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Conduct and Competence Committee Substantive Hearing 17 – 20 October 2016

Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant Nurse: Jennifer Jones NMC PIN: 75I9047E

Part(s) of the register: RN3 – Registered Nurse (Sub part 1)

Mental Health Nurse – 27 July 1977

Area of Registered Address: England

Type of Case: Misconduct

Panel Members: Ilana Tessler(Chair Lay member)

Mary Jane Scattergood (Registrant member)

Cynthia Mendelsohn (Lay member)

Legal Assessor: Michael Epstein

Panel Secretary: Rob James Registrant: Mrs Jones not present and not represented

Nursing and Midwifery Council: Represented by Bo Kay Fung, counsel,

instructed by NMC Regulatory Legal Team.

Facts proved: 1, 2, 3b, 3c, 3d, 3e, 3f, 3g, 4, 5, 6, 7, 8, 9

Facts proved by admission: 2, 8, 9

Facts not proved: 3a

Fitness to practise: Impaired

Sanction: Striking off order Interim Order: Interim suspension order (18 months)

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Details of charge:

That you, a registered nurse:

1. On 4 April 2013 allowed Patient A to take away Clozapine medication not prescribed

or labelled for them.

2. On or shortly after 4 April 2013, you failed to respond adequately to the incident in

charge 1 above, in that you did not;

a) Report the incident to your team manager.

b) Complete an incident form.

c) Raise a safeguarding alert.

d) Document the incident or the actions you took to re-obtain the medication on

‘Rio’.

e) Comply with the requirements of the Trust’s Lone Worker Policy when attempting

to obtain the Medication back from the patient.

3. Did not adequately manage the Clozapine clinic in 2013, including that;

a) You stored blood samples in fridges for longer than the permitted two days

b) Until around April 2013, you pre-labelled bottles for blood samples.

c) You did not ensure adequate checks were made when entering client details into

PocHi, including that you entered details manually rather than scanning the bar

codes on blood sample bottles.

d) Patient B’s name was written on a chitty for a blood test result dated 19 July

2013, when the chitty contained the identification number of a different patient.

e) On 19 July 2013 Patient B was supplied Clozapine without a blood test result.

f) On 23 July 2013 blood test results were processed which included the patient

identification code for Patient D, who was de-registered for Clozapine medication

(who had the same initials as Patient C).

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g) On 23July 2013 Patient C was supplied Clozapine without a blood test result.

4. On 26 July 2013 you ran repeat tests on out of date blood samples instead of

obtaining fresh samples from Patient B and/or Patient C.

5. Your actions in charge 4 above were dishonest in that you wished to conceal the

error in charges 3(e) and/or 3(g) above.

6. On or around November 2014 told Ms 3 that you had not been referred to the

Nursing & Midwifery Council (“NMC”) in relation to the investigation leading to your

dismissal by the Cornwall Partnership NS Foundation Trust (“the Trust”).

7. Your actions in charge 6, above, were dishonest in that you intended to conceal that

you had been referred to the NMC.

8. On 10 June 2015 signed an application form for maternity leave cover at Bosence

Farm Community Ltd stating that your reason for leaving the Trust was a “personal

dispute over clozaril clinic”.

9. Your actions in charge 8, above, were dishonest in that you intended to conceal that

you had been dismissed from the Trust.

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

misconduct.

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Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Mrs Jones was not in

attendance and that written notice of this hearing had been sent to Mrs Jones’

registered address by recorded delivery and by first class post on 7 September 2016.

Royal Mail “Track and Trace” documentation confirmed that the notice of hearing was

sent to Mrs Jones’ registered address by recorded delivery on that date.

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

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

proceed in her absence. The “Track and Trace” documentation also indicated that the

notice was received by Mrs Jones on 8 September 2016. Ms Fung submitted the 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”).

The panel accepted the advice of the legal assessor.

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

been served with notice of this hearing in accordance with the requirements of Rules 11

and 34. It noted that the rules do not require delivery and that it is the responsibility of

any registrant to maintain an effective and up-to-date registered address.

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...”

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Ms Fung invited the panel to proceed in the absence of Mrs Jones on the basis that she

had voluntarily absented herself. Ms Fung referred the panel to correspondence

between Mrs Jones and the NMC dated 13 October 2016 in which Mrs Jones clarified

she would not be attending the hearing and did not wish to attend by video or

telephone.

The panel accepted the advice of the legal assessor. 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” as referred

to in the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5. The panel further

noted the case of R (on the application of Raheem) v Nursing and Midwifery Council

[2010] EWHC 2549 (Admin) and the ruling of Mr Justice Holman that:

“...reference by committees or tribunals such as this, or indeed judges, to

exercising the discretion to proceed in the person's absence "with the utmost

caution" is much more than mere lip service to a phrase used by Lord Bingham

of Cornhill. If it is the law that in this sort of situation a committee or tribunal

should exercise its discretion "with the utmost care and caution", it is extremely

important that the committee or tribunal in question demonstrates by its language

(even though, of course, it need not use those precise words) that it appreciates

that the discretion which it is exercising is one that requires to be exercised with

that degree of care and caution.”

