the office to telephone the emergency services whilst Mrs Cavanagh stayed with Resident A. The first call was made to the emergency services by Mr 4 at 13:09. Mr 4 told the panel that although Resident A s name was on the Handover Report as having a DNAR, he would also have checked Resident A s care file which did not contain a formal DNAR form Mr 4 explained to the panel that there was not a portable telephone in the main office and during the 999, the call operator was requesting information about Resident A s condition. He therefore asked the operator to call him back on his mobile telephone in order for him to speak with the operator in the presence of Resident A. At 13:15, 13

14 the operator called Mr 4 back and at which time he was with Resident A and Mrs Cavanagh, he said that at that point, he handed the telephone to Mrs Cavanagh. The panel had regard to the transcript of the 999 call and had particular regard to the instructions given to Mrs Cavanagh as follows. Operator: Hello it s the ambulance services, can you just confirm is the patient breathing? Caller 2: Err I think she s, she s not breathing already? Operator: She s NOT breathing? Caller 2: Yes, err so I think maybe we need the err police Operator: Right so just confirm to me, the patient is not breathing Caller 2: Yeah Operator: Ok, thank you. Is there a defibrillator available? Caller 2: Err no Operator: Ok, I m organising the help for you now, just stay on the line I m going to tell you exactly what to do next. Are you right by her now? Caller 2: Yeah but err, we will put her in err bed Operator: No, I need to offer you C.P.R. instructions, how to resuscitate this patient, I need to show, tell you how to do resuscitation... Operator: Do you, do you have an active DNR? Caller 2: Err yeah, but s there not paperwork that err Operator: If you haven t got paperwork there, I need to offer you C.P.R instructions, So can you Caller: 2: Ok The panel considered that the instructions given to Mrs Cavanagh during the telephone conversation at 13:15 were very clear and that on two separate occasions, she was given clear instructions that CPR needed to be commenced on Resident A. The panel heard evidence from Mr 4 that when he returned to the toilets after making the initial call to the emergency services, Mrs Cavanagh was in the process of moving Resident A in a wheelchair from the toilet on the ground floor to her 14

15 bedroom via the lift on the first floor. Mr 4 said that he estimated it would take approximately two minutes to get from the toilet to Resident A s bedroom. The panel considered that Mrs Cavanagh demonstrated a lack of appreciation as to the seriousness of Resident A s conditions, she continued to move Resident A to her bedroom despite the emergency services operator clearly telling her that she needed to lay Resident A flat on the floor and that this did not have to be done in the bedroom. The panel had regard to the evidence of Mr 4 which was that there would have been adequate space outside the toilet to have been able to lay Resident A flat in order to commence CPR. The panel considered Mrs Cavanagh s written submissions, in which she did not deny not administering CPR, but maintained that she was relying upon the handover sheet, which indicated that a DNAR was in place for Resident A. The panel had sight of a document entitled Marion Lauder House Day and Night Shift Hand Over Report. The panel considered that this document makes clear that the occupant of room 27, whom the panel established was resident A, was recorded as having a DNAR in place. The panel finds, having considered all the evidence, that this is erroneous. In any event the panel was satisfied that Mrs Cavanagh should have verified the information on the handover sheet before deciding not to commence CPR. The panel accepted the evidence of Ms 6 that if anyone is unsure about a DNAR being in place, CPR should still be carried out until such time when it can be ascertained that there is an active DNAR document. The panel was satisfied, from the transcript of the second 999 call, that Mrs Cavanagh knew that there was no paperwork to confirm the DNAR status and, accordingly, that she was under a duty to undertake CPR when instructed to do so. The panel concluded, it was clear that Mrs Cavanagh was given instructions on two occasions by the telephone operator that she was to commence CPR and that by Mrs Cavanagh moving Resident A to her bedroom on the first floor delayed the commencement of CPR. Accordingly, the panel found charge 1 proved. 15

