Conduct and Competence Committee · 2017-07-06 · Page 1 of 28 Conduct and Competence Committee...

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Conduct and Competence Committee

Substantive Hearing

3, 4 and 5 July 2017

Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH Name of Registrant: Agnes Kerr Hill Thompson NMC PIN: 02I0367S Part(s) of the Register: Registered Nurse – Sub part 1 Mental Health Nurse (19 September 2005) Area of Registered Address: Scotland Type of Case: Misconduct Panel Members: Wendy Yeadon (Chair/Lay Member) Terry Shipperley (Registrant Member) David Boden (Lay Member) Legal Assessor: Mike Bell Panel Secretary: Pauline Wharton Nursing and Midwifery Council: Represented by Yusuf Segovia, Case

Presenter, instructed by the NMC Regulatory Legal Team

Registrant: Mrs Thompson was neither present nor

represented Facts found proved: 1, 2(b), 2(d) and 2(e) Facts found not proved: 2(a) and 2(c) Fitness to practise: Impaired Sanction: Suspension order – 6 months Interim Order: Interim suspension order – 18 months

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Decision on Service of Notice of Hearing:

The panel was informed at the start of this hearing that Mrs Thompson was not in

attendance and that written notice of this hearing had been sent to her registered

address by recorded delivery and first class post on 25 May 2017. Royal Mail

documentation confirmed that the notice of hearing was sent to Mrs Thompson’s

registered address by recorded delivery on that date.

The panel took into account that the notice letter provided details of the allegation, the

times, dates and venue of the hearing and, amongst other things, information about Mrs

Thompson’s right to attend, be represented and call evidence, as well as the panel’s

power to proceed in her absence. Royal Mail “Track and Trace” documentation

indicated that the notice was delivered on 27 May 2017 and signed for by a person

named ‘Thompson’.

The panel accepted the advice of the legal assessor.

In the light of all of the information available, the panel was satisfied that Mrs Thompson

had been served with notice of this hearing in accordance with the requirements of

Rules 11 and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004,

as amended (the Rules).

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Decision on proceeding in the absence of the Registrant:

The panel had regard to Rule 21 (2) (b) which states:

“Where the registrant fails to attend and is not represented at the hearing, the

Committee...may, where the Committee is satisfied that the notice of hearing has

been duly served, direct that the allegation should be heard and determined

notwithstanding the absence of the registrant...”

Mr Segovia, on behalf of the Nursing and Midwifery Council (NMC), informed the panel

that there had been no response from Mrs Thompson to the notice of hearing and no

application for an adjournment. He submitted that as Mrs Thompson had not engaged,

an adjournment would be unlikely to result in her attendance. It was Mr Segovia’s

submission that it was in the public interest and Mrs Thompson’s own interests to deal

with this matter expeditiously. That being so, Mr Segovia invited the panel to exercise its

discretion to proceed in the absence of Mrs Thompson.

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”.

The panel has decided to proceed in the absence of Mrs Thompson. In reaching this

decision, the panel considered the submissions of Mr Segovia, and the advice of the

legal assessor. It had particular regard to the factors set out in the decision of R v Jones

(Anthony William), (No.2) [2002] UKHL 5. It also had regard to the overall interests of

justice and fairness to all parties. It noted that:

Mrs Thompson has not engaged with the NMC and has not responded to any of

the letters sent to her about this hearing;

no application for an adjournment has been made by Mrs Thompson;

there is no reason to suppose that adjourning would secure Mrs Thompson’s

attendance at some future date;

there are witnesses due to attend this hearing to give live evidence;

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not proceeding may inconvenience the witnesses, their employer(s) and for those

involved in clinical practice, the clients who need their professional services;

further delay may have an adverse effect on the ability of the witnesses

accurately to recall events;

the charges relate to events that are alleged to have occurred in October 2015

some 21 months ago;

there is a strong public interest in the expeditious disposal of the case.

There is some disadvantage to Mrs Thompson in proceeding in her absence. Although

the evidence upon which the NMC relies will have been sent to her at her registered

address, she will not be able to challenge the evidence relied upon by the NMC and will

not be able to give evidence on her own behalf. However, in the panel’s judgment, this

can be mitigated. The panel can make allowance for the fact that the NMC’s evidence

will not be tested by cross examination and, of its own volition, can explore any

inconsistencies in the evidence which it identifies. Furthermore, the limited

disadvantage is the consequence of Mrs Thompson’s decision to absent herself from

the hearing, waive her rights to attend and/or be represented and to not provide

evidence or make submissions on her own behalf.

In these circumstances, the panel has decided that it is fair, appropriate and

proportionate to proceed in the absence of Mrs Thompson. The panel will draw no

adverse inference from her absence in its findings of fact.

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Charge:

That you, whilst employed by North Ayrshire Health & Social Care Partnership as a

Registered Mental Health Nurse within the Dunure Ward of the Ailsa Hospital, on 16

October 2015:

1. Whilst carrying out the evening medication round, left the medication trolley

and/or treatment room on Dunure Ward unlocked and/or unattended, resulting in

medication being accessed by Patient A;

This charge is found proved

2. Upon discovering that Patient A had accessed medication, failed to do one or

more of the following:

(a) contact the duty doctor;

This part of the charge is found not proved

(b) complete a Datix incident form;

This part of the charge is found proved

(c) carry out MEWS observations on Patient A;

This part of the charge is found not proved

(d) make an entry on Patient A’s FACE records;


(e) handover the incident to the on-coming shift.


