Nursing and Midwifery Council: Fitness to Practise Committee. Substantive Hearing 6 7 September 2018

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 6 7 September 2018 Nursing and Midwifery Council, Temple Court 13a Cathedral Road, Cardiff, CF11 9HA Name of registrant: NMC PIN: Libia Arias Garcia 16G0835C Part(s) of the register: Registered Nurse Sub Part 1 N1: Adult 19 July 2016 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Wales Language Impairment Yvonne Brown (Chair, Lay member) Diane Corderoy (Registrant member) Claire Corrigan (Lay member) Juliet Gibbons Rob James In attendance and represented by Peter Dickinson Represented by Michael Bellis, Case Presenter Facts proved: 1 Facts not proved: Fitness to practise: Sanction: Interim Order: None Impaired Conditions of practice (6 months) Interim conditions of practice (18 months) 1

2 Details of charge: That you, a registered nurse: 1. Do not have the necessary knowledge of English to practise safely or effectively; AND in light of the above, your fitness to practise is impaired by reason of your lack of knowledge of English 2

3 Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel considered all the evidence adduced in this case together with the submissions made by Mr Bellis, on behalf of the NMC and those made by Mr Dickinson on your behalf. The panel heard and accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the panel was satisfied that it was more likely than not that the incidents occurred as alleged. Background You joined the NMC register in July 2016 and worked as a Band 2 Health Care worker whilst waiting for your PIN to be issued. Following the issue of your PIN you gained employment as a Band 5 Nurse at Withybush Hospital ( the Hospital ). From July October 2016, you were supervised by other Band 5 staff members. However, it is said that they raised concerns about your understanding and ability to communicate and were anxious about giving you responsibilities. Your documentation was reported as being poor, and patient and relative feedback was received that you were hard to understand and it was felt that you did not understand them. In light of this, you were moved onto a more structured training process and from October 2016, you were supervised by Ms 1 who was at that time a Band 6 Ward Sister. You had taken a mock International English Language Testing System (IELTS) exam in August 2016 and achieved an overall score of 3.5. A further IELTS test was taken in September 2016 and you showed an improvement scoring 5.5 overall. 3

4 Between October 2016 and January 2017 you attended several meetings with Ms 1 to review the situation and your progress in relation to the concerns. In a meeting on 9 November 2016, your communication skills were recognised as a concern. It is said that your poor verbal skills were hindering your ability to handover patient care and receive handovers from different departments. It is also said that over the next few months your documentation did improve but your poor verbal skills remained a concern. A discussion between human resources and Ms 1 took place and following this another meeting between you and Ms 1 occurred on 1 December At this stage, it was agreed that you would begin the informal stage of the capability process and that your objectives would be reviewed in four weeks. A review of your practice took place on 31 December 2016 and several issues were highlighted with your practice including knowledge of basic medication and failure to identify when one of your patients had urinary retention. On the same day, after consultation with you, a referral was made to occupational health. Another meeting was held on 3 January 2017 and it was agreed that due to your lack of progress, you would be moved onto the formal capability process. It is said that you stated that you were struggling with the required standard and would be happy to be downgraded to a Band 4 Health Care Assistant. On 23 January 2017, it was agreed that you would be placed on the formal capability process for a duration of four weeks. At this point, you stated that you had accepted a job as a Registered Nurse at Park House Court Nursing Home. You resigned from the Hospital on 27 January Your most recent IELTS test was taken on 29 July 2017 and you achieved an overall score of

5 The panel heard oral evidence from one witness tendered on behalf of the NMC. Ms 1, a Band 7 Sister at the Withybush General Hospital. In addition, the panel heard oral evidence from you. The panel first considered the overall credibility and reliability of all of the witnesses it had heard from, including you. The panel considered Ms 1 to be a credible witness who was very clear about her role and straightforward in relation to what she did not know about your supervision prior to her involvement. The panel considered it was apparent that Ms 1 had no personal issues with you and found that she remained professional and credible throughout. The panel recognised that this was a very stressful situation for you and that you were giving evidence in your second language. The panel was of the view that you came across as genuine and honest during your evidence and articulated your case in relation to practising as a Registered Nurse. The panel considered the charge and made the following finding: Charge 1: 1. Do not have the necessary knowledge of English to practise safely or effectively; This charge is found proved. The panel had regard to your evidence. You spoke of qualifying as a Registered Nurse in Spain in You had, however, only worked as a Registered Nurse in nursing homes in Spain for a period of 30 days before moving to the UK to work as a Registered Nurse in You spoke of the difficulties that you had faced whilst working at the Hospital and told the panel that you felt like you had no support. You said that during handover sometimes you did not understand the other nurses because they spoke too 5

