Conduct and Competence Committee Substantive Meeting 31 October 2012 and 1 November 2012 31 October 2012 Nursing and Midwifery Council, 23 Portland Place, London, W1B 1PZ 1 November 2012 Bonhill House, 1-3 Bonhill St, London EC2A 4BX Name of registrant: NMC Pin: Helen Maria Jack 89Y1077E Part(s) of the register: Registered Nurse Sub Part 2 Adult December 1992 Area of registered address: Type of case: Panel Member: Legal Assessor: Panel Secretary: England Misconduct Linda Parkin (Chair/ Lay member) Helen Mbakwe (Lay panellist) Kathryn Eastwood (Registrant panellist) John Donnelly Alex Gounis Facts proved: Charge 1, 2, 3a. and 3b. Facts not proved: Impairment: Sanction: Interim order: n/a Impaired Striking-off order Interim suspension order, 18 months Decision on service and proceeding in the absence of Ms Jack: Ms Jack was not in attendance for this meeting and was not represented. First the panel was satisfied that notice had been served, as advised by the legal assessor, in compliance and 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). 11. (2) The notice of hearing shall be sent to the registrant (b) in every case, no later than 28 days before the date fixed for the hearing. Page 1 of 10
34. (1) Any notice of hearing required to be served upon the registrant shall be delivered by sending it by a postal service or other delivery service in which delivery or receipt is recorded to, (a) her address in the register Notice of this hearing was sent to Ms Jack on 24 September 2012 by recorded delivery to her address on the register. This complied with the rules of service. The track and trace recorded that the document was returned to the NMC, however NMC enquiries with Royal Mail confirmed Royal Mail attempted delivery of the notice of hearing on 25 September 2012, delivery was unsuccessful and a note was left for Ms Jack advising her that the document could be collected from the local enquiry office, Bristol South. The document was only returned to the NMC on 18 October 2012. In deciding whether to proceed in the absence of Ms Jack, the panel had in mind its responsibilities for public protection and public interest which included the expeditious disposal of this case. The panel heard and accepted the advice of the legal assessor. The panel was mindful that it had discretion to proceed in Ms Jack s absence which must be exercised with the utmost care and caution. The last two letters the NMC received from Ms Jack; on 10 August 2011 and 15 November 2011, Ms Jack stated that she does not wish to return to nursing and would no longer be engaging with the NMC process. The panel was satisfied that Ms Jack had voluntarily absented herself. Ms Jack had not returned the case management form. She had not sought an adjournment. Given all of these considerations the panel determined that it would be in the interests of justice to proceed in Ms Jack s absence. Charges 'That you, a registered nurse 1. Indicated that you refused to undergo hair follicle testing following a direction for such testing to be undertaken by a health committee in or around January 2010 2. Withdrew your consent in around February 2010 for your GP to supply medical records for the purposes of the Nursing and Midwifery Council s investigation 3. Did not provide written consent to the disclosure of GP records following a. a pre-meeting in or around July 2010 directing such disclosure by 4pm on 20 August 2010 b. a letter sent on or around 4 August 2010 reiterating the terms of the directions at the pre-meeting referred to in 2a. above Amendment to Charge 3b The panel considered the reference to charge 2a. that is referred to in charge 3b. It recognised that there is no charge 2a. The only other charge that contains a sub-charge a is charge 3. Reading the charge 3b. the panel considered that there was a slip error in the drafting on the charge and that it should refer to charge 3a.. The panel noted that it was to consider the merits of case, and considered that it would be fair to amend the charge in this context and that there was no injustice caused to any Page 2 of 10
party. The panel, of its own volition, amended the charge to correct this slip error. The amended charge reads as follows 3. Did not provide written consent to the disclosure of GP records following........ b. a letter sent on or around 4 August 2010 reiterating the terms of the directions at the pre-meeting referred to in 3a. above Error in the List of Document notice that was sent to Ms Jack Accompanying the notice of hearing sent to Ms Jack on 24 September 2012 was a document titled List of Documents. This list recorded the documents that would be considered by the panel determining this matter. This list included the following two documents: Final Report from the Investigative Committee Supplemental Report The panel was not provided with these documents. The NMC confirmed that naming these two documents in the list of documents before the panel was an error as investigative committee reports are not be placed before the panel.. The panel considered whether Ms Jack could have been innocently misled by this error. However, the panel did not believe this was the case in this instance as delivery of the notice of hearing (incorporating the list) was unsuccessful and therefore Ms Jack did not see the document. As the panel did not see these investigative reports, it considered that it was proper for it to proceed. Evidence before the panel A large bundle of documents that the NMC was relying on was placed before the panel. This included over 200 pages of documentation that were not directly related to the charges subject to these proceedings. There was a degree of uncertainty as to the material placed before the panel in relation to the charges. Very early in the meeting, an NMC officer confirmed that the charges indeed only relate to Ms Jack s failure to comply with NMC request for drug testing and medical reports. Therefore, the panel exercised its professional proficiency in dealing with these matters and focussed on the relevant evidence relating to the charges. The panel did not take into account material that was of no relevance, but had regard to some material relating to the initial referral to the NMC insofar as it provided background. Decision on findings of fact The panel has considered the documentary evidence presented to it. Page 3 of 10