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

decision, the panel has considered the submissions of the case presenter, the

correspondence between Mrs Jones and the NMC and the advice of the legal assessor.

It has had particular regard to the factors set out in the decision of Jones. The panel

has had regard to the overall interests of justice and fairness to all parties. It noted that:

• no application for an adjournment has been made by Mrs Jones;

• Mrs Jones has clarified that she does not wish to attend by telephone or video;

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• there is no reason to suppose that adjourning would secure her attendance at

some future date;

• two witnesses have attended today to give live evidence, others are due to

attend;

• not proceeding may inconvenience the witnesses, their employers and, for those

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

• the charges relate to events that occurred at different times, the earliest being in

2013;

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

recall events;

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

There is some disadvantage to Mrs Jones in proceeding in her absence. 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 Jones’ decisions to absent herself from the hearing, waive her rights to attend

and/or be represented; however, the panel has noted her written response to the

allegations which it will take into account.

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

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

inference from Mrs Jones’ absence in its finding of facts.

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Decisions 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 Fung, on behalf of the NMC along

with Mrs Jones’ written response to the charges included on the Standard Directions

Form.

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 was satisfied that it was more likely than not that the

incidents occurred as alleged.

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Background The charges arose whilst Mrs Jones was employed as a Community Psychiatric Nurse

by Cornwall Partnership NHS Foundation Trust (“The Trust”). The Trust referred Mrs

Jones to the NMC following a series of failings with regard to her clinical duties that took

place between April 2013 and June 2015.

Charge 1 refers to an allegation that on 4 April 2013, Mrs Jones allowed a patient to

take away Clozapine medication not labelled or prescribed for them. It is further alleged

that Mrs Jones did not respond adequately to these alleged failings. The actions that it

is alleged Mrs Jones failed to take are listed at charge 2.

Charge 3 relates to Mrs Jones’ management of the Clozapine clinic in 2013. A series of

failings are alleged within this charge including that Mrs Jones stored blood samples in

fridges for longer than the permitted two days; until around April 2013 she pre-labelled

bottles for blood samples; did not ensure adequate checks were made when entering

client details into PocHi, a blood analyser, and that she entered details manually rather

than scanning the unique patient identifier bar code labels. Patient B’s name was written

on a chitty for a blood test result dated 19 July 2013, when the chitty contained the

unique identification number of a different patient; on 19 July 2013 Patient B was

supplied Clozapine without a valid blood test result; on 23 July 2013 blood test results

were processed which included the unique patient identification code for Patient D, who

was de-registered for Clozapine medication (who had the same initials as Patient C)

and that on 23 July 2013 Patient C was supplied Clozapine without a blood test result.

It is also alleged that on 26 July 2013, Mrs Jones ran repeat tests on out of date blood

samples instead of obtaining fresh samples from Patient B and/or Patient C.

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Following the disciplinary process that investigated these allegations, Mrs Jones was

referred to the NMC by the Trust. She was informed of the referral in a letter dated 21

August 2014.

Further, it is alleged that Mrs Jones did not inform Ms 3 on or around November 2014,

of her referral to the NMC by the Trust. Following this on 10 June 2015, it is alleged that

she signed an application form for maternity leave cover at Bosence Farm community

Ltd (“Bosence”) stating that her reason for leaving the Trust was a “personal dispute

over Clozaril clinic”. Following a disciplinary meeting relating to this issue on 6 April

2015, Mrs Jones was suspended from Bosence for gross misconduct. Her employment

with Bosence ended at the end of her contract.

In reaching its decisions on the facts, the panel took into account all the oral and

documentary evidence in this case. The panel heard oral evidence from two witnesses

called on behalf of the NMC:

• Ms 1 – Healthcare assistant at the Trust

• Ms 2 – Chief Pharmacist and Controlled Drug Accountable Officer at the Trust

The written statements of:

• Ms 4 – Investigator

• Mr 5 – Chair of disciplinary hearing

• Ms 6 – NMC Senior Case Investigation Officer – Fitness to practise

• Ms 3 – General Manager at Kenwyn Care Home

• Mr 7 – Clinical Lead – Bosence and Boswyns

were read into the record by Ms Fung.

The panel considered the evidence of Ms 1 to be a credible, reliable account of the

incidents that occurred at the Trust. The panel noted that Ms 1’s relationship with Mrs

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Jones had become strained; however it did not consider that this affected her evidence

in any way. The panel further noted Ms 1’s concern at the way that the clinic was being

run following Mrs Jones’ arrival. The panel considered that it was clear that Ms 1 was

most concerned about the well-being of the patients at the Trust and did not think that

Mrs Jones was robust enough in her checks or overall management of the clinic.

The panel considered that Ms 2 was very clear in her evidence and noted that she knew

the processes she was involved in very well. Further, it found her to be extremely

knowledgeable with regards to the procedures about which she spoke. The panel noted

that Ms 2 had not met Mrs Jones before and due to this had no reason to show bias

against Mrs Jones.

