Conduct and Competence Committee Substantive Order Review Hearing 7 April 2017 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Name of Registrant Nurse: NMC PIN: Mrs Michelle Maire 07I1022S Part(s) of the register: Registered Adult Nurse Sub part 1 March 2011 Area of Registered Address: Panel Members: Legal Assessor: Panel Secretary: Scotland Brian Yates (Chair/Lay member) Alison Hobden (Registrant member) Corinna Kershaw (Lay member) Gerard Coll Keyorra Shrimpton Nursing & Midwifery Council: Represented by Yusuf Segovia, Case Presenter, instructed by the NMC Regulatory Legal Team Mrs Maire: Order being reviewed: Outcome: Not present or represented Conditions of Practice Order (2 years) Conditions of Practice Order (2 years) to come into effect at the end of 27 April 2017 in accordance with Article 30 (1) Page 1 of 20
Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Mrs Maire was not in attendance and that written notice of this hearing had been sent to Mrs Maire s registered address by recorded delivery and by first class post on 27 February 2017. The Track and Trace documentation also indicated that the notice was return to sender. Mr Segovia submitted the NMC had complied with the requirements of Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). The panel accepted the advice of the legal assessor. In the light of all of the information available, the panel was satisfied that Mrs Maire has been served with notice of this hearing in accordance with the requirements of Rules 11 and 34. It noted that the rules do not require delivery and that it is the responsibility of any registrant to maintain an effective and up to date registered address. Decision on proceeding in the absence of the Registrant: Mr Segovia told the panel the NMC has no up to date information from Mrs Maire s representatives at Thompsons Solicitors. He told the panel that there is nothing in the bundle that indicates any particular engagement with the NMC process other than a telephone note that indicates that Mrs Maire wanted her solicitors to appear in front of the panel to indicate that she has not been able to complete to her return to practise course. The panel accepted the advice of the legal assessor. The panel noted that its discretionary power to proceed in the absence of a registrant under the provisions of Rule 21 is one that should be exercised with the utmost care and caution as referred to in the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5. Page 2 of 20
The panel had sight of a telephone note between Mrs Maire and an NMC Case officer dated 13 February 2017 which stated that [Mrs Maire] told me she would not be able to attend a review but would like her representative to be there to explain why she has been unable to complete her RtP course. The panel has decided to proceed in the absence of Mrs Maire. In reaching this decision, the panel has considered the submissions of the case presenter, and the advice of the legal assessor. It has had particular regard to the factors set out in the decision of Jones. It has had regard to the overall interests of justice and fairness to all parties. It noted that: no application for an adjournment has been made by Mrs Maire; the panel has no information from Mrs Maire s solicitors as to their attendance despite evidence that notice had been sent to them on 27 February 2017; there is a strong public interest in reviewing this case prior to its expiry at the end of 27 April 2017. In these circumstances, the panel has decided that it is appropriate and proportionate to proceed in the absence of Mrs Maire in light of the forthcoming expiry of this order at the end of 27 April 2017. Page 3 of 20
Decision and reasons on review of the current order: The panel decided to impose a further conditions of practice order for a period of 2 years. This order will come into effect upon the expiry of the current order at the end of 27 April 2017 in accordance with Article 30 (1). This is the first review of a conditions of practice order, originally imposed by a panel of the Conduct and Competence Committee on 26 March 2015 for a period of 2 years. The current order is due to expire at the end of 27 April 2017. The panel is reviewing the order pursuant to Article 30(1) of the Nursing and Midwifery Order 2001(the Order). The charges found proved (in parts by way of admission) which resulted in the imposition of the substantive order were as follows: Charges: That you, while employed as a band 5 staff nurse by NHS Lanarkshire, between October 2011 and August 2012, failed to demonstrate the standards of knowledge, skill and judgment required to practise as a band 5 staff nurse in that you: While working at Hairmyres Hospital in Ward 6: 1 On 1 July 2012: 1.1 failed to administer steroid therapy to Patient C; Found proved by admission 1.2 failed to document the reason for why the steroid therapy was not administered to Patient C; Found proved by admission 1.3 failed to sign the Patient C s medication administration record to show that you had administered Clexane to Patient C; Found proved 2 On 5 July 2012: Page 4 of 20