16 Charge 2 2. Failed to escalate Resident B s necrotic sacral wound between 19 May 2015 and 26 May 2015 This charge is found proved In determining this charge, the panel had regard to Resident B s Wound Care Evaluation Chart. The first entry on the chart is dated 26 April 2015 and was completed by Mrs Cavanagh. On the 1 May 2015, Mrs Cavanagh assessed the wound again and identified it as having altered in presentation and that it was deteriorating. The panel heard evidence that after 1 May 2015, Mrs Cavanagh was on annual leave until 19 May Upon Mrs Cavanagh s return from annual leave, she assessed Resident B s wound and it is clear from the wound chart that the wound had got substantially bigger having increased in depth from 0.5cm on 1 May 2015 to 4cm on 19 May Ms 1 told the panel that the Resident B s wound was assessed on 18 May 2015, by another Registered Nurse and that a referral was made to the Nursing Home Team that same day. The panel had regard to the concerns documented by Ms 1 regarding Mrs Cavanagh and in which she states Susan had discussed with Tissue Viability Nurse (TVN) a 2cm x 1cm injury to (L) sacrum, little evidence of this. Staff at Marion Lauder had informed Nursing Home Team of necrotic sacral areas as can be seen on whilst Susan on leave. The panel also heard evidence from Ms 5 who was adamant in her oral and documentary evidence that the Home did not make a referral regarding Resident B on 18 May Ms 5 said that they first time a referral was received was on 27 May 2015 and was referred by Mrs Cavanagh. The panel had regard to the Witness Form completed by Mrs Cavanagh on 9 June 2015 and in which she stated: After coming back from Holiday I returned to work on the sacral pressure sore/ulcer is already nectrotic. Checked the wound care treatment chart and there are no documentation till I came back on I carried on reviewing the 16

17 dressings and documented on the wound care treatment until I have noticed full thickness tissue loss that is why I phone and leave a message on 25/5/15 with TVN (Lindsey) to visit for correct dressing materials Honestly, I did not informed TVN on the 19/5/15 and did not checked on the TVN Progressed notes if was referred to TVN RE: Necrotic Pressure Ulcer. I would expect that one of my colleague already have done it The panel considered it was clear from Resident B s wound chart, that upon Mrs Cavanagh s return from annual leave on 19 May 2015 there had been a clear and significant deterioration in Resident B s necrotic sacral wound and that Mrs Cavanagh did not escalate her concerns on her own account to the TVN until at least 26 th May This was despite documenting that the wound was some 3.5 cm deeper than when she assessed it prior to her going on leave after 1 May The panel also noted that Mrs Cavanagh had completed the column headed improving or deteriorating as deteriorating. The panel considered that even if the assessment of resident B s wound had been escalated on 18 May 2015, as asserted by Ms 1, Mrs Cavanagh was plainly unaware of this. The panel was satisfied that Mrs Cavanagh was under a duty to provide safe and proper care to Resident B and that she failed to do so by not escalating the matter immediately following her own assessment of the wound on 19 May The panel considered that Mrs Cavanagh should not have relied upon an expectation or assumption that her colleagues had escalated concerns, as she sets out in her witness form dated 9 June 2015, and that she had a clear duty to act immediately which she failed to do for a period of seven days. After considering the evidence before it, the panel concluded that Mrs Cavanagh failed to escalate Resident B s necrotic sacral wound between 19 and 26 May Accordingly, the panel found charge 2 PROVED 3. On 13 June 2015 did not contemporaneously record that you had administered one or more of the prescribed medications set out in Schedule 1 This charge is found proved 17

