Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 3 July 2018 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Name of registrant: NMC PIN: Michelle Marshall 07I1139S Part(s) of the register: Registered Nurse Sub part 1 Adult Nursing November 2010 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Order being reviewed: Outcome: Scotland Misconduct Malcolm Davidson (Chair, lay member) Angela O Neill (Registrant member) Bill Matthews (Lay member) Robert Frazer Tara Hoole Michelle Marshall, present and represented by Gary Burton, Anderson Strathern LLP Represented by Yusuf Segovia, NMC Regulatory Legal Team. Suspension Order (12 months) Conditions of Practice Order (12 months) to come into effect upon expiry of the current order in accordance with Article 30 (1) 1
Decision and reasons on review of the current order: The panel decided to impose a conditions of practice order. This order will come into effect at the end of 26 July 2018 in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the first review of a suspension order, originally imposed by a panel of the Conduct and Competence Committee on 22 June 2017 for 12 months. The current order is due to expire on 26 July 2018. 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, a registered nurse, while working at Livingston Care Home on the night shift of 30 April 2016 to 1 May 2016: 1. In relation to a fall suffered by Patient A: a. Did not perform an adequate and/ or full post-fall assessment of Resident A; b. Did not provide reassurance when mobilising Resident A after the fall; c. Communicated inappropriately to Resident A in that you: i. Said stand up and stop leaning on us or words to that effect; ii. Shouted at Resident A. 2. Incorrectly documented in Resident A s daily notes that you had performed a full body examination of Resident A. 3. Your conduct at Charge 2 was dishonest in that: a. you sought to represent that you had performed a full body examination when you knew that you had not; 2
b. you sought to mislead any individual reading the entry in question; And, in light of the above, your fitness to practise is impaired by reason of your misconduct. The original panel determined the following with regard to impairment: The panel reminded itself that nurses occupy a position of privilege and trust in society and are expected at all times to be professional. Patients and their families must be able to trust nurses with their lives and those of their loved ones. To justify that trust, nurses must be open and honest 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 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 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 3
by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 25.67 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 d. has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel finds that all four limbs are engaged in this case. The panel took into account that whilst your actions may not have caused actual physical harm to Resident A, it did cause emotional harm. Resident A was frail, elderly and extremely distressed when you attended. You failed to provide her with any reassurance and compassionate care whilst she was lying on the floor with potential injuries. Instead you spoke harshly to her and shouted at her repeatedly. You did not conduct an adequate and full post-fall assessment, and instead decided to move her, despite knowing that she was disorientated, which 4
can be an indication of a head injury. She was also distressed, which you ignored. Further, you then incorrectly documented the incident and sought to mislead colleagues that you had carried out a full body examination, when you knew you had not. The panel was of the view that your actions were wholly inappropriate and your conduct towards Resident A was the antithesis of what the public would expect from a member of the nursing profession. It was clear to the panel that your actions exacerbated Resident A s distress. The panel was of the view that by placing Resident A at unwarranted risk of harm and acting dishonestly, you had breached fundamental tenets of the nursing profession and have brought the profession into disrepute. Regarding insight, the panel considered that, whilst you have now, in the light of the panel s findings accepted misconduct and that your fitness to practise is currently impaired, you have not demonstrated any understanding of how your actions put Resident A at risk of harm. Nor have you demonstrated any understanding of why what you did was wrong and how this negatively impacted on colleagues, patients, members of the public, and the reputation of the nursing profession. The panel acknowledged that your employer references state that you have shown professionalism and expertise when attending to residents who have fallen, and are regarded as a very caring nurse. However, you have not explained how you would handle the situation differently in the future, nor that you understand how inappropriate your actions and behaviour were towards Resident A. indeed, in your evidence, when you were specifically asked about your conduct towards Resident A you did not accept that it was inappropriate. The panel was of the view that you have not demonstrated that you recognise the seriousness of the matters found proved and have shown no reflection, insight, or remorse on the care provided to Resident A and the impact this had on her, her family, your colleagues and the nursing profession. 5
In its consideration of whether you have remedied your practice the panel took into account that you have been working as a registered nurse at Wheatlands Care Home since January 2017, and you are held in high regard by your managers. However, based on the fact that you have not demonstrated any understanding of the severity of your misconduct, nor any insight or remorse for your actions, the panel cannot be satisfied that you would not repeat your misconduct. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection. The panel next considered the public interest considerations in this case. 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 took into account that your actions caused Resident A s family to lose trust and confidence in the care provided by registered nurses. You breached the trust they had placed in you to care for their loved one. The panel was of the view that by causing Resident A emotional distress and harm, your conduct was degrading, uncaring, uncompassionate and completely contrary to the level of care and professionalism expected of a registered nurse. You breached fundamental tenets of the profession and have brought the nursing profession into disrepute. Therefore, the panel determined that, in this case, a finding of impairment on public interest grounds is also required. Having regard to all of the above, the panel was satisfied that your fitness to practise is currently impaired. 6
