Conduct and Competence Committee Substantive Hearing 18-20 April 2016 Nursing and Midwifery Council, 2 Stratford Place, Montfitchet Road, London, E20 1EJ Name of Registrant Nurse: NMC PIN: Marilou Gerarcas 03I0247O Part(s) of the register: Registered Nurse Sub Part 1 Adult (September 2003) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Ms Gerarcas: Nursing and Midwifery Council: Facts proved: Jersey Misconduct Edward Lucas (Chair, Lay Member) Diane Rawstorne (Registrant Member) Cynthia Mendelsohn (Lay Member) Michael Epstein Andrew Brown Present and represented by Katherine Pitters, instructed by the Royal College of Nursing Represented by Clare Paget, NMC Regulatory Legal Team. 1 (in respect of Resident A), 2, 4 (in respect of Charge 2) Facts not proved: 1 (in respect of Resident b), 3 (no case to answer), 4 (in respect of Charge 3) Fitness to practise: Impaired Sanction: Caution Order, 5 years Interim order: NA Page 1 of 12
Details of Charge as read: That you, whilst working as a Deputy Clinical Nurse at the Jersey Cheshire Home between 4 and 11 October 2013: 1. On 4 October 2013, when preparing medication for Resident A and/or Resident B to be taken with them on their trip to France failed to prepare the correct quantity of medication for Resident A and/or Resident B. 2. On 11 October 2013, inappropriately removed medication prescribed for Resident A from its blister pack when doing so was neither authorised nor clinically justified. 3. On 11 October 2013, instructed Colleague A over the telephone to Doctor the medications as she had the charts with her or words to that effect 4. Your conduct alleged at charge 2 and/or 3 was dishonest in that you intended to conceal the error alleged at charge 1. AND, in light of the above, your fitness to practise is impaired by reason of your misconduct. Rule 24(7) application of no case to answer: Following the close of the NMC s case on facts, Ms Pitters, on your behalf, made an application of no case to answer under Rule 24(7) of the NMC Fitness to Practise Rules (2008) in respect of Charge 3 and Charge 4 in so far as it relates to Charge 3. Ms Pitters submitted that there had been no evidence called to support Charge 3. She reminded the panel of Ms 1 s oral evidence that the contents of the statement she made to the Home s internal investigation was not accurate, in particular in respect to the telephone call that took place between you and Ms 1. Ms Pitters submitted that as this statement was the sole evidence to support Charge 3, there was now no evidential basis on which it could be found proved. Ms Paget did not oppose Ms Pitter s application. The panel accepted the advice of the legal assessor. The panel bore in mind Ms 1 s evidence. Ms 1 was clear that the statement as documented in the Home s internal investigation was not accurate. Ms 1 said that she had not had a conversation with you as alleged at Charge 3. The panel therefore concluded that there was insufficient evidence before it for Charge 3 to be capable of proof. As such, the panel Page 2 of 12
determined that there was no case to answer in respect of Charge 3. The panel further concluded that, there being no case to answer in respect of Charge 3, it followed that there could be no case in respect of Charge 4 as it relates to Charge 3. Decision on Facts: The panel reminded itself that the burden of proof is on the NMC to establish the facts set out in the charges. In order to find the facts proved, the panel must be satisfied on the balance of probabilities. This means that for any fact to be found proved the panel must be satisfied that it is more likely than not to have occurred. The panel heard the submissions of Ms Paget on behalf of the NMC and those of Ms Pitters on your behalf. It had regard to all of the evidence in this case. It accepted the advice of the legal assessor. At the outset of the hearing, Ms Pitters, on your behalf, made an admission to Charge 1, in respect of Resident A. The panel therefore found this charge proved by way of that admission. The panel heard oral evidence from two witnesses, these were: Ms 1, a Registered Nurse at the Jersey Cheshire Care Home ( the Home ); Ms 2, a Senior Clinical Nurse at the Home at the time of the incidents; The panel also heard oral evidence from you. The panel heard that you were employed as a deputy clinical nurse at the Jersey Cheshire Home ( the Home ), Jersey, from October 2013. Two Residents, A and B were to be taken on an eight day trip to France accompanied by Ms 1. Ms 2 told the panel that Resident A suffered from muscular dystrophy and schizophrenia whilst Resident B suffered from severe multiple sclerosis. Residents A and B were prescribed regular medication. You were responsible for preparing the medication for the trip, which was then due to be collected by Ms 1 on 5 October 2013, the day of departure. On 5 October 2013, Ms 1 collected a box of medication, prepared by you, from the night nurse then on duty. Whilst in France, however, Ms 1 discovered that four days worth of olanzapine was missing for Resident A. You have admitted that you did not prepare enough medication for Resident A. Page 3 of 12