18 In determining this charge, the panel had regard to the MAR Charts for 13 June 2015 as exhibited by Ms 1. Ms 1 told the panel that at the end of every month, she reviewed the MAR charts in order to check for compliance. Ms 1 said that it was during this routine practice that she found Mrs Cavanagh had not signed a number of MAR charts during the night shift on 13 June 2015 for a medication round that took place at 22:00 hours. These documents indicated that Mrs Cavanagh was responsible for administering medication at 22:00 hour and that she had failed to contemporaneously record that any of the medication as set out on Schedule 1 had been administered. The panel had regard to the fact that on the Case Management Form completed by Mrs Cavanagh on 11 September 2017, this charge is denied. However, the panel also had regard to the written submissions of Mrs Cavanagh attached to the Case Management Form in which she details her rationale for not signing the MAR chart as follows: Sunday Morning 13/06/2015 during the handover time I informed to one of the nurse (IK) that I didn t signed the Cedar Unity MAR chart because I will rewrite them medications that is newly prescribed like Antibiotic or paracetamol (short course). I said that anyway I am coming back tonight and I said that I was able to checked all the monthly medications and they ve appreciated too much. The panel considered that despite Mrs Cavanagh providing a rationale why she had not recorded medications administered as set out in Schedule 1 on the MAR chart, the MAR charts were clear that Mrs Cavanagh had not recorded that any medication had been administered at 22:oo hours on 13 June Accordingly, the panel found charge 3 PROVED. 18

19 Decisions and reasons on misconduct and impairment: Having announced its decisions on the charges, the panel then moved on to consider whether the facts found proved amount to misconduct and, if so, whether Mrs Cavanagh s fitness to practise is currently impaired. The panel is aware that it should adopt a two stage process in its considerations. 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 reaching its decisions, the panel has taken into account all of the oral and documentary evidence before it and the submissions of Mr Scott, on behalf of the NMC. In relation to misconduct, Mr Scott referred the panel to the case of Roylance v General Medical Council (No. 2) [2002] 1 A.C. 311 in which misconduct is defined as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a [medical] practitioner in the particular circumstances. In that case Lord Clyde went on to state that It is not any professional misconduct which will qualify. The professional misconduct must be serious. As the charges found proved in this case span the period of 15 February June 2015, Mr Scott drew the panel s attention to both The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 (the 2008 Code) and The Code: Professional standards of practice and behaviour for nurses and midwives (2015) (the 2015 Code). He directed the panel to specific paragraphs of both Codes, which he submitted the panel may find relevant. Mr Scott submitted that the charges found proved related to failings in fundamental aspects of nursing care and invited the panel to conclude that Mrs Cavanagh s actions were so serious as to amount to misconduct. 19

20 In relation to current impairment, Mr Scott made reference to specific paragraphs in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Mr Scott informed the panel that Mrs Cavanagh s registration had been subject to an interim suspension order imposed in August 2016 and then a substantive Suspension Order since February 2017 in respect of charges very similar to those found proved at this hearing. He submitted that as a result of the imposition of the substantive suspension order, there has been no opportunity for Mrs Cavanagh to remediate her failings. Mr Scott further submitted that Mrs Cavanagh s conduct reflected a pattern of repeated failings. In the circumstances, he invited the panel to find that on the basis of the charges found proved, coupled with the absence of evidence of insight and remediation, the panel should conclude that Mrs Cavanagh s fitness to practise is impaired by reason of her misconduct. The panel accepted the advice of the legal assessor. The panel first considered whether the facts found proved amount to misconduct. The panel was mindful that this is a matter for it to determine exercising its own professional judgment with no burden or standard of proof. The panel first had regard to the terms of the 2008 Code which was in force at the material time in relation to charge 1. The panel is satisfied that, by virtue of her actions, Mrs Cavanagh has breached the following sections of the preamble of the 2008 Code: From the Preamble The people in your care must be able to trust you with their health and wellbeing. To justify that trust, you must: make the care of people your first concern work with others to protect and promote the health and wellbeing of those in your care, their families and carers, and the wider community provide a high standard of practice and care at all times 20

