Nursing and Midwifery Council: Fitness to Practise Committee. Substantive Order Review Hearing

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 12 July 2018 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC PIN: Part(s) of the register: Karen Heaton-Smith 94I2518E Registered Specialist Midwife Midwifery September 1997 Specialist Community Public Health Nurse / Health Visitor/ Nurse Prescribing - July 2003 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mrs Heaton-Smith: Nursing and Midwifery Council: Order being reviewed: Outcome: England Misconduct Clive Chalk (Chair, Lay member) Catherine Cooper (Registrant member) Marcia Smikle (Registrant member) Robert Frazer Rebekah Isaacs Not present and not represented in absence Represented by Laura Gouldthorpe, Case Presenter Suspension Order (6 months) Striking-Off Order to come into effect at the end of 16 August 2018 in accordance with Article 30(1) Page 1 of 12

2 Service of Notice of Hearing The panel was informed at the start of this hearing that Mrs Heaton-Smith was not in attendance, nor was she represented in her absence. The panel was informed that the notice of this hearing was sent to Mrs Heaton-Smith on 7 June 2018 by recorded delivery and first class post to her registered address. The panel noted that notice of this hearing was returned from Mrs Heaton-Smith s registered address as it exceeded the holding period at the post office holding station. The panel was mindful that delivery of notice is not a requirement in the Rules and that it is Mrs Heaton-Smith s duty to keep the NMC informed of any changes to her address. The panel accepted the advice of the legal assessor. In the light of the information available the panel was satisfied that notice had been served in accordance with Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) (the Rules). Proceeding in absence The panel then considered proceeding in the absence of Mrs Heaton-Smith. The panel was mindful that the discretion to proceed in absence is one which must be exercised with the utmost care and caution. The panel considered all of the information before it, together with the submissions made by Ms Gouldthorpe, on behalf of the Nursing and Midwifery Council (NMC). The panel accepted the advice of the legal assessor. Ms Gouldthorpe submitted that, despite Mrs Heaton-Smith having been served notice of this hearing, she failed to make any contact with the NMC, nor did Mrs Heaton-Smith request an adjournment. She submitted that Mrs Heaton-Smith had not attended any previous hearings and had not engaged with the NMC since the commencement of Page 2 of 12

3 proceedings. She provided the panel with an dated 10 July 2018 which was sent to Mrs Heaton-Smith asking her to confirm attendance at this hearing. Ms Gouldthorpe informed the panel that there had been no response to that . Ms Gouldthorpe invited the panel to proceed in the absence of Mrs Heaton-Smith, submitting that, given Mrs Heaton-Smith s non-engagement, it would be proper and expeditious to proceed with the hearing today. The panel noted that there had been no response from Mrs Heaton-Smith in relation to the notice of hearing. The panel was mindful that Mrs Heaton-Smith has not engaged at any stage of the process. Mrs Heaton-Smith had been sent notice of today s hearing and the panel was satisfied that she was or should be aware of today s hearing and it is of the view that she had chosen to disengage. The panel noted that the notice of hearing was returned to sender and was not signed for by Mrs Heaton-Smith. The panel further noted that the NMC had attempted to contact Mrs Heaton-Smith via on 10 July The panel concluded that Mrs Heaton-Smith had chosen voluntarily to absent herself. The panel had no reason to believe that an adjournment would result in Mrs Heaton-Smith s attendance. The current order must be reviewed before its expiry on 16 August 2018, therefore there is a public interest in proceeding today. Having weighed the interests of Mrs Heaton- Smith with those of the NMC and the public interest in an expeditious disposal of this hearing the panel determined to proceed in Mrs Heaton-Smith s absence. Page 3 of 12

4 Decision and reasons on review of the current order: The panel decided to replace the current suspension order with a striking-off order in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the second review of a substantive order, originally imposed by a panel of the Conduct and Competence Committee on 18 January The original 12 month suspension order was reviewed on 27 December 2017 and the reviewing panel extended the suspension order for a further 6 months. The current order is due to expire on 16 August The panel is reviewing the order pursuant to Article 30(1) of the Order. The charges found proved which resulted in the imposition of the substantive order were as follows: That you, whilst a registered nurse employed as a Community Practice Teacher and Health Visitor with Bolton NHS Foundation Trust (the Trust): 1. [ ] 2. Between approximately August 2014 and 22 December 2014 in relation to one or more of the children listed in Schedule 1: a. Failed to keep any and/or adequate contemporaneous health visiting records; b. Failed to securely store health visiting records. 3. Failed to conduct and/or record details of a primary visit for: c. Child X who was born on 12 September 2014 d. Child Y who was born on 16 September 2014 Page 4 of 12