2.2 failed to administer two doses of Adcal D3 Dissolve to Patient A as prescribed and/or failed to document a notation in the Kardex to indicate why Adcal D3 Dissolve was not administered to Patient A; Found proved in the alternative 2.3 failed to sign and note the time of an entry you made into Patient A s Daily Nursing Record Found proved by admission 2.4 failed to carry out an assessment of Patient A s peripheral vascular catheter site and/or failed to document your assessment of Patient A s peripheral vascular catheter site; Found proved by admission 2.7 failed to adhere to the asceptic technique when attending to Patient D s cavity wound dressing; Found proved by admission 3 On 5 July 2012 failed to ensure the removal of Patient G s peripheral vascular catheter before discharging Patient G; Found proved by admission 4 On 27 July 2012: 4.1 administered 2 milliliters of Oramorph (10 milligrams in 5 millilitres) to Patient H instead of the prescribed 2 millilitres of Oxynorm (2 milligrams in 2 millilitres); Found proved by admission 4.2 incorrectly recorded the stock balance volume in the Oxynorm controlled drug register as 196 millilitres, when there was no Oxynorm in stock and 44 millilitres of Oramorph (which you had mistaken for Oxynorm) in stock; Found proved by admission 5 On 14 August 2012 dispensed MST 10 milligrams from the controlled drug cupboard when you were asked to dispense Sevredol 60 milligrams. Found proved by admission Page 5 of 20
6 On a date between March and May 2012 inclusive: 6.2 failed to check Patient I and/or check Patient I s medical notes prior to carrying out their dressing care, in order to determine how many wounds Patient I needed dressing. Found proved by admission The original panel determined the following with regard to impairment on 26 March 2015: The panel next considered the Code, and concluded that you had breached the following part of the preamble and paragraphs: The people in your care must be able to trust you with their health and wellbeing. To justify that trust, you must: provide a high standard of practice and care at all times 35 You must deliver care based on the best available evidence or best practice 38 You must have the knowledge and skills for safe and effective practice when working without direct supervision 42 You must keep clear and accurate records of the discussions you have, the assessment you make, the treatment and medicines you give, and how effective these have been. 43 You must complete records as soon as possible after an event has occurred. 45 You must ensure that any entry you make in someone s paper records are clearly and legibly signed, dated and timed Page 6 of 20
Having regard to the case of Cohen, the panel considered whether your failures are remediable and have been remediated. The panel considered your failings to be remediable. However, the panel did not have any evidence before it of any remediation of your failings. It appears that you have not been working as a registered nurse since the incidents occurred, nor have you undertaken any training. The panel also noted in your evidence that you stated that you did not consider that you could safely return to practise without further training and education. The panel next considered your remorse. It heard evidence from two of your colleagues who both shared concerns that you did not appear to particularly care about outcome for the patients involved. However, the panel also heard evidence from you that you were concerned, and had raised your concerns with other members of staff. The panel concluded that whilst you displayed a degree of remorse in your evidence, it was apparent that two experienced nurses were concerned about the attitude you displayed towards your failings at the time of the incidents. The panel went on to consider your level of insight. The panel heard during your evidence that you did not feel safe to practise at this time, and felt you required training and education before returning to the profession. However, you did not appear to understand what effect you failings had on patients, the public, your colleagues, or the nursing profession. The panel had regard to the remarks of Dame Janet Smith in her Fifth Shipman Report as set out in Grant. The panel considered that, by your failings, you have in the past acted, and are liable in the future to act so as to put patients at risk of harm. It also considered that if the standard of your work were not to improve, it would be likely that the nursing profession would be brought into disrepute. The panel has concluded that due to these factors, the risk of repetition of your failings is high, and therefore, there is a real risk of patient harm if you were allowed to practise without restriction. Page 7 of 20
The panel also considered the issue of public interest in your case. In view of the serious nature of your lack of competence, which includes deficiencies in fundamental nursing skills, the panel further concluded that 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 your case. For these reasons, the panel is satisfied that your fitness to practise is currently impaired by reason of lack of competence. The original panel determined the following with regard to sanction on 26 March 2015: The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of your conduct as reflected in the panel s findings on facts and impairment. The panel determined that there was a clear risk to patient safety. It considered that whilst your conduct is remediable, it has not yet been remediated. The panel decided that to take no action would not take into account the need to protect the public nor would it take into account the need to uphold confidence and trust in the profession and to maintain the standards expected of a registered nurse. Next, in considering whether a caution order would be appropriate, the panel took into account the ISG, which states that, a caution may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel noted that you have not practised as a registered nurse since August 2012. It concluded that you require some form of restriction on your practise due to the nature of the wideranging failings present in your case. The panel determined that such a sanction would put no onus on you to remedy the failings that have been identified in your practice and for the same reasons as given above this sanction is neither appropriate nor proportionate. Page 8 of 20
