Nursing and Midwifery Council: Fitness to Practise Committee. Substantive Order Review Hearing

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 10 November 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Alison Clare Green 95I0897E Part(s) of the register: Registered Adult Nurse Sub Part 1 August 1988 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Miss Green: Nursing and Midwifery Council: Order being reviewed: Outcome: England Misconduct David Newman (Chair, lay member) Diane Corderoy (Registrant member) James Hurden (Lay member) Adrienne Morgan Vicky Green Not present and not represented Represented by Vivienne Sedgley, counsel, instructed by NMC Regulatory Legal Team. Conditions of Practice Order Conditions of Practice Order (12 months) to come into effect on 26 December 2017 upon the expiry of the existing order in accordance with Article 30 (1) Page 1 of 15

2 Service of Notice of Hearing The panel was informed at the start of this hearing that Miss Green was not in attendance, nor was she represented in her absence. The panel was informed that the notice of this hearing was sent to Miss Green and her representative on 29 September 2017 by recorded delivery and first class post to her registered address. Ms Sedgley told the panel that the venue of this hearing was changed yesterday. She submitted this should not prevent the panel from finding that adequate notice has been served. Ms Sedgley submitted that Miss Green s representative had indicated prior to the change in venue that neither she nor Miss Green would be attending the hearing today. Miss Green s representative was told yesterday of the change of venue. The panel accepted the advice of the legal assessor. In the light of the information available the panel was satisfied that notice had been served in accordance with Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) (the Rules). Proceeding in absence The panel then considered proceeding in the absence of Miss Green. The panel was mindful that the discretion to proceed in absence is one which must be exercised with the utmost care and caution. The panel considered all of the information before it, together with the submissions made by Ms Sedgley, on behalf of the NMC. The panel accepted the advice of the legal assessor. The panel noted the contents of a letter dated 8 November 2017 from the Royal College of Nursing (RCN) on behalf of Miss Green, which stated: Page 2 of 15

3 will not be attending the hearing nor will she be represented. No disrespect is intended by her non-attendance. Our member is unable to afford the cost of travel and accommodation from the North East of England. Our member is happy for the hearing to proceed in her absence. She is keen to continue to engage with the proceedings. Miss Green had been sent notice of today s hearing and the panel was satisfied that she was aware of today s hearing and it is of the view that she had chosen not to attend. The panel, therefore, concluded that she has voluntarily absented herself. The panel had no reason to believe that an adjournment would result in Miss Green s attendance. The RCN has provided a detailed submission on behalf of Miss Green. Having weighed the interests of Miss Green with those of the NMC and the public interest in an expeditious disposal of this hearing the panel determined to proceed in Miss Green s absence. Decision and reasons on application under Rule 19 Ms Sedgley made an application for parts of this hearing to be heard in private, pursuant to Rule 19 of the Nursing and Midwifery Council Fitness to Practise Rules The application was made on the grounds that reference may be made to Miss Green s health. The panel carefully considered the application. The panel reminded itself of the provisions of Rule 19(1) and that hearings should usually be conducted in public. Rule 19(3) states: 19 (3) Hearings other than those referred to in paragraph 2 above, may be held, wholly or partly, in private if the Committee is satisfied (a) having given the parties, and any third party from whom the Committee considers it appropriate to hear, an opportunity to make representations; and Page 3 of 15

