Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Meeting 02 November 2017 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Name of Registrant Nurse: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Order being reviewed: Outcome: Kerri Clare Nixon 00I8133E Registered nurse (sub part 1) - Adult Mental Health - 2013 England Misconduct Kathryn Eastwood (Chair, Registrant member) Maureen Gunn (Registrant member) Alex Forsyth (Lay member) Graeme Henderson Elaine Stewart Suspension Order 12 months Striking off order - to come into effect upon the expiry of the original order in accordance with Article 30 (1) 1
Service of Notice of Meeting The panel was informed that the notice of this meeting was sent to Miss Nixon on 11 September 2017 by recorded delivery and first class post to her registered address. The panel noted that notice of this meeting was returned to the NMC on 1 October 2017 as it was not called for at the Royal Mail delivery office. 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). Decision and reasons on review of the current order: The panel decided to impose a striking off order. This order will come into effect at the end of 14 December in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the first review of an order imposed by a panel of the Conduct and Competence Committee. The original order was one of suspension for a period of 12 months on 15 November 2016. The current order is due to expire on 14 December 2017. Miss Nixon was informed that her review would take place at a meeting by notice dated 22 August 2017. There is no information to suggest that this case requires to be dealt with at a hearing. On 21 September 2017, Miss Nixon attempted to contact the case officer with an enquiry regarding the review process. The case officer returned her call and left a voice message. No further communication has been received. The panel is reviewing the order pursuant to Article 30(1) of the Order. 2
The charges found proved which resulted in the imposition of the substantive order were as follows: That you, whilst employed as a Band 5 Staff Nurse on Willow Ward ("the Ward") at Broadway Health Park between 9 October 2010 and 11 December 2014: 1. On or about 19 January 2014 and in relation to Patient M: 1.1. Did not complete a physical restraint form following a restraint of the patient; 1.2. Did not ensure that three members of staff were involved in restraining the patient. 2. On 4 May 2014 and despite being given instructions to stay on the Ward you: 2.1. left the Ward unattended by a registered nurse; 2.2. informed Colleague A, to whom you had given the controlled drugs keys, that she did not need to remain on the Ward; 2.3. failed to give a handover to Colleague B. 3. On any or all of the following night shifts slept for periods in excess of the allocated break time: 3.1. 3 February 2014; 3.2. 13 February 2014; 3.3. 11 March 2014; 3.4. 25 March 2014; 3.5. 30 March 2014; 3.6. 31 March 2014. 4. On an unknown date you did not provide personal care to Patient X when requested to do so. 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: It determined that Miss Nixon s actions have brought the profession into disrepute and breached fundamental tenets of the profession. She has in the past acted so as to put patients in her care at unwarranted risk of harm. 3
The panel acknowledged that late in her oral evidence, Miss Nixon apologised for failing to tell Colleague A to remain on the Ward, as set out in charge 2.2, and told the panel that she had also previously apologised to the Trust. However, the panel considered that while Miss Nixon had shown some remorse for her actions, albeit limited, she has not demonstrated any insight into her misconduct and fails to recognise the harm her actions had, or may have had, on her patients and fellow colleagues. The panel considered that elements of Miss Nixon s misconduct are in fact remediable. However, the panel has had no evidence to date to suggest that Miss Nixon has in fact begun to remediate her misconduct. The panel considered that Miss Nixon continues to deny any wrongdoing, except for charge 2.2. Miss Nixon has not demonstrated any regret or remorse in relation to any of the charges found proved. In light of the above, the panel considered that Miss Nixon is liable to act so as to put patients at risk of harm in the future. Miss Nixon is persistent in not taking responsibility, or accountability, for her actions. She seeks to blame others for aspects of her misconduct, such as not having been given training to change Patient X s stoma bag, and continues to deny any misconduct. The panel considered that there is a risk of repetition based on Miss Nixon s lack of insight, remorse and remediation. Miss Nixon did not make the care of her patients her first priority, instead putting her own interests above those who rely on her for treatment and care, as well as support and supervision. Without evidence of remediation or insight, the panel cannot be satisfied that, in the future, Miss Nixon will not bring the profession into disrepute or breach fundamental tenets of the nursing profession. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection. 4
The primary function of the panel is to protect patients and the wider public interest, which includes maintaining confidence in the nursing profession and upholding the proper standards and behaviour. A finding of no impairment in this case would undermine the confidence in the nursing profession and the NMC, as its regulator. Therefore, the panel determined that, in this case, a finding of impairment on public interest grounds was also required. Having regard to all of the above, the panel concluded that Miss Nixon s fitness to practise is currently impaired. The original panel determined the following with regard to sanction: The panel has taken into account that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such a consequence. The public interest is paramount in this case. The panel had regard to the ISG. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The overarching objective of the panel is to protect the public, as specifically outlined in paragraph 3 of the ISG: 3 The pursuit by the Council of its over-arching objective of protecting the public involves the pursuit of the following objectives: 3.1 to protect, promote and maintain the health, safety and well-being of the public; 3.2 to promote and maintain public confidence in the professions regulated under this Order; and 3.3 to promote and maintain proper professional standards and conduct for members of those professions. 5
