Nursing and Midwifery Council Fitness to Practise Committee Substantive Hearing 18-20 July 2018 Nursing and Midwifery Council, 61 Aldwych, London, WC2B 4AE Name of registrant: NMC PIN: Velichka Prospolova 15L0246C Part(s) of the register: Sub Part 1 RN1: Adult nurse, level 1 (2 December 2015) Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Registrant: Nursing and Midwifery Council: Facts proved: Facts not proved: Fitness to practise: Sanction: Interim Order: Bulgaria Misconduct Nicholas Cook (Chair, Lay member) Susan Field (Registrant member) Claire Rashid (Registrant member) Alain Gogarty Aoife Kennedy Not present and not represented Represented by Ruth Alabaster, NMC Regulatory Legal Team. 1a, 1b None Impaired Conditions of practice order (18 months) Conditions of practice order (18 months) 1
Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Mrs Prospolova was not in attendance and that written notice of this hearing had been sent to her registered address in Bulgaria by recorded delivery and by first class post on 15 June 2018. Royal Mail Track and Trace documentation confirmed that the notice of hearing arrived in Bulgaria, and there is no further information to indicate whether notice was delivered to Mrs Prospolova. The panel took into account that the notice letter provided details of the allegation, the time, dates and venue of the hearing and, amongst other things, information about Mrs Prospolova s right to attend, be represented and call evidence, as well as the panel s power to proceed in her absence. Ms Alabaster submitted the Nursing and Midwifery Council (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 ) in relation to service of the Notice of Hearing. The panel accepted the advice of the legal assessor. In the light of all of the information available, confirmed by the proof of posting bundle, the panel was satisfied that the NMC had fulfilled its duty and that notice of this hearing has been served to Mrs Prospolova in accordance with the requirements of Rules 11 and 34. Decision on proceeding in the absence of the Registrant: Ms Alabaster invited the panel to proceed in the absence of Mrs Prospolova on the basis that she had voluntarily absented herself and there was no reason to believe that an adjournment would secure her attendance on some future occasion. The panel had sight of a number of communications from Mrs Prospolova to the NMC stating that she would not be attending the hearing. The panel noted an NMC 2
telephone note from a call received from Mrs Prospolova on 14 May 2018 which stated: Her address is correct as she received the NMC correspondence informing her of the hearing date. She cannot attend the hearing on 18 July. She does not want to participate via webex and is happy for the hearing to proceed in her absence. She will not be returning the CMF. She is residing in Bulgaria and is not returning to the UK to be a nurse. The panel also noted a more recent NMC telephone note from a call from Mrs Prospolova dated 25 June 2018, which stated: She said that she received my letter dated 14 June 2018. She said that she cannot attend on 29 June 2018 for her hearing. I explained that it did not go ahead as the letter was sent too late. I explained that we will proceed with her final hearing on 18 July 2018. She said that she did not want to attend. I asked if she is ok with the panel proceeding without her. She said she was. I asked if there was anything she wanted to send me to be placed before the panel. She said there wasn t. The panel accepted the advice of the legal assessor. The panel has decided to proceed in the absence of Mrs Prospolova. It has had regard to the overall interests of justice and fairness to all parties. It noted: Mrs Prospolova has confirmed that she does not wish to attend the hearing; Mrs Prospolova has stated that she is content for today s hearing to proceed in her absence; no application for an adjournment has been made by Mrs Prospolova; there is no reason to suppose that adjourning would secure her attendance at some future date; there is a strong public interest in the expeditious disposal of this case. 3
In these circumstances, the panel has decided that it is fair, appropriate and proportionate to proceed in the absence of Mrs Prospolova. Details of charge: That you, a registered nurse: 1) On 25 February 2017 and in circumstances whereby you had found Patient A unresponsive: a) did not assist with Patient A s care to an extent to be reasonably expected of you. b) did not comply with a reasonable request form Colleague A that you wait at the main entrance to greet paramedics called to assist Patient A. AND in light of the above, your fitness to practise is impaired by reason of your misconduct. 4