At the start of this hearing Ms Fung referred the panel to the standard directions form

which included admissions for charges 2, 8 and 9.

These were therefore announced as proved.

The panel then went on to consider the remaining charges.

The panel considered each charge and made the following findings:

Charge 1:

1. On 4 April 2013 allowed Patient A to take away Clozapine medication not

prescribed or labelled for them.

This charge is found proved.

In reaching this decision, the panel took into account the evidence of Ms 4 along with

Mrs Jones’ response to the charge

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The panel considered the witness statement of Ms 4 who said, “The registrant noticed

that Patient A picked up the wrong medication. She attempted to call Patient A on

several occasions.” Ms 4 further explained within her statement that there was no

documentation completed in relation to the error and explained how this should have

been completed together with the information that should have been recorded.

The panel further considered the investigation report following this incident. In the report

it states that “Jennie Jones acknowledges that this incident happened…”

The panel also considered Mrs Jones’ response to the allegation. She stated that she

had her back turned when Patient A had returned to the clinic and had presumed it was

another member of staff that she thought was going to give Patient A his appointment

card. She explained that what had actually happened was that Patient A had been

asked to pick up his appointment card by the staff member and after dropping his

medication had picked up another patient’s medication by mistake.

The panel noted the evidence before it, along with the consideration that Mrs Jones was

the nurse in charge of the clinic at this time and was the only Registered Nurse. Despite

Mrs Jones explanation for why Patient A was able to take away the Clozapine

medication, the panel found the charge proved.

Charge 3:

3. Did not adequately manage the Clozapine clinic in 2013, including that;

Prior to deliberating the separate heads of the charge, the panel determined whether it

was Mrs Jones’ duty to manage the Clozapine Clinic at this time. It noted Ms 1’s close

involvement with the day to day management at the clinic but considered that, as the

Registered Nurse on site; Mrs Jones would be expected to take overall responsibility

and was accountable for the running of the clinic. The panel further noted that Ms 1

stated on two occasions during her evidence that she had deferred to the view of Mrs

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Jones with regards to the running of the clinic which it considered to be confirmation of

Mrs Jones’ position.

The panel then went on to make findings on each head of charge.

a) You stored blood samples in fridges for longer than the permitted two days

This charge is found NOT proved.

In reaching this decision, the panel took into account the evidence of Ms 4,

documentary evidence regarding the storage of blood samples and the response of Mrs

Jones to the allegations.

The panel noted the papers relating to the Trust’s investigation into the allegations. This

stated that “Team manager Ms 8 in her statement said, that there are a number of old

blood samples stored in the clinic fridge. It is normal practice to keep the samples for

approximately one month before disposal, or until [Ms 1] can return to the clinic and

dispose of them.”

The panel further noted from the investigation notes that “CPMS [Clozapine Patient

Monitoring Service] request that bloods are stored for 48 hours to allow for a re test only

if advised to do so.”

The panel further noted the interview notes with Mrs Jones dated 11 & 23 June 2014.

When asked how long blood should be left in the fridge at the clinic, Mrs Jones

responded, “No idea, regularly there from one clinic to another.” Further, in response to

the charges Mrs Jones stated that she “was not aware that there was a 2-day deadline

for blood storage.” She went on to explain that she was under the impression that Ms 1

disposed of the blood samples “as and when” which the panel interpreted as being in a

sporadic fashion.

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The panel noted that “According to [the manufacturer] Novartis website, ‘the blood work

draw date may not be more than seven days old in order for the pharmacist to dispense

the medication.”

After considering the evidence the panel considered that it could not be satisfied that

there was a two day deadline after which blood samples should be removed from the

fridge. Further to this, it was not satisfied that if this was the case that this information

had been cascaded to all staff members. Given the inconsistencies in evidence, whilst

Mrs Jones may have stored blood samples, or been aware of blood samples being

stored in the fridge for longer than two days, the panel did not consider that the NMC

has made out its case for a permitted two day limit for the storage of bloods. It therefore

found the charge not proved.

b) Until around April 2013, you pre-labelled bottles for blood samples.

This charge is found proved.

In reaching this decision, the panel took into account the oral and documentary

evidence adduced by the NMC as well as Mrs Jones’ written submissions.

The panel noted Mrs Jones’ response when questioned about this during the Trust’s

investigation. At this time she commented, “Up until April 2013 for possible 2 years ish,

at Trengweath I would pre-label if I had time and place these blood sample tubes

(empty) in the white foam tray/box and take one out at a time for the clinic after a client

turned up.”

The panel considered this to be an admission and found the charge proved.

c) You did not ensure adequate checks were made when entering client details into

PocHi, including that you entered details manually rather than scanning the bar

codes on blood sample bottles.

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This charge is found proved. In reaching this decision, the panel took into account the oral and documentary

evidence of Ms 1, the Trust’s investigation notes and Mrs Jones’ response to the

allegations.

The panel recalled the live evidence of Ms 1 who said it had been difficult to scan the

barcodes on samples as Mrs Jones often had already attached the barcode label to the

blood sample bottle. Ms 1 suggested that scanning the label first and attaching the label

only in the presence of the correct patient was the recommended procedure.

