Nursing and Midwifery Council:

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1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 19 January 2018 Nursing and Midwifery Council, George Street, Edinburgh, EH2 4LH Name of registrant: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Consensual Panel Determination: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: Denise Annette Hughes 04B0216S RM, Registered Midwife Midwifery (18 November 2011) Scotland Lack of Competence Kathryn Eastwood (Chair, registrant member) Carol Porteous (Registered Midwife) June Robertson (Lay member) Graeme Dalgleish Marina Jones Not present but presented by Karen Osborne from Thompsons Solicitors Represented by Bryony Dongray, Case Presenter Accepted All N/A Impaired Suspension order (6 months) Interim suspension order (18 months) 1

2 Consensual panel determination Ms Osborne told the panel that she had been instructed to attend on behalf of Mrs Hughes today. Prior to this hearing, a provisional agreement of a consensual panel determination had been reached with regard to this case between the NMC and Mrs Hughes. The agreement, which was put before the panel, sets out Mrs Hughes full admission to the facts alleged in the charges, that Mrs Hughes actions amounted to lack of competence and that her fitness to practise is currently impaired. It is further stated in the agreement that an appropriate sanction in this case would be a suspension order for a period of six months. The panel has considered the provisional agreement reached by the parties. Annexed to the agreement is a reflective statement written by Mrs Hughes, which the panel has also read. That provisional agreement reads as follows: Mrs Denise Hughes is aware of the CPD hearing. Mrs Hughes does not intend to attend the hearing and is content for it to proceed in her and her representative s absence. Mrs Hughes and/or her representative will endeavour to be available by telephone should any clarification on any point be required. The Nursing and Midwifery Council and Mrs Denise Hughes, PIN 04B0216S ( the parties ) agree as follows: The Charges 1. Mrs Hughes admits the following charges: 2

3 That you, a registered midwife, employed at the Ayrshire Maternity Unit;- 1. Between 26 February 2016 and 20 September 2016, failed to adequately complete the requirements of a supported practice plan. 2. On 7 September 2016, in connection with Patient A; 2.1 Failed to identify that Patient A was experiencing postpartum haemorrhage 2.2 Failed to appropriately escalate that Patient A was experiencing postpartum haemorrhage 2.3 Failed to provide care in a clean and hygienic environment 2.4 Failed to correctly prepare medication for IV administration 2.5 Failed to correctly assemble a needle and syringe 2.6 Failed to correctly administer Syntocinon medication 2.7 Failed to correctly label medication AND in light of the above your fitness to practice is impaired by reason of your lack of competence. The Agreed Facts 2. The Registrant, Mrs Denise Hughes, is a registered midwife. 3. At the relevant time, Mrs Hughes worked as a band 6 rotational midwife within the Ayrshire Maternity Unit at Crosshouse Hospital. 4. In July 2014 Mrs Hughes sought support from the Clinical Midwifery Manager for Intrapartum Services because she was struggling with some clinical aspects of her role, including vaginal assessments, artificial rupture of the membranes ( ARM ), 3

4 cannulation and administering intravenous drugs. The Registrant also advised she didn t feel she could work alone whilst delivering a baby. The Clinical Midwifery Manager agreed to move Mrs Hughes to the maternity recovery department, which is a more structured environment, whilst she underwent some training. 5. The registrant worked in the recovery unit until September 2015 when concerns regarding her practice were raised again. The Manager met with Mrs Hughes on 5 October 2015 to discuss the concerns and Mrs Hughes advised her that she felt she was being bullied by the sister in the recovery area. The decision was therefore made to move Mrs Hughes back to labour ward. 6. Following her return to labour ward concerns were raised about Mrs Hughes punctuality, her cannulation technique and her ability to work alone. Following a period of sickness and at the request of the Registrant, her hours were reduced to working 22.5 hours per week from 23 February However, concerns about Mrs Hughes practice from colleagues increased. The concerns raised about the Registrant included poor documentation with large gaps of information and a lack of relevant details, that she couldn t use equipment required to administer intravenous fluids, that she panicked during an emergency and was unable to perform an ARM. 8. In light of these concerns, at a meeting on 26 February 2016, a Supported Practice Plan was put in place to be completed by November The learning outcome competencies of the plan included record-keeping, providing care independently and autonomously from antenatal, intranatal and postnatal periods, ability to diagnose labour and provide appropriate care for patients with low and high-risk profiles, clinical governance, and maintaining standards of practice required by the law and statutory regulatory body. 4

