Fitness to Practise Committee Hearing 15-16 March and 17 May 2018 NMC, 61 Aldwych, London, WC2B 4AE Name of Registrant Nurse: NMC PIN: Part(s) of the register: Clodualdo Cabia 00Y0425O RN1, Registered Nurse (sub part 1) Adult (6 July 2000) Area of Registered Address: Type of Case: Panel Members: Hertfordshire Lack of Knowledge of English John Weeden (Chair Lay member) Nicholas Cook (Lay member) Jodie Banner (Registrant member) Legal Assessor: Panel Secretary: Mr Cabia: Nursing and Midwifery Council: Oliver Wise Anita Abell Present and not represented Represented by Siobhan Caslin, Case Presenter Facts found proved: Charge 1 Fitness to practise: Sanction: Interim order: Impaired Conditions of Practice for 18 months Interim conditions of Practice for 18 months 1
The charge That you, a registered nurse, 1. Do not have the necessary knowledge of English to practise safely and effectively. AND in light of the above, your fitness to practise is impaired by reason of your lack of knowledge of English. Background The NMC accepts two language tests as evidence of your ability to communicate effectively in English: the International English Language Test System (IELTS) and the Occupational English Test (OET). On 26 August 2017, at the request of the NMC, you sat an IELTS test and scored an overall score of 5, with a score of 5 in listening, 4.5 in reading, 5 in writing and 5 in speaking. You sat a further IELTS test on 11 November 2017 and scored an overall score of 5.5, with a score of 5 in listening, 4 in reading, 6 in writing and 6 in speaking. You sat a further IELTS test of your own volition on 20 January 2018 and scored an overall score of 5.5, with a score of 5.5 in listening, 4 in reading, 5.5 in writing and 6 in speaking. An overall score of 7.0, with a score of at least 7 in the listening, reading, writing and speaking sections, will satisfy the NMC without further evidence that the nurse is considered capable of safe and effective practice. 2
Decision on facts The NMC did not call any oral evidence. The basis for the NMC case was essentially the results of the first two IELTS tests, with the explanatory material. The panel read the NMC bundle which contained the results of your two IELTS tests taken in 2017 and your case management form. Further documentation was submitted from the NMC which included Not having the necessary knowledge of English and Accepted English language tests (both NMC guidance documents) and Understand how to calculate your IELTS score from the British Council website. The panel heard evidence from you. You told the panel that you had worked as a nurse in the UK since 2000, and your English language skills have not previously been questioned. You trained to be a nurse in The Philippines in English. You worked as a scrub nurse at the Royal Free Hospital from 2000 to 2003, and then moved to the Royal National Orthopaedic Hospital, again as a scrub nurse, from 2003 to 2010. From 2009 to 2016 you worked as a general nurse for an agency. In 2016 you returned to Royal National Orthopaedic Hospital (RNOH) as a nurse in their short-stay unit. You provided the following documentation: training certificates, workplace and competency assessments, a feedback log, information about study days, several lengthy reflective pieces, an appraisal (July 2017), and feedback from a variety of professional colleagues and patients. You also provided a certificate (July 2002) indicating that you passed English for Speakers of Other Languages Intermediate, together with the results of a Literacy and Mathematics test which you sat before beginning employment at the RNOH in 2016, a further IELTS test result (January 2018) and English Language Requirements (an NMC document). When considering the charge, the panel took into account the submissions of Ms Caslin, and your submissions, and all of the evidence before it, both documentary and oral. The panel accepted the advice of the legal assessor. 3
The burden of proof rests upon the NMC and you do not have to prove or disprove anything. The standard of proof is the civil standard, namely the balance of probabilities. This means that, for a fact to be found proved, the NMC must satisfy the panel that what is alleged to have happened is more likely than not to have occurred. In determining the facts, the panel is entitled to draw common-sense inferences but not to speculate. The panel then considered the charge against you which was: That you, a registered nurse, 1. Do not have the necessary knowledge of English to practise safely and effectively. The panel first considered the NMC guidance on not having the necessary knowledge of English and accepted English language tests. The guidance refers to two acceptable English language tests as evidence of ability to communicate effectively in English, one of which is the IELTS. The minimum standard required is a score of 7 in each of the four components (listening, reading, writing, speaking) and an overall score of 7. You have taken the IELTS three times. Your highest overall score was 5.5, and your scores in the individual components range from 4 to 6. The NMC guidance headed Not having the necessary knowledge of English states If the nurse has not achieved the minimum scores then the decision makers are likely to find that the nurse does not have the necessary knowledge of English to practise safely. The guidance also states that decision makers are also able to consider other evidence when assessing cases based on a nurse s knowledge of English. Such evidence will be particularly relevant if the nurse or midwife has averaged just below the minimum scores. Other evidence that can be taken into account includes: 4
