Part(s) of the register: Registered Nurse sub part 1 Adult Nursing (23 February 2005)

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 9 November 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Mrs Jasmin De Castro-Lopez 05B0715O Part(s) of the register: Registered Nurse sub part 1 Adult Nursing (23 February 2005) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mrs Jasmin De Castro-Lopez: England Misconduct Martin Parker (Chair, Lay member) Anne Witherow (Registrant member) Julia Thompson (Registrant member) William Hoskins Anjeli Shah Not present and not represented in absence Nursing and Midwifery Council: Represented by Mary-Clare Kennedy, counsel, instructed by NMC Regulatory Legal Team Consensual Panel Determination: Accepted Facts proved: 1.1, 1.2.1, 1.2.2, 2.1, 2.2, 2.3, 2.4.1, 2.4.2, 2.4.3, 2.4.4, 3, 4.1.1, 4.1.2, 4.1.3, 4.1.4, 4.1.5, 4.1.6, 4.2.1, 4.2.2, 4.2.3, Offer no evidence: 4.2.5, Fitness to practise: Impaired Sanction: Suspension Order for 12 months Interim Order: Interim Suspension Order for 18 months 1

2 Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Mrs De Castro-Lopez was not in attendance and that written notice of this hearing had been sent to Mrs De Castro- Lopez s registered address by recorded delivery and by first class post on 6 October Notice of this hearing was delivered to Mrs De Castro-Lopez s registered address on 7 October Further, the panel noted that notice of this hearing was also sent to Mrs De Castro-Lopez s legal representative at the Royal College of Nursing on 6 October The panel took into account that the notice letter provided details of the allegation, the time, dates and venue of the hearing and, amongst other things, information about Mrs De Castro-Lopez s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. Ms Kennedy submitted that the Nursing and Midwifery Council ( 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 De Castro- Lopez has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. 2

3 Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Mrs De Castro- Lopez. 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) (b) (c) 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; 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. Ms Kennedy, on behalf of the NMC, referred the panel to a letter from Mrs De Castro- Lopez s legal representative dated 2 November 2017 which stated: Our member will not be attending the hearing nor will she be represented. No disrespect is intended by her non-attendance. She has received notice and is happy for the hearing to proceed in her absence. She is keen to engage with the proceedings. Ms Kennedy submitted that the panel must use caution when considering whether to proceed in the absence of Mrs De Castro-Lopez. She submitted that on the basis of the letter from her legal representative, Mrs De Castro-Lopez had voluntarily absented herself from this hearing. Ms Kennedy submitted that this was often the case where a 3

4 consensual panel determination agreement had been reached between the NMC and a registrant, as both parties had made their position in relation to the case clear. On this basis, Ms Kennedy invited the panel to proceed in Mrs De Castro-Lopez s absence. The panel accepted the advice of the legal assessor. The panel noted from the letter from Mrs De Castro-Lopez s legal representative that it was clear that Mrs De Castro-Lopez would not be attending today s hearing and that she was happy for the hearing to proceed in her absence. On this basis the panel considered that Mrs De Castro-Lopez had voluntarily absented herself. The panel noted that this hearing was convened to consider a consensual panel determination, and therefore the NMC and Mrs De Castro-Lopez had reached an agreement on their position. On this basis, the panel did not consider that any unfairness would be caused to either party if it were to proceed in the absence of Mrs De Castro-Lopez. In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mrs De Castro-Lopez. The panel will draw no adverse inference from Mrs De Castro-Lopez s absence in its findings. 4

5 Consensual panel determination At the outset of this hearing, Ms Kennedy, on behalf of the NMC, informed the panel that prior to this hearing a consensual panel determination provisional agreement ( CPD agreement ) had been reached with regard to this case between the NMC and Mrs De Castro-Lopez. The agreement, which was put before the panel, sets out Mrs De Castro-Lopez s admissions to the facts alleged in the charges, that Mrs De Castro-Lopez s actions amounted to misconduct, and that her fitness to practise is currently impaired by reason of that misconduct. It is further stated in the agreement that the appropriate sanction in this case would be a suspension order for a period of 12 months. The panel has considered the provisional agreement reached by the parties. That provisional agreement reads as follows: The Nursing and Midwifery Council and Ms Jasmin De Castro-Lopez, PIN 05B0715O ( the parties ) agree as follows: 1. Mrs De Castro-Lopez admits the following charges, save for and 4.2.6: That you, a Registered Nurse: 1. On or around 21 February 2015, at the James Cook University Hospital and in relation to administration of Gabapentin to Patient B: 1.1 gave the patient an incorrect dose of the medication; 5

