Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 19 December 2018 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Name of registrant: NMC PIN: Catherine Patricia Garner 92I0279S Part(s) of the register: Registered Nurse Sub Part 1 RNA: Adult 4 September 1995 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Order being reviewed: Outcome: Scotland Misconduct Anne Booth (Chair, lay member) Pamela Campbell (Registrant member) Julius Komorowski (Lay member) Angela Hughes Rob James Miss Garner not in attendance or represented Represented by Yusef Segovia, Case Presenter Suspension Order (12 months) Suspension Order (6 months) to come into effect at the end of 12 January 2019 in accordance with Article 30 (1) 1
Service of Notice of Hearing The panel was informed at the start of this hearing that Miss Garner was not in attendance, nor was she represented in her absence. The panel was informed that the notice of this hearing was sent to Miss Garner on 21 November 2018 by recorded delivery and first class post to her registered address. 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 Miss Garner. 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 Mr Segovia, on behalf of the Nursing and Midwifery Council (NMC). The panel accepted the advice of the legal assessor. Mr Segovia submitted that the NMC made an application to proceed in the absence of Miss Garner. He referred the panel to the lack of meaningful engagement from Miss Garner and also the fact that the current order is due to expire soon, namely at the end of January 12 2019. Mr Segovia submitted that there is a public interest in the hearing going ahead. The panel was mindful that Miss Garner has not ever engaged with the NMC in a meaningful way and was content for matters at the substantive stage to be determined at a meeting. 2
Miss Garner had been sent notice of today s hearing and the panel was satisfied that she was aware of today s hearing as she contacted the NMC on 23 November 2018. The panel is of the view that she has had sufficient time to submit documentation should she wish to do so. The panel concluded that she has chosen voluntarily to absent herself. The panel had no reason to believe that an adjournment would result in Miss Garner s attendance bearing in mind her previous lack of engagement. Having weighed the interests of Miss Garner with those of the NMC and the public interest in an expeditious disposal of this hearing the panel determined to proceed in Miss Garner s absence. 3
Decision and reasons on review of the current order: The panel decided to impose a suspension order for a further period of six months. This order will come into effect at the end of 12 January 2019 in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the first review of a suspension order, originally imposed by a Fitness to Practise panel on 12 December 2017 for 12 months. The current order is due to expire at the end of 12 January 2019. The panel is reviewing the order pursuant to Article 30(1) of the Order. The charges found proved which resulted in the imposition of the substantive order were as follows: Details of charge: That you, a registered nurse, whilst working at Marie Curie Hospice Edinburgh [ the Hospice ]: 1) On 16 September 2016, took 14 tablets of diazepam 5mg belonging to the Hospice when you did not have authority to do so; 2) Your actions at paragraph 1 above were dishonest in that you: a) Knew that you did not have authority to take medication belonging to the Hospice. 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: 4
Regarding insight, the panel considered that there was little evidence of insight or remorse on Miss Garner s part. It has no evidence to suggest that Miss Garner has developed any insight since her early admissions. The panel has not had any sight of any meaningful remorse or insight. The panel finds that Miss Garner demonstrated no appreciation of the impact of her dishonesty on her employers or on the public confidence in the profession. The panel noted that there has been limited engagement with the NMC by Miss Garner in respect of these allegations. It has therefore been presented with no evidence of reflection by Miss Garner. The panel noted Miss Garner s only response to her case officer dated 1 November 2016 in which she states: I do not wish to proceed any further with these proceedings. I have let my registration lapse as I no longer want to practice nursing. This whole situation has had a massive impact on my health over the last year, and whilst I take full responsibility for my actions and the severity of the situation, it was one isolated incident in a flawless 25 year career. I will not be attending any hearing and wish to put this behind me and start concentrating on my health and well being. In the panel s view Miss Garner s response demonstrates limited insight to her dishonest behaviour. The panel also took into account that at the time of the incident, Miss Garner may have had difficult personal circumstances and health issues. The panel noted Miss Garner s response at her meeting with Ms 2 in which Ms 2 stated: She told us that she hadn t personally consumed any of the Diazepam and that she didn t know why she had taken them but that she was (PRIVATE). Patricia described that her personal life was extremely stressful. 5
