Nursing and Midwifery Council Fitness to Practise Committee Substantive Meeting 18 and 19 December 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London E20 1EJ Name of registrant Ms Manuela Alexandra Sabou NMC PIN: 16J0115C Part(s) of the register: Registered Nurse Sub part 1 Field(s) of practice: RN1: Adult 11 October 2016 Area of Registered Address: England Type of Case: Lack of knowledge of English language / Misconduct Panel Members: Martyn Griffiths (Chair, Lay member) Angela O Brien (Registrant member) Jacqueline Lambert (Registrant member) Legal Assessor: Charles Apthorp Facts proved: Fitness to practise: Sanction: Interim order: All Impaired Conditions of Practice - 18 months Interim Conditions of Practice - 18 months 1
Charge: That you, a registered nurse, 1) Do not have the necessary knowledge of English to practise safely and effectively. And in light of the above, your fitness to practise is impaired by reason of your lack of knowledge of English. 2) On 27th of March 2017 did not pain patch on Resident A. 3) On 14th of April 2017 incorrectly administered 6 units of Novo Rapid Insulin to Resident B. 4) On 23rd of April 2017 incorrectly administered 2 units of Novo Rapid Insulin to Resident B. 5) On 6th May 2017 incorrectly administered 10 Milligrams of Zomorph to Resident C. 6) On 2nd June 2017 incorrectly administered two doses of antibiotics to Resident D. 7) On 17th June 2017 failed to provide adequate care to Resident E; 7.1 As you did not administer pain relief to Resident E. 7.2 Closed Resident E s door. And in light of the above, your fitness to practise is impaired by reason of your misconduct. 2
Decision on Service of Notice of Meeting The panel was aware that on 8 November 2018 written notice had been sent to Ms Sabou at her registered address by recorded delivery and by first class post advising her that her case would be considered at a meeting on or after 17 December 2018. The panel noted from the Royal Mail Track and Trace that delivery had been made on the 8th November 2018 and signed for. The panel accepted the advice of the legal assessor. He referred the panel to Rules 34 (1) and 11A of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). Rule 11A states: 11A. (1) Where a meeting is to be held in accordance with rule 10(3), the [Fitness to Practise] Committee shall send notice of the meeting to the registrant no later than 28 days before the date the meeting is to be held. (2) The notice of meeting shall (a) contain a charge particularising the allegation, which shall set out any alleged facts on which it is based, and be accompanied by copies of any documents in support that have not previously been disclosed to the registrant by the Council or a Practice Committee; The panel took into account that the notice letter dated 13 November 2018 provided details of the allegation, the time, dates and venue of the meeting. The panel was satisfied that appropriate notice had been given to the Registrant of this meeting. Background Ms Sabou was referred to the NMC on the 27 June 2017 by her employer, Charing Gardens Limited, in respect of her command of English and the separate allegations of misconduct. Ms Sabou, from Romania qualified overseas. She was registered as a nurse in the UK on the 11 October 2016 and commenced employment at Charing 3
House Care Home ( the Home ), Gillingham, Kent on the 11 December 2016. This appears to have been her first employment as a nurse in the UK. Ms Sabou had her first supervision at the home on the 21 March 2017 during which no complaint was made concerning her command of English. The incidents, the subject matter of charges 2-7, occurred between 27 March 2017 and 17 June 2017. Following the referral an interim order hearing took place on the 18 July 2017 and interim conditions of practice were placed on Ms Sabou s practice. Following that hearing it was directed by the Registrar on the 22 March 2018 that she take an English language test. Ms Sabou took an IELTS assessment, which she failed on the 25 May 2018. Decision on finding on facts The panel have been provided with a copy of the case management form signed by Ms Sabou on the 10 October 2018 in which at Stage 1 she admits, without equivocation, each of the charges 1) 7) and 7.1) and 7.2). The panel have also read the statements of Colleague A, a Registered nurse who has a management role, Colleague B, a senior carer and Colleague C, a Staff nurse, and note that Ms Sabou agreed that their evidence could be read. She also did not request that they give evidence at a hearing. The panel have sight of and have read the bundle of exhibits, totalling 184 pages, provided by the Council. In light of the admissions by Ms Sabou, and documentary evidence the panel finds all the charges proved. Decision on current fitness to practise The panel note that Ms Sabou, in the case management form, admitted that her practice is currently impaired by reason of her lack of command of English, but denied that her practice is currently impaired by reason of misconduct. 4