6 quickly. You also commented on the difference between the Spanish and British hospitals and said that you found it hard because at the Withybush Hospital there were a lot of staff doing different jobs. You said that you needed some time away from the healthcare sector to relax and that working as a housekeeper has been therapeutic. You said that you feel more relaxed now and that your English skills have improved since you last worked as a Registered Nurse. You said that you understand that your English skills need to be of a certain standard when working as a Registered Nurse in order for you to speak to the patients and understand what you are being told by the patient s family and your colleagues. Further, you stated that writing in English is important to ensure that you don t make mistakes. You informed the panel of other English assessments you have undertaken which included the Learndirect English Beginners (Talk Now) course which you completed in August You said that you think you will be ready to take the IELTS test in two or three months. The panel had regard to your evidence and considered that you have a clear commitment to nursing. It noted the difficulties that gaining employment as a Registered Nurse in another country must have involved and the issues that you have faced. Your evidence was that insufficient support was provided to you to enable you to adjust to your new working environment. However, the panel was satisfied that the Hospital provided you with a structured programme of support which included an intense English language course, direct supervision and a referral to Occupational health. Further, throughout your period of employment at the Hospital, you were supernumerary. The panel had regard to the documentary evidence before it in the form of the IELTS tests dated 26 September 2016 and 29 July The overall score in July 2017 was 6

7 4.5 which showed a regression from the overall score of 5.5 from September These two scores are well below the NMC standard of an overall score of 7 and you said in your evidence that you have not taken an IELTS assessment test since then. The panel had regard to the results of the IELTS tests before it. You did not provide any other academic evidence that suggested that your English language skills were at the appropriate level. Based on the results of the IELTS tests the panel determined that there is no evidence before it to suggest that you have the necessary knowledge of English to practise safely or effectively. The panel therefore found the charge proved. 7

8 Submissions on impairment Having announced its finding on the facts, the panel then moved on to consider 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. Mr Bellis took the panel through the criteria of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). He submitted that your actions engaged limbs a, b and c of the criteria in that your actions put patients in your care at risk of harm, brought the profession into disrepute and breached a fundamental tenet. Mr Bellis submitted that Article 7.5 of The Code: Professional standards of practice and behaviour for nurses and midwives (2015) ( the Code ) applies in this case. Mr Bellis submitted that members of the public would be concerned if a registered nurse, who lacked the required knowledge of the English language was able to work without restriction. Mr Dickinson submitted that there was no evidence that you were a risk to patients in your care and said that there had been no complaints of you harming anybody. He said that the panel had heard evidence of you giving injections and had seen, within your bundle, evidence of patients thanking you for the care that you gave them. Further, he submitted that there is no evidence that public confidence is lacking in regard to your practise as you were appointed to your role as a Registered Nurse at the Hospital after a robust interview process and were not removed. Mr Dickinson submitted that the Hospital did not provide you with a robust structure of support. Mr Dickinson referred to the IELTS test which was taken 12 months ago. He referred to the result of the test taken before that and stated that it was only 1.5 points below the 8

9 accepted threshold. Mr Dickinson submitted that you have worked in English speaking environments over the last 12 months and have provided a reference from your current line manager. Mr Dickinson submitted that you are currently bringing your children up in an English speaking environment and live a daily life in these surroundings. As a consequence of this, he continued, your English is improving. Mr Dickinson submitted that your level of understanding of the English language is not a 4.5 on the IELTS scale, as the test was more than 12 months ago, and you are determined to get to level 7 as soon as possible. He submitted that there are obvious signs of improvement since the last test and invited the panel not to make a finding of current impairment. Decision on impairment The panel accepted the advice of the legal assessor which included reference to the case of Grant. The panel went on to decide if 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. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74 she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the 9

10 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 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 10

11 d. has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel finds that your inability to communicate effectively in English put patients at risk of harm. You were supported at the Hospital and the panel was of the view that whilst there was no evidence of patient harm, your deficient knowledge of English placed patients at risk of harm. Your most recent IELTS test score (4.5) places you in band 4 which identifies your skill level as being that of a limited user. The panel had particular regard to the reported concerns relating to handover and noted the NMC guidance which states: Examples of language concerns that could place the public at risk of harm include: poor handover of essential information about patient treatment or care to other health professionals because of an inability to speak English The panel was of the view that your lack of the necessary knowledge of English to practise safely or effectively brought the profession into disrepute and breached a fundamental tenet of the nursing profession. The panel had regard to Article 7.5 of the Code which stated: 7 Communicate clearly To achieve this, you must: 7.5 be able to communicate clearly and effectively in English. 11

12 The panel found that you do not currently possess the necessary knowledge of the English language to practise safely as a registered nurse. Therefore, until such time as you reach the required standard of English (IELTS level 7), a real risk of harm to patients remains. In this case a finding of impairment on public protection grounds is required. 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 decided that, in this case, a finding of impairment on public interest grounds is required. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. 12