The original panel determined the following with regard to sanction: The panel has considered this case very carefully and has decided to make a suspension order for a period of 12 months. The effect of this order is that the NMC register will show that 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 and was taken account of the submissions made by Mr Segovia, on behalf of the NMC, and those made by Mr Burton, on your behalf. The panel accepted the advice of the legal assessor. The panel has borne in mind that the purpose of a sanction is not to be punitive, although it may have that effect, but it is intended to protect patients and satisfy the wider public interest. The wider public interest includes maintaining public confidence in the profession and the NMC, and declaring and upholding proper standards of conduct and behaviour. The public interest also includes the benefit to the public in allowing a registered nurse with valuable skills and experience to continue in practice. The panel had careful regard to the Indicative Sanctions Guidance (ISG) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. As regards aggravating features in this case, the panel considered that the following applied: Resident A was a vulnerable resident; 95 years of age, frail and elderly, registered blind and partially deaf; Your misconduct amounted to abuse of a position of trust; You have not demonstrated remorse, reflection or insight into your misconduct; 7
Your actions contributed to the emotional harm caused to Resident A; and Your dishonesty took place in a clinical setting, giving rise to a risk of harm to Resident A. As regards mitigating features in this case, the panel considered that the following applied: There are no previous regulatory findings against you; Your misconduct can be identified as a single isolated incident, in an otherwise 7 year unblemished career as a nurse; Following the panel s decision on facts, you accepted your actions amounted to misconduct and that your fitness to practise is currently impaired by reason of that misconduct; and You have provided the panel with positive references and testimonials. Under Article 29 of the Nursing and Midwifery Order 2001, the panel, when considering sanction, can consider the following courses of action in ascending order, beginning with the least restrictive sanction: Take no action; Make a caution order for one to five years; Make a conditions of practice order for no more than three years; Make a suspension order for a maximum of one year; or Make a striking-off order. 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 the risk of repetition identified by the panel. The panel concluded that to take no further action would not restrict your practice, and therefore would not adequately protect the public. The panel further concluded that such an order would not be the appropriate and proportionate response and would not serve the public interest considerations in this case. 8
Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the ISG, 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 and the risk of repetition identified by the panel. The panel concluded that to impose a caution order would not restrict your practice, and therefore would not adequately protect the public. The panel further concluded 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 proportionate, measurable and workable. The panel took into account the ISG, in particular: 64.1 No evidence of harmful deep-seated personality or attitudinal problems 64.2 Identifiable areas of nurse or midwife s practice in need of assessment and/or retraining 64.8 It is possible to formulate conditions and to make provision as to how conditions will be monitored The panel acknowledged that you have successfully undertaken a number of falls risk assessments at your current place of work, as stated in your employer references. It is also acknowledged that since the panel s findings of facts, you have booked a one day training course in falls risk assessment. However, the panel took into account that the misconduct found proved, and your evidence to this panel, has highlighted serious attitudinal issues. Whilst the panel considers that your misconduct in relation to failing to conduct an adequate and full postfalls assessment can be addressed through the imposition of conditions, the 9
panel is not satisfied that your dishonesty and failing to reassure a resident, and shouting at her, could be fully addressed by a conditions of practice order. The panel is of the view that there are no practical or workable conditions that could be formulated at this time, given the nature of the misconduct in this case and your lack of reflection, remorse and insight. Furthermore, the panel concluded that the placing of conditions on your registration would not adequately protect the public, nor serve the public interest considerations in this case. The panel then went on to consider whether a suspension order would be an appropriate sanction. ISG paragraph 68 indicates that a suspension order may be appropriate where some of the following factors are apparent: 68 This sanction may be appropriate where the misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register. This is more likely to be the case when some or all of the following factors are apparent (this list is not exhaustive): 68.1 A single instance of misconduct but where a lesser sanction is not sufficient. 68.2 No evidence of harmful deep-seated personality or attitudinal problems. 68.3 No evidence of repetition of behaviour since the incident. 68.4 The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour. The panel took into account that you had breached fundamental tenets of the nursing profession. Your conduct towards Resident A was degrading, uncaring and you failed to show respect and demonstrated a wilful disregard for her 10
