Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Hearing 4 October 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London Name of registrant: NMC PIN: Part(s) of the register: Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Mr Toofany: Nursing and Midwifery Council: Order being reviewed: Shah Rafiuddin Toofany 96I2687E Registered Nurse Adult Adult Nursing 27 September 1999 England Misconduct Clive Chalk (Chair, Lay member) Tracey Jary (Registrant member) Jonathan Coombes (Registrant member) David Clark Maya Hussain Not present and not represented Karen Tarling, Case presenter Conditions of Practice Order 6 months Outcome: Conditions of Practice Order (12 months) varied to come into effect at the end of 14 November 2018 in accordance with Article 30 (1) Page 1 of 14
Service of Notice of Hearing The panel was informed at the start of this hearing that Mr Toofany was not in attendance, nor was he represented in his absence. The panel was informed that the notice of this hearing was sent to Mr Toofany on 30 August 2018 by recorded delivery and first class post to his registered address. It arrived and was signed for in the name Shah on 31 August 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). Proceeding in absence Ms Tarling submitted that no request for an adjournment had been made by Mr Toofany and that he had voluntarily absented himself. The panel then considered proceeding in the absence of Mr Toofany. 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 Ms Tarling. The panel accepted the advice of the legal assessor. Mr Toofany had been sent notice of today s hearing and the panel was satisfied that he was aware of today s hearing. The NMC s case officer sought confirmation on Mr Toofany s attendance today. The panel had sight of an email in response to the case officer, dated 25 September 2018 in which he stated he would not be attending the hearing. The panel bore in mind Mr Toofany s attendance to all previous review Page 2 of 14
hearings and considered whether it would be fair to proceed in his absence. The panel noted the reasons why Mr Toofany was unable to attend detailed in the email dated 25 September 2018. He stated: I am providing the reason below: 1. After the last hearing in April 2018, I attempted to seek employment from multiple employers. I did disclose the condition of practice. I never received any response from them. Then, [for personal reasons I was in] Mauritius on the 18th of April 2018 and came back on the 18th of September. Even upon my return, I tried to apply for a job with several recruiters but with no avail. 2. I have no evidence or reference to support me for the hearing Therefore, for the above reasons, I would not attend the hearing. I am enclosing an attachment to evidence my departure and arrival dates. Many thanks The panel therefore concluded that he had chosen voluntarily to absent himself. The panel had no reason to believe that an adjournment would result in Mr Toofany s attendance or that it would serve him any advantage. The panel further noted that this is a mandatory review as the order is due to expire at the end of 14 November 2018. Having weighed the interests of Mr Toofany in regard to his attendance to the hearing with those of the NMC and the public interest in an expeditious disposal of this hearing the panel determined to proceed in Mr Toofany s absence. Decision and reasons on review of the current order: The panel decided to extend and vary the current conditions of practice order. This order will come into effect at the end of 14 November 2018 in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). Page 3 of 14
This is the third effective review of a conditions of practice order extended by a Fitness to Practise panel on 6 April 2018 for a period of 6 months. The current order is due to expire at the end of 14 November 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, whilst employed as a Community Nurse at Independent Clinical Services (ICS) in October 2013: 1. Did not ensure that the carers responsible for assisting with the care of Patient A were competent in that you did not: 1.1 Check or assess the competencies of the carers; 1.2 Observe the carers to ensure they were competent; 1.3 Document any instructions given to the carers regarding Patient A s needs; or 1.4 Sign the carers off as competent. 2. Did not provide Patient A with an appropriate level of clinical care in that you: 2.1 Did not visit Patient A s home prior to discharge on 14 October 2013; 2.2 Did not complete and/or review necessary risk assessments prior to Patient A s discharge; Page 4 of 14
2.4. Used generic care plans rather than completing care plans that were personalised to Patient A s needs; 2.5 Did not ensure that Patient A s care plans contained sufficient information regarding action to be taken in the event of the tracheostomy becoming blocked and/or prepare a Respiratory Complications care plan; 2.6 Did not obtain Patient A s signed consent to the content of the care plans; 2.7 Did not share Patient A s care plan with the carers assisting with Patient A s care prior to arrival at Patient A s home on 14 October 2013; The second reviewing panel determined the following with regard to impairment: The panel considered your positive character reference which attested to your good practice. The panel also took into account that you have completed numerous training courses, some of which engage your past failings. The panel considered your reflective statements and your oral evidence. The panel found you to be open and honest, but lacking in full insight in relation to your misconduct and for the actions involving Resident A and B at Wyndley, which led to your dismissal from the home. Furthermore, the panel considered these failings to be serious, as your actions were inappropriate and involved two vulnerable residents who were placed in your care. With regards to insight, the panel was concerned to hear parts of your oral evidence. In particular in relation to your inability to recognise the seriousness of your misconduct in 2013 which led to the imposition of your first substantive order, involving Patient A, a vulnerable patient whom you placed at unwarranted risk of harm. Page 5 of 14
