Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 11 May 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: NMC PIN: Peggy Mbuyazi 02B2351O Part(s) of the register: RN1, Registered Nurse (sub part 1) Adult (26 February 2002) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Ms Mbuyazi: Nursing and Midwifery Council: CPD outcome: Facts proved by admission: Fitness to practise: Sanction: Interim Order: England Misconduct Martyn Griffiths (Chair, Lay member) Michael Duque (Registrant member) Lindsey Rose (Lay member) Lucia Whittle-Martin Deepan Jaddoo Not present and not represented in absence Represented by Leeann Mohamed, NMC Case Presenter Accepted All Impaired Suspension Order (12 months) Interim Suspension Order (18 months) 1
Decision on Service of Notice of Hearing The panel was informed at the start of this hearing that Ms Mbuyazi was not in attendance and that written notice of this hearing had been sent to Ms Mbuyazi s registered address by recorded delivery and by first class post on 11 April 2018. Notice of this hearing was delivered to Ms Mbuyazi s registered address on 12 April 2018. Further, the panel noted that notice of this hearing was also sent to Ms Mbuyazi s representative at UNISON on 11 April 2018. The panel took into account that the notice letter provided details of the allegation, the time, dates and venue of the hearing and, amongst other things, information about Ms Mbuyazi s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. Ms Mohamed submitted the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Ms Mbuyazi has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. Decision on proceeding in the absence of the Registrant The panel next considered whether it should proceed in the absence of Ms Mbuyazi. The panel had regard to Rule 21 (2) states: (2) Where the registrant fails to attend and is not represented at the hearing, the Committee 2
(a) (b) (c) shall require the presenter to adduce evidence that all reasonable efforts have been made, in accordance with these Rules, to serve the notice of hearing on the registrant; may, where the Committee is satisfied that the notice of hearing has been duly served, direct that the allegation should be heard and determined notwithstanding the absence of the registrant; or may adjourn the hearing and issue directions. Ms Mohamed referred the panel to the Provisional Consensual Panel Determination Agreement ( the Agreement ) which confirmed that Ms Mbuyazi would not be attending and was content for the hearing to proceed in her absence. Ms Mohamed therefore invited the panel to continue in the absence of Ms Mbuyazi on the basis that she had voluntarily absented herself. Ms Mohamed submitted that it was in the public interest to proceed in Ms Mbuyazi s absence. The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is not absolute and is one that should be exercised with the utmost care and caution. However, in this case, Ms Mbuyazi has clearly indicated that she wishes for the hearing to go ahead today. Accordingly, the panel has decided to proceed in the absence of Ms Mbuyazi. 3
Provisional Consensual Panel Determination Agreement The Agreement put before the panel sets out Ms Mbuyazi s full admission to the facts of both charges, and her acceptance that her fitness to practise is currently impaired by reason of her misconduct. It stated in the Agreement that an appropriate sanction in this case would be a suspension order for a period of 12 months. The agreement was signed by Ms Mbuyazi on 4 May 2018 and by the NMC on 8 May 2018. The panel was referred to the Agreement reached by the parties. That Agreement reads as follows: Fitness to Practise Committee Consensual panel determination: provisional agreement Ms Mbuyazi is aware of the CPD hearing. Ms Mbuyazi does not intend to attend the hearing and is content for it to proceed in her and her representative s absence. Ms Mbuyazi will endeavour to be available by telephone should clarification on any point be required. The Nursing and Midwifery Council and Peggy Mbuyazi ( the Registrant ), PIN 02B2351O (collectively the parties ) agree as follows: CHARGES That you, a registered nurse: 1. On the night shift of 20 to 21 May 2017; a) Failed to undertake observations for one of more of the patients listed in Schedule 1. b) Recorded that you had undertaken observations for one or more patients between 02:00 and 02:20 when you had not. 2. On the night shift of 21 to 22 May 2017; 4
a) Failed to undertake observations for one of more of the patients listed in Schedule 1. b) Recorded that you had undertaken observations for one or more patients between 02:00 and 02:20 when you had not. 3. Your conduct in Charges 1(b) and 2(b), above, was dishonest in that you knew you had not conducted the observations recorded. And, in light of the above, your fitness to practise is impaired by reason of your misconduct. 5
