Nursing and Midwifery Council: Fitness to Practise Committee. Substantive Hearing January 2018

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing January 2018 Pharmaceutical Society, 73 University Street, Belfast BT7 1HL Name of registrant: NMC PIN: Sara Cartin 05G0024N Part(s) of the register: Adult Nursing Sub part 1 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Facts proved: Facts proved by admission: Facts not proved: Fitness to practise: Sanction: Interim Order: Northern Ireland Misconduct/ Conviction John Vellacott (Chair Lay member) Marian Robertson (Registrant member) David Boyd (Lay member) Anne Farrell Vicky Green Present and represented by Jane Wright, UNISON Represented by Matthew Cassells, Case Presenter All All N/A Impaired Suspension Order 9 months Suspension Order 18 months 1

2 Details of charge: That you: 1. On one or more occasions prior to 21 June 2015, took medication belonging to Royal Victoria Hospital for your own personal use when you did not have authorisation to do so. 2. Your actions at 1 were dishonest in that you knew you did not have authorisation to take medication belonging to Royal Victoria Hospital. 3. On 24 June 2015 took: a. codeine phosphate; b. co-drydramol belonging to Royal Victoria Hospital when you did not have authorisation to do so. 4. Your actions at 3 were dishonest in that you knew you did not have authorisation to take medication belonging to Royal Victoria Hospital. 5. On one or more occasions prior to 24 June 2015, assisted Colleague A s misappropriation of medication belonging to Royal Victoria Hospital, in that you: a. left the medication cupboard(s) open and/or unlocked at his request; b. provided Colleague A with the keys to the medication cupboard(s). 6. Your actions at 5 were dishonest in that you knew Colleague A was misappropriating medication belonging to Royal Victoria Hospital and that your actions were facilitating this misappropriation. And, in light of the above, your fitness to practice is impaired by reason of your misconduct. That you: 1. On 25 January 2016, at Belfast Magistrates Court, were convicted of On the 21 st day of June 2015 in the County Court Division of BELFAST, stole medication of value belonging to Royal Victoria Hospital, contrary to Section 1 of the Theft Act (Northern Ireland) And, in light of the above, your fitness to practise is impaired by reason of your conviction. 2

3 Decision and reasons on application under Rule 19 At the outset of the hearing Mr Cassells made a request for the parts of the hearing that refer to matters concerning your health be held in private. The application was made pursuant to Rule 19 of the Rules. Ms Wright, on your behalf, indicated that she supported the application to the extent that any reference to your health should be heard in private. 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. 3

4 Background The NMC received a self-referral from you on 4 February 2016 in which you reported that you had received a 12 month conditional discharge at Belfast Magistrates Court as a result of a theft you committed. At the time that the allegations arose you were employed by the Belfast Heath and Social Care Trust (the Trust) and worked as a Band 5 Nurse working within the Vascular Surgery Ward (Ward 6A) at the Royal Victoria Hospital (the Hospital). It is alleged that on 20 June 2015 you were observed taking medication from the analgesia cupboard at the Hospital and placing it in your pocket. This was identified as one box of codeine phosphate 30mg. On 21 June 2015 it is alleged that you were observed in the Hospital medicines room opening the analgesia cupboard, removing a tray of medication and placing it on the worktop. You left the room, then returned and removed two boxes from this tray, which you covered in a paper hand towel. You then left the room. The medication was identified as codeine phosphate 30mg. It is alleged that on 24 June 2015 you were observed removing two boxes of medication from the medicines cupboard and leaving the room with them. The medication was identified as codeine phosphate 30mg and co-dydramol 10/500 tablets. After checks were made by the Trust it was found that neither codeine phosphate nor co-drydamol were prescribed to any patients in your care at the time in question for your own use. You were shown the footage from the 20 and 21 June 2015 and admitted to taking codeine phosphate for your own use on multiple occasions. It is further alleged that you gave an unqualified colleague repeated access to the medication cupboard on Ward 6A to take medication without authorisation. 4