It is alleged that there was also an incorrect quantity of medication for Resident B. On 10th October, Ms 1 emailed Ms 2 from France regarding the shortfall of medication. Ms 1 also telephoned the Home on the 11 October 2013 and spoke to you. When Ms 2 saw the email on 11th October she spoke to you initially in the dining area, and subsequently in her office where she showed you the email. Ms 2 asked you to get the last month s MAR charts. Ms 2 told the panel that she then went to the store room where the drugs trolley was kept. She opened the door and saw you at the trolley, with blister packs on top of the trolley which were empty either in part or in their entirety. She asked you to open your hands which you did, she said, reluctantly. The pills from the blister packs were in your hands. You accepted that you had done this, but said that it was your intention to take the pills from the blister packs to show Ms 2. It is alleged that, by removing the medication from the blister packs, you were acting dishonestly, in that you were attempting to conceal your error in preparing the medication. Charge 1: On 4 October 2013, when preparing medication for Resident A and/or Resident B to be taken with them on their trip to France failed to prepare the correct quantity of medication for Resident A and/or Resident B. It was agreed that the Home had no policy in place for preparing medication in advance of a trip abroad. The panel was not provided with any evidence as to what the correct quantity of medication for Resident B should have been. Indeed, Ms 1 was unclear in her evidence as to exactly how long Resident B had been on the trip to France for. In all the circumstances, the panel concluded that it had insufficient evidence before it to establish, on the balance of probabilities that you failed to prepare the correct quantity of medication for Resident B to take on the trip to France. The panel therefore found this charge not proved, in respect of Resident B, but proved by way of your admission in respect of Resident A. Page 4 of 12
Charge 2: On 11 October 2013, inappropriately removed medication prescribed for Resident A from its blister pack when doing so was neither authorised nor clinically justified. You accepted in your oral evidence that you had removed medication prescribed for Resident A from its blister pack. You told the panel that you had spoken to Ms 2, in the Home s office regarding your alleged error in preparing medication for Resident A s trip. You said that you had then gone to the medication trolley and removed the medication from the blister pack in order to take it to Ms 2 to show it to her and confirm that you had indeed made an error. Ms 2 confirmed that she had spoken to you about the medication preparation error shortly before this incident. She said that she had then gone to the medication trolley, having seen you go in that direction very soon after she had spoken with you in the office. Ms 2 told the panel that she was hoping not to find you there. She said, however, that when she entered the cupboard where the trolley was kept, you were in there with the medication in your closed hand. Ms 2 said she could not describe adequately how horrified we both were. She asked you what you were doing, to which you replied It was my fault, my mistake. Ms 2 stated that, on being asked, you hesitated and then reluctantly opened your hand, to reveal the pills. On your own account, you had removed medication prescribed for Resident A from its blister pack. The panel went on to consider whether this was inappropriate. You had not been authorised to do so by Ms 2, the Senior Clinical Nurse, and, indeed, Ms 2 had expressed fear that she would find you doing so when entering the store cupboard. The panel determined that there was no clinical justification for you to remove the medication from the blister pack. By doing so, you compromised the audit trail for that medication, had you wanted to show the medication to Ms 2 you could and should have done so by showing her the blister packs, rather than removing the pills from within them. The panel therefore concluded that your actions were inappropriate. The panel therefore found this charge proved. Charge 4: Your conduct alleged at charge 2 and/or 3 was dishonest in that you intended to conceal the error alleged at charge 1. Page 5 of 12
The panel bore in mind its finding at Charge 2. You said that you had panicked when Ms 2 had spoken to you about the error in the preparation of the medication for Resident A, and had then removed the medication from the blister pack in order to show it to Ms 2. The panel did not accept this explanation. It was of the view that this would have been a highly unusual course of action, and would not have served any legitimate purpose. The panel determined that you had removed the medication from the blister pack in order to interrupt the audit trail for the medication, and give the impression that it had been properly sent to France and therefore must have gone missing in transit, thus concealing your culpability for failing to prepare sufficient medication for Resident A s trip. The panel considered that your actions in removing the medication from the blister pack would be viewed as dishonest by the ordinary standards of Registered Nurses. It concluded that you must have known at the time that your actions were dishonest by those standards. The panel therefore found this charge proved in respect of your actions at Charge 2. Decision on misconduct and impairment: The panel considered the submissions of Ms Paget on behalf of the NMC and those of Ms Pitters on your behalf. It had regard to all of the evidence in this case, including the references and written reflection you provided at this stage. The panel accepted the advice of the legal assessor. The panel bore in mind that its decision on impairment is a two stage process. It must first consider whether your actions set out in the charges found proved, amount to misconduct. If the panel finds misconduct, it must then go on to consider whether your fitness to practise is impaired by reason of this misconduct. Misconduct has been defined as conduct which falls seriously short of that which can reasonably be expected of a Registered Nurse. The NMC defines current impairment as a Registered Nurse s suitability to remain on the register without restriction. Page 6 of 12
