Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 28 November 2017 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Name of Registrant Nurse: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Order being reviewed: Outcome: Margo Jean Neilly 87E0137S Registered nurse (sub part 1) Adult Mental Health January 1991 Nurse Independent/Supplementary Prescriber October 2008 Scotland Misconduct Kathryn Eastwood (Chair, Registrant member) Natasha Duke (Registrant member) Bill Matthews (Lay member) Gerard Coll Elaine Stewart Present and represented by David Martyn, Thompsons Solicitors. Represented by Yusuf Segovia, counsel, instructed by NMC Regulatory Legal Team. Suspension Order 6 months Suspension Order (12 months) to come into effect on expiry of the existing order in accordance with Article 30 (1) 1
Decision and reasons on review of the current order: The panel decided to extend the suspension order for a further period of 12 months. This order will come into effect at the end of 2 December 2017 in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the fifth review of an order imposed by a panel of the Conduct and Competence Committee. The original order was one of suspension for a period of 12 months on 28 July 2014, extended for a further 6 months on 24 August 2015 and again for 3 months on 12 February 2016. On 25 April 2016 this suspension order was extended for a further period of 12 months. The current order is one of suspension for a period of 6 months and it was imposed on 2 June 2017. The current order is due to expire on 2 December 2017. 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: That you, a registered mental health nurse following your dismissal on 25 January 2012 from NHS Highlands and whilst subject to an NMC investigation: 1. Between January 2012 and April 2013 were involved in a relationship with patient A that was inappropriate in that: a) patient A was vulnerable; b) you knew patient A was vulnerable; c) you had previously been patient A s Community Psychiatric Nurse; d) you had a sexual relationship with patient A; e) your relationship with her was a contributing factor to a deterioration in A s mental health; f) you did not seek appropriate advice before commencing the relationship. 2. Acted inappropriately towards a previous colleague in that you: 2
a) On 12 November 2012 said to Kirsty Alston that she had shafted you or words to that effect b) In or around November 2012 visited the house of Kirsty Alston c) In or around November 2012 attempted to contact Kirsty Alston by telephone at the Fort William Health Centre ( the health centre ) d) On an unknown date in 2013 called Kirsty Alston a liar or words to that effect 3. On 29 May 2013 behaved in an inappropriate manner in that you: a) Attended the health centre in an intoxicated state c) Accessed areas within the health centre that were restricted to members of staff d) Refused to leave the health centre after being requested to do so by Kirsty Alston e) Said to Kirsty Alston good, call the fucking police or words to that effect when told that the police would be called unless you left the health centre f) Said to Kirsty Alston I ll see you soon somewhere, sometime or words to that effect g) Told Kirsty Alston to bugger off or words to that effect h) Told Eileen O Rua to piss off or words to that effect i) Acted in a provocative and/or threatening manner in that you flicked water in the faces of Eileen O Rua and Kirsty Alston whilst at the health centre 5. On an unknown date in/about October 2013 visited patient B at her home, and this visit was inappropriate in that: a) patient B was vulnerable; b) you knew patient B was vulnerable; c) you had previously been patient B s Community Psychiatric Nurse. AND in light of the above, your fitness to practise is impaired by reason of your misconduct. 3
The fourth reviewing panel determined the following with regard to impairment: The panel considered whether your fitness to practise remains impaired. The panel is of the view that your fitness to practise does remain impaired. The panel assessed your level of insight. You have acknowledged and demonstrated insight into the seriousness and unacceptability of conducting a sexual relationship with a former patient. You demonstrated to the panel that you have reflected on the issue of professional boundaries and the panel determined that your insight has evolved in regard to this. However, you have not been in practise for the last few years and your insight into professional boundaries has not been tested in a clinical setting. The panel therefore determined that in light of the lack of remediation, it cannot be satisfied that there is no risk of repetition. [PRIVATE] The panel therefore found that your fitness to practise remains impaired on the grounds of public protection. The panel considered whether your fitness to practise remains impaired on the grounds of public interest. Whilst this matter is very serious in nature, this case has been going on for some time and the panel is of the view that the public interest component of this case has been satisfied by your multiple periods of suspension and your insight into the seriousness of your relationship with a patient. The panel determined that your fitness to practise is impaired on public protection grounds alone. The fourth reviewing panel determined the following with regard to sanction: 4
