Nursing and Midwifery Council Fitness to Practise Committee Substantive Meeting 10 August 2018 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: Barbara Maja Fall NMC PIN: 14E0146C Part(s) of the register: RM, Registered Midwife (8 May 2014) Area of Registered Address: England Type of Case: Lack of knowledge of English Panel Members: Hilary Nightingale (Chair, Lay member) Mary Monnington (Registrant member) Alex Forsyth (Lay member) Legal Assessor: Ian Ashford-Thom Panel Secretary: Aoife Kennedy Facts proved: 1 Fitness to practise: Sanction: Interim Order: Impaired Suspension Order (12 months) Interim Suspension Order 18 months 1
Details of charge: That you, a registered nurse, 1. Do not have the necessary knowledge of English to practise safely and effectively. AND in light of the above, your fitness to practise is impaired by reason of your lack of knowledge of English Decision on Service of Notice of Meeting: The panel was informed that written notice of this meeting had been sent to Mrs Fall s registered address by recorded delivery and by first class post on 28 June 2018. The notice made clear that the case would be considered at a meeting, and would be held in private on or after 2 August 2018. The panel accepted the advice of the Legal Assessor. In the light of all of the information available, the panel was satisfied that Mrs Fall has been served with notice of this meeting in accordance with the requirements of Rules 11A and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended ( the Rules ). 2
Background: Mrs Fall was employed as a band 5 Midwife at the East Lancashire Hospitals NHS Trust (the Trust). It is alleged that she lacks the necessary knowledge of English to practise safely and effectively. The panel noted that the referral by the Trust included broader allegations of lack of competencies, skills, knowledge and confidence to practise unsupervised as a midwife. However, these allegations were not the subject of any charge and there was no evidence to support them. The panel accordingly disregarded these allegations and limited its remit to the charge. Decision on the findings on facts and reasons: In reaching its decision on the facts, the panel considered all the documentary evidence adduced in this case. The panel heard and accepted the advice of the legal assessor. The panel was aware that the burden of proof rests on the NMC, and that the standard of proof is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the panel is satisfied that it is more likely than not that the incidents occurred as alleged. The panel considered the Charge and made the following finding: Charge 1: That you, a registered nurse, Do not have the necessary knowledge of English to practise safely and effectively. This charge is found proved. 3
In reaching its decision, the panel had regard to Mrs Fall s response to the charge dated 13 March 2018 in which she accepted the regulatory concerns in relation to her lack of English skills, and stated: My IELTS overall Band score is 5.5. I understand that my IELTS overall Band score can not be less that 7.0 The panel considered Mrs Fall s International English Language Testing System ( IELTS ) Test Report Form dated 13 January 2018 and noted that the test results indicated that Mrs Fall had achieved the following individual scores, in addition to the Overall Band Score of 5.5: Listening 4.0 Reading 5.0 Writing 5.0 Speaking 7.0 It had regard to the NMC s Language Impairment Guidance which states: if the nurse or midwife is unable to demonstrate that they have achieved a minimum score of 7.0 in each of the four components of the IELTS assessment (reading, writing, listening and speaking), then we are likely to recommend that there is a case to answer in relation to the allegation. We consider that a score of 7.0 in each component reflects the minimum knowledge of English necessary to practise safely. Also a score of 7 is required by a new applicant to join the NMC s Register. The panel found that Mrs Fall s score fell far short of the level required for each component of the IELTS assessment, with the exception of the speaking component. The panel determined from this evidence that Mrs Fall s English language skills were not up to a standard that would allow her to practise safely and/or effectively in the United Kingdom. 4
Decision on impairment The panel accepted the advice of the legal assessor. Having found the charge proved the panel proceeded to consider whether Mrs Fall s fitness to practise is currently impaired by her lack of the necessary knowledge of English to practise safely and effectively. The NMC has defined fitness to practise as a registrant s suitability to remain on the Register unrestricted. The panel reminded itself of the guidance of Cox J. in Council for Healthcare Regulatory Excellence v. NMC and Paula Grant [2011] EWHC 927 (Admin), adopting the test proposed by Dame Janet Smith in the Shipman enquiry: Do our findings of fact in respect of the doctor s misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he: a. Has in the past acted and/or is liable to act in the future so as to put a patient or patients at unwarranted risk of harm; and/or b. Has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or c. Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; d. The panel had regard to point 7.5 of The Code: Professional standards of practice and behaviour for nurses and midwives 2015 and noted the requirement that you must be able to communicate clearly and effectively in English. It was of the view that without Mrs Fall having the necessary knowledge of English to practise safely and effectively, she was liable in the future to put patients at unwarranted risk of harm, bring the profession into disrepute and breach a fundamental tenet of the 5