6 1.2 once you had been notified of the error at 1.1, failed to follow the correct procedure following a medication administration error in that you: did not escalate the error to a manager or nurse in charge; did not complete a Datix form. 2. On a night shift commencing on 25 January 2016 at the James Cook University Hospital and in relation to Patient A s infusion of Furosemide, you: 2.1 failed to set the correct rate of infusion which led to the medication being administered too quickly; 2.2 failed to record your error in the Patient s nursing care plan and/or Evaluation of Care and/or CARDEX; 2.3 failed to complete the fluid balance chart; 2.4 failed to follow the correct procedure following a medication administration error in that you: did not escalate the error in 2.1 above to the nurse in charge of the shift; did not conduct and/or report that you had conducted additional or more frequent observations, in light of your error; did not complete a Datix form; 6

7 2.4.4 did not inform the medical team or a doctor. 3. Your actions at charge and/or and/or and/or and/or above were dishonest in that you intended to conceal your error(s). 4. On or around March 2017 at Victoria House Care Home: 4.1 During a night shift commencing 24 March 2017 and in relation to the catheterisation of Patient AW, a male patient, you failed to provide an adequate standard of care in that you: inserted a female catheter; did not replace with a like for like size; inflated the balloon despite there being no urine flow; continued to catheterise the patient despite your reservations; did not document your actions and/or reservations in the daily record of care; did not report that you had made the error; 4.2 made one or more of the following medication administration errors/recording errors: on 25 March 2017 and in relation to Patient GS, gave the patient an incorrect dose of Cyanocobalamin; 7

8 4.2.2 on 29 March 2017 in relation to Patient JW, gave the patient an incorrect dose of Metropolol or in the alternative, lost half a tablet and had not recorded the loss; on 29 March 2017 and in relation to Patient SM, signed as having administered Trozodone and Simvastatin when you had not in fact administered them; on 29 March and in relation to Patient DT, did not administer Olanzapine to the patient; on 30 March 2017 and in relation to Patient DE, signed as having administered the patient s bedtime dose of Metformin when you had not in fact administered it; administered PRN Lorazepam to one or more patients but did not document that you had done so. AND in light of the above, your fitness to practise is impaired by reason of your misconduct Offering no evidence 2. Mrs De Castro-Lopez does not admit charges and and, the NMC, on reviewing the charges have made the decision to offer no evidence on them. The NMC therefore make an application to the panel to allow the NMC to offer no evidence in respect of the two charges and invite the panel to find no case to answer. 8

9 The evidence in respect of charge comes from Ms 2 who is the home manager for Victoria House Care Home. She states at paragraph 14 of her witness statement, A further medication administration error occurred on 30 March 2017 concerning Patient DE where Mrs De Castro-Lopez had signed as having administered the bedtime dose of Metformin but had not given this tablet as the count the following morning was the same following the previous morning s dose. There is however, no direct evidence from the nurse who administered the medication the following day confirming that the balance of medication was the same as the day before. In light of the insufficiency of evidence in this regard, it is unlikely that the panel would find the facts of the charge proved. The evidence in respect of charge is based on an allegation outlined within the notes of the investigation meeting with the registrant. It is accepted that the evidence in this charge requires better specification; however the allegation does appear to be accepted by the registrant during the course of the meeting. Nevertheless and in light of the other multiple admissions in this case, this charge of failing to document the administration of Lorazepam does not affect the overall seriousness of the case and as such, the NMC offer no evidence. Facts 3. The facts are as follows: Mrs De Castro-Lopez commenced her employment with James Cook University Hospital on 7 August On or around the 21 February Mrs De Castro-Lopez was providing care to Patient B, during the course of the day shift, who was due to receive 100mgs of Gabapentin which is to be administered in tablet form. During the course of the medication round Mrs De Castro-Lopez gave the patient 2 tablets of Gabapentin which amounted to a dose of 200mgs (charge 1.1). 9

10 The patient realised that he had been given two tablets instead of one and only took the one which amounted to 100mgs. The patient also disposed of the other tablet. The patient went on to inform the care assistant who in turn made Mrs De Castro-Lopez aware of the error she had made during the course of her medication round. On being made aware of the medication error Mrs De Castro- Lopez did not escalate the error to a manager or nurse in charge (charge 1.2.1) nor did she complete a Datix form (charge 1.2.2). On 25 January 2016 Mrs De Castro-Lopez was working the night shift. In the course of the shift she provided care to Patient A, who required an infusion of 240mgs of Furosemide. The infusion was prescribed to be over 24 hours. Mrs De Castro-Lopez set up the infusion pump at the incorrect rate of 10mls/hour which meant that the full dose was administered in approximately two and a half hours. When the day shift came on duty they were advised that Patient A was receiving an intravenous infusion of Furosemide and that the infusion was still running. Following the handover Ms 1 went to check on her allocated patients and this included Patient A. During her check she realised that there was no infusion running, the line was down and nothing was attached to Patient A (charge 2.1). As a result of the above Ms 1 contacted Mrs De Castro-Lopez to find out what had happened and she was informed that the infusion had finished early. The error was highlighted to other members of the team as there were concerns that if the infusion had gone through too quickly the patient could offload fluid too quickly which could cause significant problems including cardiac arrest. Despite Mrs De Castro-Lopez being aware that the infusion had finished too quickly, and therefore a medication error had taken place, Mrs De Castro-Lopez failed to record her error in the Patient s nursing care plan or the evaluation of care or the CARDEX. 10

