Nursing and Midwifery Council Fitness to Practise Committee Substantive Meeting 23 August 2017 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: Emma Kendrick NMC PIN: 93I4882E Part(s) of the register: Registered Nurse Sub Part 1 RNC: Children s 31 March 2003 V300: Nurse independent / supplementary prescriber 28 July 2011 Area of Registered Address: England Type of Case: Conviction Panel Members: Tim Skelton (Chair, Lay member) Christine Callender (Registrant member) Janet Blundell (Lay member) Legal Assessor: Panel Secretary: Ben Stephenson Lucy Eames Facts proved: 1 Fitness to practise: Impaired Sanction: Striking off order Interim Order: Interim suspension order, 18 months 1
Details of charge as amended: That you a Registered Nurse, 1. On 3 June 2016 at Chester Magistrates Court, were convicted of making/supplying articles for use in fraud, contrary to section 7 of Fraud Act 2006. And, in light of the above, your fitness to practise is impaired by reason of your conviction. 2
Decision on Service of Notice of Meeting The panel received information from the legal assessor concerning service of notice of meeting. Notice of the meeting was sent to Mrs Kendrick s registered address and a potential new address by first class post and by recorded delivery on 10 July 2017, stating that a meeting would be held on or after 19 August 2017. The panel accepted the advice of the legal assessor. The panel concluded that service has been affected in accordance with Rule 34 and 11A of the Fitness to Practise Rules 2004 (as amended). Decision and reasons on application to amend the charge Having had sight of the certificate of conviction the panel considered amending the date in the charge to accurately reflect the date on the certificate. The panel accepted the advice of the legal assessor that Rule 28 of the Rules states: 28. (1) At any stage before making its findings of fact, in accordance with rule 24(5) or (11), the Investigating Committee (where the allegation relates to a fraudulent or incorrect entry in the register) or the Fitness to Practise Committee, may amend (a) (b) the charge set out in the notice of hearing; or the facts set out in the charge, on which the allegation is based, unless, having regard to the merits of the case and the fairness of the proceedings, the required amendment cannot be made without injustice. (2) Before making any amendment under paragraph (1), the Committee shall consider any representations from the parties on this issue. 3
The panel decided to amend the date in the charge. The panel took into account that the charge solely relates to the conviction and the certificate of conviction shows a different date from that of the charge. It was of the view that the incorrect date in the charge was an administrative error. The panel therefore determined that it was appropriate to make the amendment to ensure clarity and accuracy. The original charge read as follows: That you a Registered Nurse, 1. On 23 June 2016 at Chester Magistrates Court, were convicted of making/supplying articles for use in fraud, contrary to section 7 of Fraud Act 2006. And, in light of the above, your fitness to practise is impaired by reason of your conviction. The amended charge reads as follows: That you a Registered Nurse, 1. On 3 June 2016 at Chester Magistrates Court, were convicted of making/supplying articles for use in fraud, contrary to section 7 of Fraud Act 2006. And, in light of the above, your fitness to practise is impaired by reason of your conviction. Decision on the findings on facts and reasons 4
The panel noted that Mrs Kendrick had been contacted regarding this case and was told that she could request a hearing or meeting however there has been no correspondence from Mrs Kendrick. The charges concern Mrs Kendrick s conviction and, having been provided with a copy of the certificate of conviction, the panel finds that the facts are found proved in accordance with Rule 31 (2) and (3) of the Rules which states: (2) Where a registrant has been convicted of a criminal offence (a) (b) a copy of the certificate of conviction, certified by a competent officer of a Court in the United Kingdom (or, in Scotland, an extract conviction) shall be conclusive proof of the conviction; and the findings of fact upon which the conviction is based shall be admissible as proof of those facts. (3) The only evidence which may be adduced by the registrant in rebuttal of a conviction certified or extracted in accordance with paragraph (2)(a) is evidence for the purpose of proving that she is not the person referred to in the certificate or extract. Background Mrs Kendrick was employed as a Support Worker and Nurse Prescriber at Aqua House. She was convicted of making/supplying articles for use in fraud at Chester Magistrates Court on 3 June 2016. The fraud involved making false prescription forms for diazepam, a Class C drug. The conviction was following her arrest on 8 January 2016. On 8 January 2016, Mrs Kendrick s handbag and office were searched, a blue prescription pad, Omeparazole, Propanalol, Busscopan, Co-codamol and a stamp with her name were found. On the same day Mrs Kendrick s home was searched where 9 blank prescription papers and 2 blank prescription sheets were found. 5