As you have not been working as a Registered Nurse, you have not been able to remedy concerns relating to your misconduct. The panel determined that there remains a risk of repetition and you therefore still pose a risk to patient safety. The panel also determined that you lack the level of insight so as to satisfy the need to protect the public and the wider public interest. To allow you to return to unrestricted practice would place patients at risk of harm and increase the likelihood of bringing the nursing profession into disrepute. The panel therefore concluded that your fitness to practise remains impaired. The second reviewing panel determined the following with regard to sanction: The panel was mindful that these two incidents have not been the subject of further NMC proceedings. However, the panel carefully considered all aspects of these two new instances in undertaking the comprehensive review required at this substantive order review hearing. On balance, having carefully considered the totality of the documentation provided by the NMC, together with your evidence and submissions, the panel formed the view that this further information does not preclude the imposition of a conditions of practice order, which would protect the public and the wider public interest, whilst being proportionate and fair. Therefore, balancing all of the above factors, the panel has decided to allow you a further opportunity to remedy the deficiencies in your practice and to demonstrate to a future panel your compliance with conditions aimed at remedying the existing concerns identified. The panel was mindful of its overriding duty to protect the public, to declare and uphold proper professional standards and to maintain public confidence in the profession and the NMC as the regulatory body. The panel was satisfied that the imposition of a conditions of practice order was sufficient to protect the public and the public interest. The panel also considered that a conditions of practice order was the most appropriate and proportionate response in allowing you to return to nursing and demonstrate Page 6 of 14
remediation of your failings, the areas of concern identified and your learning and progress. The panel did consider whether it should impose a suspension order. The panel determined that to impose such an order would be disproportionate, at this time, given your engagement with the NMC and the particular circumstances of this case. This panel considered that it would be fair and proportionate to give you another opportunity to comply with a conditions of practice order. In all the circumstances, the panel took the view that conditions of practice would be an appropriate and proportionate sanction. It therefore decided to impose the following conditions: 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 supervision 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 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: Your clinical performance in relation to the care and management of vulnerable people Your integrity as a nurse 3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every month to discuss the standard of your performance and Page 7 of 14
your progress towards achieving the aims set out in your personal development plan. 4. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance, your integrity as a nurse and 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. 5. You must tell 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. 6. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 14 days of you receiving notice of them. 7. 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 provide the NMC with the name and 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. 8. 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 7 above, to them. Page 8 of 14
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. d. Any educational establishment at which you are undertaking a course of study connected with nursing, or any such establishment to which you apply to take such a course (at the time of application) The panel determined that the length of this order should be for 6 months from the date of expiry of the current suspension order, namely at the end of 14 May 2018. It considered that this would be a sufficient period of time in which you can provide a future panel evidence to demonstrate your compliance with and fulfilment of the conditions of practice order. This panel considered that a future panel would be assisted by your attendance at the future review hearing, and a more comprehensive written reflective piece which addresses the impact of your failings upon patients, work colleagues and the reputation of the nursing profession. In providing a written reflective piece, you may be assisted by using a recognised model of reflection. Decision on current fitness to practise The panel has considered carefully whether Mr Toofany 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. Page 9 of 14