21 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 was also satisfied that, by virtue of her actions, Mrs Cavanagh has also breached the following paragraphs of the 2008 Code: 17. You must be able to demonstrate that you have acted in someone s best interests if you have provided care in an emergency. 24. You must work cooperatively within teams and respect the skills, expertise and contributions of your colleagues. 26. You must consult and take advice from colleagues when appropriate. 35. You must deliver care based on the best available evidence or best practice. 61 You must uphold the reputation of your profession at all times. In relation to charges 2 and 3, the panel went on to consider the terms of the 2015 Code which was in force at the material time in relation to these charges. The panel is satisfied that, by virtue of her actions, Mrs Cavanagh breached the following provision of the 2015 Code in relation to charge 2: 1. Treat people as individuals and uphold their dignity To achieve this, you must 1.1 treat people with kindness, respect and compassion 1.2 make sure you deliver the fundamentals of care effectively 1.4 Make sure that any treatment, assistance or care for which you are responsible is delivered without undue delay 10. Keep clear and accurate records relevant to your practice To achieve this, you must 10.1 complete all records at the time or as soon as possible after an event, recording if the notes are written sometime after the event 21

22 13. Recognise and work within the limits of your competence To achieve this, you must 13.1 accurately assess signs of normal or worsening physical and mental health in the person receiving care 13.2 make a timely and appropriate referral to another practitioner when it is in the best interests of the individual needing any action, care or treatment 13.3 ask for help from a suitably qualified experienced healthcare professional to carry out any action or procedure that is beyond the limits of your competence 17. Raise concerns immediately if you believe a person is vulnerable or at risk and needs extra support and protection To achieve this, you must 17.1 take all reasonable steps to protect people who are vulnerable or at risk from harm, neglect or abuse 17.3 have knowledge of and keep to the relevant laws and policies about protecting and caring for vulnerable people In relation to charge 3, the panel also considered Mrs Cavanagh s actions amounted to a breach of the following NMC Standards for Medicines Management 2010: Standards for practice of administration of medicines Standard 8: Administration 2.10 You must make a clear accurate and immediate record of all medicines administered The panel was mindful that not all acts or omissions falling short of what would be proper in the circumstances, and not every breach of the 2008 and 2015 Codes would necessarily be sufficiently serious as to result in a finding of misconduct. In relation to charge one, the panel found that Mrs Cavanagh s failings were very serious. Resident A was in a state of collapse which was clearly an emergency situation and should have been responded to immediately. Mrs Cavanagh should 22

23 not have relied on the hand over sheet regarding the DNAR status for Resident A, and any competent registered nurse would have known this. The panel considered that there is a clear expectation for a medial practitioner to act immediately so as to preserve the life of a patient/resident in an emergency situation in the absence of a clearly documented DNAR. This was all the more so when Mrs Cavanagh was twice instructed to perform CPR by the emergency operator. The panel concluded that this charge was undoubtedly sufficiently serious so as to amount to misconduct. In considering charge two, the panel considered it was essential that Mrs Cavanagh should have escalated the status of Resident B s necrotic sacral wound to the TVN long before she did on or around 26 May The panel considered that it was abundantly clear from Mrs Cavanagh s assessment of the wound on her return to work on 19 May 2015 that she had observed a significant deterioration which required immediate escalation and which she failed to do. Notwithstanding the inactions of Mrs Cavanagh s colleagues, the panel considered that Mrs Cavanagh failed gravely from a clinical point of view. Upon her return from annual leave the wound had increased in size by 3.5cms and she did nothing for at least 7 days, during which time it would have continued to deteriorate and undoubtedly would have caused Resident A further pain and discomfort. The panel considered that such failings clearly represented significant departures from the behaviour expected of a registered nurse. It was behaviour which would be considered deplorable by colleague practitioners and the wider public. In considering charge 3, the panel determined that although there is no suggestion that Mrs Cavanagh did not administer the medications at 22:00 on 13 June 2015, she failed to record it on the MAR charts. The panel considered that her omission to complete the MAR charts, despite her rationale for not doing so was a serious profession failing. Further, the panel considered that a central feature of the safe administration of medication is to ensure that any medication administered is recorded immediately and by Mrs Cavanagh not doing could have had serious potential implications for the residents in her care. The panel reminded itself of the NMC publication Record Keeping Guidance for Nurses and Midwives which clearly sets out: 23