Application to hear a witness by Webex Ms Alabaster applied for Mr 2 to be allowed to give evidence by Webex. Mr 2 was an employee at Glenside Hospital (the Hospital) at the time of events. He has now relocated and lives in the USA and it would be very difficult for him to attend this hearing. Ms Alabaster told the panel that Mr 2 was not a direct witness to the alleged events, but that his evidence is relevant and it would be fair to hear it. The panel accepted the advice of the legal assessor. The panel acceded to Ms Alabaster s application to permit Mr 2 to give evidence via Webex. Whilst Mr 2 is not a factual witness in relation to the alleged events, he did nevertheless conduct a disciplinary meeting during which Mrs Prospolova gave her account of the alleged events. The panel therefore concluded that his evidence is relevant and that it would be fair to admit it. Hearing his evidence by Webex is practical and will give the panel an opportunity to assess his demeanour and question him. Background Mrs Prospolova was employed as a staff nurse at the Hospital at the time of the alleged events. It is alleged that, on 25 February 2017, when Mrs Prospolova was beginning a night shift, she failed to assist in the treatment of Patient A, who was found to be unresponsive by her and another member of staff. It is alleged that Mrs Prospolova failed to assist with Patient A s care to an extent to be reasonably expected of her. She instead left the room, leaving the Patient A to be managed by Colleague A, who was later assisted by other members of staff. 5
Decision on the findings on facts and reasons In reaching its decisions on the facts, the panel considered all the evidence adduced in this case together with the submissions made by Ms Alabaster, on behalf of the NMC. 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 found proved if the panel is satisfied that it was more likely than not that the incidents occurred as alleged. The panel took into account all the oral and documentary evidence in this case. The panel heard oral evidence from 2 witnesses called on behalf of the NMC: Colleague A, Staff Nurse at the Hospital Colleague A was working as a staff nurse on the day shift at the Hospital on 25 February 2017. Mrs Prospolova was working on the night shift and Colleague A was giving her a handover when the alleged incident occurred. She told the panel that Patient A was at high risk of a stroke. Colleague A took Mrs Prospolova into Patient A s room as part of the handover and found Patient A unresponsive. She asked Mrs Prospolova to push the emergency call bell. Mrs Prospolova was hesitant and Colleague A had to identify the call bell to her. Colleague A carried out some immediate checks whilst waiting for help. Mrs Prospolova did not assist her and left the room once she had pressed the call bell, and didn t tell Colleague A that she was doing so. The ambulance was called and Colleague A asked Mrs Prospolova to go to the front of the Hospital and await its arrival. Mrs Prospolova responded I can t see that. Colleague A did not readily understand what she meant by this, so decided to wait for the ambulance herself. 6
The panel considered Colleague A to be a credible and reliable witness. Mr 2, Operations Manager and Nurse Lead at Glenside Hospital Mr 2 chaired the disciplinary meeting on 9 May 2017. He told the panel that, during the meeting, Mrs Prospolova admitted that she was not well and not in the right way during the incident, and this resulted in her sitting outside the room and crying at the time of the incident. During the meeting Mrs Prospolova was able to explain clearly how she should have intervened if she was able to. Mr 2 did not have concerns regarding Mrs Prospolova s nursing knowledge, but was concerned about her reaction to the situation. He told the panel that it is expected that nurses would act appropriately by intervening without any hesitation. When Mr 2 asked Mrs Prospolova what she would do if the situation was to happen again, she said that she would try to do better but was unable to reassure him that she would be able to provide intervention such as Cardiopulmonary Resuscitation (CPR) when required. The policy in force at the hospital outlines the care that a nurse should provide during a medical emergency. Mrs Prospolova made clear admissions during the meeting that she did not provide, or attempt to provide, CPR. The panel considered Mr 2 to be a credible and consistent witness with good knowledge of policies and training. The panel considered each charge and made the following findings: 1) On 25 February 2017 and in circumstances whereby you had found Patient A unresponsive: 7