The panel is aware that the burden of proof rests on the NMC, and that the standard is the civil standard, namely the balance of probabilities. This means that the facts would be found proved if the panel were satisfied that something was more likely than not to have occurred. The panel heard and accepted the advice of the legal assessor. Background On 9 March 2009 the NMC received a referral regarding Ms Jack from Bristol Primary Care Trust. The allegation made against her was that on 29 May 2008 while working as a registered nurse at HM Prison Bristol, she attempted to remove one tablet of Diazepam for her own personal use. Ms Jack self reported this incident to her line manager shortly after it occurred. The NMC proceedings progressed and there was correspondence between Ms Jack and the NMC regarding the referral, the NMC procedure and the current stage of the investigation. As part of the investigation, on 29 January 2010 the health committee requested a report from her general practitioner ( GP ). There was also a direction by the health committee for hair follicle drug test, GP reports and a psychiatric report to be prepared, and the alleged failure to comply with these directions are the subject of the charges. Charge 1 'That you, a registered nurse 1. Indicated that you refused to undergo hair follicle testing following a direction for such testing to be undertaken by a health committee on or around January 2010 The panel had sight of a letter dated 4 February 2010 from the NMC to Ms Jack. The letter advised her that the outcome of the notice of referral was that the panel decided to hold a hearing into the allegation and that the panel decided to ask you to undergo the following: i. Hair testing (ID Validated) 3 monthly ii. Psychiatric report from a medical practitioner instructed by the NMC iii. Up to date GP report iv. Up to date employer reference On 25 February 2010 Ms Jack s representative, her then husband Mr Petter, sent an email to the NMC attaching a statement from Ms Jack responding to the request of the Health Committee. It states that Ms Jack has decided not to comply with the request of the Committee and to withdraw her consent for access to her health records for the following reasons. The panel considered that this letter was clear evidence that Ms Jack decided not to comply with the Health Committee s directions. The panel was therefore decided that the facts in relation to charge 1 are found proved. Page 4 of 10
Charge 2 2. Withdrew your consent in around February 2010 for your GP to supply medical records for the purposes of the Nursing and Midwifery Council s investigation On 12 February 2010, Ms Jack sent an email to the NMC stating that she had spoken to my GP and withdrawn my consent for her to forward my medical records and to supply any subsequent medical report. The panel also had regard to the statement received by the NMC on 24 February 2010, in particular the passage that is quoted in its reasons relating to charge 1 above. The panel concluded that Ms Jack s email and the statement are clear evidence that Ms Jack withdrew her medical consent, which she had initially provided to the NMC in the case management form that she completed on 5 January 2010. The panel finds the facts of charge 2 proved. Charge 3a. 3. Did not provide written consent to the disclosure of GP records following a. a pre-meeting in or around July 2010 directing such disclosure by 4pm on 20 August 2010 The transcript of the Health Committee pre-meeting held on 26 July 2010 was before the panel. The transcript records that Ms Jack was directed by the panel to disclose the GP records by 4pm on 20 August 2010. The only correspondence received by the NMC from Ms Jack between the date of the pre-meeting and the end of the directions was a letter on 10 August 2010. Ms Jack did not comply with the direction and only explained that she had chosen to not engage with the NMC proceeding at this time. Therefore, the panel was satisfied on the balance of probabilities that Ms Jack did not provide written consent to the NMC for the disclosure of GP records. Charge 3b. b. a letter sent on or around 4 August 2010 reiterating the terms of the directions at the pre-meeting referred to in 2a. above On 4 August 2010, the NMC sent a document by recorded delivery to Ms Jack advising her of the Health Committee pre-meeting directions. A copy of this document was before the panel. Direction 2 states: 2. the registrant shall by 4pm on 20 August 2010 provide to the NMC her written consent to the disclosure of her full GP records (or a transcript of those records) to the psychiatrist referred to in 1 above in advance of the preparation of the report. Page 5 of 10