However, the panel had no evidence of remediation on Miss Garner s part. It noted that dishonesty, in principle, is difficult to remediate. However, it remains the position that Miss Garner has yet to demonstrate any efforts to remediate her misconduct. Rather, on the evidence before it, the panel considered that Miss Garner is yet to address the seriousness of her dishonesty and there is no evidence before it to suggest that her position has changed. 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 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 public expects nurses to act honestly and with integrity. The panel determined that, in this case, a finding of impairment solely on public interest grounds was required. The panel considered that this was necessary, not only because Miss Garner has acted dishonestly but also because public confidence in the NMC as a regulator would be undermined if a finding of impairment on the ground of public interest were not made. Having regard to all of the above, the panel was satisfied that Miss Garner s fitness to practise is currently impaired. The original panel determined the following with regard to sanction: The panel considered the level of dishonesty. The dishonesty related to theft of a medication. It is unknown whether this medication was used for financial gain, personal gain or otherwise. This was a single act of dishonesty in Miss Garner s long career as a registered nurse. Furthermore, the dishonesty in this case did not place patients at risk of harm directly. In the panel s view this was dishonesty which did not fall at the highest end of the spectrum of dishonesty. However, the panel also noted that this was not at the lower end of the spectrum. 6
The panel next considered whether placing conditions of practice on Miss Garner 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 SG, in particular: Conditions may be appropriate when some or all of the following factors are apparent (this list is not exhaustive): it is possible to formulate conditions and to make provision as to how conditions will be monitored The panel is of the view that there are no practical or workable conditions that could be formulated, given the nature of the charges in this case. The misconduct identified in this case centred on dishonesty which was not something that can be addressed through retraining. Furthermore the panel concluded that the placing of conditions on Miss Garner s registration would not adequately address the seriousness of this case. The panel then went on to consider whether a suspension order would be an appropriate sanction. The SG indicates that a suspension order would be appropriate where (but not limited to): 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): a single instance of misconduct but where a lesser sanction is not sufficient no evidence of harmful deep-seated personality or attitudinal problems the Committee is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour 7
The panel considered that this case was on the border line between a suspension order and a striking off order. The panel noted that the charges relate to a single incident. Furthermore, there was no evidence of any pattern of any similar conduct prior to or since the incident. Miss Garner s response in her meeting with Ms 2 leads the panel to conclude that Miss Garner may possibly have had personal circumstances and health issues which clouded her judgement at the time. In respect of the dishonesty found proved, the panel considered that this was neither at the highest or the lowest end of the spectrum of dishonesty. Further, there was no evidence of deep seated attitudinal issues. The conduct, as highlighted by the facts found proved, was a significant departure from the standards expected of a registered nurse. However, the panel determined that, at this stage, the serious breach of the fundamental tenets of the profession evidenced by Miss Garner s actions was not fundamentally incompatible with her remaining on the register. Therefore, the panel decided that a suspension order for a period of 12 months would be the sufficient, appropriate and proportionate sanction in this case and would allow Miss Garner a final opportunity to engage with the NMC, should she wish to do so. If she wishes to change her mind and try to resume her nursing career she will have the opportunity to do so. Decision on current fitness to practise This panel has considered carefully whether Miss Garner 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. It has taken account of the submissions made by Mr Segovia on behalf of the NMC. 8
