Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 28 February 2019 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC PIN: David Piers Wynburne 78A4201E Part(s) of the register: Registered Nurse Sub Part 1 Adult (1 April 1981) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Nursing and Midwifery Council: England Lack of Competence Anne Owen (Chair, Registrant member) Jan Fowler (Registrant member) John Weeden (Lay member) Nigel Mitchell Roshani Wanigasinghe Ms Siobhan Caslin Nursing and Midwifery Council Case presenter Mr Wynburne: Not present and not represented Fitness to practise: Impaired Order being reviewed: Conditions of Practice Order (12 months) Outcome: Conditions of Practice Order varied and extended for a period of 12 months to come into effect at the end of 5 April 2019. 1
Service of Notice of Hearing: The panel was informed at the start of this hearing that Mr Wynburne was not in attendance, nor was he represented in his absence. The panel was informed that the notice of this hearing was sent to Mr Wynburne on 30 January 2019 by recorded delivery and first class post to his registered address on the NMC register. Further, the panel noted that notice of this hearing was also sent to his representative at the Royal College of Nursing (RCN). The panel accepted the advice of the legal assessor. In the light of the information available the panel was satisfied that notice had been served in accordance with Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) (the Rules). Proceeding in absence: The panel then considered proceeding in the absence of Mr Wynburne. The panel was mindful that the discretion to proceed in absence is one which must be exercised with the utmost care and caution. The panel considered all of the information before it, together with the submissions made by Ms Caslin on behalf of the Nursing and Midwifery Council (NMC). The panel accepted the advice of the legal assessor. Ms Caslin directed the panel s attention to a letter from the RCN dated 27 February 2019, which stated: our member will not be attending the hearing nor will he be represented our member has received the Notice of hearing and is happy for the hearing to proceed in his absence. 2
Mr Wynburne had been sent notice of today s hearing and the panel was satisfied that he is aware of today s hearing. In a note dated 27 February 2019 he stated that he will not be attending any NMC hearing. The panel, therefore, concluded that he had chosen voluntarily to absent himself. The panel had no reason to believe that an adjournment would result in Mr Wynburne s attendance. Having weighed the interests of Mr Wynburne with those of the NMC and the public interest in an expeditious disposal of this hearing the panel determined to proceed in Mr Wynburne s absence. Decision and reasons on review of the current order: The panel decided to vary and extend the current conditions of practice order for a period of 12 months. This order will come into effect at the end of 5 April 2019 in accordance with Article 30 (2) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the second review of a suspension order originally imposed by a panel of the Conduct and Competence Committee on 6 June 2017 for 9 months. The first review panel on 1 March 2018 imposed a conditions of practice order for a period of 12 months. The current order is due to expire at the end of 5 April 2019. The panel is reviewing the order pursuant to Article 30(2) of the Order. The following allegations were found proved by way of admission by the panel at the substantive meeting on 6 June 2017: Charges That you, a registered nurse, while employed by Shepton Mallet NHS Treatment Centre, working in the outpatient department failed to demonstrate the standard knowledge, skill and judgement required for practice without supervision as a Registered Nurse in that: 3
1) On the 17 November 2014 did not record whether a urine sample had been taken for Patient 1. 2) On the 19 November 2014 did not follow the correct procedure regarding Patient 2 in that, you: a) Did not refer Patient 2 to their GP regarding hypertension; b) Did not ask Patient 2 to return to the clinic in three weeks time and/ or did not record such a discussion. 3) On the 19 November 2014 you did not document that Patient 3 had a latex allergy. 4) On the 29 November 2014 regarding your assessment of Patient 11 you: a) Advised Patient 11 to stop taking warfarin for 7 days instead of 4 days; b) Assessed Patient 11 as fit for surgery when their blood pressure was too high; c) Did not contact Patient 11 s GP in relation to a potential clexane prescription. 5) On the 29 November 2014 regarding your assessment of Patient 13 you: a) Did not advise Patient 13 to stop taking candesartan prior to surgery or record that such advice was given; b) Assessed Patient 13 as fit for surgery when their blood pressure was too high; c) Did not record that urine analysis had been performed. 6) On the 29 November 2014 regarding your assessment of Patient 14 you: a) Did not undertake blood tests and/ or record that such tests were undertaken; b) Did not ensure that a urine assessment was performed and/ or record that such an assessment was performed. 7) On the 1 December 2014 did not obtain and/or record blood tests results for Patient 15 in your assessment. 4
