Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 4 July 2018 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of registrant: NMC PIN: Miss Maureen Agnes Mallon 68L0827E Part(s) of the register: Registered Nurse sub part 1 Adult Nursing (17 December 1968) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Miss Mallon: Nursing and Midwifery Council: Order being reviewed: Outcome: England Misconduct Richard Davies (Chair, Lay member) Deirdre O Donnell (Registrant member) Anna Ferguson (Registrant member) Nigel Mitchell Anjeli Shah Not present and not represented in absence Represented by Assad Badruddin, Case Presenter Conditions of Practice Order for 12 months Striking-off order to come into effect on the expiry of the current order, namely at the end of 12 August 2018 in accordance with Article 30 (1) 1
Service of Notice of Hearing The panel was informed at the start of this hearing that Miss Mallon was not in attendance, and she was not represented in her absence. The panel was informed that the notice of this hearing was sent to Miss Mallon on 4 June 2018 by recorded delivery and first class post to her registered address. The panel noted that notice of this hearing was delivered to Miss Mallon s registered address on 5 June 2018. The panel accepted the advice of the legal assessor. In the light of the information available the panel was satisfied that notice had been served in accordance with Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) ( the Rules ). 2
Proceeding in absence The panel then considered proceeding in the absence of Miss Mallon. The panel was mindful that the discretion to proceed in absence is one which must be exercised with the utmost care and caution. The panel considered all of the information before it, together with the submissions made by Mr Badruddin, on behalf of the Nursing and Midwifery Council ( NMC ). The panel accepted the advice of the legal assessor. Mr Badruddin, on behalf of the NMC, referred the panel to an email from Miss Mallon dated 2 July 2018, which stated that she would not be attending today s hearing, that she had not worked as a registered nurse since her previous review hearing and that she did not wish to continue working as a registered nurse. Mr Badruddin referred the panel to factors the panel should consider whether deciding whether to proceed in the absence of Miss Mallon. He submitted that reasonable efforts were made to serve Miss Mallon with notice of today s hearing. Mr Badruddin invited the panel to exercise care and caution, consider fairness to Miss Mallon and to balance this with the public interest in the expeditious disposal of these proceedings. Mr Badruddin referred the panel to the cases of R. v Jones (Anthony William), (No.2) [2002] UKHL 5 and Adeogba and Visvardis v GMC [2016] EWCA Civ 162. He submitted that the panel must consider any inconvenience to Miss Mallon if she were not able to make representations to the panel, reasons for her non-attendance, any unfairness that may be caused to Miss Mallon by proceeding in her absence and whether an adjournment would secure her attendance at a hearing on a future date. Mr Badruddin invited the panel to consider whether it would be fair to proceed in the absence of Miss Mallon. Mr Badruddin submitted that it was clear from Miss Mallon s email to the NMC that she was aware of today s hearing, and that she had voluntarily absented herself. In that email she had also set out submissions for the panel to consider in relation to today s 3
hearing. On the basis of this information, Mr Badruddin invited the panel to proceed in Miss Mallon s absence. The panel had regard to the email from Miss Mallon in which she made it clear that she would not be attending today s hearing, that she had not worked as a registered nurse since the last review hearing and that she did not wish to continue nursing. The panel considered that Miss Mallon had made her position clear, that she did not wish to attend and that she did not wish to continue nursing. Whilst having regard to fairness to Miss Mallon and any disadvantage that may be caused to her in proceeding in her absence, the panel noted that Miss Mallon had not requested an adjournment of today s hearing. The panel considered that an adjournment would be unlikely to secure Miss Mallon s attendance at a hearing on a future date. The panel was of the view that Miss Mallon had voluntarily absented herself from today s hearing. The panel had regard to the public interest in the expeditious disposal of these proceedings. In these circumstances, the panel determined that it would be fair and in the interests of justice to proceed in the absence of Miss Mallon. 4
Decision and reasons on review of the current order: The panel decided to impose a striking-off order. This order will come into effect at the end of 12 August 2018 in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) ( the Order ). This is the third review of a substantive order originally imposed by a panel of the Conduct and Competence Committee. A four month suspension order was imposed on 9 September 2016. This was reviewed on 6 January 2017, and a six month suspension order was imposed. This was further reviewed on 11 August 2018 and a 12 month conditions of practice order was imposed. The current order is due to expire on 12 August 2018. The panel is reviewing the order pursuant to Article 30(1) of the Order. The charges found proved which resulted in the imposition of the substantive order were as follows: That you: 1. On or around 08 May 2014, in respect of Resident A: a. took blood despite your venepuncture training being out of date. b. did not document in Resident A s care notes that you had taken blood. c. did not document that Resident A had sustained bruising to her arm in the course of blood being taken and/or that bruising was present on Resident A s arm prior to blood being taken. d. did not complete an incident form in respect of Resident A s bruising as referenced at charge 1c. e. did not complete an incident form recording the difficulties encountered when attempting to take blood from Resident A. 5