dignity. Further, the panel had regard to the fact that your misconduct amounted to an abuse of your position of trust. You are trusted by members of the public to care for patients but your actions were the antithesis of what would be expected of a registered nurse. In addition, your dishonesty took place in a clinical setting which had the potential to cause harm to Resident A. The panel took into account that although it had identified attitudinal issues, it could not be satisfied that such issues could be categorised as harmful deepseated personality problems. Whilst you had not demonstrated any reflection, insight or remorse in relation to your misconduct, you had admitted misconduct and impairment following the panel s decision on findings of fact. The panel was of the view that you are at the early stages of reflection and your insight may develop if you have more time to reflect on its findings. Further, the panel noted that the misconduct identified is a single incident involving various types of misconduct in an otherwise unblemished career as a nurse. In all the circumstances, the panel was of the view that a suspension order for 12 months, the maximum period available, would protect the public and mark the importance of maintaining public confidence in the profession. This will send to the public and the profession a clear message about the standard of behaviour required of a registered nurse. This will also afford you an opportunity to fully reflect on your behaviour towards Resident A and remediate your misconduct. The panel had carefully considered whether a striking-off order would be the proportionate response in your case. The panel took account of the seriousness of the misconduct found proved and the lack of reflection, insight and remorse demonstrated at this hearing. The panel took account of the fact that the purpose of the sanction is not to be punitive although it may have that effect. The panel was of the view that in this case, a suspension order would be the appropriate and proportionate sanction, and will protect the public and serve the public interest. 11
The panel noted the financial and professional hardship such an order may cause you. However this is outweighed by the need to address the public interest by protecting the public, maintaining public confidence in the profession, and upholding proper standards of conduct and behaviour. The panel took into account that prior to the expiry of this order, your case will be reviewed by another panel. Any future reviewing panel, who will have sight of this determination, will be assisted by evidence that you have developed insight, remorse and fully reflected on the impact your actions had on Resident A, her family, your colleagues and the nursing profession as a whole. At the review hearing the panel will have the full range of sanctions available to it, including that of a striking-off order. Any future panel may be assisted by the following: A detailed written reflective statement reflecting on the impact of your misconduct on Resident A, Resident A s family, and the nursing profession; References/testimonials from paid or unpaid employment; Any courses attended in relation to falls risk assessment; Any courses attended in relation to safeguarding and adult protection; and Your continued engagement and attendance. 12
Decision on current fitness to practise The panel has considered carefully whether your 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. The panel has had regard to all of the documentation before it, including a reflective statement and training records provided by you. It has taken account of the submissions made by Mr Segovia on behalf of the NMC and those made by Mr Burton, on your behalf. Mr Segovia outlined the background to the case. He took the panel through the aggravating and mitigating factors found by the previous panel. Mr Segovia drew the panel s attention to the previous panel s view that your actions were wholly inappropriate and your conduct towards Resident A was the antithesis of what the public would expect from a member of the nursing profession. He further submitted that this was a very serious incident, and highlighted that this incident only came to light because of the audio recording the family had made. Mr Segovia concluded by reminding the panel that it was a matter for it to judge whether impairment is still an issue. Mr Burton, on your behalf, submitted that the current order should be allowed to expire with no further order imposed. He brought the panel s attention to the mitigating factors found by the previous panel, in particular that this was an isolated incident in an unblemished career and the positive testimonials received at the previous hearing. He highlighted your continued engagement with the NMC process and that you are keen to return to working as a nurse. 13
Mr Burton submitted that you have provided the reflective statement suggested by the previous panel and that this is a very detailed document which shows evidence of insight and reflection. He brought the panel s attention to your reflections on how you would deal with a similar incident in future and stated that you recognise that the standard of nursing care you provided was not to the standard it should have been. Mr Burton informed the panel that you have not been able to complete a falls risk assessment course as this is difficult to do whilst under a suspension order. He highlighted that you have completed training in safeguarding of adults and children and the panel had view of a training record dated 4 September 2017 which supports this. The panel heard and 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 account of the NMC guidance on Standard reviews before expiry. The panel considered whether your fitness to practise remains impaired. The panel noted that the last panel found that you lacked reflection, insight and remorse. This panel considered that you have looked at what you could have done differently and you have taken some steps to keep your knowledge up to date. You have recognised that you may have sounded aggressive towards Resident A and that this would not have helped the situation. In addition you have looked at the guidance available to you and are able to detail the steps that you should have taken in relation to Resident A s care. The panel considers that whilst you have demonstrated a developing level of insight, you have not yet demonstrated sufficient empathy or remorse for those people affected by your failings, including Resident A and her family. The panel considered that it would have been assisted by your giving evidence at the hearing today, but acknowledged your right not to do so. 14