4 (b) having obtained the advice of the Legal Assessor, that this is justified (and outweighs any prejudice) by the interest of any party or of any third party (including a complainant, witness or patient) or by the public interest. The panel is aware that hearings before the Fitness to Practise Committee are normally held in public, it is mindful that some of the information that may arise during the course of this hearing will relate to Miss Green s health. Given the nature of the sensitive health matters which require consideration, the panel concluded that Miss Green s interests in having such matters heard in private outweighed the public interest in having such matters heard in public. The panel has therefore decided that it would be appropriate to have the hearing held in private. Decision and reasons on review of the current order: The panel decided to make a new conditions of practice order for a period 12 months. This order will come into effect on the 26 December 2017 following the expiry of the existing order at the end of 25 December 2017 and in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the fifth review of a substantive conditions of practice order, originally imposed by a panel of the Conduct and Competence Committee on 21 May 2013 for a period of 18 months. That order was reviewed on 19 November 2014, when the order was extended for three months. The order was reviewed for the second time on 26 February 2015, when the order was extended for a further 12 months. The order was reviewed for the third time on 1 March 2016, when the order was extended for a further 9 months. The last reviewing panel varied and extended the conditions of practice order for a further 12 months. The current order is due to expire on 25 December The panel is reviewing the order pursuant to Article 30(1) of the Order. The charges found proved by way of admission which resulted in the imposition of the substantive order were as follows: Page 4 of 15

5 That you whilst employed by South Tees NHS Trust ( the Trust ) as a band 5 Staff Nurse at the James Cook University Hospital: 1. On or around 17 May 2010 stated the following about a patient in the vicinity of patient relatives: (a) Oh my god, he done my head in last night or words to that effect; (b) He was in, out, in, out all night or words to that effect; (c) In the end I said what do you want smelly arse or words to that effect. 2. On or around 1 December 2010 attended for duty whilst under the influence of alcohol and/or prescription medication; 3. On or around 25 December 2010 attended for duty under the influence of alcohol; 4. On an unknown date whilst off duty phoned the Directorate Manager and left a voic on her phone whilst under the influence of alcohol; 4. On various unknown dates whilst off duty contacted Ward 11 by telephone whilst under the influence of alcohol. AND, in light of the above, your fitness to practise is impaired by reason of your misconduct. The fourth reviewing panel determined the following with regard to impairment: In reaching its decision, the panel was mindful of the need to protect the public, maintain public confidence in the profession and to declare and uphold proper standards of conduct and performance. The panel considered whether Miss Green s fitness to practise remains impaired. The panel noted that there is no evidence before it today about Miss Green s Page 5 of 15

6 remediation, although it does note that Miss Green has continued to engage with the NMC process and has submitted a Personal Development Plan, a written reflective piece. Miss Green s written reflective piece appeared to demonstrate some insight and remorse for her actions, as well as consideration for the impact of her actions on patients. However, the panel has noted that Miss Green s Personal Development Plan has not been developed with an employer and is not sufficient or satisfactory to comply with condition 5 of her order. The panel noted that Miss Green has not secured employment in a nursing capacity, and as such, has been unable to remediate her practice and fully comply with her current order. The panel bore in mind that its primary function was to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance. For these reasons, the panel finds that Miss Green s fitness to practise remains impaired. The fourth reviewing panel determined the following with regard to sanction: Having found Miss Green s fitness to practise currently impaired, the panel then considered what, if any, sanction it should impose in this case. The panel noted that its powers are set out in Article 29 of the Order. The panel has also taken into account the NMC s Indicative Sanctions Guidance (ISG) and has borne in mind that the purpose of a sanction is not to be punitive, though any sanction imposed may have a punitive effect. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the risk of repetition identified and the seriousness of the case. The panel decided that this would not sufficiently protect the public and would be neither proportionate nor in the public interest to take no further action. Page 6 of 15

7 The panel then considered whether to impose a caution order but concluded that this would be inappropriate in view of the risk of repetition identified and the seriousness of the case. The panel decided that this would not sufficiently protect the public and would be neither proportionate nor in the public interest to impose a caution order. The panel next considered the imposition of a conditions of practice order. The panel was of the view that an amended conditions of practice order is sufficient to protect patients and the wider public interest. The panel noted that Miss Green has taken her first steps towards remediation and is committed to returning to her nursing career. The panel determined that an amendment to the order is required: to allow improved development of a practice-informed personal development plan; and Accordingly, the panel determined, pursuant to Article 30(1) (c) of the Nursing and Midwifery Order 2001, to make a further conditions of practice order for a period of 12 months, which will come into effect on the expiry of the current order. It decided to impose the following amended conditions, which it considered to be appropriate and proportionate in this case: 1. You must notify the NMC within 7 days of any nursing or midwifery appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 2. 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 herein, to them: (a) Any organisation or person employing, contracting with, or using you to undertake nursing or midwifery work; Page 7 of 15