And in light of the above, your fitness to practise is impaired by reason of your

misconduct.

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Decision and reasons on application to have a witness give evidence by

telephone:

Mr Segovia, on behalf of the Nursing and Midwifery Council (NMC), made an

application under Rule 31 to allow Mr 3, the person tasked to undertake an internal

investigation into the allegations, to give evidence by telephone. Mr Segovia explained

that Mr 3 was unable to attend this hearing in person either today (3 July 2017) or

tomorrow, but that he was available to give evidence by telephone tomorrow. Mr

Segovia further explained that there were issues in relation to Mr 3’s workplace IT being

able to support Webex and, as such, the application was for Mr 3 to give evidence by

telephone.

Mr Segovia confirmed that Mr 3 exhibited documentation in relation to the internal

investigation and that he could speak to his investigation into the matters alleged in

charges 1 and 2. Mr Segovia informed the panel that Mrs Thompson had been provided

with a copy of Mr 3’s statement and associated exhibits in advance of the hearing and

that she had been made aware that Mr 3 was to attend to give evidence in person. He

added that she was not aware of the application for Mr 3 to give evidence by telephone

but, in any event, as she was neither present nor represented, she would not be able to

assess Mr 3’s demeanour or test his evidence. Therefore, it would not be unfair to Mrs

Thompson to allow Mr 3 to give evidence by telephone.

The panel accepted the advice of the legal assessor who referred it to the NMC’s

guidance on telephone evidence and to the panel’s powers under Rule 31, which states:

31.⎯(1) Upon receiving the advice of the legal assessor, and subject only to the

requirements of relevance and fairness, a Practice Committee considering an allegation

may admit oral, documentary or other evidence, whether or not such evidence would be

admissible in civil proceedings (in the appropriate Court in that part of the United

Kingdom in which the hearing takes place).

The panel carefully considered the application by Mr Segovia and had regard to the

NMC’s guidance on telephone evidence. The panel has been made aware that Mr 3

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speaks to charges 1 and 2 and exhibits documentation in relation to his internal

investigation. That being so, the panel is satisfied that Mr 3’s evidence is relevant.

In considering whether it would be fair to allow Mr 3’s evidence to be adduced by

telephone, the panel noted all of the relevant factors known to it. The panel accepted

that Mr 3 was unable to attend the hearing in person due to work commitments. His

evidence is relevant and is supported by a signed statement of truth which is not

lengthy. Mr 3 can provide corroborative evidence in relation to charges 1 and 2 and he

is not the sole and decisive witness to these charges. The panel has already heard from

a direct eye witness to the events and to a witness who had the matters reported to him

by that eye witness. Mrs Thompson is neither present nor represented and would

therefore not be in a position to cross-examine the witness or assess his demeanour. In

the circumstances, the panel is of the view that it would be practical and fair to have Mr

3’s evidence adduced by telephone. The panel was satisfied that Mrs Thompson would

not suffer prejudice by Mr 3’s evidence being heard in this manner.

It was recognised that by allowing Mr 3 to give evidence by telephone, the panel would

not have an opportunity to assess his physical demeanour. Nevertheless, the panel was

satisfied that any apparent unfairness that this presented could be dealt with by the

panel deciding what weight to attach to the evidence of Mr 3. The panel considered that

hearing evidence from Mr 3 by telephone, although not desirable, would allow for his

evidence to be tested. The panel would be able to put any questions it considered

relevant to him and hear his responses and the manner and tone in which his evidence

was delivered.

The panel has accordingly determined to allow the application for Mr 3 to give evidence

by telephone.

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Background:

The incidents giving rise to the charges are alleged to have occurred when Mrs

Thompson was employed by NHS Ayrshire and Arran as a Registered Mental Health

Nurse on Dunure Ward (the Ward) at Ailsa Hospital. The Ward is a 15 bedded Acute

Admission Organic Assessment Unit for Elderly Mental Health.

On 16 October 2015, Mrs Thompson was on duty on the day shift with Ms 1, who was a

Staff Nurse, and a Nursing Assistant. There were six patients on the ward at that time.

The panel heard that as it had not been pre-determined who was to be the Nurse in

Charge, it was agreed that, in line with normal practice on the Ward, Mrs Thompson

would assume that role as she had been qualified longer than Ms 1. As Nurse in

Charge, Mrs Thompson was responsible for delegating duties.

The panel heard that Ms 1 carried out the morning and lunch time medication rounds

and Mrs Thompson carried out the evening medication round at 1800 hours. It is

alleged that Mrs Thompson left the treatment room and medication trolley kept therein

unlocked and / or unattended. As a result, Patient A was able to enter the treatment

room and remove a box of paracetamol from the medication trolley. The panel heard

that the medication trolley was normally kept locked and chained to the wall inside the

locked treatment room when not in use.

Ms 1 and subsequently Mrs Thompson entered the treatment room while Patient A was

present and the paracetamol was removed from Patient A and returned to the

medication trolley which was subsequently locked.

On discovering that Patient A had accessed medication, it is alleged that Mrs Thompson

failed in her duty to inform the duty doctor; complete a Datix form; carry out MEWS

observations; make and entry in Patient’s FACE records; and thereafter handover the

incident to the nightshift staff.