The panel noted the Trust’s investigation notes which detail that Mrs Jones

“acknowledges that she would, on occasions, put the identification number in manually.”

The report went on to state that “there is a requirement when issuing medication that

the clinic nurse must confirm the client’s identity.”

The panel further went on to note the statement of Ms 4. She explained that Mrs Jones

used to use a notebook to copy the clients’ identification codes into the PocHi system

rather than use the bar code which was a method that would “avoid mistakes.” She

went on to explain a particular occasion when this method had led to error. This

involved the results for Patient C being recorded on the record of Patient D. Ms 4

commented that Mrs Jones said that the machine sometimes would not read the label

properly as the bottles were too small but stated that she did not recall anyone else

having similar issues.

The panel found the charge proved.

d) Patient B’s name was written on a chitty for a blood test result dated 19 July

2013, when the chitty contained the identification number of a different patient.

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This charge is found proved.

In reaching this decision, the panel took into account the evidence of Ms 2, documents

relating to the alleged incident and Mrs Jones’ response to the allegations.

The panel noted the chitty documents which were included in the NMC bundle. It is

clear that whilst the correct number for Patient B is 000232688, the number recorded on

19 July 2016 is a different number.

The panel heard live evidence from Ms 2. She explained all stages involved in the

process and also clarified the comments made in her statement. Ms 2 explained to the

panel what the different colours on the graph meant and explained that Novartis and

CPMS receive all patient records of the blood tests and subsequent dispensing of

drugs.

The panel noted the statement of Ms 2 in which she said “The discrepancy with the print

outs can be seen at the 19 July 2013 blood for Patient B. Despite having a print out

from the Pochi machine, this blood result does not appear on the table that was printed

out from the CPMS on the previous page.”

Mrs Jones stated that she was unable to give a proper response as she did not know

the I.D’s (sic) of both clients however she commented that she “sometimes wrote the

names of the clients on the blood test chitty.”

The panel considered Ms 2’s explanation to be thorough and convincing. It found the

charge proved.

e) On 19 July 2013 Patient B was supplied Clozapine without a blood test result.

This charge is found proved.

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In reaching this decision, the panel took into account the evidence of Ms 2 and Ms 4

along with documentary evidence included in the NMC bundle. It also considered Mrs

Jones’ response to the allegation.

The panel considered Ms 2’s statement and oral evidence. She said that on 19 July

2013, a blood test was recorded as being taken at 16:47hrs when all other blood tests

had been recorded as being taken at 08:20hrs. She further explained that the 19 July

blood test had not been received by CPMS which was unusual as no green result had

been recorded. She explained further that she checked the RIO system, which contains

the medical notes, and saw that Patient B’s blood results were recorded as being in

normal range. He was supplied Clozapine.

The panel also considered Ms 4’s statement who stated that Mrs Jones had used an old

blood sample to conduct the test because “[Ms 1] received a call from the registrant on

24 July 2013 informing her that the CPMS had not received bloods results for two

patients.” One of these patients was Patient B.

The panel considered the response to the charge by Mrs Jones. She protested that she

had always been told that unless the staff at the clinic received a phone call instructing

them to do so, they were not able to stop the dispensing of the drug. She further stated

that they were told that “if there were concerns, we would receive contact very quickly

after testing.”

The panel considered the live evidence and statement of Ms 2 to be clear and

persuasive. It was clear that she had cross referenced a great deal of information to

come to the conclusion that she had reached. The panel found the charge proved.

f) On 23 July 2013 blood test results were processed which included the patient

identification code for Patient D, who was de-registered for Clozapine medication

(who had the same initials as Patient C).

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This charge is found proved. In reaching this decision, the panel took into account the evidence of Ms 2,

documentary evidence included in the NMC bundle and Mrs Jones’ response to the

allegation.

Ms 2 explained that she had investigated the situation thoroughly and had found the

above allegation to be true. Her statement clarified that “On 23 July 2013 there was no

blood test result received for this patient but Clozapine was supplied according to the

medical notes.”

The panel further noted an email from Ms 9, the mental health pharmacist, to Ms 4

dated 10 June 2014 which clarified that it had been recorded that Patient D had been

de-registered on 6 July 2012.

The panel also considered the chitty reports that had been included in the NMC bundle.

It considered that it was clear that it had been reported that Patient C had been the

subject of the blood test that had been attributed to Patient D.

In her response to the charge, Mrs Jones stated that she did not remember who the

clients were but accepted the findings.

On the strength of the evidence provided by Ms 2 and the documentary evidence

included in the NMC bundle, the panel found the charge proved.

g) On 23July 2013 Patient C was supplied Clozapine without a blood test result.

This charge is found proved.

In reaching this decision, the panel took into account the evidence of Ms 2 along with

Mrs Jones response to the allegations.

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The panel considered the evidence of Ms 2 to be clear and persuasive. She stated

“The graph and table produced show what Novartis received through its CPMS from the

Pochi machine in the clinic. As I understand it, on 23 July 2013 there was no blood

result for this patient but Clozapine was supplied according to the medical notes. The

dates on which CPMS did receive blood are the 25th June 2013 and the 26th July 2013

and nothing in-between those two results.”

