Conduct and Competence Committee Substantive Hearing 5 May Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE

Transcription

1 Conduct and Competence Committee Substantive Hearing 5 May 2017 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: Jacqueline Jane Cooper NMC PIN: 78Y1773E Part(s) of the register: Registered Nurse Sub Part 1 RN1 Adult 6 April 1981 SPDN Specialist Practitioner District Nursing - 22 August 2003 V300 Nurse Independent/Supplementary prescriber 17 September 2003 V100 Community Practitioner Nurse Prescriber 20 October 2003 Area of Registered Address: England Type of Case: Misconduct Panel Members: Paul Powici (Chair, Lay member) Jennifer Pennington (Registrant member) Rona McKay (Registrant member) Legal Assessor: Neil Mercer Panel Secretary: Joe Jolley Nursing and Midwifery Council: Represented by Daniel Brown, counsel, instructed by NMC Regulatory Legal Team. Mrs Cooper: Present and represented by Laura Bayley, counsel, instructed by the Royal College of Nursing Facts proved by admission: All Fitness to practise: Impaired Sanction: Striking-off order Interim Order: Interim suspension order 18 months 1

2 Details of charge: That you, whilst employed as an Advanced Nurse Practitioner by The Bradford on Avon & Melksham Health Partnership 1. Stole an unknown quantity of Tramadol from Partnership stock on unknown dates in Stole an unknown quantity of Co-Codamol from Partnership stock on unknown dates in Stole 100 Tramadol tablets on or about the 29 July Consumed Tramadol a drug not prescribed to you whilst on duty 5. Retained 2 patient s surrendered Tramadol for your own use on an unknown date 6. Your actions in charges 1, 2 and 3 were dishonest And in light of the above your fitness to practise is impaired. 2

3 Decision and Reasons on application under Rule 19 Ms Bayley made a request that parts of your case be held in private on the basis that a proper exploration of matters involves reference to your health. Mr Brown did not object to the application. The legal assessor reminded the panel that while Rule 19 (1) provides, as a starting point, that hearings shall be conducted in public, Rule 19 (3) states that the panel may hold hearings partly or wholly in private if it is satisfied that this is justified by the interests of any party or by the public interest. Having heard that there will be reference to your health, the panel determined to hold such parts of the hearing in private. The panel determined to rule on whether or not to go into private session in connection with your health as and when such issues are raised. 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 Brown on behalf of the NMC and those made by Ms Bayley 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. 3

4 Background: After seeking advice from your employer, you sent a self-referral to the NMC on 5 August 2016 The charges arose whilst you were employed by The Bradford on Avon & Melksham Health Partnership (the Partnership) as an Advanced Nurse Practitioner (ANP). In February 2016 the Partnership Dispensary Manager (Ms 1) advised the Managing Partner (Ms 2) that a quantity of Tramadol was unaccounted for. Following this initial concern, Ms 1 identified a further 5 occasions when Tramadol was unaccounted for. Further reports of missing Tramadol and Co-Codamol continued in April and in May. In June 2016 the Partnership Management decided to install CCTV covertly within the dispensary. On 29 July 2016, Ms 1 informed Ms 2 that Tramadol was unaccounted for. The two viewed the CCTV footage and observed you taking a box of Tramadol and placing them into a pharmacy bag. On the same date, you were interviewed by Ms 2 and whilst you initially denied taking any Tramadol, once you were informed that there was CCTV footage, you admitted that you had been responsible for the theft. You denied taking any other medications except for on one occasion six months prior. You subsequently admitted to Ms 2 that you had been taking drugs from the dispensary for about 2 years on and off and that you had taken both Tramadol and Co-Codamol for your own use. You further admitted that you had kept two patient s surrendered Tramadol for your own use. 4

5 A local investigation was carried out following which a disciplinary hearing was convened on 20 September The outcome of these proceedings was that you received a first and final written warning. You remain employed by the Partnership in a Practice Nurse role. Admissions: At the outset of this hearing, the charges were read and you were invited to state your position. Ms Bayley, on your behalf, informed the panel that you admit each charge. The panel therefore announced charges 1, 2, 3, 4, 5 and 6 as proved. Submission on misconduct and impairment: The panel moved on to consider, whether the facts found proved amount to misconduct and, if so, whether your fitness to practise is currently impaired. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. You gave oral evidence at this stage under oath. You told the panel that you qualified as a nurse in 1981 and passed your Advanced Practitioners degree in Following this, you started working as an ANP. This role included conducting ten minutes appointments with patients with a range of acute health issues. You said that gradually over the year you found this incredibly stressful and began to feel anxious as you wanted to be a good ANP and did not want to let down your colleagues. [PRIVATE]. You informed the panel that you thought that taking Tramadol at work would calm you down. You realised that it did not have this effect but it did help you get through the working day. [PRIVATE]. You said that you only ever took the medication at work and never at home. You told the panel that you were acutely aware that what you were doing was wrong. [PRIVATE]. 5