The panel heard that Patient A did not appear to have suffered any ill effects as a result

of the incident.

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Nine days later, on 25 October 2015, whilst discussing an unrelated matter, Ms 1 raised

the circumstances surrounding the incident with Mr 2, an Acting Senior Charge Nurse.

Mr 2 met with Mrs Thompson on 27 October 2015 to complete details of a formal action

plan in relation to unrelated matters and he asked her if there were any problems arising

with the evening medication round on 16 October 2015. During that conversation, Mrs

Thompson admitted that she had left the medication trolley open and that Patient A had

taken some medication but that he had been searched and the medication removed

from the pocket of his dressing gown. In light of the allegations, Mrs Thompson and Ms

1 were suspended.

Mrs Thompson attended an investigatory meeting on 4 December 2015. The matter

was progressed to a disciplinary hearing which was scheduled for 5 February 2016.

However, Mrs Thompson resigned before the disciplinary hearing could take place.

Decision and reasons on the findings of fact:

In reaching its decision on the charges, the panel has taken account of all of the

evidence before it, both oral and documentary. It has also listened carefully to the

submissions of Mr Segovia, on behalf of the NMC.

The panel accepted the advice of the legal assessor who advised that the onus is on

the NMC to prove the charges and 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 is more likely than not that the incidents occurred as alleged.

The panel heard oral evidence from three witnesses called on behalf of the NMC. Their

positions at the time of the allegations are as follows:

Ms 1, a Staff Nurse on Dunure Ward;

Mr 2, an Acting Senior Charge Nurse on Dunure Ward;

Mr 3, a Clinical Nurse Manager for Forensic and Rehab services (by telephone).

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The panel found Ms 1 to be a credible witness. Whilst it noted some variation in her

account of events between reporting what she had witnessed to Mr 2, the evidence in

her NMC statement, and her oral evidence, the panel was satisfied that she remained

consistent in her account of the key factors which she was able to clearly express.

The panel found Mr 2 to be credible witness who was consistent in his account of

events and was careful to only speak about matters relevant to the charges.

The panel found Mr 3 to be a credible witness. He undertook the internal investigation

into the allegations against Mrs Thompson and he had a strong professional and clear

view about what should have happened in such circumstances.

The panel has drawn no adverse inference from the non-attendance of Mrs Thompson.

It has considered the charges separately and has reached the following findings:

1. Whilst carrying out the evening medication round, left the medication

trolley and/or treatment room on Dunure Ward unlocked and/or unattended,

resulting in medication being accessed by Patient A;

This charge is found proved

In considering this charge, the panel noted that it was specifically restricted to Patient A

having ‘accessed’ medication. The panel accepted the legal assessor’s advice that it did

not require to find that Patient A had taken or ingested any medication, merely that he

had physical access to it.

The panel had regard to Ms 1’s evidence which was that Mrs Thompson had

undertaken responsibility for the evening medication round and was the named nurse

for the six patients on the Ward. Ms 1 also told the panel that when Mrs Thompson was

undertaking the evening medication round, Ms 1 was dealing with an admission which

had been delegated to her by Mrs Thompson as Nurse in Charge. Ms 1 said while she

was at the filing cabinet in the duty room dealing with the admission, she noticed Patient

A standing near to the entrance of the treatment room. Ms 1 was clear that the

treatment room door was unlocked and propped open with an object which she thought

was a chair.

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Ms 1’s evidence was that as Patient A could be unpredictable she decided to see if she

could redirect him. She said that as she approached Patient A he entered the treatment

room and she followed him in. At that point she realised that there was no one else in

the treatment room and that Mrs Thompson had left both the treatment room and

medication trolley inside the treatment room unlocked and unattended. In her oral

evidence Ms 1 stated that she saw Patient A lifting a box of paracetamol out of the

medication trolley which he attempted to put it in his pocket. Patient A was dressed in

his night clothes and dressing gown, and when asked by Ms 1 he gave her the

medication. Ms 1 was certain that once she became aware of Patient A outside the

treatment room he had not left her sight, therefore she was confident that he had taken

only one box of paracetamol, no other medication and had not ingested any medication.

Ms 1 said that immediately thereafter, Mrs Thompson entered the treatment room and

Ms 1 explained to her what had happened. Ms 1 stated that she was unaware as to why

the treatment room and medication trolley had been left both unlocked and unattended

and that Mrs Thompson did not offer an explanation as to why this was the case. Ms 1

said that Mrs Thompson asked Patient A if she could check his dressing gown pockets

to make sure he had not taken any other medication and he allowed her to do so

willingly. Ms 1 confirmed that no other medication was found on Patient A’s person. She

said she and Mrs Thompson did not discuss the matter further and she left the

treatment room at that point to continue with the admission. It was her evidence that

Mrs Thompson redirected Patient A out of the treatment room at that point.

The panel also had regard to the evidence of Mr 2 which was that when he was

discussing an unrelated matter with Ms 1 on 25 October 2015, she brought the incident

to his attention. Mr 2 said that when he raised the matter with Mrs Thompson on 27

October 2015 she stated, “Ok, so I did leave the trolley open” and admitted that Patient

A had taken some medication out of the trolley, but that he had been searched and the

medication recovered from a pocket in his dressing gown.

The panel accepted the evidence of Ms 1 and Mr 2.