11 On investigation it became clear that Mrs De Castro-Lopez had not followed the correct procedure following the medication error in that she did not escalate the error to the nurse in charge of the shift (charge 2.4.1). Mrs De Castro-Lopez was asked why she had not escalated the matter to the nurse in charge to which she replied because you are scary and far too serious. The patient notes were checked and it was noted that the fluid balance chart for the shift in question has an entry at 23:00 which states furosemide, but then there is no further entry made regarding the volume infused and it then appears that the patient did not pass urine from 17:00 to 07:00. As a result of this document Mrs De Castro-Lopez accepts that she failed to complete the fluid balance chart (charge 2.3). An inspection of Patient A s evaluation of care document showed that Mrs De Castro-Lopez made two entries post-incident, the first at 0130hrs stating, Patient remains settled in bed both eyes shut. Reposition as much as patient can tolerate. Had furosemide infusion last night as per doctors order stat. observed patient a little bit muddled last night. The second entry at 0430hrs states Settled patient in bed with eyes shut. No record was made to indicate that the infusion had run too quickly or that there were increased observations for patient A. In light of the notes it is accepted by Mrs De Castro-Lopez that she did not conduct and or report that she had conducted additional or more frequent observations in light of the error she had made (charge 2.4.2). During the course of the of the investigation meeting Mrs De Castro-Lopez confirmed that she realised that the infusion had stopped at around 3/4am. She went on to confirm that she did not complete a Datix which was her mistake and she was going to do one. It is accepted by Mrs De Castro-Lopez that she at no time did complete the Datix (charge 2.4.3). 11

12 Mrs De Castro-Lopez was also asked during the investigation meeting if she had called the Doctor to check on the patient and she stated that she did not as she assumed her colleague would (charge 2.4.4). It is not accepted by Hannah Thompson that she was made aware of the error and therefore the responsibility to inform the medical team or doctor remained with Mrs De Castro-Lopez. As a result of the allegations above it is accepted by Mrs De Castro-Lopez that her actions amount to dishonesty in that she intended to conceal her errors. Following the most recent Supreme Court Judgment in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 the test for dishonesty has been revised. No longer is there a requirement to find proved that the defendant (or in this case registrant) must appreciate that what he has done is dishonest. Paragraph 74 of the judgment states: These several considerations provide convincing grounds for holding that the second leg of the test propounded in Ghosh does not correctly represent the law and that directions based upon it ought no longer to be given. The test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes: see para 62 above. When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. Wheonce his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no 12

13 requirement that the defendant must appreciate that what he has done is, by those standards, dishonest. Mrs De Castro-Lopez accepts that when the medication error on the 21 February 2015 was brought to her attention by the care assistant she did not escalate to a manager or nurse in charge and did not complete a datix form, the motive for these failures was that she sought to conceal the error she had made. In light of the new authority above Mrs De Castro-Lopez accepts that she knew at the time she was told by the carer an additional tablet had been given to the patient she had made a medication error. As a result the failures to act amounted to an attempt to conceal the error and would be considered by ordinary people to be dishonest and therefore the dishonesty charge is accepted. In considering the dishonesty charge attached to charges 2.4.1, and the same rationale as set out above is both applied and accepted by Mrs De Castro-Lopez. Mrs De Castro-Lopez accepts that on realising the infusion pump had finished early she had set the rate to run too quickly thereby administering an overdose to the patient. It is her failures to act in escalating the situation and reporting the incident on a datix form that amount to dishonesty in that she sought to conceal the error she had made rather than act appropriately in the circumstances. Following a full disciplinary investigation and hearing Mrs De Castro-Lopez was dismissed from the trust. She went on to gain employment with Victoria House Care Home. It is correct to say that Mrs De Castro-Lopez was transparent with her new employer during the course of the interview and admitted that she had been dismissed from her previous employer as a result of a medication error. As required within the interim conditions of practice that were imposed by the NMC following the medication errors Mrs De Castro-Lopez also informed Victoria House of the conditions she was required to work within. 13