AGREED FACTS 1. The Registrant worked for the University Hospitals of Morecambe Bay NHS Foundation Trust ( the Trust ) on Ward 2 at the Furness General Hospital ( the Hospital ) as a Registered Nurse via Interact Medical nursing agency ( the Agency ). 2. Ward 2 is the trauma and orthopaedics ward. Most patients are post-operative and include elderly patients, dementia patients and orthopaedic patients. It is the ward policy to undertake observations through the night at four hour intervals at 22.00, 02:00 and 06:00. Observations include taking the patients blood pressure, respiratory rate and temperature. The required technique entails physically moving the patients and it normally takes around five minutes to complete the observations in respect of one patient. 3. On two night shifts the Registrant did not conduct the required observations but recorded, dishonestly, that she had done so. The events of those night shifts are summarised in the following chronology: 20-21 May 2017 3.1. On 20 May 2017 the Registrant commenced a night shift on Ward 2 at the Hospital at 19.30. This shift ended at 07.30 on 21 May 2017. On this shift the Registrant had responsibility for the care of 12 patients split evenly across two adjacent rooms and was required to take their observations. The registrant did not undertake the scheduled observations of the patients at around 02:00 on 21 May 2017. 3.2. By 02.00 on 21 May 2017 it had been recorded that the observations had been undertaken on the 12 patients on staggered basis at times after 02.00, i.e. the observations were recorded as having taken place at a future time. Further, despite a Clinical Support Worker being present at around those times, the 6
Registrant was not observed in the patients rooms at the times she recorded the observations. 21 22 May 2017 3.3. On 21 May 2017 the Registrant commenced a night shift on Ward 2 at the Hospital at 19.30. This shift ended at 07.30 on 22 May 2017. On this shift the Registrant again had responsibility for the care of 12 patients split evenly across two adjacent rooms and was required to take their observations. Again, the Registrant did not undertake the scheduled observations of the patients at around 02:00. 3.4. After 01:00 two Clinical Support Workers observed the Registrant enter the patients rooms for a few minutes. By around 01:15 a Clinical Support Worker identified that the Registrant had completed the observation charts in respect of all of her patients and had indicated that the observations had been undertaken between 02:00 and 02:20, i.e. the observations were recorded as having taken place at a future time. Between 01.15 and 01.30 the Clinical Site Manager checked and confirmed this was what had been recorded. Not only is it not possible to conduct the necessary observations of all 12 patients in 20 minutes; none of the indicators of observation, such as explanation / conversations with patients, equipment noise etc, were heard at this time by the other staff on duty. 3.5. When challenged about this, the Registrant stated that she had made a mistake by recording 2 am instead of 1 am. Later that day the Registrant then altered the recorded observations to record the hour as 1 am. 3.6. Following the concerns identified in respect of the observations on the night shift of 21 22 May 2017, enquiries were made of Patient A during the day of 22 May 2017 as to whether she was woken up as scheduled at around 02:00 on 22 May 2017. Patient A confirmed that she was not awoken until 07:00 on 22 May 2017 for observations and breakfast. 7
4. There is no indication of Patient harm as a result of the Registrant s conduct. 5. During the course of the day shift on 22 May 2017 the Registrant s further shifts at the hospital were cancelled and the Agency were notified in writing that the shifts had been cancelled as a result of a safeguarding incident. Ms Mbuyazi s response 6. Ms Mbuyazi has accepted the charges and that she is currently impaired. 7. In correspondence with the NMC, Ms Mbuyazi s representatives have indicated that she has no intention of returning to practice again in the future. Ms Mbuyazi applied for voluntary removal but this was refused. [PRIVATE]. 8. Ms Mbuyazi has chosen not to produce a reflective piece. She has indicated she is keen to bring this matter to conclusion as soon as possible and is willing to accept any sanction deemed appropriate. MISCONDUCT 9. Miss Mbuyazi admits that the facts amount to misconduct. 10. The parties have considered the Code of Conduct for Midwives and Nurses that sets out the standards expected of nurses ( the Code ). It is agreed that the parts of the Code set out below have been departed from. 1.2 make sure you deliver the fundamentals of care effectively. 1.4 make sure that any treatment, assistance or care for which you are responsible is delivered without undue delay. 2.1 work in partnership with people to make sure you deliver 8
care effectively 10 Keep clear and accurate records relevant to your practice. To achieve this, you must: 10.1 complete all records at the time or as soon as possible after an event, recording if the notes are written some time after the event. 10.3 complete all records accurately and without any falsification, taking immediate and appropriate action if you become aware that someone has not kept to these requirements 13.1 accurately assess signs of normal or worsening physical and mental health in the person receiving care. 20 Uphold the reputation of your profession at all times To achieve this, you must: 20.1 keep to and uphold the standards and values set out in the Code 20.2 act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment 11. The parties acknowledge that not every breach of the Code will amount to misconduct. The parties, however, agree that in this instance the departures from the Code demonstrate significant departures that do amount to misconduct. IMPAIRMENT 12. The Registrant admits that her fitness to practise is impaired by reason of her misconduct. A finding of impairment is necessary on the grounds of public protection and that by virtue of the dishonesty the public interest is also engaged. 13. The NMC has defined current impairment as a Registrant s suitability to remain on the register without restriction. 9