The panel has considered carefully whether Ms Sabou s fitness to practise is currently 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 considered the available evidence to determine whether Ms Sabou is currently impaired. The panel has had regard to all of the documentation before it which included the NMC bundle. The panel noted that Ms Sabou has provided information to be considered today, which the panel has taken into account. The panel accepted the advice of the legal assessor in respect of misconduct and impairment, which included reference to the case of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, Cohen v General Medical Council [2008] EWHC 581 (Admin), and Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin). 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. Charge 1 In respect of charge 1) the panel separately considered whether Ms Sabou s fitness to practise is currently impaired. It noted that she had admitted her fitness to practise was impaired by reason of her lack of English. The panel noted that her results on the IELTS test of 25 May 2018 ranged between 3.5 for writing to 6.5 for speaking and the overall score was 5.0. This was substantially below the standard required by the Council of 7. The panel had regard to The Code: Professional standards of practice and behaviour for nurses and midwives 2015 (the Code) and noted the following paragraphs: 7.1 use terms that people in your care, colleagues and the public can understand 5
7.5 be able to communicate clearly and effectively in English. The panel was of the view that, having found the facts proved, Ms Sabou is breaching these paragraphs as she is unable to communicate clearly in English, potentially putting patients at risk. Mr Sabou, to her credit, has recognised that her English is not good enough and has indicated that she intends to take a course to improve her English. The panel has no information from Ms Sabou that she has achieved any improvement. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold/protect the wider public interest, which includes promoting and maintaining public confidence in the nursing and midwifery professions and upholding the proper professional standards for members of those professions. The panel determined that, in this case, a finding of impairment on public interest grounds was also required. It was of the view that a member of the public would expect a finding of impairment for a nurse that could not communicate effectively in English. Having regard to all of the above, the panel was satisfied that in respect of her lack of command of English Ms Sabou s fitness to practise is currently impaired. Misconduct and Impairment in respect of charges 2) to 7). Following its finding on the facts, the panel then next considered whether the facts found proved amount to misconduct and, if so, whether Ms Sabou s fitness to practise is currently impaired by reason of it. As set out above there is no statutory definition of fitness to practise. The panel accepted the advice of the legal assessor who referred the panel to the cases of Roylance, Cohen and Grant. 6
The panel adopted a two-stage process in its consideration, as advised. First, the panel must determine whether the facts found proved amount to misconduct. Secondly, only if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances Ms Sabou s fitness to practise is currently impaired as a result of that misconduct. Decision on Misconduct The panel bore in mind the case of Roylance, in particular to the judgment of Lord Clyde who described misconduct as a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. When determining whether the facts found proved amount to misconduct the panel had regard to the terms of the Code. The panel, in reaching its decision, had regard to the public interest and understood that there was no burden or standard of proof at this stage and exercised its independent professional judgement. The panel was of the view that Ms Sabou s actions fell significantly short of the standards expected of a registered nurse, and that they amounted to a breach of the Code. It bore in mind that not all breaches of the Code are serious misconduct, however it considered that the Code was breached in respect of charge 7: 3.1 pay special attention to promoting wellbeing, preventing ill health and meeting the changing health and care needs of people during all life stages 3.2 recognise and respond compassionately to the needs of those who are in the last few days and hours of life 13.2 make a timely and appropriate referral to another practitioner when it is in the best interests of the individual needing any action, care or treatment 13.3 ask for help from a suitably qualified and experienced healthcare professional to carry out any action or procedure that is beyond the limits of your competence 7
And in respect of charges 2 6 the Code was breached in respect of Drug Administration by: 6.2 maintain the knowledge and skills you need for safe and effective practice. 8.1 respect the skills, expertise and contributions of your colleagues, referring matters to them when appropriate 18.1 prescribe, advise on, or provide medicines or treatment, including repeat prescriptions (only if you are suitably qualified) if you have enough knowledge of that person s health and are satisfied that the medicines or treatment serve that person s health needs In addition, Ms Sabou breached the Standard 8 of the NMC Standards of Medicine Management. 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 76 she said: 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 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: 8