5 The Trust held a disciplinary hearing and dismissed you for gross misconduct on 26 April The matter was investigated by the police and you pleaded guilty in court to the offence of theft, receiving a conditional discharge for 12 months on 25 May Decision on the findings on facts and reasons At the start of the hearing you admitted the following charges: That you: 1. On one or more occasions prior to 21 June 2015, took medication belonging to Royal Victoria Hospital for your own personal use when you did not have authorisation to do so. 2. Your actions at 1 were dishonest in that you knew you did not have authorisation to take medication belonging to Royal Victoria Hospital. 3. On 24 June 2015 took: a. codeine phosphate; b. co-drydramol belonging to Royal Victoria Hospital when you did not have authorisation to do so. 4. Your actions at 3 were dishonest in that you knew you did not have authorisation to take medication belonging to Royal Victoria Hospital. 5. On one or more occasions prior to 24 June 2015, assisted Colleague A s misappropriation of medication belonging to Royal Victoria Hospital, in that you: a. left the medication cupboard(s) open and/or unlocked at his request; b. provided Colleague A with the keys to the medication cupboard(s). 6. You actions at 5 were dishonest in that you knew Colleague A was misappropriating medication belonging to Royal Victoria Hospital and that your actions were facilitating this misappropriation. 1. On 25 January 2016, at Belfast Magistrates Court, were convicted of On the 21 st day of June 2015 in the County Court Division of BELFAST, stole medication of 5

6 value belonging to Royal Victoria Hospital, contrary to Section 1 of the Theft Act (Northern Ireland) And, in light of the above, your fitness to practise is impaired by reason of your conviction. These were therefore announced as proved. Submission on misconduct and impairment Having announced its finding on all the facts, the panel then moved on to consider, whether the facts found proved amount to misconduct and, if so, whether your fitness to practise is currently impaired. There is no statutory definition of fitness to practise. However, the NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. The panel had regard to the submissions of Mr Cassells on behalf of the NMC, your evidence under affirmation and evidence from your live witness under affirmation. The panel also had regard to your reflective statement, your revalidation application dated 30 August 2017, your training certificates and testimonials provided by your employer, colleagues and patients. In your oral evidence you stated that you acknowledge your mistakes and that they fell below the standards expected of a qualified nurse. [PRIAVTE] [PRIVATE] You told the panel that you have been employed at Owen Mor Care Centre (the Centre) since August 2016 where you have recently been promoted from Staff Nurse to Clinical Lead. You stated that you would not repeat the same mistakes and that you are now more assertive and have a robust support mechanism in place. Ms 1, Line Manager, Owen Mor Care Centre 6

7 Ms 1 told the panel you had been employed by the Centre since August She told the panel that you had fully disclosed your conviction and the incidents that had occurred at the Trust. She told the panel that you were initially employed as a Care Assistant for one month, you were then promoted to Staff Nurse and to Clinical Lead. She commended you on your attitude and described you as being open and honest. Ms 1 told the panel that you are an asset to the Centre and that you are held in high regard by your colleagues, patients and relatives. Ms 1 also gave the panel examples of how you were assertive about protecting your work life balance when asked to take on additional work at the Centre. In his submissions, Mr Cassells invited the panel to take the view that your actions amount to a breach of The Code Professional standards of practice and behaviour for nurses and midwives (2015). He then referred the panel to specific paragraphs and identified where, in the NMC s view, your actions amounted to misconduct. Mr Cassells referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311 in which misconduct is defined as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. Mr Cassells then referred the panel to the comments of Elias LJ in R (on the application of Remedy UK Ltd) v General Medical Council [2010] EWHC 1245 (Admin) who stated that misconduct must be sufficiently serious that it can properly be described as misconduct going to fitness to practise. Mr Cassells submitted that this case has two main concerns namely: abuse of position of trust in respect of medication; and dishonesty. Further, he submitted that dishonesty, amongst professional people is extremely serious. Nevertheless, Mr Cassells invited the panel to note that the dishonesty in this case was purely professional and not clinical and submitted that this may be viewed as less serious than clinical dishonesty. In conclusion, Mr Cassells submitted that your actions represent a sufficiently serious departure from proper standards as to result in a finding of misconduct. 7

8 He 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. Mr Cassells submitted that regardless of the panel s findings in respect of misconduct, it will be necessary for the panel to consider whether your fitness to practise is impaired by reason of your conviction. Mr Cassells submitted that impairment is conceptually forward looking and referred the panel to the cases of Cohen v General Medical Council [2008] EWHC 581 (Admin) and Zgymunt v General Medical Council [2008] EWHC 2643 (Admin). He further referred the panel to the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in which Mrs Justice Cox stated in her judgement: 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 8