The panel took into account the evidence of Colleague A, Mr 2, and Mrs Prospolova s admissions in the disciplinary meetings. It considered that there was no dispute as to the date of the incident or as to whether Patient A was unresponsive. a) did not assist with Patient A s care to an extent to be reasonably expected of you. The panel took into account Colleague A s evidence that, apart from pressing the emergency call bell upon her request, Mrs Prospolova did not assist in the care of Patient A. The evidence establishes that Mrs Prospolova did not communicate with Colleague A and did not provide assistance. The panel noted the minutes from Mrs Prospolova s disciplinary meeting in which she admits that she did leave the room after pressing the buzzer, and states what actions she could have reasonably taken in the circumstances. The panel noted the evidence from Mr 2 that Mrs Prospolova had undertaken Emergency 1 st aid at work training on 23 February 2017, just 2 days before the incident. The panel considered that, on the balance of probabilities, Mrs Prospolova did not assist with Patient A s care to an extent to be reasonably expected of her. It therefore found charge 1(a) proved. b) did not comply with a reasonable request form Colleague A that you wait at the main entrance to greet paramedics called to assist Patient A. The panel took into account Colleague A s evidence that, after Mrs Prospolova had left Patient A s room, she was asked to wait outside the Hospital to greet the paramedics as she had removed herself from Patient A s room. It considered that this was a reasonable request. It noted Colleague A s evidence that Mrs Prospolova did not go to greet the paramedics and that she had to do this herself. 8
The panel took into account Mrs Prospolova s email to the NMC dated 22 December 2017 in which she stated: I just felt suddenly unwell in that moment. I am not guilty. I know what should make in this situation, but I felt very unwell and no chance to do. I just pressed emergency alarm and my colleagues came immediately to help. The panel considered that, on the balance of probabilities, Mrs Prospolova did not comply with a reasonable request form Colleague A that she wait at the main entrance to greet paramedics called to assist Patient A. It therefore found charge 1(b) proved. Decision and reasons on misconduct and impairment Having announced its findings on the facts, the panel then considered whether, on the basis of the facts found proved, Mrs Prospolova s fitness to practise is currently impaired by reason of misconduct. The panel took into account all of the evidence before it. The panel took into account the submissions made by Ms Alabaster, on behalf of the NMC. Ms Alabaster submitted that Mrs Prospolova breached a number of standards of the 2015 Code (The code: Professional Standards of Practice and Behaviour for nurses and midwives) ( the Code ) which put patients at risk of potential harm. The panel accepted the legal assessor s advice. In determining whether Mrs Prospolova s fitness to practise is currently impaired, the panel has borne in mind that this is a two stage process. It first considered whether the facts found proved in this case amount to misconduct and, if so, whether as a result of that misconduct, her fitness to practise is currently impaired. 9
The panel acknowledged that there is no burden or standard of proof at this stage of the proceedings and that the issues of misconduct and impairment remain matters for the independent judgment of the panel. In reaching its decision the panel bore in mind its duty to protect the public, to maintain public confidence in the profession and the regulatory process, and to declare and uphold proper standards of behaviour and conduct. The panel considered first whether the facts giving rise to the charges found proved amounted to misconduct on Mrs Prospolova s part. This case involves a failure to act appropriately in an emergency situation. [PRIVATE] There were no concerns raised by Colleague A or Mr 2 in relation to Mrs Prospolova s clinical practice, and this would appear to have been an isolated incident. However, the deterioration of Patient A was severe and life threatening, and the panel considered that the ability to react appropriately in an emergency situation is a fundamental part of nursing. The panel considered that Mrs Prospolova should have been able to rely on her nursing training and act appropriately, [PRIVATE]. In the panel s judgment, Mrs Prospolova s actions breached the Code in the following respects: 1.2 make sure you deliver the fundamentals of care effectively 1.4 make sure that any treatment, assistance or care for which you are responsible is delivered without undue delay 2.1 work in partnership with people to make sure you deliver care effectively 8.2 maintain effective communication with colleagues 10
8.5 work with colleagues to preserve the safety of those receiving care 15.2 arrange, wherever possible, for emergency care to be accessed and provided promptly, and 15.3 take account of your own safety, the safety of others and the availability of other options for providing care. 20.1 keep to and uphold the standards and values set out in the Code The panel was aware that not every act falling short of what would be proper in the circumstances, and not every breach of the Code, would be sufficiently serious that it could properly be described as misconduct. However, the Code clearly establishes the basic rules and standards ordinarily required to be followed by a registered nurse. The panel was satisfied that Mrs Prospolova s acts and omissions fell below the standards expected of a registered nurse and were sufficiently grave to amount to misconduct. The panel then went on to consider whether by reason of her misconduct Mrs Prospolova s fitness to practise is currently impaired. The panel reminded itself that it should consider not only the risk that a registrant poses to members of the public, but also the public interest in upholding proper professional standards and public confidence in the NMC as a regulator, and whether those aims would be undermined if a finding of impairment were not made in the circumstances. The panel reminded itself of the guidance of Mrs Justice Cox 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 [nurse 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: 11
