Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 21 August 2018 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC PIN: Usha Adhikari 06D0434O Part(s) of the register: Nursing Sub Part 1 Registered Nurse Adult (28 April 2006) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Order being reviewed: Outcome: England Lack of knowledge of English Susan Hurds (Chair, Lay member) Jade Rankine (Registrant member) Anita Underwood (Registrant member) Jayne Salt Sophie Cubillo-Barsi Present and represented by Mr Akinoshun Represented by Laura Gouldthorpe Conditions of Practice Order 12 months Conditions of Practice Order 2 years 1
Decision and reasons on review of the current order: The panel decided to extend the current order, with an amendment to condition five, for a period of two years. This order will come into effect at the end of 8 September 2018, in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the second review of a conditions of practice order, originally imposed by a panel of the Conduct and Competence Committee on 9 August 2016 for a period of 12 months. This order was reviewed on 3 August 2017 and extended for a further 12 months. The current order is due to expire on 8 September 2018. The panel is reviewing the order pursuant to Article 30(1) of the Order. At the substantive hearing, impairment was found and an order made only in relation to charge 4 of the following: That you, whilst employed as a staff nurse by Marie Stopes UK: 1. On 10 th September 2014 at the Croydon Early Medical Unit 1.1 Failed to keep clear and accurate records of your consultation with Patient A in that you: 1.1.1 incorrectly entered the period during which Patient A had suffered a urinary tract infection; 1.1.2 deleted the incorrect entry referred to at 1.1.1 above instead of creating a new entry explaining that the entry referred to at 1.1.1 above was incorrect; 1.1.3 did not contemporaneously record what investigations you had made with regard to Patient A s urinary tract infection referred to at 1.1.1 above or the results of any such investigations; 2
1.1.4 did not record what antibiotics had been prescribed to Patient A in respect of the urinary tract infection referred to at 1.1.1 above; 1.1.5 did not record the purpose of prescribing the antibiotics referred to at 1.1.4 above; 1.1.6 did not contemporaneously record information regarding the presence or otherwise of the yolk sac. 1.2 By reason of the matters referred to in 1.1 above contributed to the delay to Patient A being prescribed a medical abortion tablet. 2. On 1 st October 2014 at the Croydon Early Medical Unit 2.1 Failed to maintain Patient B s dignity in that you 2.1.1 did not give patient B any privacy when she was undressing prior to a trans-vaginal scan; 2.1.2 did not provide Patient B with a sheet or other item with which to cover herself prior to the trans-vaginal scan referred to at 2.1.1 above; 2.1.3 did not give any privacy when she was dressing following the trans-vaginal scan referred to at 2.1.1 above. 2.2 Failed properly or at all to explain to Patient B the process and purpose of the trans-vaginal scan referred to at 2.1.1 above. 3
2.3 Failed properly or at all to explain to patient B the potential side effects of Mifepristone. 3. On an unknown date between 18 December 2014 and 29 January 2015 failed to keep accurate records in respect of a post-operative appointment with Patient C in that you failed to record: 3.1 Blood pressure 3.2 Haemoglobin levels 3.3 Temperature 3.4 Brief medical history 3.5 Your conversation with the consultant with regard to the scan results 3.6 The reason for antibiotics being prescribed 4. You do not have the necessary knowledge of English to practise safely AND in light of the above, your fitness to practise is impaired by reason of your misconduct in respect of charges 1 to 3, and by reason of your lack of knowledge of English in respect of charge 4. The first reviewing panel determined the following with regard to impairment: 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. Whilst the panel accepted that your English has improved from the date of the initial substantive hearing, it was of the view that a score 6 in the IELTS is, contrary to Mr Akinoshun s submission, not just below the requirements as set out by the NMC. The panel concluded that this was supported by the other test evidence that you submitted which 4
showed that you had received an EF Standard English Test score of 51 60, which is equivalent to an IELTS score of 5.5 6.The panel decided that your English Language Skills could benefit from further improvement to demonstrate that you meet the required levels to practise safely and effectively. For this reason, the panel finds that your fitness to practise remains impaired. The first reviewing panel determined the following with regard to sanction: The panel first considered whether to take no action but concluded that this would be inappropriate in view of the inherent risk in unrestricted practice by a nurse who has not attained the required level of English. The panel decided that it would be neither proportionate nor in the public interest to take no further action. The panel then considered whether to impose a caution but concluded that this would be inappropriate for the same reasons. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order. The panel next considered extending or varying your current conditions of practice order. The panel was of the view that a conditions of practice order is sufficient to protect patients and the wider public interest, noting, as the original panel did, that there was no evidence of general incompetence, no deep seated attitudinal problems, and that conditions could be formulated, and in this case, further adapted which would protect patients during the period they are in force. This panel recognised that your English has improved considerably and is defined as competent and moving towards the required level of 7 ( good user ). Therefore, it is unduly onerous to commit you to meeting your mentor or line manager as previously required, and that the frequency of such meetings can be set by your supervisors as they see fit. Accordingly, the panel decided, pursuant to Article 30(1) (c) of the Nursing and Midwifery Order 2001, to make a conditions of practice order for a period of 12 months, 5