9 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. Mr Cassells submitted that limbs a, b, and d were engaged in respect of your past conduct. In relation to limb a, Mr Cassells acknowledged that the charges that you have admitted do not relate to your clinical practice and that there is no evidence of direct harm. However, he submitted that the panel may consider that there is a potential risk of harm in allowing an unqualified colleague to access medication. In relation to limb b, Mr Cassells submitted that privileged access to medication is a defining feature of the nursing profession and that your actions would cause members 9

10 of the public to lose confidence as to whether that privilege is properly granted. Mr Cassells submitted that your actions have brought the nursing profession into disrepute. Mr Cassells further submitted by virtue of your admissions to the charges that you have acted dishonestly in the past. Mr Cassells concluded that the public interest concern in your case is high and that your actions undermine the public confidence in the nursing profession in that the public would be concerned that a registered nurse is capable of such serious dishonesty. Ms Wright on your behalf submitted that there was no actual harm caused by your actions. You have fully engaged with the NMC proceedings, made admissions and shown genuine remorse and regret. [PRIVATE] The panel has accepted the advice of the legal assessor which included reference to a number of judgments which are relevant, these included: Roylance, Cheatle v General Medical Council [2009] EWHC 645, Grant and Cohen. Decision on misconduct When determining whether the facts found proved amount to misconduct the panel had regard to the terms of The Code: Professional standards of practice and behaviour for nurses and midwives (2015) (the 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, and that your actions amounted to a breach of the Code. 10

11 The panel appreciated that breaches of the Code do not automatically result in a finding of misconduct. However, the panel was of the view that by taking medication to which you were not entitled and by allowing an unqualified colleague unauthorised access to medication there could have been a serious risk of harm to patients and the wider public. The panel determined that your actions would be considered deplorable by fellow practitioners, particularly concerning your repeated acts of dishonesty. The panel found that your actions did fall seriously short of the conduct and standards expected of a nurse and amounted to misconduct. Decision on impairment The panel next went on to decide whether, as a result of this misconduct and conviction, 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 Grant. The panel determined all limbs of Grant are engaged. Further, the panel noted the Code and considered you have breached the following sections: 11

12 18.1 prescribe, advise on, or provide medicines or treatment, including repeat prescriptions (only if you are suitably qualified) if you have enough knowledge of that person s health and are satisfied that the medicines or treatment serve that person s health needs 18.2 keep to appropriate guidelines when giving advice on using controlled drugs and recording the prescribing, supply, dispensing or administration of controlled drugs 18.3 make sure that the care or treatment you advise on, prescribe, supply, dispense or administer for each person is compatible with any other care or treatment they are receiving, including (where possible) over-the-counter medicines 18.4 take all steps to keep medicines stored securely, and 18.5 wherever possible, avoid prescribing for yourself or for anyone with whom you have a close personal relationship act with honesty and integrity at all times 20.4 keep to the laws of the country in which you are practising The panel considered that in committing and being convicted of a criminal offence, you had shown a flagrant disregard for the laws of the country and this had inevitably brought the profession into disrepute. In relation to your misconduct the panel was of the view that you had acted dishonestly over a sustained period of time. You initially denied to your employers and the police that you had misappropriated medication for your own use. You further initially denied to your employer, that you had facilitated Colleague A s misappropriation of medication from the Hospital. You then admitted your actions to your employers once confronted by CCTV evidence and also pleaded guilty in court to the offence of theft. 12

13 The panel considered that you have demonstrated remorse for your actions and have developing insight into this misconduct and your conviction. [PRIVATE] The panel also noted your reflective statement and evidence you gave under oath. The panel was of the view that while you are clearly remorseful about your actions, you did not fully appreciate the risk to Colleague A and others in allowing him to gain access to the medication cupboard. The panel acknowledged that you self-referred to the NMC (as required to do so) and have admitted all of the charges against you. [PRIVATE] In its consideration of whether you have remedied your practice, the panel was mindful that dishonesty is difficult to remediate. The panel considered that you have taken significant steps to remediate your conduct [PRIVATE]. Given the evidence of remediation and remorse, the panel was of the view that you are not likely to repeat your actions in the future. The panel therefore concluded that a finding of impairment is not necessary on the grounds of public protection. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold/protect 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 went on to ask itself whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment of fitness to practise were not made in the current circumstances. The panel 13