Mr Segovia outlined the background of the case and the findings of the substantive panel. He submitted that, without any meaningful engagement prior to this hearing, the panel may find that the appropriate action would be to make a striking off order. Mr Segovia said that the panel can also allow the current order to lapse but referred the panel to the fact that Miss Garner has not engaged and that her future intentions for her career have not been outlined. Further, he submitted that Miss Garner would be allowed to re-apply onto the NMC register straight away if the panel allowed the order to lapse which would not protect the public in light of the current impairment in her fitness to practise. 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 Miss Garner s fitness to practise remains impaired. The panel took account of the fact that Miss Garner has shown limited engagement with the NMC. She was advised that a reviewing panel would be assisted by her attendance, character references and testimonials as to her historic practice and any up to date work, documentary evidence of relevant nursing training and courses undertaken, a detailed reflective piece and relevant medical evidence In a phone call dated 23 November 2018, Miss Garner asked the NMC Case Coordinator for instructions on how to submit documentation for this panel s consideration. However, she has failed to do so. Miss Garner has demonstrated limited insight and remorse. The panel took account of Miss Garner s comments to the investigation officer of the Hospice and noted that Miss Garner felt ashamed and embarrassed and said she had been suffering from health issues and difficult personal circumstances at the time. On 1 November 2016, in 9
a discussion with the NMC case Officer, Miss Garner indicated that she took full responsibility for her actions and understood the severity of the situation. She highlighted that it was an isolated incident in a 25 year career. The panel has no information as to whether Miss Garner s insight has developed further. She has not provided any medical evidence as to her current health or testimonials as to any current employment. The panel concluded that, due to the lack of any evidence to the contrary, Miss Garner has not remediated her failings or made any attempt to do so. The panel therefore concluded that Miss Garner s fitness to practise remains impaired on the grounds of public protection. The panel has borne in mind that its primary function is to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance. The panel 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 Garner s fitness to practise remains impaired. Determination on sanction Having found Miss Garner 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 it would be neither proportionate nor in the public interest to take no further action. 10
In making this decision, the panel had regard to the NMC s guidance on Allowing orders to expire when a nurse or midwife s registration will lapse. It took account of the fact that Miss Garner has not attended this hearing. Her lack of engagement meant that the panel had no information of any new career she had plans to move into or references from a current employer. The panel was of the view that taking the action in line with this guidance was not appropriate and did not satisfy the public interest. 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. The panel next went on to consider replacing the suspension order with a conditions of practice order. It was of the view that no progress or effort is being made by Miss Garner with regard to engaging with the NMC and demonstrating a willingness to comply with any conditions that could be made. It determined that in the light of this, conditions of practice remain unworkable. The panel next went on to consider a suspension order. The panel considered that a further period of suspension would allow Miss Garner further opportunity to reflect on her failings and make a decision with regard to whether she wishes to return to nursing. The panel took account of the fact that Miss Garner provided information to the NMC prior to the substantive hearing to the effect that she was suffering from a health condition at the time of the incident. Despite the lack of medical evidence relating to this, the panel determined that she should be given another chance to re-engage with the NMC and demonstrate that she can return to safe practice. The panel concluded that a suspension order will adequately protect the public and address the public interest in the case. It considered that a period of six months would allow Miss Garner the appropriate time to demonstrate she now has full insight, has initiated remediation and has re-engaged with the NMC. The panel went on to consider a striking off order but considered that as the shortcomings in Miss Garner s practice should be remediable, she should be given a 11
further chance to resume her nursing career. However, Miss Garner should be aware that, even at this stage, the panel gave serious consideration to making a striking off order. Accordingly, she should further be aware that in the absence of any meaningful engagement by her before the next review of this order there is every chance that the next reviewing panel could make the decision to permanently remove her from the NMC register. In order for Miss Garner to demonstrate progress, any reviewing panel may be assisted by the following: Miss Garner s attendance; Character references and testimonials as to Miss Garner s historic practice and any up to date work; Documentary evidence of relevant professional updating and courses undertaken; A detailed reflective piece; Relevant medical evidence. The panel was of the view that it may also be assisted by information relating to Miss Garner s future career intentions. The order will be reviewed prior to expiry. This decision will be confirmed to Miss Garner in writing 12