14 Mrs De Castro-Lopez s role with Victoria House commenced on 15 August In late March 2017 Ms 2 (Home Manager) was made aware by the deputy manager that there had been an incident whereby Mrs De Castro-Lopez had catheterised a male patient using a female catheter. Ms 3 took over from Mrs De Castro-Lopez on the morning of 25 March 2017 to work the day shift. Patient AW was due for a general re-catheterisation on 24 March; this was a routine change which was done every 12 weeks. The nurse on duty during the day on 24 March was not qualified to catheterise and therefore could not carry out the routine change. During the course of the hand over Mrs De Castro-Lopez informed Ms 3 that she had re-catheterised Patient AW but did not mention that there were any issues. At around 4:30pm one of the care staff informed Ms 3 that Patient AW had not drained anything from his catheter all day. Ms 3 attended the patient and noted that he was quiet and looked uncomfortable, which was noted as being out of the ordinary. The catheter was checked to see if it needed to be repositioned but it would not move. When the repositioning was attempted the Patient grimaced and was obviously in pain. The Patient could not communicate very well but he was able to communicate through his facial expressions. Ms 3 took the decision to remove the catheter. When she went to take the water out of the 10 ml balloon she was only able to draw back 6mls when she should have been able to draw back the full 10mls. When the catheter was removed it was blood stained and there was a large blood clot on the tip of the catheter. This was of significant concern as Patient AW was on warfin due to blood clotting problems. Patient AW was then monitored but there was no change in his presentation. The equipment box for the catheter was found in the clinic room. The box was for a female patient (charge 4.1.1) and a size 16ch when Patient AW was prescribed 14

15 a size 12ch (charge 4.1.2). When Mrs De Castro-Lopez inserted the catheter for Patient AW she inflated the balloon in the urethra rather than his bladder which resulted in the catheter not draining (charge 4.1.3). When Mrs De Castro-Lopez was asked about the incident she responded that she had never known that there was a female catheter. Further that she had felt that something was had not been right when she inserted the catheter (charge 4.1.4) and there had been no flow of urine (charge 4.1.5). Mrs De Castro-Lopez also confirmed that she had handed over to the nurse on the next shift verbally and had not documented her actions or concerns (charge 4.1.6). In light of the concerns highlighted with Mrs De Castro-Lopez practice and possible medication errors coming to light Ms 2 requested that the MAR charts be checked for any additional medicine administration errors. On 29 March 2017 Mrs De Castro-Lopez was due to administer ½ tablet of Metropolol to Patient JW. The count after Patient JW had received her morning dose was 11 ½ but after Mrs De Castro-Lopez had administered the evening dose that count was 10 not 11 as it should have been. When the nurse administered the morning dose the next day and counted the tablets back after administration there were 10 tablets meaning that ½ tablet was missing. Mrs De Castro-Lopez accepts that she either gave the patient an incorrect dose of Matropolol or lost half a tablet and had not recorded the loss (charge 4.2.2). Also on 29 March Mrs De Castro-Lopez was due to administer Trozodone and Simvastin. However Mrs De Castro-Lopez failed to mark the quantity in the countdown box on the MAR chart. The count for the following day was correct which therefore meant that Mrs De Castro-Lopez had signed for the medication but had not actually administered it (charge 4.2.3). 15

16 Finally on 29 March Mrs De Castro-Lopez was due to administer Olanzapine to Patient DT which is an anti-psychotic medication. On checking the MAR chart it appeared that the medication had not been administered and this had not been recorded on the MAR chart. Mrs De Castro-Lopez had simply marked the chart with a square. On being asked about this Mrs De Castro-Lopez was adamant that she had administered the medication but when the medication was counted it was clear it could not have been (charge 4.2.4). Misconduct 4. Misconduct has been defined in Roylance v GMC as a falling short of the standards to which a Registrant would be expected to adhere. Mrs De Castro- Lopez admits that the facts amount to misconduct. One of the sources of these standards for the nursing profession can be found in the Code. It is agreed by both parties that the following areas of the code were not only engaged when Mrs De Castro-Lopez carried out the numerous medication errors and also acted dishonestly in concealing the errors but also were breached as a result of her actions: From the Preamble: You put the interests of people using or needing nursing or midwifery services first. You make their care and safety your main concern and make sure that their dignity is preserved and their needs are recognised, assessed and responded to. You make sure that those receiving care are treated with respect, that their rights are upheld and that any discriminatory attitudes and behaviours towards those receiving care are challenged. 2.1 work in partnership with people to make sure you deliver care effectively 8 Work cooperatively 16

17 8.2 maintain effective communication with colleagues 8.3 keep colleagues informed when you are sharing the care of individuals with other healthcare professionals and staff 8.4 work with colleagues to evaluate the quality of your work and that of the team 8.5 work with colleagues to preserve the safety of those receiving care 8.6 share information to identify and reduce risk 10 Keep clear and accurate records relevant to your practice 10.1 complete all records at the time or as soon as possible after an event, recording if the notes are written some time after the event 10.2 identify any risks or problems that have arisen and the steps taken to deal with them, so that colleagues who use the records have all the information they need 13 Recognise and work within the limits of your competence 13.3 ask for help from a suitably qualified and experienced healthcare professional to carry out any action or procedure that is beyond the limits of your competence 14 Be open and candid with all service users about all aspects of care and treatment, including when any mistakes or harm have taken place 17