The panel heard further oral evidence from you at this stage. You told the panel that following your referral to the NMC you found it difficult to obtain employment as a Registered Nurse. You said, however, that in May 2015 you obtained work as a Registered Nurse at L Hermitage Care Centre the Centre ), Jersey. You continue to work at the Centre. You said that your employer was aware of your referral to the NMC and the allegations against you from the outset of your employment. The Centre is a 64 bedded home providing general and nursing care to elderly residents. You currently work 24 hours a week, on night shifts. You told the panel that upon starting at the Centre, you were trained and observed for three days by the Deputy Manager. You said that the Centre undertakes spot checks of medication and medication documentation. You expressed regret for your error when preparing Resident A s medications, telling the panel that you had allowed yourself to be distracted. You acknowledged the serious harm that could have occurred to Resident A as a result of his leaving for a holiday without sufficient medication. You told the panel that you have reflected on your practice. You said that you are more careful now when dispensing medication; you check the name of the patient against the name on the blister pack. You stated that dosette boxes are not in use at the Centre. You told the panel that, were you to find yourself working at a home with poor habits regarding medication administration, you would stand up for good practice. You emphasised the importance of good medication practice for the protection of patients and also to protect Registered Nurses. You said that honesty is important to you. You maintained that you had not acted dishonestly, but totally acknowledged the importance of honesty in maintaining the trust of patients and the wider public. You told the panel that you intend to continue to work at the Centre. You are currently undertaking a Gold Standard Framework course, involving the care of end of life and vulnerable patients. Further, you told the panel that you have revisited the NMC s Code and the NMC s Standards for the Administration of Medication and fully incorporate those into your practice. In response to questions from Ms Paget, you acknowledged that your medication error, had it not been discovered, could have caused reputational harm to Ms 1 and Ms 2, in addition to the potential harm to Resident A. Page 7 of 12
The panel also heard oral evidence, via telephone, from Mr 3, the registered manager of the Centre. Mr 3 confirmed that his undated reference, provided to the panel, was written within the last week. Mr 3 said that, were you allowed to continue to practise as a Registered Nurse, he would continue to employ you. Mr 3 described you as a good, solid member of the team. He said that you are well-respected and the residents like you. Mr 3 described the audit process at the Centre; including monthly audits carried out by him and his deputies. Mr 3 confirmed that he was aware of the full extent of the allegations against you when he wrote the reference. Furthermore, he had been made aware today of the panel s findings, especially with regard to its finding of dishonesty. He nevertheless told the panel that he considered you to be a very honest person whom he trusts unreservedly. He told the panel that as you work night shifts, you frequently work as the sole Registered Nurse on duty and are the nurse in charge, administering all medication on the shifts. Mr 3 said he trusted you without question, and that he would be more than happy to be looked after by you and for his family to be looked after by you and for you to be left in charge of the Centre. The panel accepted the advice of the legal assessor. The panel considered your actions at Charge 1. It considered that there was no evidence of harm arising to Resident A as a result of your error. The panel considered that Charge 1 constituted a single, isolated error. It was not a deplorable error. The panel therefore concluded that, taken independently, your action at Charge 1 did not amount to misconduct. The panel then considered your actions at Charges 2 and 4. The panel was of the view that by acting dishonestly and attempting to conceal your errors, your actions fell short of what would be expected of a Registered Nurse, and could reasonably be considered to be deplorable. The panel therefore concluded that your actions at Charges 2 and 4 amounted to misconduct. The panel had regard to the Code and concluded that your actions set out in the charges found proved were in breach of the following passages of the Code: The Preamble: The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must: Page 8 of 12
make the care of people your first concern, treating them as individuals and respecting their dignity work with others to protect and promote the health and wellbeing of those in your care, their families and carers, and the wider community provide a high standard of practice and care at all times be open and honest, act with integrity and uphold the reputation of your profession. As a professional, you are personally accountable for actions and omissions in your practice, and must always be able to justify your decisions. The Code: 61 You must uphold the reputation of your profession at all times. Having determined that your actions at Charges 2 and 4 amounted to misconduct, the panel went on to consider the issue of impairment. It noted that you have not repeated your failings, and have worked well since the incidents. The panel acknowledged your remorse for your failings, and that you have admitted that