5 e. Child Z who was born on 4 December 2014 And, in light of the above, your fitness to practise is impaired by reason of your misconduct. The original substantive panel in January 2017 determined the following with regard to impairment: In addressing impairment, the panel bore in mind that its concern was with the current position, looking forwards, not backwards. However, past events could assist it in making judgments about what is likely to happen in the future. It took account of the test set out in the Fifth Shipman Report and quoted with approval by Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). Do our findings of fact in respect of [the registrant s] misconduct show that her fitness to practise is impaired in the sense that she: 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 [nursing] 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 [nursing] profession The panel was satisfied that Ms Heaton-Smith has in the past acted so as to put patients at unwarranted risk of harm. The panel also found that Ms Heaton- Smith s actions had in the past brought the profession into disrepute. Further, the panel took the view that Ms Heaton-Smith had breached fundamental tenets of the nursing profession. The panel next considered whether Ms Heaton-Smith would be liable in the future to act in such a way as she had acted in the past. Page 5 of 12

6 There was no evidence before the panel relating to Ms Heaton-Smith s level of insight or remorse. There was nothing to indicate that she had sought to remediate her actions or to address what had given rise to them. Ms Heaton- Smith has not engaged with the NMC proceedings or her regulator. In assessing the risk of repetition of such behaviour in the future, the panel concluded that the risk was high. The panel therefore found that Ms Heaton- Smith is liable in the future to act so as to put a patient or patients at unwarranted risk of harm and she has brought the profession into disrepute and breached fundamental tenets of the profession. The panel also took into account the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession and in the NMC as its regulator. In the light of the seriousness of Ms Heaton-Smith s misconduct, the panel found that 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 this case. The panel determined that, in this case, a finding of impairment was necessary on both public protection and public interest grounds. For the reasons set out above, the panel finds that Ms Heaton-Smith s fitness to practise is currently impaired by reason of her misconduct. The first reviewing panel in December 2017 determined the following with regard to impairment: The panel considered whether Mrs Heaton-Smith s fitness to practise remains impaired. It considered all the information before it. The panel acknowledged that the substantive hearing panel considered Mrs Heaton-Smith s failings to be, in nature, remediable. However, this panel has not Page 6 of 12

7 been presented with any new evidence to suggest that Mrs Heaton-Smith has yet taken any steps to remediate her failings and therefore to reduce the risk of repetition, or to demonstrate to the regulator that she has any insight into the effect of her actions on the public and profession at large. In fact, she has not engaged with the regulator and has provided none of the evidence recommended to her by the previous substantive panel to assist today s panel. For these reasons, the panel concluded that the risk of Mrs Heaton-Smith repeating her past failings, thus putting patients at risk of harm and bringing the profession into disrepute has not been addressed, and therefore, Mrs Heaton- Smith s fitness to practise remains impaired. The first reviewing panel in December 2017 determined the following with regard to sanction: The panel decided that Mrs Heaton-Smith s misconduct, although serious, was not so serious as to be fundamentally incompatible with remaining on the register. The panel considered that Mrs Heaton-Smith should be given an opportunity to demonstrate that she has developed insight and remediation. The panel also bore in mind the fact that Mrs Heaton-Smith is an experienced nurse, and that the public interest may also be upheld by allowing nurses with valuable skills and experience to return to safe practice. For the same reasons as the substantive panel, this panel concluded that, without the engagement of Mrs Heaton-Smith, conditions of practice would not be appropriate at this stage. The panel bore in mind that if Mrs Heaton-Smith continues to disengage with these proceedings, a subsequent reviewing panel may impose a striking-off order. The panel determined that whilst it is within its powers to impose a strikingoff order today, it considers Mrs Heaton-Smith s failings to be easily remediable and therefore offers her a further opportunity to engage with the NMC should she Page 7 of 12

8 wish to continue in the profession. Accordingly, the panel concluded that a striking off order would be disproportionate at this stage. The panel therefore concluded that a further suspension order for a period of six months would give Mrs Heaton-Smith this opportunity to engage with the regulator, and should she demonstrate an intention to return to nursing in this period, a future reviewing panel may grant her further time to demonstrate remediation and insight. The panel therefore confirmed its conclusion that a suspension order was the appropriate and proportionate sanction in this case and that a period of six months should provide Mrs Heaton-Smith sufficient time to consider her intentions as to whether she wishes to remain in the profession and to re-engage with the NMC in this regard. 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. The panel was of the view that a future reviewing panel would be assisted by Mrs Heaton-Smith s re-engaging with the NMC. Decision on current fitness to practise This reviewing panel has considered carefully whether Mrs Heaton-Smith s fitness to practise remains impaired. Whilst there is no statutory definition of fitness to practise, the NMC has defined fitness to practise as a registrant s suitability to remain on the register without restriction. In considering this case, the panel has carried out a comprehensive review of the order in light of the current circumstances. It has noted the decision of the last panel. However, it has exercised its own judgment as to current impairment. Page 8 of 12