8 (b) Any agency you are registered with or apply to be registered with (at the time of application); (c) Any prospective employer (at the time of application); (d) Other than for courses arranged by the Registrant s employer, 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). 3. You must inform the NMC of any criminal or professional investigation started against you and any criminal or professional disciplinary proceedings taken against you within 14 days of you receiving notice of them. (a) You must within 14 days of accepting any post or employment requiring registration with the NMC, or any course of study connected with nursing or midwifery which has not been arranged by your employer, provide the NMC with the name/contact details of the individual or organisation offering the post, employment or course of study. (b) You must within 14 days of entering into any arrangements required by these conditions of practice provide the NMC with the name and contact details of the individual/organisation with whom you have entered into the arrangement. 4. At any time that you are employed or otherwise providing nursing or midwifery 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, a registered nurse of band 6 or above who is physically present in or on the same ward, unit, floor or home that you are working in or on. Page 8 of 15

9 5. You must work with your line manager, mentor or supervisor (or their nominated deputy) to formulate a Personal Development Plan specifically designed to address the deficiencies in the following areas of your practice: (a) Communication skills; (b) Liaising with patients and families; (c) Professional behaviour in the workplace. 6. 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. 7. You must forward to the NMC a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and your progress towards achieving the aims set out in your Personal Development Plan to the NMC at least 14 days before any NMC review hearing or meeting. In accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 this conditions of practice order will come into effect upon the expiry of the existing Page 9 of 15

10 conditions of practice order, namely 25 December The order will be for a period of 12 months and will allow Miss Green sufficient time to obtain employment and develop an appropriate personal development plan. This decision will be confirmed to Miss Green in writing. That concludes this determination. Decision on current fitness to practise The panel has considered carefully whether Miss Green s fitness to practise remains impaired. Whilst there is no statutory definition of fitness to practise, the NMC has defined fitness to practise as a registrant s suitability to remain on the register without restriction. In considering this case, the panel has carried out a comprehensive review of the order in light of the current circumstances. It has noted the decision of the last panel. However, it has exercised its own judgment as to current impairment. The panel has had regard to all of the documentation before it, including the NMCs documents and the on-table documents provided by the RCN on Miss Green s behalf. It has taken account of the submissions made by Ms Sedgley on behalf of the NMC and those made by the RCN, on Miss Green s behalf. Ms Sedgley submitted that it is for the panel to consider fully the case and determine whether Miss Green s fitness to practise is currently impaired, and if so, what sanction is appropriate. Ms Sedgley also directed the panel to Miss Green s updated reflective piece. Ms Sedgley submitted that Miss Green is in the same position she was last year in that she is not working in a clinical post. As a consequence, she has been unable to comply fully with the condition which requires her to submit a Professional Development Plan Page 10 of 15

11 (PDP). Ms Sedgley told the panel that Miss Green is working as a carer on a regular basis and referred them to a letter from the client dated 29 September The panel heard and accepted the advice of the legal assessor. In reaching its decision, the panel was mindful of the need to protect the public, maintain public confidence in the profession and to declare and uphold proper standards of conduct and performance. The panel considered whether Miss Green s fitness to practise remains impaired. It had regard to the RCN s written submissions on behalf of Miss Green, the reflective statement,. The panel noted that Miss Green intends to complete a return to practice course which might assist a future panel in reaching its decision. The panel is concerned that she has not worked as a registered nurse for a substantial period of time and therefore has not had an opportunity to fully address the deficiencies in a clinical environment. The panel considers that these deficiencies are still capable of remediation. The panel therefore decided that a finding of current impairment is necessary on the grounds of public protection and is otherwise in the public interest. The panel has borne in mind that its primary function is to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance. The panel determined that, in this case, a finding of current impairment on public protection and public interest grounds is required. Determination on sanction: Having found your fitness to practise currently impaired, the panel then considered what, if any, sanction it should impose in this case. The panel noted that its powers are Page 11 of 15