Mrs Jones stated that “Clozapine was only given out in the clinics, so would not be

given the medication until the blood was tested.”

The panel found the charge proved based on the clear and concise evidence of Ms 2. It

considered that she had investigated the incident thoroughly and agreed with her

conclusions.

Charge 4:

On 26 July 2013 you ran repeat tests on out of date blood samples instead of obtaining

fresh samples from Patient B and/or Patient C.

This charge is found proved.

In reaching this decision, the panel took into account the evidence of Ms 1 and Ms 4

along with Mrs Jones’ response to the charge.

Ms 1 was adamant that Patient B would not have travelled all of the distance required to

give a new blood sample. She explained that he suffered from OCD and that train times

and other information would have had to be clarified to the patient in order for him to

travel that early. She further explained that when she had arranged for Patient B to have

a blood test previously at that venue, she had made detailed arrangements on his

behalf. She informed the panel that the other clinic was closer to where he lived and

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therefore she could not understand why he would have attended the Trengweath clinic

when it would have taken him longer to get there.

Ms 4 explained the process that Mrs Jones would have had to have used to test bloods

using the Pochi machine and said that Trengweath had a signing in book which Patient

B would have signed if he had arrived to give blood on 26 July 2013. She continued that

the only date in July that Patient B had signed into Trengweath was 19 July 2013.

The panel noted the comments from the interview notes with Mrs Jones. At this time it

was confirmed that “the only day Patient B signed into Trengweath that week was on

the 19th July 2013.” It continued with findings stating that “There is a blood sample

result documented for the 25th July 2013 on the CPMS notes for Patient B but not 26th

July.”

The panel considered Mrs Jones’ response to the allegation but found that there was no

evidence to support that what she had said had happened was true. Further, it

considered the evidence of Ms 1 and the evidential findings contained in the NMC

bundle to be far more reliable and conclusive. Accordingly, it found the charge proved.

Charge 5:

Your actions in charge 4 above were dishonest in that you wished to conceal the error

in charges 3(e) and/or 3(g) above.

This charge is found proved. In reaching this decision, the panel took into account the written submissions of Mrs

Jones.

In considering the issue of dishonesty, the legal assessor referred the panel to the

objective and subjective tests set out in the case of R v Ghosh [1982] QB 1053 and

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refined in the case of PSA v HCPC, David [2014] EWHC 4657 (Admin). The panel was

advised to consider first, on the basis of the facts found proved in each charge, whether

it was satisfied, on the balance of probabilities, that what Mrs Jones did would be

regarded as dishonest by the ordinary standards of reasonable and honest nurses (the

objective test). Only where the panel was satisfied that the objective element of this test

was met, would it go on to consider whether it was satisfied on the balance of

probabilities that Mrs Jones must have realised that what she did would be regarded as

dishonest by those standards.

The panel considered the response from Mrs Jones with regards to this allegation. She

stated that she “did not attempt to cancel an error as I tested the fresh sample I had

obtained from [Patient B] in Trengweath.” She makes no comment in regards to a blood

test for Patient C.

The panel did not find Mrs Jones’ account to be credible. In coming to this view, it noted

the evidence from Ms 1 regarding the patient’s travel arrangements. There was an

absence of evidence to support Mrs Jones’ account that the patient went to the

Trengweath clinic on that day which undermines her credibility. The panel noted that out

of some 18 samples of stored blood, Mrs Jones chose only to test samples from

patients B and C. Given the previous concerns about the validity of previous tests

relating to Patients B and C, the panel considered this to be an unlikely coincidence.

The panel considered that a registered nurse would consider Mrs Jones’ actions to be

dishonest. Further, the panel is satisfied that Mrs Jones must have realised that what

she was doing was, by the standards of reasonable and honest nurses, dishonest.

The charge is therefore found proved.

Charge 6:

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On or around November 2014 told Ms 3 that you had not been referred to the Nursing &

Midwifery Council (“NMC”) in relation to the investigation leading to your dismissal by

the Cornwall Partnership NS Foundation Trust (“the Trust”).

In reaching this decision, the panel took into account the evidence of Ms 3 along with

NMC documents included in the bundle.

In her statement Ms 3 explained that “when interviewed for her position, the registrant

did tell us about the investigation that had taken place with the Trust and the issues

leading to her dismissal. She brought up the topic of the dismissal voluntarily and

openly discussed the incident. She told us that the investigation process was delayed

and as a result the tape recordings that would have confirmed her actions were no

longer available…She further told us that the matter had not been referred to the NMC.”

She went on to explain that the first that she knew of the referral to the NMC was the

letter that she received from the NMC. Following this Mrs Jones had tendered her

resignation.

In her response to the allegation, Mrs Jones stated that she had informed Ms 10, the

deputy manager of Kenwyn Care Home, of the referral to the NMC but explained that

she had not seen any correspondence since a letter in September 2013 (sic). She

further explained that did she not hear anything from the NMC for another 18 months.