any written responses or evidence the nurse, midwife or employer has submitted which seems to demonstrate they have the necessary knowledge of English to practise safely any evidence that the nurse or midwife has trained or practised in an English speaking environment for a period of time any evidence that the nurse or midwife had previously completed a language assessment to the required standard (for example, as part of a previous application to the register) any evidence that the nurse or midwife has recently obtained a qualification that has been taught and examined in English. You did not average just below the minimum scores but the panel regarded evidence of these matters as potentially relevant. The panel took into account the feedback provided by others on your practice which you produced. This consisted of a large number of patient comments and several professional references from doctors, nurses, pharmacists and an occupational health therapist. The majority of these references were very positive about your English language skills and ability to communicate whilst at work. There were one or two mentions of occasional difficulties and a tendency for you to speak loudly and become flustered if you have a problem communicating. There are no examples of any patient harm, or of not being able to practise safely and effectively, caused by a lack of ability to communicate in English. The panel next took into account that you have worked as a nurse in the UK for sixteen years and your English language skills were only called into question in 2017. The panel is aware that there was a fitness to practise referral which resulted in a hearing in 2014. However, the NMC has informed the panel that it does not seek to rely on that referral for the purposes of this hearing and the panel has no knowledge of what was involved in the referral. The Case Presenter accepted that it was not relevant to this charge. The panel concluded that your certificate (July 2002) indicating that you passed English for Speakers of Other Languages Intermediate was too old to be considered relevant. Whilst it accepted the evidence of your scores of 90% in both mathematics 5
and literacy when you joined RNOH, the panel has no detailed information about what was involved in the tests, save that each lasted 20 minutes. The panel therefore regarded the IELTS tests as superceding the 2002 certificate in relation to your knowledge of English. The panel next considered that your nursing course in the Philippines was taught in English. However, the panel concluded that this was a sufficiently long time ago that it was of limited relevance today. You provided the panel with the NMC guidance headed English Language Requirements. This document has some limited relevance, but it is not the relevant guidance for this case as it relates to nurses seeking to enter the Register for the first time. However, the panel accepted your argument that that guidance has some inconsistencies with the guidance headed Not having the necessary knowledge of English that the NMC is relying on for established nurses. For instance, nurses seeking registration for the first time will be considered as meeting the requirements for English language competence if they have one year of registered practice in a country where English is the first and native language, and they are registered with a nursing regulator. The panel also took into account the training certificates, competency assessment, feedback and appraisal provided by you. These indicate that you are a clinically competent and caring nurse. There is some evidence that your employer has some concerns about your English language as you have been receiving extra support, and your employer states that there has been a remarkable improvement in your English (August 2017). The panel also took into account that you have enrolled in English classes through LearnDirect. The panel is satisfied that you are trying to improve your English. Your evidence to the panel was mostly intelligible but the panel concluded that you have a tendency at times to rush your words and it then became difficult to understand you. You were not afraid to ask the panel to repeat a question if you did not fully understand it. The panel concluded from your evidence that you may be 6
overconfident about your ability in English and lack awareness of the potential risk of poor communication. Your most recent IELTS score of 5.5 puts you halfway between a 5 and 6. A score of 5 is characterised as a modest user and described as You have a partial command of the language, and cope with overall meaning in most situations, although you are likely to make many mistakes. You should be able to handle basic communication in your own field. A score of 6 is characterised as a competent user and described as Generally you have an effective command of the language despite some inaccuracies, inappropriate usage and misunderstandings. You can use and understand fairly complex language, particularly in familiar situations. Having taken all of the evidence into account, the panel balanced the IELTS scores which were below, sometimes significantly below, the scores required in all components, against the fact that, apart from those scores, it has seen no evidence that your partial command of English and capacity to make mistakes means that you are not able to practise safely and effectively in the work situation which you have recently held. Your scores were below the required standard and the panel concluded that the other evidence in your favour was insufficient to undermine the clear test scores. The panel also thought it important that you are working in an environment where your employer recognises your level of English is improving and has been providing support to improve your English language skills. Nevertheless, the panel is concerned that in a less supportive environment you would not be able to practise unrestricted safely and effectively as a registered nurse. The panel therefore finds the charge proved. Reconvening date The panel handed down its decision on facts at the end of day two of the hearing. The panel was not able to conclude the case in its allotted time. The panel will reconvene on 17 May 2018 to conclude the case. 7
Decision on interim order Ms Caslin informed the panel that as you are subject to a substantive suspension order which will not expire until June 2018, she did not apply for an interim order. 8