8) On the 1 December 2014 did not obtain and/or record blood test results for Patient 16 in your assessment. 9) On the 1 December 2014 regarding your assessment for Patient 17 you: a) Did not advise Patient 17 to stop taking Losartan or in the alternative, record that such advice was given; b) Recorded that Patient 17 was both not fit for surgery and fit for surgery. 10) On the 2 December 2014 regarding your assessment of Patient 18 you: a) Did not take Patient 18 s full blood count and group screen blood tests and/ or did not record that such tests were taken; b) Did not undertake an ECG on Patient 18 or alternatively record the results of the ECG. 11) On the 26 November 2014 you entered information for Patient 20 in the wrong pathway. 12) On the 28 November 2014 failed to take Patient 22 s GAMMA blood test when the patient s alcohol intake indicated that one was needed and/ or failed to record that such a test was undertaken. 13) On the 4 December 2014 regarding your assessment of Patient 25, you did not inform the ward that Patient 25 required an overnight stay after surgery. 14) On the 4 December 2014 you did not accurately record Patient 26 s MRSA swab results in the investigations tab. 15) On the 10 December 2014 you did not record in Patient 32 s medication information that Patient 32 was taking rivaroxaban. 16) On the 26 November 2013 when Patient 37 presented with raised blood glucose, you did not order further investigations prior to surgery. 5
17) On 27 December 2013 regarding Patient 38 you: a) Did not undertake or order investigations when Patient 38 s heart rate was elevated; b) Failed to ask an anaesthetist to review Patient 38. 18) On the 7 August 2014 did not advise Patient 39 to stop taking: a) Aspirin; b) Candesartan. 19) On 24 October 2013 when Patient 40 had a BMI of 40.57 you: a) Did not refer Patient 40 to a GP; b) Did not ask Patient 40 to return to nurses clinic in three weeks time. 20) Between 16 June 2014 and 13 July 2015 you did not adequately carry out 95% of pre surgery assessments reviewed for the week commencing: a) Week commencing 16 June 2014 b) Week commencing 23 June 2014 c) Week commencing 23 July 2014 d) Week commencing 1 16 August 2014 e) Week commencing 21 August 2014 f) Week commencing 8 September 2014 g) Week commencing 15 September 2014 h) Week commencing 19 September 2014 i) Week commencing 31 October 2014 j) Week commencing 7 November 2014 k) Week commencing 10 November 2014 l) Week commencing 17 November 2014 m) Week commencing 23 February 2015 n) Week commencing 2 March 2015 o) Week commencing 9 March 2015 p) Week commencing 23 March 2015 q) Week commencing 30 March 2015 6
r) Week commencing 13 April 2015 s) Week commencing 20 April 2015 t) Week commencing 28 April 2015 u) Week commencing 19 June 2015 v) Week commencing 29 June 2015 w) Week commencing 6 July 2015 x) Week commencing 13 July 2015 And that, in light of the above, your fitness to practise is impaired by reason of your lack of competence. The first reviewing panel determined the following with regard to impairment: The panel considered whether Mr Wynburne s fitness to practise remains impaired. The panel had sight of Mr Wynburne detailed reflective statement and the testimonials provided and considered he has demonstrated insight into his failings, and that Mr Wynburne now has a better understanding of how his actions impacted upon patients, staff and the reputation of the profession. The panel noted that Mr Wynburne has completed training courses relevant to working as a Health Care Assistant (HCA). The panel noted that Mr Wynburne has engaged fully with these proceedings, and has shown a willingness to remediate his practice. However, the panel determined that despite Mr Wynburne taking steps to remediate his practice, there are still areas which require further assessment. The panel therefore determined that a real risk to the public remained. Further, the panel determined that public trust and confidence in the profession would be undermined if a finding of impaired fitness to practise was not made in these particular circumstances. Having regard to all of the above, the panel was satisfied that a finding of Mr Wynburne s fitness to practise to be currently 7
impaired is necessary on the grounds of public protection and is otherwise in the public interest. The panel therefore concluded that Mr Wynburne s fitness to practice remains impaired. The first reviewing panel determined the following with regard to sanction: Having found that Mr Wynburne s fitness to practise is 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 to the public and the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. The panel then considered whether to impose a caution order but concluded that this would be inappropriate as it would not sufficiently protect the public. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order. The panel next considered a conditions of practice order. The panel took into consideration Mr Wynburne s recent positive testimonials which, while specifically addressing his practice as a Health Care Assistant (HCA), also attested to Mr Wynburne s general professionalism, dedication and good conduct. Further, the panel was encouraged that Mr Wynburne has been attempting to remedy the deficiencies in his practice and that he has continued to work within healthcare, working as a HCA. 8
The panel was of the view that a conditions of practice order would be sufficient to protect patients and the wider public interest, noting as the original panel did, that there was no evidence of deep seated attitudinal problems and that with sufficient insight and reflection, conditions could be formulated which would protect patients during the period they are in force. The panel did consider a further period of suspension, however, the panel recognised the positive progress Mr Wynburne has made. It is clear that Mr Wynburne is keen to progress and is willing to take necessary steps to do so. There are identifiable areas which can be addressed by undertaking the necessary training. Conditions are the least restrictive order the panel could impose, which would provide an adequate level of protection but be proportionate when balanced against Mr Wynburne s own interests and allowing him an opportunity to return to safe practice. The panel determined that a striking-off order would be disproportionate, notwithstanding that Mr Wynburne has not been subject to a substantive order for the necessary amount of time for such an order to be applicable. The panel was of the view that any conditions imposed should protect the public, meet the public interest considerations in this case and also enable Mr Wynburne to demonstrate remediation and return to safe and effective practice as a registered nurse in a supported manner. Accordingly, the panel determined, pursuant to Article 30(1) of the Nursing and Midwifery Order 2001, to impose a conditions of practice order for a period of 12 months, which will come into upon expiry of the order. The panel determined that the following conditions are appropriate and proportionate in this case: 1. You must confine and restrict your nursing practice to Gracewell Healthcare (Gracewell of Frome). 9