The panel first considered whether to take no action but concluded that this would be inappropriate. To take no action would not place restrictions on your practice and so would not protect the public. The panel then considered whether to impose a caution order but concluded that this would be inappropriate. To impose a caution order would not place restrictions on your practice and so would not protect the public. The panel next considered the imposition of a conditions of practice order. [PRIVATE]. In the circumstances, the panel was of the view that conditions of practice could not be formulated at this time which would adequately protect the public given this risk. The panel next considered a further period of suspension. The panel was encouraged by the progress you have made. However, it was of the view that a suspension order was necessary to protect the public [PRIVATE] The panel considered that a striking off order would be disproportionate given the progress you have made. A future reviewing panel would be assisted by: [PRIVATE]. [PRIVATE]. Any relevant references or testimonials from voluntary or other relevant organisations with whom you have worked as a volunteer or employee. Ongoing engagement with the NMC. Decision and reasons on application to have parts of the hearing held in private At the outset of these proceedings Mr Martyn, on your behalf, made an application to have parts of the hearing held in private under Rule 19 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended March 2015) (the Rules). Mr Martyn informed the panel that this case involved matters relating to 5
your health and for this reason he invited the panel to consider holding these parts of the hearing in private. Mr Segovia, on behalf of the NMC, did not oppose the application. The panel heard and accepted the advice of the legal assessor. He advised the panel of its powers in terms of Rule 19, which states: 19. (3) Hearings may be held, wholly or partly, in private if the Committee is satisfied (a) having given the parties, and any third party from whom the Committee considers it appropriate to hear, an opportunity to make representations; and (b) having obtained the advice of the legal assessor, that this is justified (and outweighs any prejudice) by the interests of any party or of any third party (including a complainant, witness or patient) or by the public interest. The panel noted that full exploration of this matter involves reference to your health. The panel was of the view that your health was inextricably linked to the issues in this case. The panel therefore determined it was appropriate to hear the appropriate parts of the hearing in private as it was in the interests of justice to do so in order to protect your private life. Decision on current fitness to practise The panel has considered carefully whether your 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. 6
The panel has had regard to all of the documentation before it, including the NMC bundle, and the expert witness statement from DNA Legal. The panel also had regard to the expert report of Dr Kehoe, [PRIVATE] and his oral evidence, given under oath. It has taken account of the submissions made by Mr Segovia on behalf of the NMC and those made by Mr Martyn on your behalf. Mr Segovia took the panel through the history of your case and invited Dr Kehoe to give his professional opinion, and reflections on the recent report from DNA Legal. Dr Kehoe told the panel that he examined you in August 2017 [PRIVATE] Dr Kehoe told the panel that you have good insight into your failings and acknowledged that you had shown poor judgement at the time of the misconduct. [PRIVATE] [PRIVATE]. Mr Martyn, on your behalf, submitted that you do not disagree with the opinion of Dr Kehoe. He said [PRIVATE] that your insight has developed throughout your period of suspension. He submitted that you have given consistent evidence of insight and provided reflective statements to previous hearings which have made it clear that you know that your behaviour was wrong and fell below the standard expected of a registered nurse. Mr Martyn told the panel that [PRIVATE] you want to return to nursing. He said you acknowledged [PRIVATE], you would have to undertake retraining and you hoped to resume your nursing career in 2019. Mr Martyn supported the NMC position that a further period of suspension would be an appropriate sanction [PRIVATE] The panel heard and accepted the advice of the legal assessor. 7
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 your fitness to practise remains impaired. [PRIVATE] Regarding your insight, the panel noted that the evidence of Dr Kehoe who said that you had been developing your insight into your behaviour at the time of the incidents [PRIVATE]. He said you knew your behaviour was unacceptable and that it fell below the standard expected of a registered nurse. [PRIVATE] [PRIVATE] [PRIVATE], the panel decided that a finding of current impairment is necessary on the grounds of public protection. The panel had borne in mind that its primary function was to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance. The panel determined that, in this case, a finding of current impairment on public interest grounds is required. For these reasons, the panel finds that your fitness to practise remains impaired. Determination on sanction Having found your 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 30 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 considered whether to take no action or impose a caution order 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 or impose a caution order. 8
The panel next considered the imposition of conditions of practice order. In all the circumstances the panel considered that a conditions of practice order is not the appropriate order in this case. The panel concluded that no workable conditions of practice could be formulated which would protect the public or satisfy the wider public interest. The panel considered the imposition of a further period of suspension. It was of the view that a [PRIVATE] further 12 month suspension order would be the appropriate and proportionate sanction [PRIVATE] The panel noted that it had the option to impose a striking off order but [PRIVATE], this would not be the proportionate sanction at this time. However, the panel remind you that this option will remain open to any future reviewing panel. A future reviewing panel would be assisted by: [PRIVATE] [PRIVATE] Any relevant references or testimonials from voluntary or other relevant organisations with whom you have worked as a volunteer or employee. Ongoing engagement with the NMC. This decision will be confirmed to you in writing. That concludes this determination. 9