The panel considered the NMC documents relating to the referral that were included in

the NMC bundle. It paid particular regard to the document titled “Notice of referral to the

investigating committee and notice of interim order.” The panel noted the “frequently

asked questions” section. Within this was the question “Will this be an end to my case?”

This question was answered in the negative and it was explained that “the case will

continue through our usual fitness to practise processes regardless of the panel’s

decision at the interim order hearing.”

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The panel noted the other documents that were sent to Mrs Jones including the “proof

of posting” and considered that it was clear that she had received all of the documents

that were necessary to confirm the status of the referral. Alongside this it considered

that the evidence of Ms 3 was more credible than that of Mrs Jones and that it could not

see a reason why Ms 10 would not have told anyone else involved about the referral to

the NMC if she had been informed of this, especially as she formed part of the interview

panel. The panel therefore found the charge proved.

Charge 7:

Your actions in charge 6, above, were dishonest in that you intended to conceal that

you had been referred to the NMC.

This charge is found proved.

In reaching this decision, the panel took into account the written submissions of Mrs

Jones.

In considering the issue of dishonesty, the legal assessor referred the panel to the

objective and subjective tests set out in the case of R v Ghosh [1982] QB 1053 and

refined in the case of PSA v HCPC, David [2014] EWHC 4657 (Admin). The panel was

advised to consider first, on the basis of the facts found proved in each charge, whether

it was satisfied, on the balance of probabilities, that what Mrs Jones did would be

regarded as dishonest by the ordinary standards of reasonable and honest nurses (the

objective test). Only where the panel was satisfied that the objective element of this test

was met, would it go on to consider whether it was satisfied on the balance of

probabilities that Mrs Jones must have realised that what she did would be regarded as

dishonest by those standards.

23

The panel considered the response from Mrs Jones with regards to this allegation. She

stated that she had told Ms 10 about the letter that had been sent to her in September

2013 and had presumed that no further action would be taken by the NMC.

The panel noted the documents included in the NMC bundle. It considered that it is

clear that these were all sent to Mrs Jones at her registered address and she would

have been aware of them.

The panel considered that a registered nurse would consider Mrs Jones’ actions to be

dishonest. Further, the panel is satisfied that Mrs Jones must have realised that what

she was doing was, by the standards of reasonable and honest nurses, dishonest.

The charge is therefore found proved.

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Decision on misconduct and impairment:

Having announced its findings on all the facts, the panel then moved on to consider,

whether the facts found proved amount to misconduct and, if so, whether Mrs Jones’

fitness to practise is currently impaired. The NMC has defined fitness to practise as a

registrant’s suitability to remain on the register unrestricted.

In her submissions Ms Fung invited the panel to take the view that Mrs Jones’ actions

amount to a breach of The Code: Standards of conduct, performance and ethics for

nurses and midwives 2008 (“the Code 2008”) with regards to charges 1 – 7 and The

Code: Professional standards of practice and behaviour for nurses and midwives (2015)

with regard to charges 8 & 9. She then directed the panel to specific paragraphs and

identified where, in the NMC’s view, Mrs Jones’ actions amounted to misconduct.

Ms Fung referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311

which defines misconduct as a word of general effect, involving some act or omission

which falls short of what would be proper in the circumstances.

She then moved on to the issue of impairment, and addressed the panel on the need to

have regard to protecting the public and the wider public interest. This included the

need to declare and maintain proper standards and maintain public confidence in the

profession and in the NMC as a regulatory body. Ms Fung referred the panel to the

cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin).

The panel heard and accepted the advice of the legal assessor.

The panel adopted a two-stage process in its consideration, as advised. First, the panel

must determine whether the facts found proved amount to misconduct. Secondly, only if

the facts found proved amount to misconduct, the panel must decide whether, in all the

25

circumstances, Mrs Jones’ fitness to practise is currently impaired by virtue of that

misconduct.

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Decision on misconduct

When determining whether the facts found proved amount to misconduct the panel had

regard to the terms of The code: Standards of conduct, performance and ethics for

nurses and midwives 2008 with regard to charges 1 – 7 and The Code: Professional

standards of practice and behaviour for nurses and midwives (2015) with regard to

charges 8 & 9.

The panel, in reaching its decision, had regard to the public interest and accepted that

there was no burden or standard of proof at this stage. Instead, it exercised its own

professional judgement.

The panel was of the view that Mrs Jones’ actions did fall significantly short of the

standards expected of a registered nurse, and that her actions amounted to a breach of

the 2008 Code. Specifically:

The people in your care must be able to trust you with their health and wellbeing To justify that trust, you must:

• work with others to protect and promote the health and wellbeing of those in your care, their families and carers, and the wider community • provide a high standard of practice and care at all times • be open and honest, act with integrity and uphold the reputation of your profession. From the pre-amble along with the following numbered standards: 22. You must work with colleagues to monitor the quality of your work and maintain the safety of those in your care. 24. You must work cooperatively within teams and respect the skills, expertise and contributions of your colleagues. 32. You must act without delay if you believe that you, a colleague or anyone else may be putting someone at risk.