The panel next considered a conditions of practice order. The panel was satisfied that imposing conditions would be sufficient to protect patients and the public interest. The panel noted that there are identifiable areas of your practice which could be remedied. The panel was satisfied that conditions which address your failings with regard to medication administration, record keeping, clinical skills, techniques and checks, would protect patients during the period they are in force. In addition, the panel considered that it was possible to formulate workable conditions and to make provision as to how the conditions would be monitored. Prior to reaching a final decision the panel considered the next more severe sanction, that of a suspension order and had regard to the following: 69.1 Does the seriousness of the case require temporary removal from the register? 69.2 Will a period of suspension be sufficient to protect patients and the public interest? The panel considered the mitigating factors in your case, including your engagement with these proceedings, your level of insight and the fact that you have demonstrated a willingness to comply with any conditions, no matter how stringent. The panel noted the ISG, in relation to key considerations, a suspension order may be appropriate and proportionate in cases where the only issue relates to the nurse or midwife s lack of competence, there is a risk to patient safety if they were allowed to continue to practise even with conditions. Given that the panel considered that it was possible to formulate conditions, and having determined that a conditions of practice order was appropriate and proportionate, the panel concluded that a suspension order would be disproportionate and punitive in the circumstances of your case. For all these reasons the panel has determined that a conditions of practice order is the appropriate and proportionate sanction to protect the public, uphold proper standards and public confidence in the profession and in the NMC as a regulator. Page 9 of 20
The panel determined that the following conditions of practice would protect the public, and were otherwise in the public interest: 1. Before you return to practice you must successfully complete and pass an NMCapproved return to practice programme (or equivalent) complying with the requirements set out below: The length of the practice element of the programme shall be a minimum of 300 hours. The areas that the programme should focus on are medication administration, record keeping, clinical skills, techniques and checks. Evidence of successful completion of this course must be provided to the NMC 14 days prior to any review hearing. 2. After successful completion of the return to practice course (or equivalent), 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 or supervisor nominated by your employer. Such supervision is to consist of working at all times under the direct observation of a registered nurse for a minimum period of six months, and thereafter until such time as your workplace line manager or supervisor determines that you are competent to work without the direct observation of a registered nurse. 3. Once you have been deemed competent by your workplace line manager or supervisor to work without the direct observation of a registered nurse: At any time that you are thereafter employed or otherwise provide nursing services, you must work 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 where you are working. Page 10 of 20
4. You must work with your line manager or supervisor (or their nominated deputy) to formulate a Personal Development Plan specifically designed to address the deficiencies in the following areas of your practice: medication administration; record keeping; clinical skills, techniques and checks. 5. You must meet with your line manager or supervisor (or their nominated deputy) at least once every month to discuss and record the standard of your performance and your progress towards achieving the aims set out in your personal development plan. A record of each meeting must be provided to the NMC 14 days prior to any review hearing. 6. You must forward to the NMC a copy of your personal development plan within 28 days of the date on which you take up any appointment. 7. You must send a report from your line manager or supervisor (or their nominated deputy) setting out the standard of your performance and your progress towards achieving the aims set out in your Personal Development Plan to the NMC every 6 months. The final report must be provided to the NMC at least 14 days before any NMC review hearing. 8. You must allow the NMC to exchange, as necessary, information about the standard of your performance and your progress towards achieving the aims set out in your personal development plan with your line manager or supervisor (or their nominated deputy) and any other person who is or will be involved in your retraining and supervision with any employer, prospective employer, and at any educational establishment. 9. You must keep a learning log, incorporating your continuous professional development, which specifically addresses issues of medication administration, Page 11 of 20
record keeping, clinical skills, techniques and checks. A copy of this must be provided to the NMC 14 days prior to any review hearing. 10. You must notify the NMC within 14 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. 11. You must inform the NMC of any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 14 days of you receiving notice of them. 12. a) You must within 14 days of accepting any post or employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, 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 14 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. 13. 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 (12) above, to: 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 as a registered nurse (at the time of application) c. Any prospective employer to whom you are applying to work as a registered nurse (at the time of application) Page 12 of 20