18 14.1 act immediately to put right the situation if someone has suffered actual harm for any reason or an incident has happened which had the potential for harm 14.2 explain fully and promptly what has happened, including the likely effects, and apologise to the person affected and, where appropriate, their advocate, family or carers document all these events formally and take further action (escalate) if appropriate so they can be dealt with quickly. 20 Uphold the reputation of your profession at all times 20.2 act with honesty and integrity at all times, Dishonesty is serious and in this case took place on two separate occasions; as a result the dishonest behvaiour could not be described as being isolated. The medication errors are serious and in respect of the errors at James Cook were not reported nor were the patients monitored as a result of them. Following the dismissal from the trust Mrs De Castro-Lopez was placed on an interim conditions of practice order. It can therefore be said that as a result of the conditions Mrs De Castro-Lopez poor practice had been brought to her attention despite this there were further medication errors within her new role. In all the circumstances it is accepted by both parties that Mrs De Castro-Lopez s conduct falls far below the standards which would be considered acceptable and that the facts now admitted do amount to serious misconduct. Impairment 18

19 5. Mrs De Castro-Lopez admits that her fitness to practise is impaired by reason of her misconduct. A general approach to what might lead to a finding of impairment was given by Dame Janet Smith in her Fifth Shipman Report. A summary is set out in Grant at paragraph 76 in the following terms: 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 professions 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 professions; and/or d. Has in the past acted dishonestly and/or is liable to act dishonestly in the future. It is agreed by both parties that all four of the above questions are engaged in this case. On each occasion Mrs De Castro-Lopez has placed patients and residents at an unwarranted risk of harm. The ability to administer medication safely is basic nursing practice and Mrs De Castro-Lopez failed on a significant number of occasions to do this. It is an aggravating feature in this case that Mrs De Castro- Lopez had brought to her attention issues and concerns with her medicine 19

20 administration at James Cook Hospital yet despite this and being under conditions of practice whilst at Victoria House continued to make further medication errors. Mrs De Castro-Lopez has since these incidents completed a medication management online course on 6 April 2017 which she scored grade D 73% and a medication administration training course. In addition to that she has completed an online catheterisation course; it is of note that she only received a pass mark of 60% grade E based on her assessment. Whilst it is acknowledged Mrs De Castro-Lopez has sought to commence remediation around her medicine administration and catheterisation this is not sufficient to alleviate the concerns of future risk of harm to patients particularly in light of the poor grades that were achieved. As a result there remains a risk of repetition and risk of harm to patients. As stated above it is accepted by both parties that in acting in a dishonest manner in concealing the significant number of medication errors Mrs De Castro- Lopez has brought the profession into dispute. In addition it is a fundamental tenet of the profession for a nurse to act honestly and in the interests of the patient at all times; that includes escalating errors to the a medical team and manager to ensure the patient receives the best care when an error does occur. The public interest must also be considered when determining if a registrant is currently impaired. It is accepted by both parties that it is very much in the public interest for a finding of current impairment in this case. Mrs De Castro-Lopez has submitted a reflective statement and supporting documents (appendix 1) to demonstrate that she has commenced remediation work in order to work towards working unrestricted in the future. It is however accepted by both parties that currently the insight, remorse and remediation is not complete and there remains a risk of harm to the public. Mrs De Castro- 20

21 Lopez is currently working as a HCA and therefore is not in a position to put forward any nursing references to speak to her current practice. In light of the above it is accepted by both parties in the circumstances there must be a finding of current impairment on both public protection and also public interest grounds. Sanction 6. The appropriate sanction in this case is a 12 month suspension order. Whilst Mrs De Castro-Lopez has demonstrated some insight into her failings the misconduct is serious and presents a continuing risk of harm to the public. Mitigating factors The Registrant has engaged with NMC proceedings and made admissions in August 2017, along with a written reflective statement. The Registrant has demonstrated developing insight, remediation and remorse. Aggravating factors The second set of allegations which took place at Victoria House Care Home occurred when Mrs De Castro-Lopez was already under an interim conditions of practice order. The repeated behaviour is of a similar nature in that they are all medication errors. 21