5 9. During the Supported Practice Plan, there continued to be ongoing issues relating to Mrs Hughes punctuality and attendance at work. Furthermore, clinical concerns were raised by band seven staff regarding poor documentation, her competence in the clinical setting when dealing with patients was poor as well as her knowledge of medicines and inability to make decisions. There was also a complaint from the leader of the cannulation course Mrs Hughes attended regarding her attitude, which had prompted him to ask her to leave the session. 10. An interim meeting was held on 15 September 2016 to review Mrs Hughes progress with the Supported Practice Plan and to review her evidence to date. Mrs Hughes was unable to evidence any of the competencies within the Supported Practice Plan. 11. The Manager and the Registrant also specifically discussed concerns about the care of Patient A on 7 September 2016 (charge 2). Specifically, when the Manager was on duty as the senior midwife on 7 September 2016, Patient A was allocated to the Registrant. Patient A had just had a delivery and all postnatal care needed to be carried out. 12. The Manager identified that Mrs Hughes required prompting to carry out the necessary care for Patient A, failed to identify that Patient A was experiencing a postpartum haemorrhage, failed to escalate that A was experiencing a postpartum haemorrhage, failed to provide care in a clean and hygienic environment as the room was chaotic with the patient still on the bed with bloody sheets and delivery instruments lying around in a non-sterile environment, failed to correctly prepare IV medication, failed to correctly assemble a needle and syringe, failed to correctly administer Syntocinon, and failed to correctly label medication. 13. At the meeting, Mrs Hughes accepted that she didn t recognise that Patient A was having a haemorrhage, that she needed constant prompting and that she lacked knowledge of medications. Due to the extent of the ongoing concerns Mrs Hughes 5

6 was prevented from working alone until the Manager obtained advice on how to proceed. 14. Mrs Hughes further accepts the potential risks of harm to Patient A, had the haemorrhage not been identified by another, was that the patient could have suffered organ failure and required extensive resuscitation. 15. Mrs Hughes resigned from the Hospital on 20 September 2016, as she had obtained a post as a lecturer at the City of Glasgow College. This post does not require her midwifery skills. 16. Mrs Hughes accepts that she failed to adequately complete the requirements of her Supported Practice Plan and that none of the competencies had been signed off. Therefore, the Registrant wholly admits charges 1 and 2. Lack of Competence 17. The parties considered the following authorities: When judging competence, the standard to be applied is that applicable to the post to which the registrant has been appointed, regardless of the sufficiency of their training. Deficiency is to be judged against the standard of his professional work that is reasonably to be expected of the practitioner. Holton v General Medical Council [2006] EWHC Deficient professional performance (GCC equivalent of lack of competence) is conceptually separate from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor s work. A single instance of negligent treatment, 6

7 unless very serious indeed, would be unlikely to be enough. Calhaem v General Medical Council [2007] EWHC Deficient professional performance is intended to be different from misconduct in that one would often, if not normally, expect to find a pattern of conduct underlying the allegation. Vali v General Optical Council [2011] EWHC 310 (Admin) A breach of the Code of Practice may also be relevant to a finding of professional incompetence; however, no single instance of negligence or unacceptable care would be sufficient to found a conclusion of professional incompetence. Spencer v General Osteopathic Council [2012] EWHC The Registrant admits that her actions breached the following provisions of The Code: Professional standards of practice and behaviour for nurses and midwives effective from 31 March 2015 ( the NMC Code ): 1.1 make sure you deliver the fundamental of care effectively 1.2 make sure that any treatment, assistance or care for which you are responsible is delivered without undue delay 3.3 act in partnership with those receiving care, helping them to access relevant health and social care, information and support when they need it 6.2 maintain the knowledge and skills you need for safe and effective practice 10 keep clear and accurate records relevant to your practice 13.1 accurately assess signs of normal or worsening physical and mental health in the person receiving care 7

8 13.2 make a timely and appropriate referral to another practitioner when it is in the best interests of the individual needing any action, care or treatment 15.2 arrange wherever possible, for emergency care to be accessed and provided promptly 16.1 raise and, if necessary, escalate any concerns you may have about patient or public safety, or the level of care people are receiving in your workplace or any other healthcare setting and use the channels available to you in line with our guidance and your local working practices 18 advise on, prescribe, supply, dispense or administer medicines within the limits of your training and competence, the law, our guidance and other relevant policies, guidance and regulations 20 uphold the reputation of your profession at all times 19. In light of the above Mrs Hughes wholly admits that she lacks the competence required of a midwife. Current Impairment 20. The Registrant admits that her fitness to practise is currently impaired by reason of her lack of competence. 21. In considering the question of whether the Registrant s fitness to practise is currently impaired, the parties have considered the following authorities. 22. In Meadow v GMC [2006] EWCA Civ 1390, the Court of Appeal emphasised that: 8