12 set out in Article 29 of the Order. The panel has also taken into account the NMC s Sanctions Guidance (SG) and has borne in mind that the purpose of a sanction is not to be punitive, though any sanction imposed may have a punitive effect. The panel was aware that the concerns regarding Miss Green s practice are in relation to her communication skills, her ability to liaise with patients and families and her professional behaviour related to her role as a registered nurse. The panel noted her intention to undertake a return to practice course, commencing at Teesside University in March The panel decided it would not be in the public interest to take no action in view of its finding of impairment. The panel decided that it would be neither proportionate nor in the public interest to take no further action. The panel then considered whether to impose a caution but concluded that this would be inappropriate in view of the finding of impairment. The NMC Guidance states that: A caution may be appropriate where the case is at the lower end of the spectrum of fitness to practise and the panel wishes to mark that the behaviour is unacceptable and must not happen again. The panel considers that this is inappropriate given the level of seriousness of the case. The panel next considered the imposition of a conditions of practice order. The panel was of the view that a conditions of practice order is sufficient to protect patients and the wider public interest and that conditions could be formulated which would protect patients and satisfy the wider public interest during the period they are in force, and which would be proportionate. The panel decided to impose the following conditions which it considered are appropriate and proportionate in this case: 1. You must notify the NMC within 7 days of any nursing or midwifery appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. Page 12 of 15

13 2. 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 herein, to them: (a) Any organisation or person employing, contracting with, or using you to undertake nursing or midwifery work; (b) Any agency you are registered with or apply to be registered with (at the time of application); (c) Any prospective employer (at the time of application); (d) Other than for courses arranged by the Registrant s employer, 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). 3. You must inform the NMC of any criminal or professional investigation started against you and any criminal or professional disciplinary proceedings taken against you within 14 days of you receiving notice of them. (a) You must within 14 days of accepting any post or employment requiring registration with the NMC, or any course of study connected with nursing or midwifery which has not been arranged by your employer, provide the NMC with the name/contact details of the individual or organisation offering the post, employment or course of study. (b) You must within 14 days of entering into any arrangements required by these conditions of practice provide the NMC with the name and contact details of the individual/organisation with whom you have entered into the arrangement. 4. At any time that you are employed or otherwise providing nursing or midwifery services, you must place yourself and remain under the supervision of a workplace line manager, mentor or supervisor nominated by your employer, such supervision Page 13 of 15

14 to consist of meetings with your line manager, mentor or supervisor to discuss your performance in the following areas: (a) Communication skills; (b) Liaising with patients and families; (c) Professional behaviour related to your role as a registered nurse. 5. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every week for the first four weeks and every two weeks thereafter to discuss the standard of your performance and your progress towards achieving the aims set out in condition 4 above. 6. You must forward to the NMC 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 in the areas (a) to (c) set out in condition 4 above to the NMC at least 14 days before any NMC review hearing or meeting. In accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 this conditions of practice order will come into effect upon the expiry of the existing conditions of practice order, namely at the end of 25 December The order will be for a period of 12 months and will allow Miss Green sufficient time to obtain employment and comply with the conditions or practice order. This decision will be confirmed to Miss Green in writing. The panel noted that Miss Green has now had a conditions of practice order in place since 21 May The next reviewing panel, which will have a full range of options available to it, is likely to be assisted by Miss Green s attendance and a written reflective piece. Page 14 of 15

15 That concludes this determination. Page 15 of 15

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