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; and/or d)... The panel determined that limbs a, b, and c of the test are engaged in this case. The panel considered that Mrs Prospolova s actions had the potential to put Patient A at risk of harm and to bring the profession into disrepute. It noted that Mrs Prospolova appears to have demonstrated remorse. It was the evidence of Mr 2 that during the course of the disciplinary meeting conducted by him, Mrs Prospolova made clear admissions and did appear remorseful for her actions. This is further evidenced in the minutes of the disciplinary meetings and in Mrs Prospolova s email to the NMC dated 22 December 2017. However, Mrs Prospolova has not fully engaged with these proceedings and the panel had limited information before it. It took into account Mr 2 s evidence that Mrs Prospolova relied on other staff members and her personal mitigation to defend her actions. Whilst there is evidence of remorse and some insight, this insight is not complete. The panel had regard to the telephone note dated 14 May 2018 in which Mrs Prospolova stated that she had done nothing wrong and is not guilty. Mr 2, in his evidence, stated that whilst he did not have a concern relating to Mrs Prospolova s nursing knowledge, he remained concerned regarding how she would react if faced with a similar situation in the future. 12
The panel considered that Mrs Prospolova s actions could be remediated by [PRIVATE] further training, supervision, or reflections from Mrs Prospolova. However, the panel has no information before it to suggest that Mrs Prospolova has to date remediated her practice, and in all the circumstances, the panel considered that Mrs Prospolova s misconduct has not been remediated. In the panel s judgment there remains a risk of repetition. The panel decided that Mrs Prospolova s behaviour fell short of what is expected of a registered nurse. For all the reasons thus far, the panel determined 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 the circumstances. Accordingly the panel determined that Mrs Prospolova s current fitness to practise is impaired by reason of her misconduct on both public protection and public interest grounds. Determination on sanction: Having determined that Mrs Prospolova s fitness to practise is impaired, the panel has considered what sanction, if any, it should impose. In reaching its decision, the panel has considered all of the evidence provided, together with the submissions of Ms Alabaster on behalf of the NMC. The panel accepted the advice of the legal assessor. The panel has considered this case carefully and has decided to make a conditions of practice order for a period of 18 months. The order is to be reviewed before expiry. 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 13
by the NMC. It had regard to the need to protect the public as well as the wider public interest. It recognised that the decision on sanction is a matter for the panel, exercising its own independent judgement. Before making its decision on the appropriate sanction, the panel considered any aggravating and mitigating features in Mrs Prospolova s case. The panel considered an aggravating feature to be: Mrs Prospolova s lack of action in an emergency situation put increased pressure on other staff in that situation The panel considered the mitigating features to be: There have been no previous fitness to practice referrals or findings against Mrs Prospolova There was no actual harm caused to Patient A The misconduct occurred in [the] context [PRIVATE] In assessing the aggravating and mitigating features, the panel had careful regard to the overall context of this matter and the background evidence that it heard. The panel noted that Mrs Prospolova s actions were serious and she has demonstrated limited insight. However, the panel took into account that this was an isolated incident in Mrs Prospolova s otherwise unblemished nursing career [PRIVATE]. The panel first considered whether to take no action but concluded that this would be wholly inappropriate in view of the seriousness of the case. The panel decided that it would be neither proportionate, protect the public, nor be in the public interest to take no further action. Next, in considering whether a caution order would be appropriate in the circumstances, the panel took into account the Sanctions Guidance, which states that a caution order 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 considered that 14