14 concluded that it would and that a finding of impairment is required on the grounds of public interest. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired by reason of your conviction and misconduct. 14

15 Determination on sanction The panel heard submissions from Mr Cassells, on behalf of the NMC and Ms Wright on your behalf. The panel has considered this case very carefully and decided to make a suspension order for a period of 9 months. The effect of this order is that the NMC register will show that your registration has been suspended. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case. 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 Sanctions Guidance (SG) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel had regard to the following aggravating and mitigating factors: Aggravating The charges relate to dishonest conduct and abuse of position over a prolonged period of time; You have demonstrated a lack of insight into the risk that arose to Colleague A and others in allowing them access to the medication; You initially denied the charges until you were presented with overwhelming evidence. Mitigating You have engaged with your regulator and attended today s hearing; You admitted all of the charges against you at an early stage of the proceedings; [PRIVATE] 15

16 [PRIVATE] You have been working in clinical practice and received exemplary testimonials from colleagues, patients and relatives; You are currently employed in a clinical role in a position of trust; Prior to and since the incidents you have an unblemished career; You demonstrate remorse. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case and its findings on impairment. 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 SG, 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. 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 relevant, proportionate, measurable and workable. The panel is of the view that the nature of the misconduct identified in this case was not something that can be addressed through retraining or supervision and therefore concluded that there are no practical or workable conditions that could be formulated. Furthermore, the panel concluded that the placing of conditions on your registration would not adequately address the seriousness of this case, particularly the element of dishonesty, and would not sufficiently protect the public or recognise the public interest. 16

17 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: Does the seriousness of the case require temporary removal from the register? Will a period of suspension be sufficient to protect patients and the public interest? The panel noted that there was no risk of direct harm to patients in your care at the time of your dishonest acts. The panel noted that the dishonesty in your case did not relate to clinical practice and that there was no evidence before it to suggest that you have a harmful, deep-seated personality or attitudinal problems. Nevertheless, the panel noted that the misconduct was not an isolated incident but was repeated over a period of a year. It further noted that your insight remains developing at this time and determined that you have failed to fully acknowledge the impact your dishonest misconduct could have had on Colleague A and others. The panel gave very careful consideration to making a striking-off order. The panel determined that your misconduct did to lead personal gain in terms of the medication that you took for your personal use. However, the panel noted that since the incident you have sought help to address the problems in your personal life. [PRIVATE] The panel was encouraged by your professional success at the Centre and the trust that has been placed in you by your employer. It concluded that it would therefore be appropriate to give you a further opportunity to develop your insight, in particular into the impact your actions could have had on Colleague A and others. The panel therefore concluded that in your case, a striking off order would be disproportionate. Whilst the panel acknowledges that a suspension may have a punitive effect, it would be unduly punitive in your case to impose a striking off order. In particular, the panel was persuaded by the very positive references you have supplied that it would be in the public interest to allow you, as an otherwise good nurse, to return to practice in due 17

18 course, provided that you can demonstrate full insight into the seriousness and implications of your misconduct. Balancing all of these factors, the panel has concluded that a suspension order would be the appropriate and proportionate sanction. The panel noted the hardship such an order will inevitably cause you. However, this is outweighed by the public interest in this case. The panel considered that this order is necessary to mark the importance of maintaining public confidence in the profession and in the validity of professional qualifications, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse. The panel determined that a suspension order for a period of 9 months was appropriate in this case to mark the seriousness of the misconduct. This period will also allow you time to further reflect on your misconduct and develop full insight into your actions. 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, including a striking-off order. Any future panel would be assisted by: Your attendance at the hearing; Hearing from you in person in order to demonstrate full insight into your misconduct, in particular, the potential risk to Colleague A and others. 18

19 Determination on Interim Order The panel has considered the submissions made by Mr Cassells that an interim order should be made on the grounds that it is necessary in the public interest and to do otherwise, would be inconsistent with its determination. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim suspension order is necessary 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. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by the suspension order 28 days after you are sent the decision of this hearing in writing. That concludes this determination. 19