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In light of the evidence before it, the panel was satisfied that Mrs Thompson had

responsibility for the evening medication round on 16 October 2015. It was further

satisfied that whilst carrying out the evening medication round, she left the medication

trolley and treatment room on Dunure Ward unlocked and unattended, resulting in

medication being accessed by Patient A. This charge is therefore found proved.

2. Upon discovering that Patient A had accessed medication, failed to do one

or more of the following:

In considering this charge, the panel accepted the advice of the legal assessor that it

first had to establish whether Mrs Thompson had a requirement or an obligation to carry

out one or more of the tasks set out in sub charges (a)-(e) and, secondly, whether she

failed to do so. The fact there may have been a shared responsibility between Mrs

Thompson and Ms 1 did not abdicate Mrs Thompson of her personal responsibility and

obligation to carry out any required tasks.

(a) contact the duty doctor;

(c) carry out MEWS observations on Patient A;

These parts of the charge are found not proved

The panel had regard to Ms 1’s evidence which was that when she saw Patient A for

the instance that she witnessed, he was not outside her sight at any time and she was

sure he had not ingested any medication. She stated that as she was dealing with an

admission to the Ward, she did not see Patient A again for the rest of the shift and any

subsequent actions in respect of Patient A would have been Mrs Thompson’s

responsibility as his named nurse and the Nurse in Charge.

The panel also had regard to Mr 2’s evidence which was that the information that had

been passed to him from Ms 1 was that she had gone to look for Mrs Thompson in the

treatment room and that she had found Patient A by the unlocked and unattended

medication trolley with medication in his pocket. He stated that there was no indication

as to how long Patient A had been there or whether he had taken any other medication.

Mr 2 further stated that there were various medications on the trolley at that time in both

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liquid and tablet form which could have been fatal had they been ingested when not

prescribed. Mr 2 stated that had no medications been ingested, he would still have

instituted MEWS observations and contacted the duty doctor. However, he accepted

that this was a matter of professional judgment depending upon the particular

circumstances that existed.

Mr 3 told the panel that he had established that the medication trolley could have been

left unlocked and unattended for between two to 10 minutes, therefore it should not

have been assumed that Patient A had not had the opportunity to ingest other

medications. In such circumstances, he said that the page holder, who was normally a

band 6 nurse, and could often be the conduit with the duty doctor, should have been

contacted for advice and MEWS observations undertaken for Patient A.

The panel accepted the evidence of Ms 1 that during the time when she had Patient A

in her sight, he did not ingest any medication. It had insufficient evidence to safely reach

any view on the length of time that the treatment room and medication trolley had been

left unlocked an unattended. It could not therefore reach any safe conclusion whether

there had been other opportunities for Patient A to access the medication on the trolley.

In the absence of any evidence of Patient A ingesting any medication from the trolley,

the panel concluded there was no clear requirement on Mrs Thompson to contact the

duty doctor or carry out MEWS observations on Patient A, and that it was a matter for

professional judgment in the particular circumstances. These parts of the charge are

therefore found not proved.

(b) complete a Datix incident form;

(d) make an entry on Patient A’s FACE records;

These parts of the charge are found proved

The panel had regard to Ms 1’s evidence which was that as named nurse that day for

Patient A and the Nurse in Charge, it was Mrs Thompson’s responsibility to make a

record of any incident or near miss involving Patient A. Ms 1 told the panel that any

incidents or near misses should always be recorded on the electronic reporting system

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(Datix). Ms 1 explained that as she was dealing with the admission to the Ward, she did

not follow up the incident with Mrs Thompson, but it was her assumption that Mrs

Thompson would have completed a Datix incident form. She said that with hindsight,

she wished she had completed the form herself or had a conversation about this with

Mrs Thompson and that there had been a lack of communication between them

surrounding the matter.

The panel also had regard to Mr 2’s evidence which was that the treatment room and

medication trolley should not have been left unlocked or unattended at any time and

that such an incident necessitated the requirement for a Datix to have been completed.

He confirmed that even though Patient A did not appear to have suffered any ill effects

as a result of the incident, a Datix should nevertheless have been completed as, if

nothing else; there were lessons to be learned from the incident. It was his evidence

that as Mrs Thompson was the nurse responsible for leaving the treatment room and

medication trolley unlocked and unattended, it would have generally been her

responsibility to make a record of such an incident.

In addition, the panel had regard to the evidence of Mr 3. He told the panel that even if

the individual who had witnessed Patient A access non-prescribed medication had

absolute confidence that he had not ingested that medication or any other medication, it

was his expectation that as a baseline the matter should have been reported to a senior

member of staff and a Datix completed. In addition it should been recorded in the

patient’s electronic notes(FACE) that he had been discovered in a non-patient area and

that he had to be escorted from the treatment room to his room.

The panel heard that Patient A was cognitively impaired; he was disoriented to place,

time and person and had a tendency to wander.

For the reasons set out in charge 1, the panel is satisfied that Patient A had accessed

the medication trolley on at least one occasion. Whilst it accepted that he did not ingest

any medication on this occasion, it also accepted that was a potentially serious incident

and constituted a near miss. Therefore the panel was satisfied that this should have

been recorded on Patient A’s FACE records and a Datix incident form completed. The

panel was further satisfied that as named nurse for Patient A and Nurse in Charge, Mrs

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Thompson had a responsibility to complete a Datix incident form of the incident and

make an entry on Patient A’s FACE records and that she failed in her responsibility and

obligation to do so. These parts of the charge are therefore found proved.