6 [PRIVATE]. You told the panel that during your period of suspension from the Partnership, you approached everyone involved, discussed the incidents, apologised and was brutally honest about what you had done. You said that you now you feel much happier and have the courage to admit how you feel to the people around you. You told the panel that in your current role you come across Tramadol and Co- Cocodamol. You said that the sight of the medication makes you feel physically ill as, for you, they have awful connotations. You told the panel that you have currently been complying fully with the current interim conditions of practice order that is imposed upon you. You said that you have otherwise had no other concerns raised regarding your fitness to practise. You outlined your current financial circumstances including an unexpected personal circumstance that has impacted on you financially. You accepted that you abused your position of power and that your actions put patients at risk as you could have made a mistake. You said that you were left crippled by the fact that you initially lied to your colleagues but explained that you admitted to your actions upon your return to work the following week. You said that the impact of your actions on the nursing profession and to the public and your patients is unforgivable, you said that patients would lose all respect for you knowing what you have done. You told the panel that you absolutely love nursing and are so proud of everything you have done, apart from this matter. You said that you feel privileged to have been in a career that is incredibly challenging but you would not want to change it. You said that you would like to be given the opportunity to prove that you safely prescribe drugs and prove to you colleagues that you can do your job properly. Mr Brown 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. 6

7 Mr Brown informed the panel that your conduct straddles 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 (the 2015 Code). Rather than directing the panel to specific paragraphs of the Codes where, in the NMC s view, your actions amounted to misconduct, Mr Brown submitted that your actions clearly meet the threshold to enable the panel to make a finding of serious misconduct. He submitted that honesty and integrity are fundamental tenets of the nursing profession and there is an overriding duty to uphold the reputation of the nursing profession. Mr Brown then moved on to the issue of impairment, and addressed the panel on the need to have regard to protecting the public and the wider public interest. This included the need to declare and maintain proper standards and maintain public confidence in the profession and in the NMC as a regulatory body. He referred the panel to the cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Ms Bayley conceded that your actions did amount to misconduct. She submitted that, given the dishonesty in this case, your fitness to practise is currently impaired on public interest grounds alone. Ms Bayley did not accept that a finding of impairment on public protection grounds was required. She submitted that there is no evidence of patient harm and no evidence that any side effects of the medication you were taking impaired your ability to practice safely. Ms Bayley submitted that there has been no repetition of your actions so to say that it is highly likely that you will take medication again is a fallacy. She submitted that a finding of impairment on public protection grounds cannot be justified. [PRIVATE]. if the panel were to find that patients were exposed in the past to a potential risk of harm because of your actions, that any future risk is negligible. The panel accepted the advice of the legal assessor. 7

8 The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, your fitness to practise is currently impaired as a result of that misconduct. Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of the 2008 and 2015 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 did fall significantly short of the standards expected of a registered nurse. Honesty and integrity are fundamental tenets of the nursing profession, the panel considered your dishonesty and theft over a sustained period of time to breach these fundamental tenets. This breach undermined the trust of your employer and put your colleagues in a difficult situation. There may have been a point where you as well as your colleagues were suspected of taking the medication, therefore you put your colleagues professional reputation at risk. You have admitted consuming an un-prescribed controlled drug and namely Co-Codamol before and during your shifts and therefore you put your patients at real risk of harm. The panel was of the view that other health professionals would consider your actions to be deplorable and the opposite of what is expected of a registered nurse. The panel found that your actions did fall seriously short of the conduct and standards expected of a nurse and amounted to serious misconduct. Decision on impairment 8

9 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 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 9

10 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. 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. has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel finds that limbs a, b, c and d are engaged in this case. The panel bore in mind that you have admitted that your fitness to practise is currently impaired on public interest grounds alone. However, your current fitness to practise is a matter for the panel s own judgement. In considering whether your misconduct is remediable, the panel bore in mind that dishonesty is not easily remediable. The panel concluded that the depth of your dishonesty is very difficult to remediate. The panel acknowledged that you are very remorseful for your actions however considered your answers in evidence lacked detail in terms of your understanding of the factors that led to you needing to take the medication. [PRIVATE]. Further, the panel considered that you do not appear to have fully acknowledged how much you abused 10

11 the trust of your employer. You recognised that your actions were unforgivable but were unable to demonstrate to a sufficient standard the impact of this abuse of trust. The panel therefore concluded that you lack complete insight. As you were unable to satisfy the panel that you had full insight, the panel determined that this leads to there being a risk of repetition should you be in a similar situation in the future. [PRIVATE]. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection. The panel bore in mind the overarching objective of the NMC: to protect, promote and maintain the health safety and well-being of the public and patients and 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 determined that, in this case, a finding of impairment on public interest grounds was required. A member of the public would be shocked to know that a nurse had abused her employer s trust by stealing a substantial quantity of medication for her own use and demonstrated a sustained period of dishonesty. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. Determination on sanction: Having found your fitness to practise currently impaired the panel went on to consider what sanction, if any, it should make. The panel has balanced your interests with the need to protect the public and reflect the wider public interest, considered your case very carefully and decided to make a striking-off order. It directs the registrar to strike you off the register. The effect of this order is that the NMC register will show that you have been struck-off the register. 11