24 Good record keeping is an integral part of nursing and midwifery practice, and is essential to the provision of safe and effective care. It is not an optional extra to be fitted in if circumstances allow. The panel is satisfied that Mrs Cavanagh s acts and omissions, taken collectively and individually, represented serious departures from the standards expected of a registered nurse and were sufficiently serious as to amount to misconduct. The panel next went on to consider whether, as a result of her misconduct, Mrs Cavanagh s fitness to practise is currently impaired. When determining this matter the panel had regard to the wider public interest and recognised that this is a matter for it to determine, exercising its own professional judgment with no burden or standard of proof. In reaching its decision, the panel had regard to the observations of Mrs Justice Cox which are quoted in paragraph 76 of the case of Grant. She cites the approach of Dame Janet Smith in the Fifth Shipman Enquiry to the following effect: 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 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.. 24

25 When considering Mrs Cavanagh s past conduct, the panel was satisfied that, by virtue of her misconduct, she had put the particularly vulnerable residents in her care at unwarranted risk of harm. Her acts and omissions in the delayed commencement of CPR for Resident A contrary to being given direct instructions to do so, her failure to escalate Resident B s clearly deteriorated necrotic sacral wound for a period of seven days and her failure to contemporaneously record medications administered on 13 June 2015, had the potential to place those in her care at serious risk of harm. The panel was also satisfied that Mrs Cavanagh s serious failings, which included fundamental aspects of basic nursing care, diminishes the trust placed in registered nurses by her patients, colleagues and the public. Such failings have brought the profession into disrepute and breached fundamental tenets of the profession. The panel went on to consider, in line with the case of Cohen v General Medical Council [2008] EWHC 581 (Admin) whether Mrs Cavanagh s misconduct is easily remediable, whether it has been remedied and whether it is highly unlikely to be repeated. In respect of her future conduct, the panel is aware that insight and remediation are important factors when determining the issue of current impairment. Mrs Cavanagh has only engaged with the NMC process to a limited degree. The panel considered that in her written responses to the charges she does not accept any responsibility for her actions and neither does she acknowledge the deficiencies in her practice as a registered nurse. Further, the panel considered Mrs Cavanagh s responses to the charges were ambivalent and dismissive of her failings with a tendency to blame other people. In the panel s view, Mrs Cavanagh demonstrated little insight into her failings, their seriousness or their potential consequences. The panel was aware that Mrs Cavanagh s practice has been restricted as a result of the interim suspension order initially imposed on her registration in August 2016 and followed by the substantive suspension order imposed in February The panel considered that the key points in relation to the charges found proved by a panel of the conduct and competence committee in February 2017 (which pre-date these charges having occurred in 2013/2014) are very similar in nature to the charges found proved by this panel and include failure to escalate patient care in an 25

26 emergency situation and medication errors by way of Mrs Cavanagh pre-potting medication. The panel in February 2017 found that Mrs Cavanagh had not yet fully accepted your failings or taken full responsibility for your actions and omissions as you appear to be attributing your failures to other circumstances outside your control. They further found that Mrs Cavanagh chose to deflect blame and responsibility. The panel went on to add That your attempts to justify your failures displayed a lack of recognition and understanding of the gravity of your failures and the serious implications it could have had on the vulnerable residents in your care. The panel therefore considered your failure to acknowledge seriousness of your actions meant that you had only limited insight. This panel has identified similar shortcomings and is concerned that Mrs Cavanagh s failings may be attitudinal in nature. In the absence of any evidence of insight, remediation or any reflection on the part of Mrs Cavanagh, or any assurance that her misconduct would not be repeated, the panel concluded that there remains a risk of repetition. In the circumstances, the panel was satisfied that a finding of impairment is necessary on the grounds of public protection. Nurses occupy a position of privilege and trust in society and are expected at all times to make the care of their patients their first concern. Patients and their families must be able to trust nurses with their care and the care 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. Mrs Cavanagh has abused the trust placed in her as a registered nurse by her misconduct. The panel bore in mind the overarching objective of the NMC which is to protect, promote and maintain the health, safety and wellbeing of the public and patients and the wider public interest which includes promoting and maintaining public confidence 26