14. The parties have considered the factors outlined by Dame Janet Smith in the Fifth Shipman Report, and approved by Cox J in the case of CHRE v Grant & NMC [2011] EWHC 927 (Admin) ( Grant ). 15. The Registrant accepts that as a result of her misconduct she: 15.1. 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; 15.2. Has in the past brought, and/or is liable in the future to bring the nursing profession into disrepute; 15.3. Has in the past breached, and/or is liable in the future to breach one of the fundamental tenets of the nursing profession; 15.4. Has in the past acted dishonestly and/or is liable to act dishonestly in the future. 16. It is agreed that as a result of the Registrant s misconduct she has put patients at unwarranted risk of harm and has breached one of the fundamental tenets of the nursing profession when failing to undertake scheduled observations. The Registrant further accepts that she was dishonest in her recording of observations and that her overall conduct is liable to bring the nursing profession into disrepute. As a consequence it is agreed that finding of impairment is necessary on the public protection ground and in the public interest. 17. The NMC has also considered the comments of Cox J in Grant at paragraph 101: The Committee should therefore have asked themselves not only whether the Registrant continued to present a risk to members of the public, but whether the need to uphold proper professional standards and public confidence in the Regulator and in the profession would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case. 10
18. The parties agree that a finding of impairment is required in the public interest to maintain confidence in the nursing profession and in the NMC as a regulator. Allowing the Registrant to practise unrestricted when she poses a potential risk to patient safety would be a cause of serious concern to members of the public. 19. In terms of the future, the parties agree that the Registrant has not addressed the concerns raised, such that the risk of repetition of the conduct remains. SANCTION 20. The parties agree that the appropriate sanction is a 12 month suspension order to be reviewed prior to expiry. 21. The parties have considered this is the appropriate sanction in light of the Sanctions Guidance. 22. When determining the issue of sanction, the fact that the dishonesty was related to clinical practise which could have caused patients serious harm was taken into account as an aggravating factor. 23. Dealing with the sanctions in ascending order, as this case concerns misconduct in a clinical context; to take no further action would clearly be inappropriate in light of public protection concerns and by virtue of the engagement of the public interest in light of the admitted dishonesty. 24. Likewise, a caution order would not serve to restrict the Registrant s practice, and as such, would not adequately protect the public. 25. The parties agree that, in light of the seriousness of the charges, conditions of practice would be unsuitable. Further, given the Registrant has no intention to return to practice and has left the country no workable conditions could be formulated. A 11
conditions of practice order would also fail to adequately protect the public interest in this case. 26. The parties consider that whilst the seriousness of the conduct does require temporary removal from the Register in order to satisfy the public interest, it is not fundamentally incompatible with registration. Ms Mbuyazi agrees that 12 months is an appropriate duration for the suspension order in that it marks the serious nature of the misconduct. 27. A striking-off order is not appropriate. Whilst the misconduct is serious in nature, the public interest can be adequately addressed through temporary removal from the Register, rather than a permanent removal. 28. The parties agree that the suspension order needs to be reviewed before its expiry. INTERIM ORDER 29. Due to the basis upon which impairment has been agreed by the parties, it is further agreed that an interim order is necessary for the protection of the public and that it is otherwise in the public interest. 30. The parties have determined that an interim suspension order for a period of 18 months would be appropriate to cover the 28 day period before the substantive order takes effect and also in the event of an appeal. 31. The parties understand that this provisional agreement cannot bind a panel and that the final decision on findings, impairment and sanction is a matter for the panel. The parties understand that, in the event that a panel does not agree with this provisional agreement, the admissions to the charges set out at the first section above, and the agreed statement of facts set out at the second section above, may be placed before a differently constituted panel that is determining the allegation, provided that it would be relevant and fair to do so. 12