(e) handover the incident to the on-coming shift.


The panel had regard to Ms 1’s evidence which was that she could not recall who had

performed the handover for the six patients to the oncoming nightshift staff, but that she

could recall having handed over the patient who had been newly admitted.

The panel also had regard to Mr 2’s evidence which was that handovers were done

both verbally and in writing and on this occasion it was his belief that Ms 1 had given the

handover to the oncoming nightshift staff. His belief was reinforced as the oncoming

nightshift staff nurse had made a statement to that effect as part of the internal

investigation. He confirmed that the incident with Patient A had not been mentioned in

the handover.

Mr 3’s evidence was that, in line with best practice, Mrs Thompson should have been

the nurse to give the handover to the oncoming shift as she was the nurse who had

most knowledge of the patients, and that Ms 1 should have then handed over the new

admission. Mr 3 told the panel that the oncoming staff should have been made aware

that Patient A had accessed the treatment room, accessed medication and that he had

to be escorted from the treatment room. It was his evidence that it was dangerous that

the oncoming shift were not given such information, as it was the most significant event

of that shift.

The panel accepted the evidence of the NMC witnesses.

The panel was satisfied that, even though it was Ms 1 who had given the handover to

the oncoming shift, Mrs Thompson and Ms 1 had a shared responsibility to give the

handover. This included ensuring that there was a full handover of all information

relating to any incidents or near misses involving Patient A.

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Mrs Thompson therefore had a personal responsibility and obligation to ensure that this

particular incident was included in the handover and she failed to do so. This part of the

charge is therefore found proved.

Decision and reasons on misconduct and impairment:

The panel now has to consider whether the facts found proved amount to misconduct

and if so, whether Mrs Thompson’s fitness to practise is currently impaired by reason of

that misconduct. The panel is aware that it should approach the matter of impairment as

a two stage process. First, the panel must consider whether the facts found proved

amount to misconduct, and, if so, it must then go on to consider whether such

misconduct amounts to impaired fitness to practise. The NMC has defined fitness to

practise as a registrant’s suitability to remain on the register without restriction.

In reaching its decision, the panel has taken account of all the evidence before it, both

oral and documentary. The panel has also listened carefully to the submissions of Mr

Segovia, on behalf of the NMC.

Mr Segovia made reference to the case of Roylance v General Medical Council (No 2)

[2000] 1 A.C. 311 in which misconduct is defined as “a word of general effect, involving

some act or omission which falls short of what would be proper in the circumstances.

The standard of propriety may often be found by reference to the rules and standards

ordinarily required to be followed by a [medical] practitioner in the particular

circumstances”. In that case Lord Clyde went on to state “It is not any professional

misconduct which will qualify. The professional misconduct must be serious.”

It was Mr Segovia’s submission that Mrs Thompson’s actions, when taken in the round,

fell short of the standards expected of a registered nurse. He drew the panel’s attention

to a number of specific sections of The Code: Professional standards of practice and

behaviour for nurses and midwives (2015) (the Code) which he submitted the panel

may consider relevant in this case.

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In relation to current impairment, Mr Segovia referred the panel to the case of Council

for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant

[2011] EWHC 927 (Admin) and, in particular, to paragraph 74 which states:

“In determining whether a practitioner’s fitness to practise is impaired by reason of

misconduct, the relevant panel should generally consider not only whether the

practitioner continues to present a risk to members of the public in his or her current

role, but also whether 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 particular circumstances.”

Mr Segovia also highlighted the observations of Mrs Justice Cox in the case of Grant. In

paragraph 76 she cites the approach of Dame Janet Smith in the Fifth Shipman Enquiry

to the following effect:

“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 in the future to act 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 medical

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 medical profession; and/or

d. ...”

In terms of Mrs Thompson’s past actions, it was Mr Segovia’s submission that given

that this was a potentially serious incident which constituted a near miss; Mrs

Thompson had acted so as to put Patient A at risk of harm. He added that if the panel

took the view that Mrs Thompson’s actions amounted to misconduct and a breach of the

Code it may also consider that she had breached the fundamental tenets of the

profession. In terms of the reputation of the profession, Mr Segovia submitted that Mrs

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Thompson’s actions, on balance, had the potential to bring the reputation of the

profession into disrepute.

Mr Segovia also drew the panel’s attention to paragraph 116 in the case of Grant, which

states:

“When considering whether or not fitness to practise is currently impaired, the level of

insight shown by the practitioner is central to a proper determination of that issue…”

It was Mr Segovia’s submission that in terms of the future, the panel may consider that,

as this was a single instance, this was a case where it may be less relevant for Mrs

Thompson to have demonstrated remediation, and more appropriate for her to have

demonstrated insight and given an assurance that her conduct would not recur.

However, in the absence of any information from Mrs Thompson, there was nothing to

assure the panel that the risk of repetition did not remain.

The panel heard and accepted the advice of the legal assessor who made reference to

the cases of Roylance and Calhaem v General Medical Council [2007] EWHC 2606

(Admin) in relation to misconduct. In relation to impairment, he referred to the cases of

Grant and Cohen v General Medical Council [2008] EWHC 581 (Admin) and advised of

the various factors to take into account when determining the matters of misconduct and

impairment.