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. The panel finds that there are direct patient safety issues from the misconduct in this case. In respect of limbs (a), (b), and (c), the panel finds that each of these is engaged, in that Ms Sabou has in the past, put patients at unwarranted risk of harm, brought the profession into disrepute and breached fundamental tenets of the profession. In respect of charge 7, resident E was receiving end of life care and Ms Sabou did not provide appropriate pain relief. This caused patient E to suffer pain throughout the night. In addition Ms Sabou closed the door to his room to minimise the noise caused by patient E crying, which was affecting other residents. The panel find Ms Sabou was aware he was in pain and did not provide analgesia, which it considered to be serious misconduct. In respect of charges 3 and 4, the incorrect administration of insulin, the panel find it was inherently dangerous and shows repetition the two incidents having occurred nine days apart. Charge 3 occurred on the 14 April, Ms Sabou was spoken to about the first incorrect administration on the 19 April and then repeated her error with the same patient on the 23 April. 9
Both incidents are in the panels view serious misconduct as resident E suffered harm and resident B was at risk of serious harm. In terms of the remaining charges the panel find charges 2, 5 and 6 individually do not amount to misconduct. However, taking them in the broader context of all the matters charged, they contribute to a series of errors which amount to serious misconduct. The panel considered the guidance provided in the case of Cohen, in particular whether the conduct was remediable. Regarding Ms Sabou s insight the panel noted that she had made full admissions at the outset of the hearing. It was the panel s view that the matters are remediable. In respect of charge 1, Ms Sabou has stated she is prepared to improve her command of English, and charges 2 7 are remediable by training, supervised practice, reflection and study. The panel considered whether Ms Sabou had remediated her lack of command of English. It noted at p.161 of the NMC bundle at paragraph 2 Ms Sabou wrote on the 11 April 2018 I am currently looking into the possibility of starting a College course in September in order to improve my English and get further training, possibly working with young children. In that letter Ms Sabou acknowledges the need to attend a suitable course and that she intends to take the course and learn the language. It is a pre-requisite of Ms Sabou re-entering into practice that she takes and passes a NMC approved English Language course. Until she does so she remains impaired on this ground. The panel went on to consider remediation in relation to charges 2 7. It noted that Ms Sabou had been working subject to the interim conditions of practice order in July 2017 at the Strode Park Nursing Home. She worked one shift per week as a nurse. She was mentored and supervised by three different nurses. She attended and obtained fifteen certificates reflecting different training but only one was directly relevant to the charges and none indicates she was assessed. Ms Sabou received on the job training and was assessed by the Deputy Manager of the home. A report, at p.135 of the NMC Bundle, stated that she was compliant with the conditions of 10
practice, was not currently working as a nurse with the exception of the supportive learning sessions. The feedback indicated she was competent, was able to read and interpret MAR charts and dispense medication under supervision, but had not undertaken any nursing duties. The panel took into account the letter at p.140 of the bundle, in which Ms Sabou set out her account of the background and her conduct, however it was lacking in terms of reflection. The panel also took into account Ms Sabou s handwritten note at bottom of p.167 I feel the underlying reasons for the mistakes was my poor English and I should have asked for more help and wish I had done so. In the panel s view the letter shows some insight into clinical errors and her lack of command of English. However, the panel is concerned that Ms Sabou does not fully recognise her own responsibilities. At p.140 of the bundle at paragraph 7 of a letter from Ms Sabou the panel notes that she states I did not start my medicine competency until January 2017, but was allowed to administer drugs throughout the duration until these were signed off. In the next paragraph she states I have not been supported within the role during my employment. Charing House had a duty of care to client which has been breached.... Ms Sabou is critical of the home and the supervision she received and the panel find there is some weight in her comments. The panel notes, however in the Code at 16.1 and 16.2 that it is the responsibility of a nurse to work within her competency. The panel therefore concluded that Ms Sabou s remediation is incomplete and her practice is impaired by reason of her misconduct 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 required. 11
For these reasons the panel find that on both public protection and public interest grounds that Ms Sabou is currently impaired. 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 the NMC register will show that Ms Sabou s registration is the subject of restrictions. 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 (2018) published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. Aggravating and mitigating factors The panel first considered the aggravating factors. It consider that they were: repetition of the error in relation to the administration of insulin and the attendant risk to patients pattern of misconduct over the three month period the scores on the IELTS test being well below an acceptable standard causing patient E actual harm by leaving him in pain throughout the night. The panel went onto consider the mitigating features at Ms Sabou s first supervision there were no concerns about her command of English the supervision and mentoring provided by her employer were inadequate the panel was concerned about aspects of the drug administration processes at the home full engagement with the regulatory process willingness to take the IELTS test as directed 12