The panel has had regard to all of the documentation before it, including the bundle and an email response from Mr Toofany dated 25 September 2018. It has taken account of the submissions made by Ms Tarling on behalf of the NMC. Ms Tarling explained that Mr Toofany has been unable to obtain employment in a nursing role. She submitted that in the absence of Mr Toofany working in a clinical environment he is unable to remediate the concerns found in his practice. Ms Tarling submitted that there remains a risk of repetition of the behaviour found proved. She submitted that, as there has been no material change in circumstances, Mr Toofany remains impaired and is not suitable to practise unrestricted. Ms Tarling told the panel that determining the appropriate and proportionate sanction was a matter for its independent judgment. 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 considered whether Mr Toofany s fitness to practise remains impaired. The panel noted it had no new evidence before it of remediation or that Mr Toofany has been able to comply with the current conditions of practice order. The panel acknowledged Mr Toofany has been unable to obtain employment due to personal circumstances. In light of his inability to remediate the failings found in his practice, the panel determined that there remains a risk of repetition of the misconduct found proved. The panel has borne 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 determined that, in Page 10 of 14
this case, a finding of continuing impairment in the public interest as well as on public protection grounds is justified. For these reasons, the panel finds that Mr Toofany s fitness to practise remains impaired. Determination on sanction Having found Mr Toofany s fitness to practise currently impaired, the panel then considered what, if any, sanction it should impose in this case. The panel also took into account the NMC s Sanctions Guidance 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 or to impose a caution order, but concluded that both options would be inappropriate in view of the risk of repetition identified and seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action or to impose a caution order. Neither option would suitably protect the public. The panel next considered the imposition of a further conditions of practice order. The panel was of the view that a conditions of practice order remained sufficient to protect patients and the wider public interest. The panel noted that Mr Toofany has attempted to remediate his failings by searching for employment but has been unable to secure employment in a nursing role. The panel acknowledged that Mr Toofany s personal circumstances have required him to remain out of the country for most of the 6 month period since the order was imposed. This has further delayed his opportunity to obtain employment and remediate his failings. Therefore the panel remains of the opinion that the conditions of practice order remains necessary for the protection of the public and is otherwise in the publics interest. The panel decided that it would be disproportionate to impose a suspension order given Mr Toofany s engagement throughout the NMC proceedings. Page 11 of 14
The panel decided to amend Condition 1 as it would be difficult for some employers to arrange for a band 6 nurse to supervise Mr Toofany. It determined that the public would be suitably protected as would the reputation of the profession by amending condition 1 and continuing the current conditions of practice order. The panel determined that extending the conditions of practice order for a period of 12 months would allow Mr Toofany reasonable time to gain employment and demonstrate remediation to the next reviewing panel. It therefore decided to impose the following conditions: 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 supervision of another 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: Your clinical performance in relation to the care and management of vulnerable people Your integrity as a nurse 3. You must meet with your line manager, mentor or supervisor (or their nominated deputy) at least every month to discuss the standard of your performance and your progress towards achieving the aims set out in your personal development plan. Page 12 of 14
4. You must send a report from your line manager, mentor or supervisor (or their nominated deputy) setting out the standard of your performance, your integrity as a nurse and 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. 5. You must tell 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. 6. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 14 days of you receiving notice of them. 7. 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 provide the NMC with the name and 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. 8. 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 7 above, to them. a. Any organisation or person employing, contracting with, or using you to undertake nursing work. Page 13 of 14
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. d. Any educational establishment at which you are undertaking a course of study connected with nursing, or any such establishment to which you apply to take such a course (at the time of application) The next reviewing panel may be assisted by: Mr Toofany s presence at the next review hearing; testimonials of his standard of work, his honesty and integrity from a wide range of sources; and a written reflective piece as requested by the previous reviewing panel in April 2018. The panel recognised that Mr Toofany was unable to provide this today given his personal circumstances. The period of this order is for 12 months. This conditions of practice order will be reviewed before it expires, unless Mr Toofany or the NMC requests the order to be reviewed at an earlier date. That concludes this determination. Page 14 of 14