The panel first considered whether the facts found proved amount to misconduct. There

is no burden or standard of proof. This is a matter for the panel to determine, exercising

its own professional judgment.

The panel had regard to the terms of the Code which was in force during the relevant

period. By virtue of her actions, the panel is satisfied that Mrs Thompson has breached

the following provisions of the Code:

Practise effectively

You assess need and deliver or advise on treatment, or give help (including

preventative or rehabilitative care) without too much delay and to the best of your

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abilities, on the basis of the best evidence available and best practice. You

communicate effectively, keeping clear and accurate records and sharing skills,

knowledge and experience where appropriate. You reflect and act on any feedback you

receive to improve your practice.

8 Work cooperatively

To achieve this, you must:

8.2 maintain effective communication with colleagues

8.5 work with colleagues to preserve the safety of those receiving care

8.6 share information to identify and reduce risk,

10 Keep clear and accurate records relevant to your practice

This includes but is not limited to patient records. It includes all records that are relevant

to your scope of practice.


10.1 complete all records at the time or as soon as possible after an event, recording if

the notes are written some time after the event

10.2 identify any risks or problems that have arisen and the steps taken to deal with

them, so that colleagues who use the records have all the information they need

Preserve safety

You make sure that patient and public safety is protected. You work within the limits of

your competence, exercising your professional ‘duty of candour’ and raising concerns

immediately whenever you come across situations that put patients or public safety at

risk. You take necessary action to deal with any concerns where appropriate.

16.4 acknowledge and act on all concerns raised to you, investigating, escalating or

dealing with those concerns where it is appropriate for you to do so

17 Raise concerns immediately if you believe a person is vulnerable or at risk and

needs extra support and protection


17.1 take all reasonable steps to protect people who are vulnerable or at risk from harm,

neglect or abuse

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19 Be aware of, and reduce as far as possible, any potential for harm associated

with your practice


19.1 take measures to reduce as far as possible, the likelihood of mistakes, near

misses, harm and the effect of harm if it takes place

19.2 take account of current evidence, knowledge and developments in reducing

mistakes and the effect of them and the impact of human factors and system failures

(see the note below)

19.4 take all reasonable personal precautions necessary to avoid any potential health

risks to colleagues, people receiving care and the public.

Promote professionalism and trust

You uphold the reputation of your profession at all times. You should display a personal

commitment to the standards of practice and behaviour set out in the Code. You should

be a model of integrity and leadership for others to aspire to. This should lead to trust

and confidence in the profession from patients, people receiving care, other healthcare

professionals and the public.

20 Uphold the reputation of your profession at all times


20.1 keep to and uphold the standards and values set out in the Code

The panel is mindful that not all acts or omissions falling short of what would be proper

in the circumstances, and not every breach of the Code would necessarily be

sufficiently serious as to result in a finding of misconduct. However, in this case Mrs

Thompson’s actions in leaving medication unlocked and unattended could have resulted

in fatal consequences for both Patient A and the other patients in her care. The panel

heard that Patient A was cognitively impaired and was disoriented to place, time and

person. He was able to gain access to a variety of medications which could have been

fatal had they been ingested when not prescribed. The patients on the Ward, including

Patient A, were highly vulnerable and should never have been placed in a position

where they could have had unrestricted access to such medications.

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Mrs Thompson’s actions in not only leaving the treatment room door wedged open, but

also leaving the medication trolley unlocked and unattended in that treatment room,

together with the failure to record the incident with Patient A and hand it over to the

oncoming shift, were compounded by the lack of any explanation as to why she did this

either during the internal investigation or subsequently. Such acts and omissions, in the

panel’s view, fell seriously short of the conduct and standards expected of a registered

nurse.

The panel is therefore satisfied that, both when considered individually and when taken

in the round, Mrs Thompson’s acts and omissions were of such a serious nature as to

amount to misconduct.

Having found that Mrs Thompson’s acts and omissions amounted to misconduct, the

panel went on to consider whether as a result of that misconduct, her fitness to practise

is currently impaired. There is no burden or standard of proof. In reaching its decision,

the panel has exercised its own professional judgment bearing in mind the wider public

interest which includes protection of the public, maintaining public confidence in the

profession and declaring and upholding proper standards of conduct and behaviour.

In so doing, the panel had regard to the observations of Mrs Justice Cox in paragraph

76 of the case of Grant. The panel has found that by virtue of her acts and omissions,

Mrs Thompson has in the past put a number of patients and, in particular, Patient A at

unwarranted risk of harm. In so doing she has brought the profession into disrepute and

breached fundamental tenets of the nursing profession.

In respect of Mrs Thompson’s future conduct, the panel had regard to the guidance set

out in the case of Cohen, namely whether the misconduct is easily remediable, whether

it has been remedied and whether it is highly unlikely to be repeated. In addition, the

panel bore in mind that the level of insight shown by a registrant is central to the issue

of current impairment.

In considering the level of insight demonstrated by Mrs Thompson, the panel had regard

to the notes of the internal investigation meeting on 4 December 2015, in which Mrs

Thompson confirmed that she potentially put the welfare of her patients and colleagues

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at risk. She acknowledged that she had breached NHS Ayrshire and Arran policies

regarding record keeping and the Code and that the implications of such were serious,

and she understood that her actions were unacceptable. However, she went on to say

that she did not consider the matter to be serious given that nothing had happened to

Patient A and therefore there was no necessity to report it to the Senior Charge Nurse

(SCN).