you made errors at Charges 1 and 2, but was concerned that you have not accepted that you have acted dishonestly. You have indicated that, whilst you maintain that you did not act dishonestly, you accept the panel s finding in relation to Charge 4. You have accepted that such dishonesty as set out at Charge 4 is unacceptable, and could undermine the trust placed in Registered Nurses by patients and the public. The panel concluded that your dishonesty amounted to a serious error of judgment; you acted impulsively when in fear of the consequences of your failings in preparing medication for Resident A. The panel was of the view that your reflective statement was heartfelt and sincere. In all the circumstances, the panel concluded that you would be unlikely to repeat your misconduct, and therefore that a finding of impairment is not necessary for the protection of the public. The panel then considered the public interest in this case. It was of the view that, given your dishonesty, public confidence in the nursing profession would be undermined were a finding of impairment not made. The panel therefore concluded that your fitness to practise is currently impaired. Page 9 of 12
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Decision on sanction: In reaching its decision on sanction, the panel has considered the submissions of Ms Paget on behalf of the NMC and those of Ms Pitters on your behalf. It had regard to all of the evidence in this case. It accepted the advice of the legal assessor. The panel has applied the principles of fairness, reasonableness and proportionality, weighing the public interest with your own interests and taking into account any mitigating and aggravating factors in the case. The public interest includes the protection of members of the public including patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour within the profession. The panel has taken account of the current Indicative Sanctions Guidance, bearing in mind that the decision on sanction is one for its own independent judgement. The panel recognises that the purpose of sanction is not to be punitive, although a sanction may have a punitive effect. The panel considered the mitigating and aggravating factors in this case. The panel considered the aggravating factors to be: The finding of dishonesty in respect of attempting to conceal a medication error. The panel considered the mitigating factors to be: You have been described as an outstanding nurse by both witness who were with you a the time of these incidents and your current manager; Mr 3 s comment that he trusts you unreservedly ; that he would be more than happy to be cared for, and for his family to be cared for by you; and for you to be in charge of the nursing care within the Centre; You have had an otherwise successful career without incident, there has been no repetition of your misconduct and the panel has identified no risk of repetition, Whilst you acted dishonestly, your dishonesty was impulsive rather than prolonged and could be characterised as a momentary error of judgement; You have revisited the NMC s guidance in respect of medication management; There was no evidence of any harm to patients; Page 11 of 12
The panel then considered what the appropriate and proportionate sanction is by assessing them in ascending order, beginning with the least restrictive. The panel considered taking no further action. It concluded that, taking no further action would not meet the public interest in marking the unacceptability of your misconduct, in particular, with regard to the panel s finding of dishonesty in this matter. The panel next considered a caution order. The panel noted that a caution order would not restrict your practice; however, it determined that this would not be necessary as it has identified no public protection issues in this case. The panel bore in mind its finding of dishonesty. It considered, however, that your dishonesty was at the lower end of the spectrum of seriousness, it was a one off aberration within your career, arising from a momentary lapse of judgment and was, in the panel s view, out of character. Further, the panel has found that there is no risk of repetition of your misconduct, including your dishonesty. In considering the public interest in this matter, the panel concluded that the wider public interest would be adequately met by the imposition of a caution order. It would mark the seriousness and unacceptability of your misconduct, thereby upholding the reputation of the profession and the NMC as its regulator. In considering the public interest, the panel also bore in mind the public interest in allowing a good nurse to continue to practise. In all the circumstances, the panel concluded that a caution order is the appropriate and proportionate sanction in this case. Having determined to impose a caution order, the panel went on to consider the next most restrictive sanction available to it which is a conditions of practice order. The panel considered that, in the circumstances of this case, in which there are no concerns identified in your clinical practice, a conditions of practice order would not be appropriate. The panel then considered a suspension order. It concluded that a suspension order would be disproportionate. The panel has found no risk of repetition of your misconduct, and no risk to the public in this case. You are an otherwise good nurse, and the panel has borne in mind the public interest in allowing a good nurse to continue to practise. The panel therefore determined to impose a caution order for the maximum period of 5 years, to meet the public interest in marking the unacceptability of your misconduct. That concludes this determination. Page 12 of 12