profession. Registered Nurses must be able to communicate effectively with colleagues, patients and members of the public. The panel noted that Mrs Fall has accepted that her level of English does not meet the required standard, and had demonstrated some insight. However, the panel has seen no evidence that she is currently undertaking any courses in English Language, or making any continued efforts to improve her level of English. The panel was of the view that patients would be at a real risk of harm should Mrs Fall be allowed to practise without having the necessary knowledge of English. It therefore decided that a finding of impairment is necessary on the ground of public protection. The panel bore in mind that the overarching objectives of the NMC are to protect, promote and maintain the health safety and well-being of the public and patients, and to uphold/protect the wider public interest. This 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 the need to uphold confidence in the profession and maintain proper professional standards would be undermined if a finding of impairment were not made in these particular circumstances. The panel determined that, in this case, a finding of impairment on public interest grounds was required as members of the public would be concerned if a nurse was allowed to practise without having the requisite knowledge of English to be able to practise safely. 6
Determination on sanction: The panel has considered this case very carefully and has decided to make a suspension order. The effect of this order is that the NMC Register will show that Mrs Fall s registration has been suspended. In reaching this decision, the panel has had regard to all the evidence before it. The panel accepted the advice of the legal assessor. The panel has borne in mind that any sanction imposed must be appropriate and proportionate and, although not intended to be punitive in its effect, may have such consequences. The panel had careful regard to the Sanctions Guidance published by the NMC. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. The panel first considered whether to take no action but concluded that this would be inappropriate due to the public protection concerns that had been identified. It would not protect the public as it would not restrict Mrs Fall s practice. Next the panel determined that a caution order would be inappropriate as such an order would allow Mrs Fall to practise without restriction, without having addressed her language difficulties. The panel therefore decided that it would be neither appropriate nor in the public interest to impose a caution order. The panel next considered whether to place conditions of practice on Mrs Fall s registration. Given the deficiencies in her level of English the panel considered that workable conditions could not be formulated that would allow Mrs Fall to work as a midwife until her language deficiencies were rectified. The panel then went on to consider whether a suspension order would be an appropriate sanction. The panel was of the view that it could not allow a midwife to practise in the UK who had not met the regulator s minimum requirement in relation to English language knowledge. It therefore determined that a suspension order of 12 months was the appropriate and proportionate order in this case. This would 7
allow Mrs Fall an opportunity to improve her English and retake the IELTS assessment. The panel considered proportionality and took into account that this sanction would prevent Mrs Fall from working in the UK as a Registered Midwife. However, it concluded that the need to protect the public and the public interest outweighed her interests. The panel considered a striking off order would be disproportionate and unduly punitive at this time. 8
Determination on Interim Order The panel next considered whether an interim order should be made on the grounds that it is necessary for the protection of the public and is otherwise in the public interest. The panel accepted the advice of the legal assessor. The panel was satisfied that an interim suspension order is necessary for the protection of the public and is otherwise in the public interest. The panel had regard to the seriousness of the facts found proved and the reasons set out in its decision for the substantive order in reaching the decision to impose an interim order. To do otherwise would be incompatible with its earlier findings. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined. If no appeal is made, then the interim order will be replaced by the suspension order 28 days after Mrs Fall is served with the decision of this hearing in writing. That concludes this determination. 9