22 There are two allegations of dishonesty which take place at different locations and in different circumstances; therefore could not be described as isolated. Clear risk of repetition A conditions of practice order has been considered but in the circumstances it would not be appropriate. There are significant concerns that the second set of allegations took place whilst Mrs De Castro-Lopez was under an interim conditions of practice order. This is therefore demonstrative of someone who despite their poor practice being brought to their attention continues to fail to perform to the required standard. Further, it is agreed by the parties that the public interest would not be sufficiently marked by the imposition of a conditions of practice order. Both parties have considered the sanction guidance and agree that the misconduct is not fundamentally incompatible with continuing as a registered nurse but it does warrant temporary removal from the register for a 12 month period. A 12 month suspension order is therefore considered to be both appropriate and proportionate in the circumstances. Review of the substantive suspension order 7. It is agreed by both parties that a review of the suspension order is required prior to the expiry of the order. This is a case which concerns both public protect and public interest as grounds for current impairment therefore it would not be appropriate or in the public interest to allow this order to simply lapse on the expiry without any check into the registrants current fitness to practice. 22

23 Interim Order 8. It is also necessary for the protection of the public and otherwise in the public interest for there to be an interim suspension order of 18 months to cover the appeal period. The parties understand that this provisional agreement cannot bind a panel, and that the final decision on findings impairment and sanction is a matter for the panel. The parties understand that, in the event that a panel does not agree with this provisional agreement, the admissions to the charges set out at section 1 above, and the agreed statement of facts set out at section 2 above, may be placed before a differently constituted panel that is determining the allegation, provided that it would be relevant and fair to do so. Here ends the provisional agreement between the NMC and Mrs De Castro-Lopez. The provisional agreement was signed by Mrs De Castro-Lopez on 1 November 2017 and the NMC on 2 November

24 Decision and reasons on the consensual panel determination: The panel has decided to accept the CPD agreement reached between the NMC and Mrs De Castro-Lopez. The panel accepted the advice of the legal assessor, who referred the panel to the NMC s Sanctions Guidance ( SG ) and to the NMC s guidance on Consensual Panel Determinations. He reminded the panel that it could accept, amend or reject the provisional agreement reached between the NMC and Mrs De Castro-Lopez. Further, the panel should consider whether the provisional agreement would be in the public interest. This means that the outcome must ensure an appropriate level of public protection, maintain public confidence in the professions and the regulatory body, and declare and uphold proper standards of conduct and behaviour. The panel noted that Mrs De Castro-Lopez has admitted the facts of the charges, except for charges and 4.2.6, in respect of which the NMC have decided to offer no evidence as set out in the CPD agreement. The panel noted that there was insufficient evidence to support charge in the absence of direct evidence that the relevant medication had not been administered. Charge needed further particularisation and did not alter the seriousness of the case. The panel therefore decided to accept the NMC s proposal in the agreement to offer no evidence on charges and and determined there was no case to answer in respect of these charges. The panel further noted that there was no reference in the CPD agreement to Mrs De Castro-Lopez s acceptance of charge 4.2.1, however it was satisfied that her acceptance of this charge is set out in her written reflective piece dated 23 October 2017, and the NMC were in agreement with this position, as submitted by Ms Kennedy. 24

25 The panel was satisfied that the remaining charges are found proved by way of Mrs De Castro-Lopez s admissions as set out in the signed provisional agreement before the panel. The panel then went on to consider whether Mrs De Castro-Lopez s conduct was sufficiently serious to amount to misconduct and if so whether her fitness to practise is currently impaired. Whilst acknowledging the agreement between the NMC and Mrs De Castro-Lopez, the panel has exercised its own independent judgement in reaching its decision on misconduct and impairment. In respect of misconduct, the panel accepted what was set out in section 4 of the CPD agreement, but went on to make its own determination in respect of this matter. The panel noted that Mrs De Castro-Lopez had made multiple and wide ranging medication errors, over the course of a number of shifts, and that some of these errors occurred whilst being subject to an interim conditions of practice order, which had been put in place to assist Mrs De Castro-Lopez in practising safely. Therefore, the panel considered that the misconduct in this case was serious, as errors had been drawn to Mrs De Castro-Lopez s attention and she continued to make the same errors. The panel also noted that, as set out in the CPD agreement, Mrs De Castro-Lopez appeared to be making medication errors and was unaware of this until it was picked up by Ms 2, the Home Manager of a nursing home where Mrs De Castro-Lopez was employed, when Ms 2 decided to review Mrs De Castro-Lopez s record keeping and nursing practice. The panel also noted that there was dishonesty in relation to some of the medication errors as Mrs De Castro-Lopez had tried to conceal her errors. The panel considered that Mrs De Castro-Lopez had therefore tried to put the interests of herself above the interests of patients in her care. For these reasons, the panel considered that Mrs De Castro-Lopez s actions fell far short of the conduct and standards expected of a registered nurse and amounted to serious misconduct. The panel then considered whether Mrs De Castro-Lopez s fitness to practise is currently impaired by reason of her misconduct. In this respect the panel accepted what 25