The panel found the following aggravating features: The varied nature of Miss Nixon s misconduct over a significant period of time, rather than a single, one off incident; Miss Nixon demonstrated a disregard for patient safety and wellbeing, having placed the patients in her care at a potential risk of harm; The panel s findings suggest that Miss Nixon had attitudinal issues; Miss Nixon displayed a disregard for her colleagues, placing them at unwarranted risk of harm; Miss Nixon has demonstrated an ongoing lack of insight and minimal remorse for her misconduct; There is no evidence that Miss Nixon has begun to remediate the elements of her misconduct that are considered remediable. The panel identified the following mitigating features: No actual harm was brought upon Miss Nixon s patients and colleagues; Miss Nixon s concern over a water leak at home influenced her actions on 4 May 2014; Miss Nixon apologised to the panel for not ensuring Colleague A remained on the Ward on 4 May 2014; Miss Nixon s partial engagement in these proceedings when she provided evidence on oath by telephone link; Miss Nixon s unblemished nursing career until these incidents. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of Miss Nixon s failures. Given the panel s findings that Miss Nixon s fitness to practise is currently impaired, the panel decided that it would be neither proportionate nor in the public interest to take no further action. 6
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 Miss Nixon s misconduct was not at the lower end of the spectrum. Her misconduct involved a range of failures over a period of time. The panel determined that a caution order would be inappropriate in view of the seriousness of the misconduct. It would not restrict Miss Nixon s practice and would therefore place patients at a continued risk of harm. The panel next considered whether placing conditions of practice on Miss Nixon s registration would be a sufficient and appropriate response. The panel took into account that any conditions imposed must be proportionate, measurable and workable, in particular: 64.8 It is possible to formulate conditions and to make provision as to how conditions will be monitored. The panel determined that there are no practical or workable conditions that could be formulated, given the nature of the failings. Whilst the panel considered that elements of Miss Nixon s conduct may be remediable and that training could be provided to remediate her actions as set out at charges 1 and 4, the panel determined that it would be difficult to address Miss Nixon s behavioural misconduct as outlined in charges 2 and 3. It considered that Miss Nixon s actions and behaviour placed people, namely her patients and colleagues, at potential risk of harm and in light of her lack of insight into her misconduct, a risk of repetition remains. The panel also took into account that it had received no evidence to suggest that Miss Nixon would be willing to comply with a conditions of practice order. 7
Further, the panel considered that placing conditions on Miss Nixon s registration would not adequately address the seriousness of her failings and would not protect the public, or the public interest. 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 Miss Nixon s actions and behaviour could be viewed as stemming from an attitudinal problem, specifically with regard to sleeping while on night shift, leaving the Ward unattended and refusing to provide personal care to Patient X. Miss Nixon has shown limited remorse for her behaviour and has not accepted her wrongdoings. Miss Nixon s failings did not arise from an isolated incident, but represented a pattern of behaviour relating to a lack of patient care. It also had regard to her lack of insight into, and remediation of, her actions, although the panel acknowledged that Miss Nixon 8
apologised to it for not asking Colleague A to remain on the Ward on 4 May 2014. However, the panel considered that while Miss Nixon made a number of errors over a period of time, her actions did not result in direct patient harm. Prior to these incidents, Miss Nixon was a nurse with an unblemished career and was of good character. The panel took into account that the public interest may also be served by allowing an otherwise good nurse the opportunity to demonstrate that she is fit to return to practice. The panel further considered whether a striking-off order would be proportionate in Miss Nixon s case. Taking account of all the information before it, the panel concluded that it would be disproportionate. Whilst the panel acknowledges that a suspension may have a punitive effect, it would be unduly punitive in Miss Nixon s case to impose a striking off order at this time. Balancing all of these factors the panel has concluded that a suspension order would be the appropriate and proportionate sanction in this case to mark the seriousness of the misconduct. This suspension order will be for a period of 12 months to afford Miss Nixon the opportunity to reflect on her misconduct and remediate her actions, as well as give serious consideration as to whether she wishes to return to the nursing profession in the future. The panel took into account the hardship such an order will inevitably cause Miss Nixon. 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 to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse. 9