This marks the end of the provisional CPD agreement between the NMC and Ms Mbuyazi. The Panel s Decision In reaching its decision, the panel accepted the advice of the legal assessor and bore in mind that in considering the Agreement the panel should have regard to the law and guidance in respect of misconduct, impairment and sanction. The panel should consider whether the Agreement would be in the public interest. This means that the outcome must ensure an appropriate level of public protection, maintain public confidence in the profession and the regulatory body, and declare and uphold proper standards of conduct and behaviour for nurses. The panel accepted Ms Mohamed s submissions and took into account the reflective piece of Ms Mbuyazi. The panel concluded that Ms Mbuyazi s conduct fell seriously below the standard required of a registered nurse and was deplorable and amounted to misconduct. The panel was mindful that, whilst Ms Mbuyazi has admitted that her fitness to practise is currently impaired by reason of her misconduct, the decision on this matter remained one for the panel s independent judgment. The panel noted that Ms Mbuyazi s misconduct related to making false entries in patient records. Regarding remediation Ms Mbuyazi in her written response stated: After being investigated for this incident by the NMC I had no chance to go back to work again due to health issues I was unable to prove myself by continuing working honestly The panel took into account that dishonesty by its nature is difficult to remediate. The panel agreed that due to the lack of remediation a risk of repetition and risk of harm remains. The panel therefore determined that Ms Mbuyazi s fitness to 13
practise is currently impaired by her misconduct on public protection grounds. In addition, the clear public interest in this case requires a finding of impairment on public interest grounds. The panel identified the following mitigating factors: Ms Mbuyazi has been a registered nurse for 36 years; Ms Mbuyazi has made full admissions to all matters; Ms Mbuyazi has shown some level of insight into her misconduct; Ms Mbuyazi has shown remorse for her dishonesty; The panel considered that an aggravating feature of the case was the deliberate nature of Ms Mbuyazi s dishonesty in that she had recorded an observation in advance of the time when she purported to make it. The panel first considered whether to take no action, but concluded that this would be inappropriate in view of the seriousness of the case as identified within the Agreement. The panel agreed that a caution order would be inappropriate in view of the nature and extent of the misconduct. The panel next considered a conditions of practice order but agreed that this would not address the serious nature of her dishonesty, which in any event is difficult to remediate. The panel further considered this matter and concluded that a suspension order is a proportionate outcome in the case and would adequately address the public interest in this case given the serious nature of the misconduct. The panel agreed that a suspension order for a period of 12 months would appropriately mark the public interest in this case and convey a clear message that Ms Mbuyazi s conduct was unacceptable and a significant departure from the standards of conduct 14
and behaviour expected of a registered nurse. The panel also agreed that a suspension order would sufficiently protect the public given the risk of harm previously identified. The panel did consider a striking off order, but determined that Ms Mbuyazi s misconduct and impaired fitness to practise was not fundamentally incompatible with her remaining on the register. In the panel s judgement a striking off order was not the only sanction that would sufficiently protect the public and address the public interest considerations in this case at this time. For the avoidance of doubt, the panel s approval of the agreement includes its approval of the provision for review contained within the Agreement. The panel was of the view that a future reviewing panel may be assisted by: Evidence by way of a more detailed and more structured reflective piece that demonstrates that Ms Mbuyazi has insight into the impact that her dishonesty had on her patients, her colleagues and the reputation of the profession as a whole and how she would act differently in the future; Evidence of any further training relating to record keeping, and observations Evidence that Ms Mbuyazi has maintained knowledge of her clinical practice and has kept this up to date. The panel also determined, as outlined in the Agreement, that an interim suspension order for 18 months should be imposed. The panel considered that an interim suspension order is necessary for the protection of members of the public and is otherwise in the public interest. The panel therefore determined to accept the provisional agreement. This decision will be confirmed to Ms Mbuyazi in writing. 15
That concludes this determination. 16