On 6 September 2016 at Chester Crown Court, Mrs Kendrick was sentenced to 8 months imprisonment suspended for 18 months. Decision on impairment The panel next went on to decide if as a result of this conviction Mrs Kendrick s fitness to practise is currently impaired. The panel was of the view that Mrs Kendrick abused her privileged position of trust as a Nurse Prescriber by fraudulently prescribing medication. It determined that her actions which led to her conviction breached the following parts of the The Code: Professional standards of practice and behaviour for nurses and midwives (2015) (the Code): 18.5 wherever possible, avoid prescribing for yourself or for anyone with whom you have a close personal relationship. 20.2 act with honesty and integrity at all times 20.4 keep to the laws of the country in which you are practising Nurses occupy a position of privilege and trust. Patients and their families must be able to trust nurses. To justify that trust, nurses must be honest and open and act with integrity. They must make sure that their conduct at all times justifies both their patients and the public s trust in the profession. In this regard the panel considered the judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74 she said: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the 6
public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. Mrs Justice Cox went on to say in Paragraph 76: I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 25.67 she identified the following as an appropriate test for panels considering impairment of a doctor s fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes. Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or 7
d. has in the past acted dishonestly and/or is liable to act dishonestly in the future. The panel finds that all limbs are engaged. Mrs Kendrick acted dishonestly by fraudulently prescribing medication when in a privileged position of trust as a Nurse Prescriber. The panel was of the view that Mrs Kendrick s actions are remediable. However, there has been no engagement from her at all and therefore there is no indication that she demonstrates remorse or insight. Therefore the panel determined that Mrs Kendrick has not remediated her shortcomings. The panel is of the view that there is a risk of repetition based on the lack of insight and remediation from Mrs Kendrick. The panel therefore decided that a finding of impairment is necessary on the grounds of public protection. 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/protect 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 panel determined that, in this case, a finding of impairment on public interest grounds was also required as Mrs Kendrick s conviction has brought the nursing profession into disrepute. Having regard to all of the above, the panel was satisfied that Mrs Kendrick s fitness to practise is currently impaired. Determination on sanction: 8
The panel has considered this case very carefully and has decided to make a strikingoff order. It directs the registrar to strike Mrs Kendrick off the register. The effect of this order is that the NMC register will show that Mrs Kendrick been struck-off the register. In reaching this decision, the panel has had regard to all the evidence that has been adduced in this case. The panel accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the Sanctions Guidance published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel took into account the following aggravating and mitigating factors: Aggravating abuse of a privileged position of trust fraudulent prescription of controlled drugs no evidence of any insight, remediation or remorse Mitigating no other conviction or referrals having been a registered nurse since 1997 and a non-medical practitioner since 2011 admitted the charge at the first opportunity The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. The panel considered that a caution order would be inappropriate in view of the seriousness of the case. Mrs Kendrick s actions fell seriously below what is expected of a nurse and therefore it would be neither proportionate nor in the public interest to impose a caution order as it would not restrict her practice. 9
The panel next considered whether placing conditions of practice on Mrs Kendrick s registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. It determined that conditions of practice would be inappropriate in this case as the sanction does not need to address a specific area of clinical practice. The panel then went on to consider whether a suspension order would be an appropriate sanction. The panel noted Mrs Kendrick s persistent lack of engagement with the NMC and the total absence of any evidence of remorse, insight and remediation. Furthermore the panel considered that her conviction was a serious departure from professional standards. The panel also determined that her dishonesty was at the serious end of the spectrum due to her misuse of power in the role of Nurse Prescriber. The panel was of the view that a suspension order would not address the public interest in this case and determined that a suspension order would not be a sufficient, appropriate or proportionate sanction. The panel noted that the serious breach of the fundamental tenets of the profession evidenced by Mrs Kendrick s actions is fundamentally incompatible with her remaining on the register. The panel was of the view that to allow her to continue practising would undermine public confidence in the profession and in the NMC as a regulatory body. The panel has concluded that nothing short of a striking off order would be sufficient in this case. The panel considered that this order was necessary to mark the importance of maintaining public confidence in the profession, and to send to the public and the profession a clear message about the standard of behaviour required of a registered nurse. Determination on Interim Order The panel accepted the advice of the legal assessor. 10
The panel was satisfied that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. To do otherwise would be incompatible with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by the striking-off order 28 days after Mrs Kendrick is sent the decision of this hearing in writing. That concludes this determination. 11