17 May 2018 Decision on impairment You gave further evidence to the panel at this stage of the hearing and produced a number of documents including two letters from your former employer, and information relating to your other NMC referral (on misconduct grounds) in which a different panel decided, on 11 May 2018, to allow the suspension order placed on your registration to expire without further action on 21 June 2018. You also gave details of two language assessments you had undertaken. Of greater significance was the Occupational English Test taken on 14 April 2018 in which you gained an overall score of C and gained a C in each of the components: listening, reading, writing and speaking. You also produced a certificate for a two-hour online RCNi course English Communication Skills which you completed on 23 April 2018. Having found in its earlier determination that you do not have the necessary knowledge of English to practise safely and effectively, the panel went on to decide whether your fitness to practise is currently impaired by reason of your lack of knowledge of English. The panel was mindful that a registrant s impairment should be judged by reference to his suitability to remain on the register without restriction. In deciding this matter the panel has again exercised its own judgement. It took account of the need to protect the public. In reaching its decision, the panel considered all of the oral and documentary evidence in this case along with the submissions made by Ms Caslin, on behalf of the NMC, and by yourself. The panel accepted the advice of the legal assessor. The panel first considered the new evidence provided by you at this stage and, in particular, the Occupational English Test (OET) in which you scored an overall grade of C. The panel took into account that the information supplied with the OET test indicates that Grade C is classified as a Good Performance in English Skills and is equivalent to a score of 6.0 to 6.5 in the IELTS test. The NMC requirement is that 9
you must attain at least a Grade B in listening and reading, and at least a grade B in writing and speaking. The panel considered the other evidence that you provided relating to your English language skills. The panel gave little weight to the RCN course you completed as there is no information about it apart from the certificate which you said was partly filled in by your wife. The panel noted that the letter from the Resourcing Manager at RNOH, dated 3 April 2018, states that Prior to being offered a role and commencing employment, Mr Cabia passed the Trust s numeracy and literacy assessment (speaking, writing, listening, reading) achieving a score of 90%. In your evidence you informed the panel that you also had to pass an English language test when you were naturalised in 2007. You also reminded the panel of the references and patient endorsements you provided in March 2018. The panel was, however, concerned about your understanding of some very basic questioning put to you today at the hearing. The Chair asked you several times how many lessons you had taken with LearnDirect. You did not seem to understand the questions and the panel is still unclear of your answer. Further, the panel considers that some of the reflective pieces prepared by you at an earlier stage were confused. The panel reminded itself of its overarching duty to protect patients and the public. It considered that good communication is an essential skill for all nurses. Communication is a two-way process and a nurse will often be dealing with vulnerable people who may find it difficult to communicate because of their medical condition and/or medication they are taking. In such circumstances your lack of knowledge of English could mean that you put your patients at risk of harm. The panel had earlier concluded in March 2018 that you are working in an environment where your employer recognises your level of English is improving and has been providing support to improve your English language skills. Nevertheless, the panel is concerned that in a less supportive environment you would not be able to practise unrestricted safely and effectively as a registered nurse. 10
The panel today in May 2018 determined that its earlier reasoning had not been undermined by any subsequent evidence. The panel therefore finds that your fitness to practise is impaired on the grounds of public protection by reason of your lack of knowledge of English. 11
Determination on sanction Having determined that your fitness to practise is impaired, the panel considered what sanction, if any, it should impose on your registration. The panel heard the submissions put forward by Ms Caslin and by yourself. Ms Caslin submitted that the NMC considered a conditions of practice order for a period of between 12-18 months to be the appropriate sanction. You did not make a specific submission on what you considered to be the appropriate sanction. The panel accepted the advice of the legal assessor. Under Article 29 of the Nursing and Midwifery Council Order 2001, the panel can take the following actions in ascending order: no further action; make a caution order for one to five years; make a conditions of practice order for no more than three years; or make a suspension order for a maximum of one year. A striking off order is not available to the panel at this stage. The panel has borne in mind that the purpose of a sanction is not to be punitive, though it may have a punitive effect. The panel considered the sanctions in ascending order of seriousness. The panel has applied the principles of fairness, reasonableness and proportionality, weighing the interests of patients and the public with your own interests. The panel has also taken account of the current Sanctions Guidance. The panel first considered taking no further action but determined that this would be inappropriate as it would allow you to practise without restriction and the panel has identified that there is a risk to patients because of your lack of knowledge of English. The panel determined that a caution order was not appropriate for the same reasons. The panel then considered a conditions of practice order. The panel concluded that there is no evidence of a deep-seated attitudinal issue there is an identifiable area of your practice in need of improvement, namely your English language skills there is no evidence of general incompetence, and indeed the evidence before the panel indicates that you are a competent and respected nurse 12