The panel is of the view that, taking account of all the information before it, there

appears to be an indicator of some insight on the part of Mrs Thompson. However, the

panel remained concerned that, at the time of the internal investigation in December

2015, there was a failure by Mrs Thompson to recognise the severity of her acts and

omissions and their potential consequences. Given that Mrs Thompson has not

engaged with the NMC, there is no evidence of further insight, or any recognition about

her actions. In addition, there is no information about Mrs Thompson’s practice since

she resigned from her post prior to her disciplinary hearing, nor is there any evidence of

remediation or relevant training.

The incident occurred over the course of one shift and, in the panel’s view, the

misconduct identified is potentially remediable. However, until such time as Mrs

Thompson is able to demonstrate sufficient insight into the severity of her acts and

omissions and their potential consequences, the panel is of the view, that she cannot

begin to take the appropriate steps to remediate her misconduct. In the absence of

sufficient insight and any evidence of remediation, the panel cannot be satisfied that

Mrs Thompson’s misconduct is highly unlikely to be repeated which consequently

presents a continuing risk of harm to patients. The panel has therefore determined that

a finding of impairment is necessary on the grounds of public protection.

The panel also took into account the wider public interest considerations in this case. In

so doing, the panel considered whether 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 particular circumstances of this case. The panel has

no doubt that the public would be concerned that an experienced registered nurse had

left a treatment room and medication trolley unlocked and unattended thereby allowing

highly vulnerable patients unrestricted access to medications which could have been

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fatal had they been ingested when not prescribed. In these circumstances, the panel is

satisfied that this is a case where the public’s trust and confidence in the nursing

profession and the regulatory process would be seriously undermined if a finding of

impairment were not made. The panel has therefore determined that a finding of

impairment is also necessary in the public interest.

In all the circumstances, the panel has concluded that Mrs Thompson’s fitness to

practise is currently impaired by reason of her misconduct.

Decision and reasons on sanction:

Having found Mrs Thompson’s fitness to practise to be currently impaired, the panel

went on to consider what sanction, if any, was appropriate and proportionate.

In reaching its decision the panel had regard to all of the evidence before it, both oral

and documentary. The panel also listened carefully to the submissions of Mr Segovia,

on behalf of the NMC.

Mr Segovia did not recommend any particular sanction. He outlined what he submitted

were the factors the panel could take into account at this stage in proceedings. Mr

Segovia informed the panel that it could not be said that were no other regulatory

proceedings in respect of Mrs Thompson. He explained that following her resignation

from NHS Ayrshire and Arran, she took up employment with another employer, during

which time a further issue arose which had been referred to the NMC. The NMC Case

Examiners have decided that there is a case for Mrs Thompson to answer and a

substantive hearing has been provisionally scheduled for August 2017. Mr Segovia

submitted, however, that the panel must disregard this matter when considering

sanction, as the issue is, at this stage, simply an allegation.

The panel accepted the advice of the legal assessor who advised the panel that it must

have regard to the NMC’s Indicative Sanctions Guidance (ISG) and consider each

available sanction starting with the least restrictive. He advised that the panel must keep

at the forefront of its considerations the public interest which includes protection of the

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public, maintenance of public confidence in the profession, and declaring and upholding

proper standards of conduct and behaviour. He further advised the panel that it must

apply the principle of proportionality, balancing Mrs Thompson’s interests with the public

interest.

The panel has had careful regard to the ISG, whist recognising that the decision on

sanction is a matter for its own professional judgement. The panel is aware that the

purpose of a sanction is not to be punitive although it may have a punitive effect. The

panel has borne in mind that any sanction it imposes must be reasonable, proportionate

and appropriate and it must balance the public interest with Mrs Thompson’s own

interests.

Throughout its deliberations, the panel has kept at the forefront of its considerations the

public interest, which includes protection of the public, the maintenance of public

confidence in the profession and the regulatory process, and the declaring and

upholding of proper standards of conduct and behaviour.

The panel took account of the aggravating and mitigating and factors in this case. The

panel identified the following as aggravating factors:

the potential for serious harm to highly vulnerable patients and, in particular,

Patient A;

the seriousness of Mrs Thompson’s acts and omissions which constituted a near

miss;

the limited insight demonstrated by Mrs Thompson;

there is an absence of evidence of remediation and retraining; and

the ongoing risk of repetition.

The panel identified the following as mitigating factors:

a single instance of misconduct; and

no patient harm arose out of Mrs Thompson’s misconduct.

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The panel is aware that under Article 29 of the Nursing and Midwifery Order 2001, it can

impose any one of the following sanctions:

take no further action;

make a caution order for a period of one to five years;

make a conditions of practice order for no more than three years;

make a suspension order for a maximum of one year; or

make a striking-off order.

The panel first considered whether to take no action but concluded that this would be

wholly inappropriate in view of the serious nature of Mrs Thompson’s misconduct and

the potential for patient harm. The panel concluded that taking no action would be

insufficient to protect the public. In addition, taking no action would not satisfy the public

interest as it would seriously undermine public confidence in the profession and the

regulatory process.