Mrs Prospolova s impairment is not at the lower end of the spectrum and that a caution order would be inappropriate in view of the seriousness of the case and the risk of repetition, nor would it protect the public. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order. The panel next considered whether placing conditions of practice on Mrs Prospolova s registration would be a sufficient and appropriate response. The panel is mindful that any conditions imposed must be proportionate, measurable and workable. The panel determined that it would be possible to formulate appropriate and practical conditions which would address the failings highlighted in this case and be sufficient to protect the public and meet the wider public interest. The key consideration in contemplating a conditions of practice order is whether conditions will be sufficient to protect patients and address any concerns about public confidence in the profession, or proper professional standards and conduct. The panel carefully considered all of the evidence and found that there is no evidence of harmful deep-seated personality or attitudinal problems, and no indication of general incompetence. The panel noted that Mrs Propolova previously undertook a range of relevant training, and considered that she would be willing to comply with conditions of practice. The panel concluded, in all the circumstances, that patients will not be put in danger either directly or indirectly as a result of Mrs Prospolova s conditional registration. The panel decided that it can formulate relevant, proportionate, workable and measurable conditions, and is able to make provision as to how the conditions will be monitored. Balancing all of these features and after having taken into account both the aggravating and mitigating features of this case, the panel determined that the appropriate and proportionate sanction is that of a conditions of practice order. The panel was of the view that to impose a suspension order would be disproportionate in Mrs Prospolova s case and would not afford her the opportunity 15
to remediate her practice. The panel therefore concluded that a conditions of practice order would be sufficient to obviate any risk to patient safety. The panel determined that the following conditions are appropriate and proportionate in this case: 1. [PRIVATE] 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: The management of medical emergencies The management of resuscitation scenarios Recognition and management of deteriorating patients 3. You must tell 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. 4. You must tell the NMC about any professional investigation started against you and/or any professional disciplinary proceedings taken against you within 7 days of you receiving notice of them. 5. You must: a) 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; b) within 7 days of entering into any arrangements required by these conditions of practice provide the NMC with the name and contact details 16
of the individual/organisation with whom you have entered into the arrangement; 6. 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 (6) 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) to provide nursing services; 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). The period of this order is for 18 months. The period of 18 months will allow Mrs Prospolova adequate time to demonstrate that she has addressed her misconduct and will, in the panel s view, satisfy the public interest. Any future reviewing panel may be assisted by: a report from Mrs Prospolova s supervisor or mentor regarding her progress; a written reflective piece demonstrating insight re the events of 25 February 2017; references from any employment Mrs Prospolova undertakes; engagement with the NMC and attendance at any review hearing. Before the end of the period of the order, a panel will hold a review hearing to see how well Mrs Prospolova has complied with the order. At the review hearing the panel may revoke the order or any condition of it, it may confirm the order or vary any condition of it, or it may replace the order with another order. 17
Decision on interim order and reasons: The panel has considered the submission made by Ms Alabaster, on behalf of the NMC, that an interim conditions of practice for a period of 18 months 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 order was necessary for the protection of the public and was otherwise in the public interest. In reaching the decision to impose an interim order, the panel had regard to the reasons set out in its decision for the substantive order. The panel decided to impose an interim conditions of practice order for the same reasons as it imposed the substantive order. To do otherwise would be incompatible with its earlier findings. The period of this interim conditions of practice 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 substantive order 28 days after the decision of this hearing is sent to Mrs Prospolova in writing. That concludes this determination. This decision will be confirmed to Mrs Prospolova in writing. 18