working within and compliant with the interim conditions of practice order. The panel first considered whether to take no action or impose a caution order but concluded that these would be inappropriate having found Ms Sabou s fitness to practise impaired. The panel decided that it would be neither proportionate nor in the public interest to take no further action or to impose a caution order since neither would provide the necessary degree of protection for the public and were not appropriate in the circumstances of this case. The panel next considered whether placing conditions of practice on Ms Sabou s 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, in particular: Conditions of practice must be relevant, proportionate, workable and measureable The panel was of the view that there are practical and workable conditions that could be formulated, given the nature of the charges in this case. The panel then went on to consider whether a suspension order would be an appropriate sanction. It determined that a suspension order would be disproportionate, punitive and not necessary to protect the public. Further the public interest was served by the safe return to practice of an otherwise competent nurse. The panel concluded that conditions should be imposed for 18 months. This will enable Ms Sabou sufficient time to pass the English language test and thereafter secure employment. They would protect the public and safeguard the public interest. Ms Sabou had exhibited a willingness to improve and comply with the conditions, she was otherwise a competent nurse. The public interest is served by the safe return of a nurse to practice. The panel determined to impose the following conditions of practice: 13
1. You must tell the NMC with 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. 2. 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. 3. 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 within14 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. 4. You must before taking up any nursing role take an IELTS test at a level approved by the NMC and provide evidence of passing that test at the level determined by the Registrar. 5. At any time that you are employed or otherwise providing nursing or midwifery 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: (i) In respect of medicines management working at all times under the direct observation of a registered nurse until assessed as competent in medicines management and thereafter, (ii) 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 14
on the same ward, unit, floor or home that you are working in or on for a period of 6 months. 6. 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: (i) Medicines management 7. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every week to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan until assessed as being competent in medicines management and thereafter such meetings to be monthly. 8. You must forward to the NMC a copy of your personal development plan within 14 days of the date on which these conditions become effective or the date on which you take up an appointment, whichever is sooner. 9. You must send a report 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 the NMC at least 14 days before any NMC review hearing or meeting. 10. You must allow the NMC to exchange, as necessary, information about the standard of your performance and your progress towards achieving the aims set out in your personal development plan with your line manager, mentor or supervisor (or their nominated deputy) 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. 11. You must disclose a report not more than 28 days old 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 15
your personal development plan to any current and prospective employers (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. 12. 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 (11), to them. i. Any organisation or person employing, contracting with, or using you to undertake nursing or midwifery work. ii. Any agency you are registered with or apply to be registered with (at the time of application) to provide nursing or midwifery services. iii. Any prospective employer (at the time of application) where you are applying for any nursing or midwifery appointment. iv. 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) At the end of the conditions of practice order, 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. Determination on Interim Order The panel has considered that an interim order should be made on the grounds of public protection and is otherwise in the public interest. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim conditions of practice order is necessary. The panel had regard to the facts found proved and the reasons set out in its decision for the substantive order. To do otherwise would be incompatible with its earlier findings. 16
If no appeal is made, then the interim order will be replaced by the conditions of practice order 28 days after Ms Sabou is sent the decision of this hearing in writing. The panel considered that the following will be of assistance to a future reviewing panel: Ms Sabou s attendance at the review hearing; Testimonials/references from any employment Ms Sabou has undertaken, whether paid or unpaid; A structured reflection addressing the charges and matters arising from the proceedings. That concludes this determination. 17