9 The purpose of fitness to practise proceedings is not to punish the practitioner from past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. It is, therefore, an exercise of looking forward and not back. However, in order to form a view, it is evident that you must take account of the way in which the Registrant has acted in the past. 23. In Cohen v GMC [2007] EWHC 581 (Admin), the court set out three matters which it described as being highly relevant to the determination of the question of current impairment: 1. Whether the conduct that led to the charge(s) is easily remediable 2. Whether it has been remedied 3. Whether it is highly unlikely to be repeated 24. The parties have considered the questions formulated by Dame Janet Smith in her Fifth Report from Shipman, approved in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) ( Grant ) by Cox J. They are as follows: 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 9

10 d. has in the past acted dishonestly and/or is liable to act dishonestly in the future. 25. The parties have also considered the comments of Cox J in Grant at paragraph 101: The Committee should therefore have asked themselves not only whether the Registrant continued to present a risk to members of the public, but whether the need to uphold proper professional standards and public confidence in the Registrant and in the profession would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case. 26. The parties agree that the Registrant s lack of competence has put patients at unwarranted risk of harm, brought the reputation of the nursing profession into disrepute and breached a fundamental tenet of the profession. 27. Specifically, Mrs Hughes fully realises and accepts her failings with respect to Patient A placed that patient at unwarranted risk of harm, and that her failings damaged the reputation of the profession and breached a fundamental tenet of the profession, including a failure to provide a high standard of care and practice at all times. 28. Mrs Hughes has demonstrated acceptance of responsibility and remorse for her actions in a reflective statement (Appendix A). Mrs Hughes accepts personal circumstances negatively impacted her work and she lost confidence in her ability to work as a midwife. In her own words, Mrs Hughes says, I regret my actions and the affect they have had on Patient A. I am also remorseful for failing to complete the requirements of the support practice plan. I understand that my practice fell below the standards required of a qualified midwife as it is extremely important that accurate detailed records are kept which can be referred to be others and that I am able to provide evidence of the care I have given to a patient. I am also aware that it 10

11 is vital to seek assistance and to disclose when my health or any other factor is having an effect on my ability to do my job. 29. It is accepted that since these events Mrs Hughes has not practiced as a midwife and does not intend to return to practice as a midwife. Indeed Mrs Hughes has begun a new career as a lecturer. Therefore, the parties agree that the Registrant has not remediated her failings as she has not worked as a midwife since her resignation, and has no intention to return to work as a midwife. 30. In light of the above, the parties agree that the concerns about Mrs Hughes lack of competence remain, has not been remedied and is likely to be repeated. Therefore, the parties agree the Registrant s fitness to practice is currently impaired on public protection grounds. 31. Furthermore, the parties agree that the lack of competence concerns despite a supported practice plan put in place are so serious that it engages the wider public interest and a finding of impairment must be made to uphold proper professional standards and public confidence in the profession. Thus, the parties agree a finding of current impairment is necessary on public interest grounds. The parties also agree that a finding of no impairment would amount to a complete acquittal and that would undermine public confidence in the profession and the NMC as its regulator. 32. For the reasons above, the parties agree that the Registrant s fitness to practise is currently impaired on both public protection and public interest grounds. Sanction 33. The aggravating features of the case are as follows: Protracted period during which the Registrant was unable to demonstrate a competent practice Significant unwarranted risk of harm to Patient A 11

12 Lack of remediation 34. The mitigating features of the case are as follows: The Registrant has engaged with the NMC The Registrant has made admissions to the charges, lack of competence and current impairment No previous or subsequent regulatory findings or concerns Remorse and developing insight 35. In considering what sanction would be appropriate the parties began by considering whether this is a case in which it would be appropriate to take no further action. The parties considered the relevant paragraphs of the NMC Indicative Sanctions Guidance. The parties agree taking no action would be inappropriate as it would undermine the public trust and confidence in the profession. 36. The parties next considered whether a Caution Order would be appropriate. The parties noted that a Caution Order will be disclosed to anyone enquiring about a nurse s fitness to practise. The Indicative Sanctions Guidance states that a caution 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 parties agree that in this case it is agreed that the conduct involved does not fall at the lower end of the spectrum since the conduct is of a serious nature, has not been remediated and likely to be repeated, and therefore the public and public interest would not be served by a caution order. 37. The parties did consider a Conditions of Practice Order; however, such an order would not be appropriate since the Registrant has no intention to practice again. 38. The parties then considered whether a period of suspension would be appropriate. Having regard to the seriousness of this matter, the mitigating and aggravating features, and the Registrant s intention to no longer practice, the parties agree that 12