The panel also noted that you made no mention in your reflective piece of the dishonesty found in charge 3. It considered that it would have been assisted by this being addressed by you. In summary the panel determined that you currently lack an overall understanding of the impact of your failings not only on Resident A but on her relatives, your colleagues and your profession as a whole. In consideration of whether you have remedied your practice the panel took into account the both the evidence provided in relation to safeguarding training which you have undertaken and the reflective piece provided by you today. The panel accepted that you have attempted to address the safeguarding issues raised. It accepted that falls risk assessment training was difficult to undertake whilst subject to a suspension order. In light of the above the panel considered that, your insight is still developing and this, along with your lack of empathy and remorse, demonstrated you are at risk of repeating matters of the kind found proved. The panel therefore decided that a finding of continuing impairment is still necessary on the grounds of public protection. For these reasons, the panel finds that your fitness to practise remains impaired. The panel had 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 considered that the 12 month suspension currently imposed was proportionate to the public interest in this case and subsequently determined that, in this case, a finding of continuing impairment on public interest grounds is not required. 15
Determination on sanction Having found your fitness to practise currently impaired, the panel then considered what, if any, sanction it should impose in this case. The panel noted that its 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 but concluded that this would be inappropriate in view of the risk of repetition identified and seriousness of the case. The panel decided that it would be not be proportionate to take no further action. The panel then considered whether to impose a caution but concluded that this would be inappropriate in view of the risk of repetition identified and seriousness of the case. The panel decided that it would be not be proportionate to impose a caution order on public protection grounds. The panel considered replacing the current suspension order with a conditions of practice order upon its expiry. Your misconduct was serious and involved a highly vulnerable and elderly resident. However, there has been evidence produced to show that you have some insight and that you wish to return to nursing. The panel considered that the public interest in this case has already been marked by your current suspension order. Further the panel considered that it would be possible to formulate practicable and workable conditions, that if complied with, would lead to your unrestricted return to practice and would serve to protect the public and the reputation of the profession in the meantime. The panel decided that the public would be suitably protected as would the reputation of the profession by the implementation of the following conditions of practice: 1. At any time that you are employed or otherwise providing nursing services, you must place yourself and remain under the supervision of a workplace line manager, mentor or supervisor nominated by your employer, such supervision to consist of: 16
Working at all times on the same shift as, but not necessarily under the direct observation of, a registered nurse who is physically present in or on the same ward, unit or floor that you are working in or on. 2. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every month to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 3. You must work with your line manager, mentor or supervisor (or their nominated deputy) to create a personal development plan designed to address the concerns about the following areas of your practice: a. The ability to demonstrate empathy, dignity and compassion when providing all aspects of nursing care; b. The ability to demonstrate current, up to date knowledge on how to undertake appropriate risk assessments, both pre and post fall, and understand the guidance to be followed in such circumstances. c. Demonstrate a level of documentation and record-keeping in line with NMC guidance and in particular in relation to post fall assessment and documentation. d. Enhance your knowledge of the management of people who are at risk of falling or have fallen, by undertaking relevant training. 4. You must forward to the NMC a copy of your personal development plan within 28 days of the date on which these conditions become effective or the date on which you take up an appointment, whichever is sooner. 5. You must disclose a report, prior to any further NMC hearing, from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and your progress towards achieving the aims set out in your personal development plan to any current and prospective employers 17
(at the time of application) and any other person who is or will be involved in your retraining and supervision with any employer, prospective employer and at any educational establishment. 6. You must tell the NMC within 14 days of any nursing or midwifery appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 7. 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. 8. a. You must within 14 days of accepting any post or employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, provide the NMC with the name and 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 practice provide the NMC with the name and contact details of the individual/organisation with whom you have entered into the arrangement. 9. 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 8 above, to them. a. Any organisation or person employing, contracting with, or using you to undertake nursing work. b. Any agency you are registered with or apply to be registered with (at the time of application) to provide nursing services. c. Any prospective employer (at the time of application) where you are applying for any nursing appointment. 18
d. 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 such a course (at the time of application) In addition to compliance with the above conditions the panel suggested that any future panel may be assisted by the following: A reflective piece focusing on your specific learning in relation to this incident with an emphasis on your failings, the impact on others and what you have done to prevent any repetition. References and Testimonials from current employers/colleagues. Your continued engagement and attendance. This decision will be reviewed before its expiry. This decision will be confirmed to you in writing. That concludes this determination. 19