As the panel found proved in charge 3a. Ms Jack failed to comply with the direction to provide written consent for her GP records to be disclosed. The panel was therefore decided that the facts in relation to charge 3b. are found proved. Decision on Impairment Having announced its findings on the facts, the panel considered whether, on the basis of the facts found proved, Ms Jack s fitness to practise is currently impaired. The panel took into account all the evidence before it. It heard and accepted the legal assessor s advice. The panel recognised that it must first determine whether the facts found proved amounted to misconduct. Only if the facts found proved amounted to misconduct could the panel then decide whether, in all the circumstances, Ms Jack s fitness to practise is currently impaired as a result of that misconduct. The panel recognised that in reaching its conclusions it is to exercise its own independent judgement. The panel recognised that misconduct is a word of general effect and involves acts or omissions that fall short of what is expected of a registered nurse. The panel bore in mind its overriding duty is to protect the public, maintain confidence in the profession and maintain confidence in the NMC as a regulator. The panel noted that Ms Jack was directed to do certain acts by the NMC, the nursing regulator. On 29 January 2010, the health committee was of the view that Ms Jack undergo hair follicle testing and consent to her GP disclosing her GP records. Ms Jack was informed of these requests by the NMC, however she refused to undergo the hair follicle testing and withdrew consent to her GP records through her representative by a statement to the NMC on 25 February 2012. Ms Jack confirmed this in an email to the NMC dated 3 March 2010. At the Health Committee pre-meeting on 26 July 2010 the panel directed Ms Jack to provide written consent to the disclosure of her GP records so that they could be provided to the psychiatrist in advance of the preparation of a psychiatric report (with the preparation of a psychiatric report the subject of the other Health Committee direction). Ms Jack was clearly aware of this requirement as she attended the premeeting and she was sent a document on 4 August 2012 by the NMC confirming the directions. The panel considered the following sections of The code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ). Work with others to protect and promote the health and wellbeing of those in your care, their families and carers, and the wider community Share information with your colleagues 22 You must work with colleagues to monitor the quality of your work and maintain the safety of those in your care. Manage risk Page 6 of 10
33 You must inform someone in authority if you experience problems that prevent you working within this code or other nationally agreed standards. Around the time that the NMC requested Ms Jack to undergo hair follicle testing and consent to the disclosure of her GP records, there were grounds to believe that there was the potential for Ms Jack s health to affect her nursing practise. The panel noted that a registrant bears responsibility to ensure that she reports any issues that may affect her ability to practise. Be open and honest, act with integrity and uphold the reputation of your profession Deal with problems 56 You must cooperate with internal and external investigations. The panel considered that Ms Jack clearly breached paragraph 56 of the Code by refusing to comply with the NMC s directions. The NMC directed Ms Jack to undergo hair follicle testing and consent to the disclosure of her GP records because there were concerns that Ms Jack s health circumstances were affecting her nursing practice. On 3 September 2009 Ms Jack s GP, Dr Claire Tomblin, wrote to the NMC regarding Ms Jack s health. On 5 January 2010 Mr Petter also referred to Ms Jack s health in correspondence to the NMC. There would be an argument that the regulator would be failing to exercise its duty to protect the public and uphold the public trust and confidence in the profession if it did not make enquiries into Ms Jack s health. The panel bore in mind that the overriding duty of the NMC is to protect the public. The GP reports and hair follicle tests were required by the NMC so as to ensure Ms Jack s health at the time was not adversely affecting her practice and that the public were not placed at risk of harm. Against this background, Ms Jack s refusal to comply with the directions was unreasonable and fell short of the expectations of a registered nurse. The panel therefore found that on the basis of the facts found proved, Ms Jack s actions amounted to misconduct. Decision on Impairment The panel took into account all the evidence before it and accepted the advice of the legal assessor. There is no evidence before the panel that Ms Jack has any displayed insight into her failure to consent to the disclosure of her GP records or, albeit of lesser significance, her refusal to consent to hair follicle testing. The panel considered that her continued failure to comply with the NMC request demonstrates a lack of insight. There is no recent evidence before the panel regarding the current state of Ms Jack s health. The last information was contained in Ms Jack s 15 November 2011 letter, where she submitted that she has a positive relationship with her GP, who considered that she is making good progress. Page 7 of 10