9 The panel has had regard to all of the documentation before it which consisted of the NMC bundle and an to Mrs Heaton-Smith dated 10 July It has taken account of the submissions made by Ms Gouldthorpe on behalf of the NMC. Ms Gouldthorpe provided the panel with an overview of the history of this case. She informed the panel that Mrs Heaton-Smith has not engaged with the NMC at any stage in this process. Ms Gouldthorpe submitted that Mrs Heaton-Smith has not demonstrated insight into her misconduct. Ms Gouldthorpe highlighted that Mrs Heaton-Smith has neither provided any evidence of remediation nor complied with the recommendations made to her by the previous panels. As such, Ms Gouldthorpe submitted, that Mrs Heaton-Smith s fitness to practise remains impaired. The panel accepted the advice of the legal assessor. In reaching its decision, the panel was mindful of the need to protect the public, maintain public confidence in the profession and to declare and uphold proper standards of conduct and performance. The panel took into account all the documents and noted that nothing further has been provided to this panel since the substantive review hearing on 27 December The panel first considered whether Mrs Heaton-Smith has shown any insight into her misconduct and whether it had been remediated. The panel has not been presented with any information about Mrs Heaton-Smith s current or professional circumstances. She has not responded to any of the recommendations made by the last reviewing panel and she has not engaged with the NMC or this panel. In light of Mrs Heaton- Smith s apparent disengagement from the regulatory process, the panel had no evidence of insight or any remediation in relation to her misconduct. The panel concluded that, in the absence of Mrs Heaton-Smith demonstrating that her misconduct had been remedied the risk of repetition and the consequential risk of harm to patients remains. The panel therefore determined that a finding of current impairment is necessary on the grounds of public protection. Page 9 of 12

10 The panel has borne in mind that its primary function is to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance. The panel determined that, in this case, a finding of continuing impairment on public interest grounds is also required. For these reasons, the panel finds that Mrs Heaton-Smith s fitness to practise remains impaired. Determination on sanction Having found Mrs Heaton-Smith s fitness to practise currently impaired, the panel then considered what, if any, sanction it should impose in this case. The panel s powers are set out in Article 30 of the Order. The panel has also taken into account the NMC s Sanctions Guidance (SG) and has borne in mind that the purpose of a sanction is not to be punitive, though any sanction imposed may have a punitive effect. The panel first considered whether to take no action and allow the order to lapse but concluded that this would be inappropriate in view of the risk of repetition identified and seriousness of the case. To take no action would not provide protection to the public and would be inadequate to mark the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. For the same reasons the panel considered that replacing the existing order with a caution order would not be appropriate. The panel next considered whether replacing the current order with a conditions of practice order would be appropriate. There are clinical issues in this case, which could be addressed by a conditions of practice order. However, Mrs Heaton-Smith has never engaged in the process and there is no evidence of any remediation. The panel wishes to stress that it is incumbent upon a registrant whose fitness to practise has been found to be impaired to engage appropriately with their regulator and provide evidence of insight and remediation of their failings. In the circumstances, the panel concluded that a conditions of practice order would not be appropriate as it had no evidence of Mrs Page 10 of 12

11 Heaton-Smith s current circumstances and she has not demonstrated a willingness to remediate her failings. Therefore the panel determined that a conditions of practice order would serve no purpose and would be insufficient to meet the public protection and public interest considerations of this case. The panel next considered whether to extend the current suspension order. The panel considered that Mrs Heaton-Smith has not sought to remedy her misconduct. The panel concluded that Mrs Heaton-Smith had been given every opportunity to demonstrate that she would and could take steps to remediate her practice and develop appropriate insight into her failings but had not done so. The panel determined that a further period of suspension would not serve the public interest or any useful purpose in all of the circumstances. Accordingly the panel concluded that an extension to the existing order would be insufficient to maintain public confidence in the profession and the regulatory process and to declare and uphold proper standards of conduct and behaviour. As there had been no contact from Mrs Heaton-Smith, the panel therefore concluded that the only appropriate and proportionate sanction in this case would be a striking-off order. The panel was of the view that there is no public interest in holding reviews of substantive orders where there is no prospect of engagement. The review panel in December 2017 clearly stated the options open to a future reviewing panel and indicated that a future panel may make a striking-off order. In the panel s view, Mrs Heaton-Smith s failure to address the serious concerns found in her practice, demonstrated a disregard for her regulator and the panel is satisfied that a striking-off order is the only order that would be sufficient to protect the public and satisfy the wider public interest in maintaining public confidence in the profession and the regulatory process and to declare and uphold proper standards of conduct and behaviour. The panel has no up to date information regarding Mrs Heaton-Smith s current personal or professional circumstances. However, the panel has determined that a striking-off order is, in the circumstances of this case, the appropriate and proportionate sanction. Page 11 of 12

12 The panel is also satisfied that the public interest in dealing with the matter in this way outweighs Mrs Heaton-Smith s interests. The panel therefore directs the Registrar to remove Mrs Heaton-Smith s name from the NMC register. She may not apply for restoration until a period of five years after the date the striking-off order takes effect. Accordingly, the striking-off order will come into effect at the end of 16 August 2018 in accordance with Article 30(1) of the Order. This decision will be confirmed to Mrs Heaton-Smith in writing. That concludes this determination. Page 12 of 12