2. You must tell the NMC within 14 days of any nursing appointment (whether paid or unpaid) you accept within the UK or elsewhere, and provide the NMC with contact details of your employer. 3. 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 3 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. d. Any educational establishment at which you are undertaking a course of study connected with nursing, or any such establishment to which you apply to take 4. 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. 5. 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, provide the NMC with the name/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. 10
6. 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: 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, floor or home that you are working in or on. 7. Until such time as you have been successfully assessed on three separate drug rounds by the same registered nurse, you must not administer medication without supervision. 8. (a) 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: Give examples in your current practice which highlight the importance of ensuring that patients general observations are within normal parameters and demonstrating how and to whom to escalate when outside normal parameters. Record keeping Assessment of patients Medicines management 9. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every 2 weeks for the first month and thereafter monthly to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 10. 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. 11
11. 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 every months and at least 14 days before any NMC review hearing or meeting. 12. 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. 13. 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 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. Decision on current fitness to practise: The panel has considered carefully whether Mr Wynburne 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 including the NMC hearing bundle, an on-table document containing a letter from Mr Wynburne s 12
representative at the RCN, submissions on behalf of Mr Wynburne, a statement from Mr Wynburne s confirming his desire to remove himself from the register. Ms Caslin briefly outlined the background of this case to the panel. Ms Caslin submitted that Mr Wynburne s lack of competence included problems with assessment, documentation, pre-operative investigations and effective communication over a significant period of time. Ms Caslin invited the panel to find that Mr Wynburne s fitness to practise remains impaired as he has not demonstrated that he is capable of safe and effective practice without supervision, which he acknowledges in his statement; I have been unable to update my skills and knowledge as I was not given the opportunity to do so with my last employer. Ms Caslin further submitted that Mr Wynburne has not practised as a nurse since 2014 and therefore would not be fit to practise without restriction. In the absence of remediation and demonstration of safe practise as a nurse, she invited the panel to find that Mr Wynburne s fitness to practice remains impaired on grounds of public protection and the wider public interest. As for sanction, Ms Caslin referred the panel to the submissions from the RCN on Mr Wynburne s behalf. The submissions referred to the case of Clarke, (Mathew Clarke v General Optical Council (2017) EWHC 521 (Admin) and the GOC v Clarke [2018] EWCA Civ 1463). The detailed submissions suggested that because Mr Wynburne has no intention to continue to resume practise as a nurse, if the panel were to find impairment but take no action, thereby allowing the conditions to lapse upon expiry, the public would be protected because Mr Wynburne s registration would also lapse and he would have to re-apply to regain his registration. If he were to re-apply the registrar would be able to take into account in deciding whether to allow re-admission to the register both Mr Wynburne s promise not to return to nursing and the finding of impairment against him. 13
Ms Caslin referred the panel to the NMC s guidance on Allowing an Order to expire when a Nurse or Midwife s registration will lapse. She reminded the panel that Mr Wynburne could apply for re-admission to the register as soon as his registration lapsed. She emphasised the guidance stated, It is important that the panel is sure that the nurse no longer wants to practise before it decides to let an order expire. Ms Caslin said that the case of Clarke could be distinguished for a number of reasons including that Clarke was a misconduct case and the sanction of a strike-off was available in that case, whereas Mr Wynburne s case involves a lack of competence and a strike-off order is not available at this stage. She further reminded the panel that Mr Clarke had taken decisive steps to demonstrate that he had no intention to return to practice. Ms Caslin told the panel that less than a year ago Mr Wynburne indicated a firm intention to return to nursing practise, and there is no evidence produced to support his current intention not to work as a nurse again. 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 considered whether Mr Wynburne s fitness to practise remains impaired. The panel noted that Mr Wynburne has not practised as a registered nurse since 2014. In a letter to this panel dated 27 February 2019 Mr Wynburne stated that he no longer wishes to practise as a nurse. He says he has been unable to update his skills and knowledge. In the circumstances Mr Wynburne has therefore not remedied the concerns associated with his lack of competence. There remains a risk of repetition and to allow Mr 14