26 was set out in section 5 of the CPD agreement but went on to make its own determination in respect of this matter. The panel accepted that the four limbs of Dame Janet Smith s test as set out in the Fifth Shipman Report in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) were engaged in this case, by Mrs De Castro-Lopez s past actions. In considering whether Mrs De Castro-Lopez was liable in the future to act in a way to put patients at unwarranted risk of harm, to bring the profession into disrepute, to breach fundamental tenets of the profession and to behave dishonestly, the panel assessed the level of insight, remorse and remediation that Mrs De Castro-Lopez had demonstrated. In relation to remorse, the panel noted that Mrs De Castro-Lopez has apologised for her actions, in her reflective piece. The panel therefore considered that Mrs De Castro- Lopez has demonstrated evidence of remorse. In that reflective piece, the panel noted that Mrs De Castro-Lopez had demonstrated some evidence of insight, however this was limited. The panel did not consider that Mrs De Castro-Lopez had fully appreciated the seriousness of her actions and the impact that her errors had or could have had on patients, colleagues and the wider nursing profession. The panel therefore considered that Mrs De Castro-Lopez s insight needed further development. In relation to remediation, the panel did consider that Mrs De Castro-Lopez s clinical errors were capable of being remediated. However, the panel was concerned by Mrs De Castro-Lopez s level of dishonesty, and noted that dishonesty by its nature is not always capable of being remediated. The panel considered that Mrs De Castro-Lopez s attempts to conceal her medication errors could be indicative of an attitudinal problem on her part, and therefore may be more difficult to remediate. The panel noted that Mrs De Castro-Lopez had taken some steps to address her failings. She has undertaken a training course in medication administration and in clinical record keeping. Mrs De Castro-Lopez has also undertaken training courses in medication awareness and catheterisation; however the panel noted that whilst she 26

27 passed these courses, she did so with relatively low marks of 73% and 60% respectively. The panel also noted that Mrs De Castro-Lopez is currently not practising as a registered nurse, and she has been working as a Healthcare Assistant since April Therefore, she has not had sufficient opportunity to put any learning she has taken away from these training courses into clinical practice. Whilst the panel noted that Mrs De Castro-Lopez has taken some steps to remedy her actions, it could not be fully satisfied that all of the concerns have been fully remedied, and that Mrs De Castro- Lopez would be able to practise safely as a nurse without repeating her errors. The panel therefore considered that due to limited insight on Mrs De Castro-Lopez s part, and a requirement for further remediation, the risk of repetition of the misconduct in this case was high. The panel therefore considered that a finding of current impairment is necessary on the grounds of public protection. In relation to the public interest, the panel considered that members of the public would be concerned if a nurse who had made multiple and wide ranging medication errors and behaved dishonestly was able to practise unrestricted. The panel therefore determined that a finding of current impairment is necessary on public interest grounds, in order to maintain public confidence in the nursing profession and in the NMC as regulator. Accordingly, the panel determined that Mrs De Castro-Lopez s fitness to practise is currently impaired. Having found Mrs De Castro-Lopez s fitness to practise currently impaired, the panel went on to consider what sanction, if any, it should impose in this case. The panel accepted the advice of the legal assessor. The panel bore in mind that any sanction imposed must be appropriate and proportionate. The purpose of any sanction is not intended to be punitive even though it may have a punitive effect. The panel had careful regard to the SG. The panel noted that a proposal for the sanction had been put forward in the CPD agreement reached between the NMC and Mrs De Castro-Lopez, but that 27

28 the decision on sanction is a matter for the panel exercising its own independent judgement. The panel has considered this case very carefully and has decided to make a suspension order for a period of 12 months. The effect of this order is that the NMC register will show that Mrs De Castro-Lopez s registration has been suspended. The panel first considered whether to take no action but concluded that this would be wholly inappropriate in view of the seriousness of the case. The panel decided that taking no further action would not protect the public and it would not satisfy the wider public interest in this case. The panel next considered whether to impose a caution order. The panel took into account the SG which states that this sanction: May be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the Fitness to Practise Committee wishes to mark that the behaviour was unacceptable and must not happen again. The panel considered that Mrs De Castro-Lopez s 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 imposing a caution order would not protect the public and it would not satisfy the wider public interest in this case. The panel next considered whether placing conditions of practice on Mrs De Castro- Lopez s registration would be a sufficient and appropriate response. The panel was mindful that any conditions imposed must be proportionate, measurable and workable. The panel noted that Mrs De Castro-Lopez has previously been subject to interim conditions of practice and she still went on to repeat medication errors. The panel concluded that imposing a conditions of practice order would not address the 28