13 the appropriate and proportionate sanction is a suspension order for a period of 6 months. This would suffice to protect the public from harm, 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 practice required of a registered nurse. 39. A striking off order is not considered in this case as this case concerns lack of competence. 40. In light of the above, the parties agree the appropriate and proportionate sanction is a suspension order for a period of 6 months. 41. Regarding whether a review of the substantive order is necessary prior to expiry, the parties agree that it is a matter for the panel to consider on whether a review is necessary or not. The panel should bear in mind that the Registrant has a new career lecturing, that her registration has not been renewed and she has not revalidated so that when this matter concludes the Registrant would effectively no longer be on the register. 42. If the panel approves the agreement between the parties, it will follow that it is necessary for the protection of the public and it is otherwise in the public interest for there to be an interim suspension order to cover the period before the substantive order comes into effect and any appeal that may arise. It is agreed that the appropriate length of an interim order is 18 months to last until the conclusion of any such appeal that should be brought. 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 above, and the agreed statement of facts set out 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. 13

14 Here ends the provision agreement between the NMC and Mrs Hughes. The provisional agreement was signed by Mrs Hughes on 11 January 2018 and the NMC on 19 January

15 Decision and reasons on the consensual panel determination: The panel decided to accept the CPD agreement. Ms Dongray referred the panel to the CPD agreement. She addressed the panel on the matter of whether it should direct a review of the six month suspension order. She submitted that Mrs Hughes could technically revalidate her practise sometime in the next six months (whilst under a substantive suspension order) and so the panel might consider that a review of this order is more appropriate to ensure public protection. Ms Osborne told the panel that Mrs Hughes did not intend to return to practice and would not be revalidating but she did not oppose Ms Dongray s submissions. The panel accepted the legal assessor s advice. He reminded the panel that it could accept, amend or outright reject the provisional agreement reached between the NMC and Mrs Hughes. 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 Hughes admitted all of the charges against her. The panel was of the view that Mrs Hughes lack of competence was serious and many failings related to fundamental aspects of midwifery practice. Mrs Hughes breached many provisions of the Code and the panel agreed with the specific breaches identified in the CPD agreement. The panel was satisfied that the charges demonstrate a lack of competence as a midwife. The panel agreed with the CPD agreement that Mrs Hughes fitness to practise is impaired by reason of this lack of competence. It agreed that she has in the past put 15

16 patients at unwarranted risk of harm, has breached fundamental tenets of midwifery practice and therefore has brought the profession into disrepute. The panel agreed with the assessment that Mrs Hughes has not remediated her practice, despite the support available to her from her employer. She has not practised as a midwife since the incidents and does not intend to return to practice. The panel concluded that there is a risk of repetition. The panel agreed with the identified aggravating and mitigating factors highlighted in the CPD agreement. The panel considered the sanctions in ascending order to determine whether the sanction identified in the CPD agreement was appropriate. The panel agreed that no further action was not appropriate. It would not place restrictions on Mrs Hughes practice and so would not protect the public. Similarly, a caution order would not place restrictions on Mrs Hughes practice and so would not protect the public. In addition, Mrs Hughes fitness to practise is not at the lower end of the spectrum. The panel agreed that a conditions of practice order would not be workable given Mrs Hughes intention not to practise and the lack of remediation she has undertaken. The panel agreed with the CPD agreement that a suspension order was the appropriate sanction given that the failings in this case are serious. The panel is of the view that a suspension order is the only order that would protect the public and uphold the public interest. The panel agreed that the appropriate term for this order is six months. 16

17 The panel agreed that an interim suspension order for a period of 18 months is necessary to protect the public and uphold the public interest during the 28 day appeal period. The panel considered whether a review is necessary. It noted that Mrs Hughes has not renewed her registration and so would come off the NMC s register if there was no fitness to practise proceedings against her. The panel has heard that Mrs Hughes does not intend to revalidate her practice during the six months that this sanction remains in place. However, she has a right to change her mind. The panel was of the view that a review before this order expires is necessary in order to ensure public protection and to satisfy the public interest if this were to happen. The panel was of the view that it may be beneficial for Mrs Hughes to enter into a formal undertaking with the NMC regarding her intention not to return to practice. In conclusion, the panel approved the CPD agreement in its existing form. The panel directed that there is a review of this matter before it expires. An interim suspension order will be in place for 28 days and, after that period and if no appeal is made, the interim order will be replaced by a suspension order. That concludes this determination. 17