Wynburne to return to unrestricted practice would place patients at risk of harm and bring the nursing profession into disrepute. The panel was of the view that Mr Wynburne s fitness to practise remains impaired on both public protection and public interest grounds. It went on to consider, what, if any, order is now appropriate. Determination on sanction: The panel noted the submissions made by the RCN on Mr Wynburne s behalf and the case of Clarke. The panel also noted that Mr Wynburne at the last review provided that panel with a number of documents including a detailed reflective statement, and several positive testimonials and training certificates. That panel considered that he had demonstrated insight into his failings and had shown a willingness to remediate his practice. That panel recognised the positive progress that Mr Wynburne had made. This panel has determined that the material before it does not make it sure that Mr Wynburne no longer wants to practise as a nurse. The panel has not had a properly evidenced explanation from Mr Wynburne of his plans for his future away from nursing. The panel has taken account of the Sanctions Guidance, bearing in mind that the decision on sanction is one for its own independent judgement. The panel has considered the sanctions available to it in ascending order of restrictiveness. The panel has borne in mind that the purpose of a sanction is to protect the public. It is not intended to be punitive. The panel first considered taking no further action and allowing the current order to lapse upon its expiry. Given the finding that Mr Wynburne s fitness to practise remains impaired, the panel decided that taking no further action would not be adequate to protect the public against the risks identified. The panel further determined that as Mr 15
Wynburne has not provided a clear explanation of his plan for his future it would be inappropriate to merely let the order lapse. The panel next considered a caution order and considered that this would be inappropriate for the same reasons outlined above. A caution order would not provide the necessary monitoring or restriction of Mr Wynburne s practice, which is necessary given the risks identified. The panel had regard to the conditions of practice order currently in place and considered whether such an order remained an appropriate and proportionate response to the risks it has identified. The panel was satisfied that the imposition of a conditions of practice order was sufficient to protect the public. The panel also considered that a conditions of practice order remains the most appropriate and proportionate response in allowing Mr Wynburne, were he to change his mind, to return to nursing and remedy the failings identified. The panel did consider whether it should impose a suspension order. The panel decided that to impose such an order would be disproportionate, given Mr Wynburne s engagement with the NMC and the particular circumstances of this case at this stage. This panel considered that in the circumstances it would be fair and proportionate to allow Mr Wynburne a period of further reflection and an opportunity to consider whether he still wished to cease practise. In all the circumstances, the panel took the view that conditions of practice would be an appropriate and proportionate sanction. It therefore decided to vary the conditions by the removal of the previous condition (1). The panel considered that this condition limited Mr Wynburne to practise in one particular place and the panel has no evidence before it that he remains employed there. The conditions will be extended for a period of 12 months. 16
The panel therefore decided to impose the following varied conditions: 1. You must tell the NMC within 14 days of any nursing 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 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 3 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. d. Any educational establishment at which you are undertaking a course of study connected with nursing, or any such establishment to which you apply to take 3. 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. 4. 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, provide the NMC with the name/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. 17
5. 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: 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, floor or home that you are working in or on. 6. Until such time as you have been successfully assessed on three separate drug rounds by the same registered nurse, you must not administer medication without supervision. 7. (a) 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: Give examples in your current practice which highlight the importance of ensuring that patients general observations are within normal parameters and demonstrating how and to whom to escalate when outside normal parameters. Record keeping Assessment of patients Medicines management 8. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every 2 weeks for the first month and thereafter monthly to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 9. 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. 18
10. 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 every month and at least 14 days before any NMC review hearing or meeting. 11. 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. 12. 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 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. This panel considered that a future panel would be assisted by; Mr Wynburne s attendance at the future review hearing; If Mr Wynburne remains of the view that he no longer wishes to practise as a Registered Nurse, he should provide corroborating evidence of his plans for the future. This decision will be confirmed to Mr Wynburne in writing. That concludes this determination. 19