The panel next considered whether a caution order would be an appropriate and

proportionate sanction to impose. The panel is aware that this sanction “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”. Given the seriousness of Mrs Thompson’s misconduct, this is a case

which cannot be said to sit at the lower end of the spectrum of impaired fitness to

practise. Furthermore, the panel has identified a risk of repetition which gives rise to an

ongoing risk of harm to patients. In these circumstances, the panel concluded that a

caution order would be neither appropriate nor proportionate as it would allow Mrs

Thompson to practise unrestricted and, as such, would be insufficient to protect the

public and satisfy the public interest.

The panel then went on to consider whether a conditions of practice order would be

appropriate and proportionate. The panel is mindful that any conditions imposed must

be relevant, proportionate, measurable and workable. They must be sufficient to protect

the public and satisfy the wider public interest whilst addressing the nature and scope of

the misconduct identified. In this case, Mrs Thompson has put at risk the health and

wellbeing of a highly vulnerable patient. She did not record or communicate the incident,

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which only came to light as a result of Ms 1 disclosing the circumstances surrounding

the incident to Mr 2. Mrs Thompson’s actions were compounded by the fact that she

showed limited insight into her actions and failed to recognise the seriousness of them

or their potential consequences. Further, given her lack of engagement with the NMC

process, the panel is not satisfied that she would be willing to respond positively to any

potential conditions of practice. For all these reasons, the panel concluded that there

were no workable or practicable conditions of practice which could be formulated to

address the nature and scope of Mrs Thomson’s misconduct.

The panel then went on to consider whether a suspension order would be an

appropriate and proportionate sanction. In reaching its decision, the panel balanced the

mitigating and aggravating factors in this case. The panel has no doubt about the

serious nature of Mrs Thompson’s misconduct which could have foreseeably resulted in

serious harm to the highly vulnerable patients in her care. That being said, however, the

incident was isolated and occurred during the course of one shift and despite the

potential for harm, no actual harm was caused to Patient A, or any other patients.

Taking all of the above into account, the panel was satisfied that, in the particular

circumstances of this case, the most appropriate and proportionate sanction would be a

suspension order. Such a sanction would serve to protect the public and satisfy the

wider public interest.

The panel was satisfied that a suspension order for a period of six months would serve

to mark the seriousness of Mrs Thompson’s misconduct whilst affording her the

opportunity to fully reflect on, and to demonstrate full insight into, the seriousness of her

failures and potential consequences both in relation to leaving medication unattended

and failing to properly and fully document and communicate with others about the

incident with Patient A. Such a sanction would also serve to mark the importance of

maintaining public confidence in the profession and send to the public and the

profession a clear message about the standards expected of a registered nurse.

The panel was aware that a suspension order would prevent Mrs Thompson from

working as a registered nurse and, as a consequence, this may have a financial impact

on her. Nevertheless, in applying the principle of proportionality, the panel has

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determined that the need to protect the public and satisfy the wider public interest

outweighs Mrs Thompson’s own interests.

The panel measured the appropriateness of a suspension order by giving consideration

to a striking-off order. However, the panel determined that Mrs Thompson’s misconduct

was not so serious as to be fundamentally incompatible with her continued registration.

The panel considered that a striking-off order would be disproportionate given that it has

identified a lesser sanction that would be sufficient to protect the public and the wider

public interest.

The suspension order will be reviewed shortly before its expiry or earlier if Mrs

Thompson or the NMC requests it. This panel was of the view that any panel reviewing

this order would be significantly assisted by the following:

Mrs Thompson’s attendance at the review hearing or engagement by alternative

methods;

evidence of Mrs Thompson having fully reflected on, and demonstrated full

insight into, the seriousness of her failures and potential consequences both in

relation to leaving medication unattended and failing to properly and fully

document and communicate with others about the incident with Patient A.; and

up to date references and testimonials from any work whether paid or unpaid.

Unless subject to an appeal, the suspension order will take effect 28 days from the date

this decision is deemed to have been served upon Mrs Thompson.

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Decision and reasons on interim order:

The panel now has to consider whether an interim order should be imposed. The panel

considered the submissions of Mr Segovia, on behalf of the NMC, who sought an

interim suspension order for a period of 18 months on the grounds of public protection

and in the public interest to cover the 28 day appeal period and to allow time for the

possibility of any appeal to be lodged and determined.

The panel accepted the advice of the legal assessor who advised that in accordance

with Article 31(2) of the Nursing and Midwifery Order 2001, it may make an interim order

on any one of three grounds, namely, if it is satisfied that such an order is necessary for

the protection of the public, is otherwise in the public interest, or is in Mrs Thompson’s

own interests.

The panel took account of the guidance issued to panels by the NMC when considering

interim orders and the appropriate test as set out at Article 31(2) of the Nursing and

Midwifery Order 2001. The panel is satisfied that an interim suspension order is

necessary for the protection of the public and is in the public interest. In reaching its

decision, the panel has had regard to the seriousness of its findings and the detailed

reasons outlined in its decision to impose a substantive suspension order. To do

otherwise would be inconsistent with its decision to impose a substantive suspension

order. The period of the interim suspension order is for 18 months to allow for the

possibility of an appeal to be lodged and determined.

If no appeal is made then the interim suspension order will be replaced by the

substantive suspension order 28 days from the date this decision is deemed to have

been served upon Mrs Thompson. If Mrs Thompson does lodge an appeal, the interim

suspension order will continue to run for the period imposed or until the appeal is

decided.

This decision will be confirmed to Mrs Thompson in writing.

That concludes this determination.

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