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. Any future panel reviewing this case might be assisted by the following evidence: A reflective piece, demonstrating insight into Miss Nixon s failings and how her misconduct impacted on her patients, colleagues, and the nursing profession; Evidence of remediation of Miss Nixon s conduct, such as the completion of any relevant nursing courses, and keeping professionally updated; References and testimonials from any previous and/or current employers, for any paid or unpaid work; Miss Nixon s engagement and attendance at any future review hearing. The panel very seriously considered striking Miss Nixon off the register. However, it decided that the public is protected and the wider public interest is served through the imposition of a suspension order for 12 months. The panel wishes to make it clear to Miss Nixon that in the absence of any of the evidence listed above, she is at serious risk of being struck off the register by a future reviewing panel. Decision on current fitness to practise The panel has considered carefully whether Miss Nixon 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. The panel has had regard to all of the documentation before it and heard and accepted the advice of the legal assessor. 10
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 considered whether Miss Nixon s fitness to practise remains impaired. Regarding Miss Nixon s insight, the panel noted that the last panel found that Miss Nixon had minimal insight into her misconduct. At this hearing, the panel noted there has been limited communication from Miss Nixon and no evidence of any reflection on her failings or the impact of her actions on patients, colleagues and the profession. This panel can therefore only conclude that Miss Nixon has not further developed her insight. In its consideration of whether Miss Nixon has remedied her practice, the panel took into account she has been unable to practise as a registered nurse for 12 months however the panel has no evidence of Miss Nixon undertaking any relevant learning or keeping professionally updated. Therefore the panel has no evidence of any attempt to demonstrate remediation. The last panel determined that Miss Nixon was liable to repeat matters of the kind found proved. This panel has received no information to suggest that the risk of repetition has changed. The lack of communication from Miss Nixon and her lack of insight or evidence of remediation indicated that she is liable to repeat matters of the kind found proved. The panel therefore decided that a finding of continuing impairment is necessary on the grounds of public protection. The panel had borne in mind that its primary function was 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 Miss Nixon s fitness to practise remains impaired. 11
Determination on sanction Having found Miss Nixon s 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 29 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, as was the finding of the original panel, it would be neither proportionate nor in the public interest 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 neither proportionate nor in the public interest to impose a caution order as the serious nature of the misconduct found proved by the original panel was not at the lower end of the spectrum. The panel next considered the imposition of a conditions of practice order. The panel was of the view that a conditions of practice order is insufficient to protect patients and the wider public interest. The panel noted, as the original panel did, the attitudinal nature of the misconduct found proved, and the lack of evidence of any willingness to comply with conditions on her practice. As such, the panel determined that no practicable or workable conditions could be formulated which would protect patients and meet the public interest in this case. The panel next considered imposing a further suspension order. The panel noted that Miss Nixon has not provided any information to demonstrate remorse for her misconduct. Further Miss Nixon has not demonstrated any insight into her previous failings. The panel was of the view that evidence would have been required to show that Miss Nixon no longer posed a risk to the public. The panel determined that a further period of suspension would not serve any useful purpose in all of the circumstances, as the failure to provide any evidence is indicative of a deep seated attitudinal problem that 12
may not be remediable. Therefore, the panel considered that a suspension order would not be sufficient to protect the public and uphold the public interest in this case. The panel was satisfied that the matters found proved constitute a serious departure from the relevant professional standards. The panel was further satisfied that Miss Nixon acted in a manner that could have resulted in serious harm to the vulnerable patients in her care. The panel also considered that Miss Nixon s ongoing lack of engagement since the substantive hearing evidences a persistent lack of insight into the seriousness of her actions and potential consequences thereof. This panel noted that it had been made clear to Miss Nixon by the previous panel that her registration was at risk should she fail to engage with the review process and demonstrate remediation and insight regarding her misconduct. The panel also considered Miss Nixon has not demonstrated any commitment to return to the nursing profession. Public confidence in the profession and the NMC as its regulator would be undermined if Miss Nixon s name were not removed from the register. The panel therefore decided to impose a striking off order. This sanction is the only sanction sufficient to both protect the public and uphold the public interest in this case. This order will come into effect when the existing order expires, namely at the end of 14 December 2017. This decision will be confirmed to Miss Nixon in writing. 13