13 Determination on sanction: The panel has considered this case very carefully and has decided to make a conditions of practice order. The effect of this order is that your name on the NMC register will show that you are subject to a conditions of practice order and anyone who enquires about your registration will be informed of this order. Mr Bellis outlined the sanction guidance to the panel and submitted that, in this case, a suspension order was the appropriate sanction. He also set out what the NMC perceive to be the aggravating and mitigating circumstances in the case and submitted that the panel must balance your interests against those of the public. Mr Bellis further submitted that you have demonstrated limited insight into your knowledge of English language and patients may be put at risk of harm if allowed to practise. Mr Dickinson submitted that, in this case, a conditions of practice order was appropriate. He suggested conditions relating to you working as a Health Care worker until you pass the IELTS at the appropriate level and complete a return to practice course. Mr Dickinson laid out the logistics of you taking the IELTS test in 2018 and said that the only places that you can realistically take the test would be in Cardiff or Aberystwyth. He said that there are due to be IELTS test days in Cardiff in October and November and test days in Aberystwyth in October, November and December. Mr Dickinson submitted that you would prefer to take the test in Cardiff so you can get the train to the venue. Mr Dickinson said that you may be supported financially by the any Trust employing you and that he had attempted to contact a private tutor but had not heard back. 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. 13

14 It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel considered the following to be the aggravating feature of the case: You have not fully grasped how your lack of ability to speak English could impact on patient safety. The panel considered the following to be the mitigating factor of the case: You have no previous regulatory involvement. The panel first considered whether to take no action or to impose a caution order. It rejected these options because they would not offer the required level of regulatory oversight to address your lack of knowledge of English and therefore would not adequately protect the public. The panel next considered whether placing conditions of practice on your registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel took into account the Sanctions Guidance ( SG ), in particular: no evidence of harmful deep-seated personality or attitudinal problems identifiable areas of the nurse or midwife s practice in need of assessment and/or retraining no evidence of general incompetence potential and willingness to respond positively to retraining patients will not be put in danger either directly or indirectly as a result of conditional registration the conditions will protect patients during the period they are in force 14

15 it is possible to formulate conditions and to make provision as to how conditions will be monitored The panel determined that it would be possible to formulate appropriate and practicable conditions, as set out in the SG, which would address the failings highlighted in this case. The panel accepted that you would be willing to comply with conditions of practice. The panel had regard to the fact that you have not demonstrated attitudinal problems and have stated that you are willing to comply with conditions. Further, the evidence of general incompetence whilst working as a Registered Nurse related to your English language deficiency. The panel was of the view that patients would not be put in danger if you were allowed to practise under restriction. Balancing all of these factors and after having taken into account both the aggravating and mitigating features of this case, the panel determined that that the appropriate and proportionate sanction is that of a conditions of practice order. The panel was of the view that to impose a suspension order would be disproportionate and would not be a reasonable response in the circumstances of your case. The panel had regard to your plans to undergo the IELTS test and your hopes to achieve the necessary result in the near future. It was of the view that you should be able to practise as a Registered Nurse once you have achieved this. Having regard to the matters it has identified, the panel has concluded that a conditions of practice order will mark the importance of maintaining public confidence in the profession, and will send to the public and the profession a clear message about the standards of practice required of a registered nurse. 15

16 The panel determined that the following conditions are appropriate and proportionate in this case: 1. You must not work as a Registered Nurse until you have taken the IELTS test and achieved an overall score of 7 or above. You must send a copy of your results to the NMC within 7 days of receiving them. 2. You must tell the NMC within 14 days of any nursing appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 3. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 14 days of you receiving notice of them. 4. a) You must within 14 days of accepting any post of employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, provide the NMC with the name/contact details of the individual or organisation offering the post, employment or course of study. b) You must within 14 days of entering into any arrangements required by these conditions of practise provide the NMC with the name and contact details of the individual/organisation with whom you have entered into the arrangement. 5. You must immediately tell the following parties that you are subject to a conditions of practice order under the NMC s fitness to practise procedures and disclose the conditions listed at (1) to (4) above, to them 1. Any organisation or person employing, contracting with or using you to undertake nursing work 16

17 2. Any agency you are registered with or apply to be registered with (at the time of application) to provide nursing services 3. Any prospective employer (at the time of application) where you are applying for any nursing appointment 4. Any educational establishment at which you are undertaking a course of study connected with nursing or midwifery, or any such establishment to which you apply to take a course (at the time of application). The period of this order is for 6 months. Before the end of the period of the order, a panel will hold a review hearing to see how well you have complied with the order. At the review hearing the panel may revoke the order or any condition of it, it may confirm the order or vary any condition of it, or it may replace the order for another order. Any future panel reviewing this case would be assisted by: A reflective piece on the importance of competence in English in relation to safe nursing practice; Evidence of the IELTS test results; Any references and testimonials available. 17

18 Determination on Interim Order The panel has considered the submissions made by Mr Bellis that an interim order should be made on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. Mr Dickinson made no submission in relation to the application. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim conditions of practice order is necessary for the protection of the public and is otherwise in the public interest. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. To do otherwise would be incompatible with its earlier findings. The conditions for the interim order will be the same as those detailed in the substantive order. 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 conditions of practice order 28 days after you are sent the decision of this hearing in writing. That concludes this determination. 18