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 conditions of practice order requires you to comply with the above conditions for a period of 2 years. The panel determined that 2 years would afford you the opportunity to take the necessary steps to apply and complete a return to practice course, thereafter gain employment and adequately demonstrate competence in the identified areas of your failings. Page 13 of 20
Submissions and decision on current fitness to practise: The panel has considered carefully whether Mrs Maire s fitness to practise remains impaired. 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. The panel has had regard to all of the documentation before it. It has taken account of the submissions made by Mr Segovia on behalf of the NMC. Mr Segovia guided the panel through the pertinent parts of the substantive order, imposed on 26 March 2015. He told the panel that in light of there being no change in circumstances since the last review hearing, Mrs Maire remains impaired. The panel heard and accepted the advice of the legal assessor. The panel considered whether Mrs Maire s fitness to practise remains impaired. The panel took into account that there has been no material change in circumstances since the conditions of practice order was imposed on 26 March 2015. The panel had sight of a telephone note between Mrs Maire and an NMC Case officer dated 13 February 2017 which stated that [Mrs Maire] told me that she had started her RtP course but had not been able to complete it. She has been unable to start a new course till this time and was now looking to start e (sic) new course. She told me she would not be able to attend a review but would like her representative to be there to explain why she has been unable to complete her RtP course. The panel noted that Mrs Maire has been unable to complete condition 1 of the current conditions of practice order as described below: Page 14 of 20
1. Before you return to practice you must successfully complete and pass an NMCapproved return to practice programme (or equivalent) complying with the requirements set out below: The length of the practice element of the programme shall be a minimum of 300 hours. The areas that the programme should focus on are medication administration, record keeping, clinical skills, techniques and checks. Evidence of successful completion of this course must be provided to the NMC 14 days prior to any review hearing. As such, Mrs Maire has been unable to comply with any of the other conditions of practice as she has not been able to return to practice. The panel considered that this panel is in the same position as the panel on 26 March 2015. As Mrs Maire has been unable to address the deficiencies in her practice, the panel has found that Mrs Maire s fitness to practise is currently impaired on public protection grounds. The panel bore in mind the overarching objective of the NMC: to protect, promote and maintain the health safety and well-being of the public and patients and 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 continuing impairment on public interest grounds is required. For these reasons, the panel has found that Mrs Maire s fitness to practise remains currently impaired. Determination on sanction: Having found Mrs Maire s 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 Indicative Sanctions Guidance (ISG) and has borne in mind that the purpose of Page 15 of 20
a sanction is not to be punitive, though any sanction imposed may have a punitive effect. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the seriousness of Mrs Maire s conduct as reflected in the panel s findings on facts and impairment on 26 March 2015. The panel determined that there remains a clear risk to patient safety. It considered that whilst Mrs Maire s conduct is remediable, it has not yet been remediated almost 2 years on. The panel decided that to take no action would not take into account the need to protect the public nor would it take into account the need to uphold confidence and trust in the profession and to maintain the standards expected of a registered nurse. Next, in considering whether a caution order would be appropriate, the panel took into account the ISG, which states that, a caution may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. The panel noted that Mrs Maire has not practised as a registered nurse since August 2012, and is yet to complete her return to practice course. It concluded that Mrs Maire therefore does still require some form of restriction on her practice due to the nature of the wideranging failings present in her case. The panel determined that a caution order is neither appropriate nor proportionate in Mrs Maire s case. The panel next considered the imposition of a further conditions of practice order on the same terms as the current order. The panel was of the view that a conditions of practice order was sufficient to protect patients and the wider public interest. The panel noted that there were identifiable areas of Mrs Maire s practice which could be remedied. The panel was satisfied that a further conditions of practice order in the same form, which address Mrs Maire s failings with regard to medication administration, record keeping, clinical skills, techniques and checks, would protect patients during the period they are in force. As such, the panel considered that these conditions remain workable and appropriate in all the circumstances. Page 16 of 20