2. On 01 June 2014, in respect of Resident B, placed damp cotton balls over Resident B s eyelids during the end stages of her life, when it was not appropriate to do so. 3. On 05 June 2014, in response to a complaint regarding a member staff at The Grange Nursing Home taking of blood from Resident A, indicated you were unaware of any staff having done so. 4. Did not inform Anchorage Nursing Home that you were the subject of an investigation by the Nursing and Midwifery Council. 5. 6. Your actions at charge 4 were dishonest, in that, you knew you were the subject of an investigation by the Nursing and Midwifery Council and intend to conceal this from your employer. The second reviewing panel determined the following with regard to impairment: The panel considered whether your fitness to practise remains impaired. It considered all the evidence before it and determined that while you have shown a development in your insight and level of remorse since the last review hearing, it was not satisfied that this is sufficient to warrant a finding of no current impairment. The panel was concerned that you were unable to show an understanding of the risks posed to patients by your actions and the potential impact on those patients, and that you continued to dispute some of the facts found proved. The panel noted that although you have undertaken a course in End Of Life Care, you have not yet done so for record keeping. The panel also noted that you have been unable to provide it with any evidence of remediation of these areas of your practice in a clinical setting. The panel therefore determined that there remains a risk of repetition. 6
The panel considered the test set out in the case of Grant and determined that there remains an ongoing risk that you may create an unwarranted of risk of harm to patients, that you may breach a fundamental tenet of the profession, that you may bring the nursing profession into disrepute, and that you may act dishonestly. The panel therefore determined that a finding of impairment is required for the protection of the public. 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 the period of suspension you have already served is sufficient to satisfy the public interest in this case. The panel determined, therefore, that that a finding of continuing impairment on public interest grounds is not required. The second reviewing panel went on to determine the following with regard to sanction: The panel considered substituting the current suspension order with a conditions of practice order and determined that this would be the appropriate and proportionate response. It considered that you have shown improved insight into your actions and considered that a conditions of practice order, while protecting the public, would allow you to continue to develop your insight and to demonstrate remediation in a clinical environment. It noted that you had practised as a nurse without a previous referral for 45 years and considered that allowing you to return to practice with the appropriate support in place would be in the public interest. The panel considered that it would be possible to formulate practicable and workable conditions, that if complied with, may lead to your return to unrestricted practice and would serve to protect the public and the reputation of the profession in the meantime. 7
The panel decided that the public would be suitably protected as would the reputation of the profession by the implementation of the following conditions of practice: 1. 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. 2. You must work with your line manager, mentor or supervisor (or their nominated deputy) to create a personal development plan designed to address the concerns about the following areas of your practice a. Record keeping, including evidence of formally assessed training and subsequent monitoring of your competency b. End Of Life care, including evidence of competency assessed through observation of your clinical practice c. A demonstration of your understanding of the importance of honesty and integrity in nursing practice. 3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least once a month to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. 4. You must forward to the NMC a copy of your personal development plan within 28 days of the date on which these conditions become effective or the date on which you take up an appointment, whichever is sooner. 5. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance and 8
your progress towards achieving the aims set out in your personal development plan to the NMC at least 14 days before any NMC review hearing or meeting. 6. 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, mentor 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. 7. You must disclose a report not more than 28 days old from your line manager, mentor 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 any current and prospective employers (at the time of application) 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. 8. You must notify 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; 9. 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; 10. You must, within 7 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; 9
11. 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 (10) 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); 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). This order will be imposed for a period of 12 months, which the panel considers will be sufficient to allow you to obtain employment as a registered nurse and demonstrate compliance with the conditions. It will be reviewed before its expiry in accordance with Article 30(1) of the Order. At any such review, a panel may revoke the order, allow it to lapse, vary any condition of it, extend it, or replace it with another order. 10