29 seriousness of the case, particularly given the findings of dishonesty. It would not protect the public nor would it satisfy the wider public interest. The panel then went on to consider whether a suspension order would be an appropriate sanction. The SG indicates that a suspension order may be appropriate where some of the following factors are apparent: a single instance of misconduct but where a lesser sanction is not sufficient no evidence of harmful deep-seated personality or attitudinal problems no evidence of repetition of behaviour since the incident the Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour The panel considered that this case did not concern a single case of misconduct. The panel noted that Mrs De Castro-Lopez had tried to conceal her medication errors on two occasions, and considered that this was potentially indicative of an attitudinal problem on her part. However, the panel noted that following her dismissal from James Cook University Hospital she was open and honest about her recent employment history when applying to the Victoria House Care Home. The panel noted that there was evidence of further clinical errors including some medication errors, as when Mrs De Castro-Lopez was originally referred to the NMC, she became subject to an interim conditions of practice order. Whilst being subject to this order, Mrs De Castro-Lopez went to repeat the same errors which had led to her original referral. However, the panel also acknowledged that since these further errors, there has been no further repetition, albeit Mrs De Castro-Lopez has not been practising as a registered nurse since April Mrs De Castro-Lopez has produced a detailed reflective piece which does show remorse and a number of supportive testimonials from colleagues. These testimonials were written in the knowledge of these proceedings and refer to Mrs De Castro-Lopez as honest and trustworthy. 29

30 The panel considered therefore that Mrs De Castro-Lopez has demonstrated some insight and remorse into her actions, but this was in need of significant further development as the panel was not satisfied that Mrs De Castro-Lopez was aware of the seriousness of the concerns that had been raised and the impact that her actions could have had on patients, colleagues and the profession. The panel could therefore not be satisfied that Mrs De Castro-Lopez does not pose a significant risk of repeating her behaviour. In these circumstances, the panel had some concern as to whether a period of suspension would protect patients and the wider public interest. The panel considered whether to impose a striking off order, noting that the SG states that this sanction may be appropriate where the following factors are apparent: A serious departure from the relevant professional standards as set out in key standards, guidance and advice. Doing harm to others or behaving in such a way that could foreseeably result in harm to others, particularly patients or other people the nurse or midwife comes into contact with in a professional capacity. Harm is relevant to this question whether it was caused deliberately, recklessly, negligently or through incompetence, particularly where there is a continuing risk to patients. Harm may include physical, emotional and financial harm. The seriousness of the harm should always be considered. Dishonesty, especially where persistent or covered up Persistent lack of insight into seriousness of actions or consequences. The panel considered that Mrs De Castro-Lopez s actions involved a serious departure from the professional standards of the nursing profession. Her medication errors could have resulted in serious harm to patients, particularly 30

31 when she was aware of her errors and did not raise any concerns or ask for assistance. Whilst Mrs De Castro-Lopez s medication errors were not deliberate, she deliberately attempted to conceal her errors. In this respect the panel considered the SG, and determined that Mrs De Castro-Lopez s actions amounted to serious dishonesty as she had deliberately tried to conceal clinical issues, and her actions caused a direct risk to patients. However, Mrs De Castro-Lopez has not demonstrated a persistent lack of insight, she has shown remorse and it is clear that she is developing insight into her actions. Whilst the panel was concerned by Mrs De Castro-Lopez s persistent medication errors and her related dishonesty, it concluded that her behaviour at this stage was not fundamentally incompatible with remaining on the register. Therefore, the panel considered that imposing a striking-off order would be disproportionate at this time. The panel therefore decided that the sanction put forward in the CPD agreement was proportionate and appropriate in this case. It considered that a 12 month period of suspension would be sufficient to protect the public and to mark the seriousness of the case. The panel noted the hardship such an order will inevitably cause Mrs De Castro-Lopez. However it considered that this is outweighed by the public interest in this case. This sanction would mark the importance of maintaining public confidence in the nursing profession and in the NMC as regulator and it would send to the public and the profession a clear message about the standard of behaviour required of a registered nurse. The panel considered that a 12 month period of suspension would give Mrs De Castro-Lopez the opportunity to develop her insight further, to demonstrate further evidence of having remedied her practice and to show a future panel that she poses a low risk of repeating the misconduct. 31

32 At the end of the period of suspension, another panel will review the order. At the review hearing the panel may revoke the order, or it may confirm the order, or it may replace the order with another order. A future reviewing panel may be assisted by evidence of: Relevant training courses Mrs De Castro-Lopez has undertaken, for example in: medicines management, record keeping, professional responsibilities and catheterisation; Further reflection to demonstrate the progress of Mrs De Castro-Lopez s developing insight, the impact her actions had on patients, colleagues and the reputation of the nursing profession, an understanding of the seriousness of the dishonesty in this case and a maintenance of the learning log which Mrs De Castro-Lopez has embarked upon; Testimonials from any employment, whether paid or unpaid; A plan for what Mrs De Castro-Lopez believes she would need to do in order to ensure that she can practise safely in the future. In relation to an interim order, the panel noted section 8 of the CPD agreement and determined that an interim suspension order for a period of 18 months is necessary to protect the public and is otherwise in the public interest. The reasons for this are the same as those set out in the panel s substantive decision above. That concludes this determination. 32