Prior to reaching a final decision the panel considered the next more severe sanction, that of a suspension order. The panel noted that it was in the same position as the previous panel on 26 March 2015, and as such, the panel concluded that a suspension order would be disproportionate and punitive in the circumstances of Mrs Maire s case. For all these reasons the panel has determined that a conditions of practice order is the appropriate and proportionate sanction to protect the public, uphold proper standards and public confidence in the profession and in the NMC as a regulator. The panel determined that the following conditions of practice would protect the public, and were otherwise in the public interest: 1. Before you return to practice you must successfully complete and pass an NMCapproved return to practice programme (or equivalent) complying with the requirements set out below: The length of the practice element of the programme shall be a minimum of 300 hours. The areas that the programme should focus on are medication administration, record keeping, clinical skills, techniques and checks. Evidence of successful completion of this course must be provided to the NMC 14 days prior to any review hearing. 2. After successful completion of the return to practice course (or equivalent), 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 or supervisor nominated by your employer. Such supervision is to consist of working at all times under the direct observation of a registered nurse for a minimum period of six months, and thereafter until such time as your workplace line manager or supervisor determines that you are competent to work without the direct observation of a registered nurse. Page 17 of 20
3. Once you have been deemed competent by your workplace line manager or supervisor to work without the direct observation of a registered nurse: At any time that you are thereafter employed or otherwise provide nursing services, you must work 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 where you are working. 4. You must work with your line manager or supervisor (or their nominated deputy) to formulate a Personal Development Plan specifically designed to address the deficiencies in the following areas of your practice: medication administration; record keeping; clinical skills, techniques and checks. 5. You must meet with your line manager or supervisor (or their nominated deputy) at least once every month to discuss and record the standard of your performance and your progress towards achieving the aims set out in your personal development plan. A record of each meeting must be provided to the NMC 14 days prior to any review hearing. 6. You must forward to the NMC a copy of your personal development plan within 28 days of the date on which you take up any appointment. 7. You must send a report from your line manager or supervisor (or their nominated deputy) setting out the standard of your performance and your progress towards achieving the aims set out in your Personal Development Plan to the NMC every 6 months. The final report must be provided to the NMC at least 14 days before any NMC review hearing. Page 18 of 20
8. You must allow the NMC to exchange, as necessary, information about the standard of your performance and your progress towards achieving the aims set out in your personal development plan with your line manager or supervisor (or their nominated deputy) and any other person who is or will be involved in your retraining and supervision with any employer, prospective employer, and at any educational establishment. 9. You must keep a learning log, incorporating your continuous professional development, which specifically addresses issues of medication administration, record keeping, clinical skills, techniques and checks. A copy of this must be provided to the NMC 14 days prior to any review hearing. 10. You must notify the NMC within 14 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. 11. You must inform the NMC of any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 14 days of you receiving notice of them. 12. a) You must within 14 days of accepting any post or employment requiring registration with the NMC, or any course of study connected with nursing or midwifery, 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 14 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. Page 19 of 20
13. 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 (12) above, to: 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 as a registered nurse (at the time of application) c. Any prospective employer to whom you are applying to work as a registered nurse (at the time of application) 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 conditions of practice order requires Mrs Maire to comply with the above conditions for a period of 2 years. The panel considered that Mrs Maire has demonstrated a willingness to return to practise. The panel determined that a further 2 years would afford Mrs Maire the opportunity to take the necessary steps to complete a return to practice course, thereafter gain employment as a registered nurse and adequately demonstrate competence in the identified areas of her failings. The conditions of practice order must be reviewed before it expires. At the review hearing or meeting the panel may decide to allow the order to lapse without further action, it may extend the period of the order or it may replace the order with another order. In accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 this conditions of practice order will come into effect upon the expiry of the existing conditions of practice order This decision will be confirmed to Mrs Maire in writing. That concludes this determination. Page 20 of 20