Decision on current fitness to practise This panel has considered carefully whether Miss Mallon s 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 last panel. However, it has exercised its own judgment as to current impairment. The panel had regard to all of the documentation before it. It took account of the submissions made by Mr Badruddin, on behalf of the NMC. Mr Badruddin referred the panel to an email from Miss Mallon, which stated that she had not been working as a registered nurse since the previous review hearing, and that she did not wish to continue so working. Mr Badruddin submitted that Miss Mallon had not addressed the concerns of the previous reviewing panel, in that she had not demonstrated remediation and the development of further insight in relation to the concerns around her clinical practice. Whilst the imposition of a conditions of practice order had given Miss Mallon the opportunity to address such concerns, she had not complied with the order. Mr Badruddin submitted that current impairment remained a relevant issue, and that anything less than a conditions of practice order would be insufficient to protect the public and to satisfy the wider public interest. The panel 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 considered whether Miss Mallon s fitness to practise remains impaired. The panel considered that there had not been any new information since the previous review hearing. Miss Mallon had not taken steps to remediate and demonstrate the 11
development of further insight, nor addressed the concerns of the previous reviewing panel. The panel noted that Miss Mallon had not been working as a registered nurse since the previous hearing, and therefore had not been in a position to comply with the current conditions of practice order. In circumstances where the outstanding concerns had not been addressed, the panel considered that there was a risk of repetition. It therefore determined that a finding of impairment remained necessary on the grounds of public protection. The panel bore in mind that its primary function is 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 had regard to the determination of the previous reviewing panel, in that the public interest had been satisfied by Miss Mallon serving periods of suspension. However, the panel also took into account that Miss Mallon had not complied with the current conditions of practice order, most notably a condition requiring her to demonstrate an understanding of the importance of honesty and integrity in nursing practice. The panel considered that honesty and integrity is a fundamental tenet of the nursing profession, and by failing to address such a serious concern, a finding of impairment on public interest grounds was necessary, in order to maintain confidence in the profession and in the NMC as a regulator. For these reasons, the panel finds that Miss Mallon s fitness to practise remains impaired. 12
Determination on sanction Having found Miss Mallon 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 also took into account the NMC s Sanctions Guidance ( SG ) and bore 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 take no action but concluded that this would be inappropriate in view of the risk of repetition identified and the seriousness of the case. The panel determined that taking no action would not protect the public and it would not satisfy the public interest. The panel then considered whether to impose a caution order but concluded that this would also be inappropriate in view of the risk of repetition identified and the seriousness of the case. The panel determined that imposing a caution order would not protect the public and it would not satisfy the public interest. The panel next considered whether to impose a conditions of practice order. The panel had regard to the fact that any conditions imposed must be practicable, measurable and workable. The panel had regard to Miss Mallon s clear indication that she no longer wished to work as a registered nurse, and indeed had not been so working since the previous review hearing. In these circumstances, the panel considered that Miss Mallon had not demonstrated a willingness to comply with conditions of practice. Therefore, any conditions imposed would not be practicable and workable. The panel next considered whether to impose a suspension order. The panel considered that a suspension order would protect the public. However, the panel had regard to the fact that Miss Mallon had previously served two periods of suspension, and had indicated that she no longer wished to work as a registered nurse. The panel had regard to the wider public interest, and did not consider that this would be served by keeping Miss Mallon subject to these proceedings, in circumstances where a suspension order would not serve a useful purpose in facilitating her return to safe and effective practice. 13
The panel came to the conclusion that the only sanction which would serve the public interest in this case was that of a striking-off order, in circumstances where there was a serious departure from the professional standards expected of a registered nurse, dishonesty and a continuing deficiency of insight. Miss Mallon had made it clear that she no longer wished to continue working as a registered nurse and therefore, as previously determined, the panel was of the view that a suspension order would not serve any useful purpose. The panel therefore determined that a striking-off order was the only proportionate sanction in this matter. This decision will be confirmed to Miss Mallon in writing. That concludes this determination. 14