The panel considered that, in the absence of a GP report being disclosed to the consultant psychiatrist, the health of the registrant may still place the public at an unwarranted risk of harm. The decision of the Health Committee pre-meeting noted that although we are not making a decision on the matter, we should point out that if the registrant does not provide the consents to which we have referred to in directions (1) and (2) above, the likely consequence will be that this matter will be referred to another preliminary meeting, at which the decision may well be made that this matter should be dealt with before the Conduct and Competence Committee rather than the Health Committee. The panel considered that Ms Jack was therefore on notice that there would be consequences if she failed to comply with the directions. It was at the substantive hearing on 10 June 2011 the case was referred to the Conduct and Competence Committee. The last correspondence from Ms Jack on 15 November 2011 indicated that she would not be attending the forthcoming hearing (which was likely to be in reference to an interim order hearing). In August 2012, the NMC telephoned Ms Jack and left a message on her voicemail requesting that she contact the NMC. She was also sent an email to this effect, but no reply has been received. Emails appear to have been received as there is record that the email was undelivered. In all the circumstances, the panel finds that Ms Jack s fitness to practise is currently impaired. Decision on Sanction The initial referral related to an incident that occurred over 5 years ago. It was Ms Jack who self reported the incident to her line manager. The last correspondence the NMC received from Ms Jack was on 15 November 2011. Ms Jack apologised for the actions that were the subject of the referral from her employer to the NMC and she stated that she was remorseful for those actions. Ms Jack stated that she is rebuilding her life outside the nursing profession having secured employment outside the profession, including assisting a person who has head injuries. The panel noted that in her letter dated 10 August 2011, Ms Jack offered to disclose her GP records. Despite being initially requested to consent to the disclosure of her GP records over 2 years ago, and the letter of 10 August 2011, Ms Jack has not consented to her GP records being disclosed. Taking into account its earlier findings, the panel decided that taking no action is clearly inappropriate as it would not protect the public or uphold the standards of the profession. The panel next considered whether to make a caution order. The panel considered that, in light of the circumstances, failing to comply with a direction from the regulator is serious. The relevant circumstances were that the NMC, after being drawn to concerns over the registrant s health by a GP and the registrant herself, was making enquires into Page 8 of 10
the affects of the registrants health conditions on their fitness to practise. There were no references in support of Ms Jack and she had not demonstrated insight into the charges that have been found proved. The panel concluded that a caution was not appropriate to protect the public and may undermine the reputation of the profession. The panel went on to consider a conditions of practice order. Based on the evidence before the panel, it could not develop conditions that would address Ms Jack s misconduct. Furthermore, Ms Jack had not engaged in the NMC process since November 2011. The panel concluded that no conditions were workable or practicable in all the circumstances. The panel next considered a suspension order. Ms Jack did not provide any evidence to the panel of any insight, understanding or remediation into her failure to comply with the NMC s directions. This panel considered that a suspension was not an appropriate sanction. The panel again bore in mind Ms Jack s failure to engage in the process since 15 November 2011. The panel considered that the risk of harm to patients and the public meant that it was essential for her GP records to be disclosed, as was directed by the profession s regulator. Her failure to adduce evidence regarding remediation, insight or remorse necessitates that a suspension order is not sufficient to protect the public or maintain public trust and confidence in the profession. Ms Jack was on notice since January 2010 that the NMC considered it necessary for her to consent to the disclosure of her GP records. Two and a half years has since passed, and still the GP records have not been consented to disclose. The panel noted that although Ms Jack stated in a letter to the NMC on 10 August 2011 that she could consent to the disclosure of the medical records, no such disclosure has been forthcoming. The panel bore in mind that there were four reviews of the interim since her letter on 10 August 2011, but still Ms Jack has not consented to the disclosure. The panel considered that a striking-off order was necessary for public protection. The long period of non compliance with the NMC s directions by Ms Jack has also caused significant detriment to the reputation and standing of the nursing profession and the reputation of the regulator. The striking-off order takes effect immediately. Decision on Interim Order: The panel has considered that an interim suspension order for 18 months should be made to cover the appeal period, on the grounds that it is necessary for the protection of the public. The panel accepted the advice of the legal assessor. The panel is satisfied that a suspension order is necessary for the protection of the public and is otherwise in the public interest. In reaching the decision to impose an interim order, the panel has had regard to facts found proved and the reasons set out in its decision for the striking-off order. Page 9 of 10
The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If there is no appeal then the interim suspension order will be replaced by the substantive striking-off order 28 days after Ms Jack is sent the decision of this hearing in writing. Page 10 of 10