12 In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case as well as the submissions made by Mr Brown and Ms Bayley on your behalf. The panel accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the Indicative Sanctions Guidance (ISG) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. Mr Brown outlined to the panel what, in his submission, are the aggravating and mitigating features of your case. He took the panel through the ISG and indicated key points that the panel may wish to consider. Ms Bayley invited the panel to impose a conditions of practice order. She reminded the panel that the key consideration in determining sanction is proportionality. Ms Bayley asked the panel to consider the context surrounding your dishonesty. She submitted that your practice has already been subject to restriction and that you have been working safely and effectively under an interim conditions of practice order. Ms Bayley submitted that the identified risk of potential harm to patients can be managed by a conditions of practice order and will allow you to continue your good work and to rebuild the confidence in your employer, your colleagues and in the public. She further submitted that a suspension order is not necessary and erasure from the register would be disproportionate as you do not present a risk so high that you should not be allowed to practise again. Before making its decision on the appropriate sanction, the panel established the aggravating and mitigating features in your case. The panel determined the aggravating features to be: This is a case involving repeated dishonest conduct over a period of two years. 12

13 There was a potential risk of harm to patients by self-administering un-prescribed medication at work. You did not admit to the theft of the medication at the earliest opportunity. You were a senior, independently practising nurse. You abused your employer s trust. The panel determined the mitigating features to be: Your lengthy career as a nurse. There is evidence of your good practice and there are references attesting to your character and ability as a nurse. You made early admissions to charges to the NMC and have engaged with the process. You have shown evidence of remorse. Your personal mitigation. You self-referred to the NMC. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the ISG, which states that a caution order may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that your misconduct was not at the lower end of the spectrum and that a caution order would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order. 13

14 The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the ISG, in particular: 64.8 It is possible to formulate conditions and to make provision as to how conditions will be monitored. The panel was of the view that there are no practical or workable conditions that could be formulated, given the nature of the charges in this case. The misconduct identified in this case was not something that can be addressed through retraining. The panel considered this case to not be about clinical skills but rather about your professional judgement and conduct. The panel noted that you have been complying with an interim conditions of practice order, but this finding was based on a risk assessment rather than on findings of fact. Furthermore the panel concluded that the placing of conditions on your registration would not adequately address the seriousness of this case and would not satisfy the public interest. The panel then went on to consider whether a suspension order would be an appropriate sanction. The panel determined that although the theft of medication took place within a contained period in your professional career, this was not a single incident of misconduct but rather sustained period of serious dishonesty. The panel took into account your lengthy career and the fact that you stopped taking the medication once you had been found out. However, the panel was not satisfied that you would not have continued taking the medication if you had not been found out. The panel noted that your employer seems to accept that you seriously abused their trust but continues to 14

15 support you, however the panel determined that your employer has not taken into account the public interest in your case. The conduct, as highlighted by the facts found proved, was a significant departure from the standards expected of a registered nurse. The panel noted that the serious breach of the fundamental tenets of the profession evidenced by your actions is fundamentally incompatible with your remaining on the register. Balancing all of these factors, the panel has determined that a suspension order would not be an appropriate or proportionate sanction. Finally, in looking at a striking-off order, the panel took into account your serious departure from the standards expected of a registered nurse. The panel was of the view that you showed a real disregard for patient safety by attending to patients at the surgery or at their homes and making clinical judgements on patients who were acutely unwell whilst you were taking un-prescribed medicine. The role you were in was of significant seniority and you were an independent practitioner, trusted by your employer to deliver safe care without supervision. The panel took account of the ISG and determined that your actions were significant departures from the standards expected of a registered nurse, and are fundamentally incompatible with you remaining on the register. Additionally your actions were an abuse of a position of trust involving persistent dishonesty which you initially attempted to deny and in the panel s view, despite the period of time since these events, you have not developed full insight into your behaviour. The panel was of the view that the findings in this particular case demonstrate that your actions were so serious that to allow you to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body. Balancing all of these factors and after taking into account all the evidence before it during this case, the panel determined that the appropriate and proportionate sanction 15

16 is that of a striking-off order. Having regard to the matters it identified, in particular the effect of your actions in bringing the profession into disrepute by adversely affecting the public s view of how a registered nurse should conduct herself, the panel has concluded that nothing short of this would be sufficient in this case. The panel considered that this order was necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse. The panel considered the significant adverse impact this decision may have on you but your misconduct is such that the interest of the public fare outweighed your own. Determination on Interim Order Mr Brown submitted that an interim suspension order for a period of18 months should be made on the grounds that it is necessary for the protection of the public and is otherwise in the public interest to allow for the possibility of an appeal to be made and determined. Ms Bayley made no comment. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim suspension order for a period of 18 months is necessary for the protection of the public and is otherwise in the public interest. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. To do otherwise would be incompatible with its earlier findings. 16

17 If no appeal is made, then the interim order will be replaced by the suspension 28 days after you are sent the decision of this hearing in writing. That concludes this determination. 17