27

34. You must report your concerns in writing if problems in the environment of care are putting people at risk. 35. You must deliver care based on the best available evidence or best practice. 42. You must keep clear and accurate records of the discussions you have, the assessments you make, the treatment and medicines you give, and how effective these have been. 44. You must not tamper with original records in any way. 51. You must inform any employers you work for if your fitness to practise is called into question. 54. You must act immediately to put matters right if someone in your care has suffered harm for any reason. 61. You must uphold the reputation of your profession at all times From the 2015 code, the panel identified the following breach: 20.2 act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment The panel recognised that breaches of the Code do not automatically result in a finding

of misconduct. However, the panel was of the view that both the majority of Mrs Jones’

clinical failings and dishonesty amount to misconduct.

The panel first considered Mrs Jones’ clinical failings. With regards to charge 2, the

panel considered that any nurse would understand the importance of reporting the

incident that took place and taking the appropriate action in a timely manner due to the

risk of serious harm to patients. With regard to charge 3, the panel considered that it

was intrinsic to the safety of patients that blood tests are performed on valid samples

provided by the correct patient at all times. The panel further considered that charge 4

involved blood tests being performed on out of date samples and found that this

completely undermined the process. The panel considered that the failure to approach

these tasks with an appropriate level of diligence had the potential for putting patients at

a high risk of harm.

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The panel went on to consider the dishonesty found proved. It considered that the

importance of the dishonesty which involved concealing an error to be of great concern

due to the risk of harm it posed. Mrs Jones should have been aware of this.

The panel considered the dishonesty involved in charges 6 and 8 did not directly link to

a risk of harm to patients in Mrs Jones’ care. However, the fact that she had been

employed under false pretences – namely her employer not knowing of her referral to

the NMC – meant that public confidence in the profession was undermined. The panel

considered that had management at Kenwyn and Bosence known about her referral to

the NMC, they would have been able to undertake a full risk assessment. Her

dishonesty meant that this was a choice that neither employer was able to make.

The panel found that Mrs Jones’ actions did fall seriously short of the conduct and

standards expected of a nurse and amounted to misconduct.

Decision on impairment The panel next went on to decide if as a result of this misconduct Mrs Jones’ fitness to

practise is currently impaired.

Nurses occupy a position of privilege and trust in society and are expected at all times

to be professional and to maintain professional boundaries. Patients and their families

must be able to trust nurses with their lives and the lives of their loved ones. To justify

that trust, nurses must be honest and open and act with integrity. They must make sure

that their conduct at all times justifies both their patients’ and the public’s trust in the

profession. In this regard the panel considered the judgement of Mrs Justice Cox in the

case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74

she said:

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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.

Mrs Justice Cox went on to say in Paragraph 76:

I would also add the following observations in this case having heard

submissions, principally from Ms McDonald, as to the helpful and

comprehensive approach to determining this issue formulated by

Dame Janet Smith in her Fifth Report from Shipman, referred to above.

At paragraph 25.67 she identified the following as an appropriate test for

panels considering impairment of a doctor’s fitness to practise, but in my

view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

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

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d. has in the past acted dishonestly and/or is liable to act

dishonestly in the future.

The panel finds that Mrs Jones’ misconduct engaged all four limbs of the Grant

judgement. Her actions potentially left four separate patients at a high risk of harm due

to her failings with blood samples and appropriate reporting. These actions brought the

nursing profession into disrepute. The panel considered that a member of the public

would be alarmed to hear of these failings along with the fact that Mrs Jones had not

informed her subsequent employers of her referral to the NMC following her being

informed of it. The panel considered that Mrs Jones’ actions breached fundamental

tenets of the nursing profession.

The panel determined that while Mrs Jones has partially engaged with the NMC, and

did admit some of the charges, she has only demonstrated limited insight into her

failings. The panel was concerned that Mrs Jones seemed more aware of the impact

her failings had on herself than those in her care or her colleagues at the Trust.

In its consideration of whether she has remedied her practice the panel took into

account the fact that Mrs Jones had not clarified in any communication to the NMC

whether she was currently working in a clinical environment or had taken time to

address her clinical failings in any way. The panel was of the view that Mrs Jones’

misconduct, in respect of her clinical failings, is remediable. However, in the absence of

any information regarding her current employment, the panel has no information before

it to suggest that Mrs Jones’ misconduct has been remediated.

The panel is of the view that there is a risk of repetition based on the fact that Mrs Jones

does not appear to have appropriately remediated her behaviour. The panel further

noted that the dishonesty found proved involved two different employers and covered a

considerable period of time. The panel considered that Mrs Jones’ misconduct

demonstrated a distinct lack of regard for public safety. Further, the panel was

31

concerned that her dishonesty is underpinned by attitudinal problems which it

considered difficult to remediate.

The panel bore in mind the overarching objective of the NMC: to protect, promote and

maintain the health safety and well-being of the public and patients and the wider public

interest which 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, in this case, a finding of impairment on

public interest and public protection grounds was required. A member of the public

would be concerned to hear that an NMC panel had considered Mrs Jones’ fitness to

practise not to be impaired after finding the majority of the charges to be proved.