which will come into effect on the expiry of the current order. It decided to impose the following conditions which it considered are appropriate and proportionate in this case. The conditions are as follows: Until such time as you have undertaken the IELTS assessment and have been assessed as meeting the minimum levels required by the NMC of an overall score of 7: 1. You must confine your nursing practice to Fairlie House. 2. At any time that you are employed or otherwise providing nursing services, 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 who is physically present in or on the same ward, unit, floor or home that you are working in or on 3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) as often as they see fit, to discuss the standard of your oral and written communication in the workplace. 4. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your oral and written communication in the workplace prior to any review hearing or meeting. 5. You must take an IELTS assessment such that the results are available in time for your review hearing or meeting. 6. You must inform the NMC of any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 7 days of you receiving notice of them. 6
7. You must within 7 days of accepting a place on a course of study connected with nursing or midwifery, provide the NMC with the name/contact details of the employment or course of study. 8. You must immediately inform 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 (7) above, to them: Any organisation or person employing, contracting with, or using you to undertake nursing work 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). This conditions of practice order will be reviewed by a panel of the Fitness to Practise shortly before its expiry in 12 months time. Additionally, you or the NMC may request an early review of the order. A reviewing panel would be assisted by your continued engagement and attendance at the hearing. At the review, the panel, based on the evidence before it, will be able to impose any sanction which this panel could have imposed, including the making of a suspension order or allowing the order to lapse. 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 reviewing panel. However, it has exercised its own judgment as to current impairment. The panel has had regard to all of the documentation before it, including a reflective piece, training certificates and a copy of your results obtained by way of an IELTS test and four Occupational English Tests ( OET ). It has taken account of the submissions 7
made by Ms Gouldthorpe on behalf of the NMC and those made by Mr Akinoshun on your behalf. You gave evidence to the panel under oath. You told the panel that you qualified as a nurse in 2000 and have been on the NMC register since April 2006. You provided the panel with a brief history of your employment. You stated that since arriving in the UK, you have attended numerous English Language Courses and that you have completed numerous IELTS test and OET tests. However, you have not yet achieved the required grade in either tests. Despite this, you told the panel that your English language has improved since the last review hearing and that you are able to communicate clearly and understand conversations between yourself and colleagues. Further, you stated that you have successfully completed numerous care plans for residents at Fairlie House and you explained the procedure for doing so. Ms Gouldthorpe informed the panel that you have not yet managed to achieve the required grades, as set out by the NMC guidelines, in relation to an acceptable level of the English language. Whilst Ms Gouldthorpe accepted that you are well supported within your current employment, she submitted that an order remains necessary in order to protect the public and maintain the public s confidence in the nursing profession and the NMC as a regulator. Mr Akinoshun reminded the panel that that when you registered with the NMC in 2006, there was no IELTS requirement. He accepted that as of today, you have not yet met the required IELTS grade but invited the panel to consider the progress you have made in relation to your English speaking and writing. Mr Akinoshun also informed the panel that your improved knowledge of English could be evidenced by your achievement of Level 1 and Level 2 ESOL Skills for Life awards from Trinity College London. However, when questioned, he was unable to provide any information regarding a comparative between this and the required NMC tests. Mr Akinoshun submitted that you have successfully complied with all of the current conditions, with the exception of condition five, and that this compliance is evidenced by the reference from your mentor and manager. Mr Akinoshun submitted that you do have the required knowledge of English 8