you have engaged throughout his process and have voluntarily taken a number of English tests and are currently taking English lessons. This has demonstrated a willingness to respond positively to retraining patients would not be put in danger as a result of conditional registration the conditions will protect patients while they are in force, and it is possible to formulate workable conditions which can be monitored. The panel also took into account that your English language skills have improved over time. In August 2017 your overall IELTS score was a 5.0, two subsequent tests (November 2017 and January 2018) gave you a score of 5.5 on each occasion, and your most recent (OET) score in April 2018 is an equivalent score to 6.0 to 6.5. Before deciding on conditions the panel did consider whether a suspension order would be the appropriate and proportionate response. The panel concluded that it was not in the public interest to temporarily remove from the register an otherwise competent nurse, who has shown a willingness to improve his practice. A suspension order in these circumstances would be disproportionate. The panel concluded that the following conditions would be workable, and practical: 1. At any time that you are employed or otherwise practising as a nurse or providing nursing care, 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 of band 6 or above who is physically present in or on the same ward, unit, floor or home that you are working in or on. 2. You must not be the sole nurse on duty. 13
3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every month to discuss your progress in the English language and in particular a. how to avoid being overconfident in your ability to communicate in English and how to check that you understand and have been understood b. any issues that have arisen relating to your English language proficiency. 4. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) relating to your use of English in a clinical setting, before the next NMC review hearing or meeting. 5. You must take a further English Language test (IELTS or OET) and forward the result to the NMC before the next NMC review hearing or meeting. 6. You must tell the NMC within 7 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. 7. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 7 days of you receiving notice of them; 8. a) You must within 7 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 7 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. 14
9. 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 (8) 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; and d. Any educational establishment at which you are undertaking a course of study connected with nursing or midwifery, or any such establishment to which you apply to take such a course (at the time of application). The panel concluded that the conditions should remain in place for a period of 18 months. This is to give you sufficient time to further improve your English language skills. You have shown commendable determination and have progressed well to date but you still have some way to go. This matter will be reviewed shortly before the expiry of the order. The panel is of the view that a reviewing panel would be assisted by The results of any further English language tests A testimonial from your employer. You should bear in mind that if you pass either an IELTS or OET test at the prescribed NMC pass rate before the review hearing is due you may request an early review of this order. 15
Determination on Interim Order Pursuant to Article 29 (11) of the Nursing and Midwifery Order 2001, this panel s decision will not come into effect until after the 28 day appeal period, which begins on the date that notice of the conditions of practice order has been served. Article 31 of the Nursing and Midwifery Order 2001 outlines the criteria for the imposition of an interim order. The panel may only make an interim order if it is satisfied that it is necessary for the protection of the public, or is otherwise in the public interest or in your own interest. The panel may make an interim conditions of practice order or an interim suspension order for a maximum of 18 months. Ms Caslin, on behalf of the NMC, made an application that the panel impose an interim conditions of practice order for an 18 months period to cover the appeal period and any possible appeal. The panel has accepted the advice of the legal assessor. It has also had regard to the NMC s guidance to panels in considering whether to make an interim order. The panel has taken into account the principle of proportionality, bearing in mind the interests of the public and your own interests. The panel has taken into account its reasons for making a conditions of practice order. For those same reasons, the panel is satisfied that it is in the public interest for your registration to be subject to an interim order. The panel first considered whether an interim conditions of practice order would be appropriate and proportionate and determined that it would be for the same reasons given in the substantive order. The panel therefore imposes an interim conditions of practice order in the same terms as the substantive order. The period of this order is for 18 months to cover any potential appeal, but if at the end of a period of 28 days, you have not lodged an appeal the interim order will lapse and be replaced by the substantive order. On the other hand, if you do lodge an appeal, the interim order will continue until the appeal is concluded. You should bear in mind that this interim conditions of practice order does not override the substantive suspension order from your misconduct case which is due to run until the end of 21 June 2018, so your registration remains suspended until that date. 16