27 in the nursing profession and upholding proper professional standards for members of that profession. The panel determined that both members of the profession and the public would be seriously concerned by Mrs Cavanagh s conduct. The panel was in no doubt that a finding of impairment on public interest grounds was also required. To find otherwise would undermine public confidence in the profession and in the regulatory process. The panel has accordingly concluded that Mrs Cavanagh s fitness to practise is currently impaired by reason of her misconduct. Determination on sanction: In reaching its decision on sanction, the panel considered all the evidence that had been placed before it throughout the hearing and had regard to its earlier findings at the facts and impairment stages. It took into account the submissions of Mr Scott, on behalf of the NMC. It accepted the advice of the legal assessor and took into account the NMC s Sanctions Guidance (SG). The panel approached the question of which sanction, if any, to impose, by considering the least restrictive sanction first and moving upwards. The panel bore in mind that the purpose of a sanction is not to be punitive, although it may have this effect, but is to protect patients and the wider public interest. The wider public interest includes maintaining public confidence in the profession and the regulatory process, and declaring and upholding proper standards of conduct and behaviour. The panel had regard to the overarching objective of protecting the public and also the maintenance of confidence in the profession and the NMC as its regulator. It applied the principles of proportionality, weighing the interests of the public with the registrant s interests, and took into account the mitigating and aggravating factors in this case. 27

28 The panel considered that the aggravating factors in this case are as follows: The particular vulnerability of the patient group involved; Mrs Cavanagh s acts and omissions could have resulted in serious harm to those in her care; Mrs Cavanagh has provided no evidence of insight, remorse, remediation, or any recognition of the nature of her misconduct or its consequences; Mrs Cavanagh s misconduct represented a number of failures in basic nursing practice over a period of four months; Mrs Cavanagh s regulatory history. The panel considered that the mitigating factors in this case are as follows: Mrs Cavanagh s engagement with the regulatory process, albeit limited; Evidence of good clinical practice over a number of years provided by Mr 4 and Ms 5. The panel first considered taking no further action but concluded that, given the serious nature of the misconduct and the risk of repetition, this would be wholly inappropriate. To take no further action would impose no restriction on Mrs Cavanagh s practice and would therefore not serve to protect patients from the risk of harm arising from her misconduct. In addition, the nature and seriousness of the misconduct in this case were such that to take no further action would not serve to declare and uphold proper professional standards and maintain public confidence in the profession. To take no further action would therefore not satisfy the public interest in this case. For the same reasons, the panel concluded that a caution order would not be a sufficient or appropriate sanction. The misconduct found in this case is not at the 28

29 lower end of the spectrum. A caution order would not restrict Mrs Cavanagh s practice. It would neither protect patients and the public from harm, nor serve to uphold the public interest. The panel then considered a conditions of practice order. While such an order might be capable of addressing Mrs Cavanagh s clinical failings, such an order is presently of no practical application in light of the current substantive suspension order to which Mrs Cavanagh is subject. The panel considered that in any event, a conditions of practice order would be insufficient to satisfy the public interest considerations in this case. The panel next considered a suspension order. The panel considered that Mrs Cavanagh s conduct amounted to serious departures from the professional standards set out in the Code. The panel considered that Mrs Cavanagh s actions were deplorable and that she has demonstrated a lack of insight or remorse. It had regard to the following provisions of the Sanctions Guidance: This sanction may be appropriate where the misconduct is not fundamentally incompatible with continuing to be a registered nurse This is more likely to be the case when some or all of the following factors are apparent: A single instance of misconduct [ ] No evidence of harmful or deep-seated personality or attitudinal problems No evidence of repetition of behaviour [ ] The Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour. 29