to practise safely and invited the panel to revoke the current conditions of practice order. The panel heard and accepted the advice of the legal assessor. 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 referred to the NMC s guidelines in relation to the English language concerns in your case. When considering whether your fitness to practise remains impaired, the panel was impressed by your attitude and dedication to undertaking, and attempting to pass, both an IELTS test and OET test. The panel were further encouraged by the positive report from your current manager. The panel noted the evidence that you are able to communicative effectively within your current work place and develop care plans for residents in your care. However, the panel also noted that this evidence related to a specific and narrow field of practise. The panel determined that, in the absence of you achieving the required level of the English language, you may have difficulty communicating effectively and delivering care competently within other fields of nursing. The panel determined that it is clear within the NMC s guidelines that language test results are the primary measure as to whether a nurse has the necessary knowledge of English to practise safely. The panel rejected Mr Akinoshun s submission that it could be satisfied by your ESOL Level 1 and Level 2 results, on the basis that the Level 2 results are not yet available and in any event, there was no evidence before the panel as to how they compare to the accepted NMC tests. During your oral evidence, you gave various explanations of your failure to obtain the requisite standards. These included time constraints and speaking too quickly. Due to your inability to obtain even a borderline required minimum score from a recognised language test and your inability to adequately explain and reflect upon why you continue to fail to achieve the requisite standard, the panel decided that a finding of continuing impairment is necessary on the grounds of public protection. 9
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 continuing impairment on public interest grounds is also 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 29 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 first considered whether to revoke the current order or to impose a caution order. However, the panel decided that neither order would be proportionate at this time, nor in the public interest. The panel next considered continuing the current conditions of practice order. The panel noted that the current conditions of practice order was workable and sufficient to protect patients and the wider public interest and that you have complied with all conditions, albeit you have not yet achieved the requisite standard within condition five. Accordingly, the panel determined, pursuant to Article 30(1) (c) of the Nursing and Midwifery Order 2001, to extend the current conditions of practice order, with an amendment to condition five, for a period of two years. The panel determined that this period would allow you sufficient time to further develop your English language skills in order to meet the requirements of the NMC within a variety of environments, without the additional pressure of a review hearing. This order will come into effect on the expiry of the current order. It decided to impose the following conditions, which it considered are appropriate and proportionate in this case: 1. You must confine your nursing practice to Fairlie House. 10
2. At any time that you are employed or otherwise providing nursing services, 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 who is physically present in or on the same ward, unit, floor or home that you are working in or on 3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) as often as they see fit, to discuss the standard of your oral and written communication in the workplace. 4. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your oral and written communication in the workplace prior to any review hearing or meeting. 5. You must take an NMC accepted English language test and achieve the required grade before your next review hearing or meeting. Guidance in respect of this condition can be found within the NMC s Accepted English Language Tests. 6. You must inform the NMC of any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 7 days of you receiving notice of them. 7. You must within 7 days of accepting a place on a course of study connected with nursing or midwifery, provide the NMC with the name/contact details of the employment or course of study. 8. You must immediately inform 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 (7) above, to them: Any organisation or person employing, contracting with, or using you to undertake nursing work 11
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). This conditions of practice order will be reviewed by a panel of the Fitness to Practise shortly before its expiry in two years time. Additionally, you or the NMC may request an early review of the order at any time. A reviewing panel would be assisted by your continued engagement and attendance at the hearing. At the review, the panel, based on the evidence before it, will be able to impose any sanction which this panel could have imposed, including the making of a suspension order or allowing the order to lapse. This decision will be sent to you in writing. This concludes this determination. 12