Having regard to all of the above, the panel was satisfied that Mrs Jones’ fitness to

practise is currently impaired.

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Determination on sanction: The panel has considered this case very carefully and has decided to make a striking-

off order. It directs the registrar to strike Mrs Jones off the register. The effect of this

order is that the NMC register will show that Mrs Jones been struck-off the register.

In reaching this decision, the panel has had regard to all the evidence that has been

adduced in this case. 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 Indicative Sanctions Guidance (“ISG”) 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 in view of the seriousness of the case. The panel determined that it would

be neither proportionate nor 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 ISG, 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 Mrs Jones’ misconduct was not at the

lower end of the spectrum and that a caution order would be inappropriate in view of the

seriousness of the case. 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 Jones’

registration would be a sufficient and appropriate response. The panel is mindful that

any conditions imposed must be proportionate, measurable and workable. The panel

took into account the ISG, in particular:

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63.8 It is possible to formulate conditions and to make provision as to how

conditions will be monitored.

The panel is of the view that there are no practical or workable conditions that could be

formulated, given the nature of the dishonesty charges found proved in this case. It also

had no indication that Mrs Jones would engage with any conditions of practice should

they be imposed.

Furthermore the panel concluded that the placing of conditions on Mrs Jones’

registration would not adequately address the seriousness of this case and would not

protect the public.

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

appropriate sanction. Paragraph 71 of the ISG indicates that a suspension order would

be appropriate where (but not limited to):

67 …the misconduct is not fundamentally incompatible with continuing to

be a registered nurse or midwife in that the public interest can be

satisfied by a less severe outcome than permanent removal from the

register. This is more likely to be the case when some or all of the

following factors are apparent (this list is not exhaustive):

67.2 No evidence of harmful deep-seated personality or attitudinal

problems.

67.4 The panel is satisfied that the nurse or midwife has insight and

does not pose a significant risk of repeating behaviour.

The panel took account of the following aggravating factors in this case:

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• Mrs Jones should have appreciated the level of risk that she was taking due to

the seniority of her role;

• The charges which relate to basic nursing duties, are very serious and include

three instances of dishonesty;

• The failings were not isolated and were wide ranging over a period of two years;

• Dishonesty is underpinned by attitudinal issues that are difficult to remediate;

• Mrs Jones placed patients at a high risk of harm;

• The panel identified a high risk of repetition;

• There is no evidence of Mrs Jones remediating her failings and she has only

shown limited insight.

The panel took account of the following mitigating factors in this case:

• Mrs Jones has, to an extent, engaged with the NMC process and made early

admissions to some of the charges;

• Mrs Jones has worked without previous referral to the NMC for 40 years;

• Mrs Jones was operating in an environment where there was no protocol or

operating procedure in place for the Clozapine clinic;

• Mrs Jones was relatively new to her post and had not received gold standard

training.

Due to the seriousness of the misconduct in this case, the panel determined that a

suspension order would not be a sufficient, appropriate or proportionate sanction.

The conduct, as highlighted by the facts found proved, was a significant departure from

the standards expected of a registered nurse. The panel noted that the serious breach

of the fundamental tenets of the profession evidenced by Mrs Jones’ actions is

fundamentally incompatible with her remaining on the register.

Balancing all of these factors, the panel has determined that a suspension order would

not be an appropriate or proportionate sanction. Whilst the panel noted that no actual

35

patient harm occurred, the risk to patients was substantial, particularly in relation to

charge 5.

The purpose of the clinic was to mitigate against potentially harmful effects of Clozapine

use on patients. The effects are so serious that Clozapine is only licenced to be

dispensed within a framework of robust testing to exclude the likelihood of profound

damage to the patient’s immune system. The panel considered that to circumvent that

framework in any circumstances and then go on to act dishonestly, fundamentally

undermines the recommended safety framework and places patients at significant risk

of harm.

Finally, in looking at a striking-off order, the panel took note of the following paragraphs

of the ISG:

70.1 Is striking-off the only sanction which will be sufficient to protect

the public interest?

70.2 Is the seriousness of the case incompatible with ongoing

registration?

70.3 Can public confidence in the professions and the NMC be

sustained if the nurse or midwife is not removed from the

register?

71 This sanction is likely to be appropriate when the behaviour is

fundamentally incompatible with being a registered professional,

which may involve any of the following …

71.1 Serious departure from the relevant professional standards

as set out in key standards, guidance and advice …

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71.2 Doing harm to others or behaving in such a way that could

foreseeably result in harm to others, particularly patients or

other people the nurse or midwife comes into contact with

in a professional capacity, either deliberately, recklessly,

negligently or through incompetence, particularly where

there is a continuing risk to patients. Harm may include

physical, emotional and financial harm. The panel will

need to consider the seriousness of the harm in coming to

its decision.

Mrs Jones’ actions represented significant departures from the standards expected of a

registered nurse, and are fundamentally incompatible with her remaining on the register.

The panel was of the view that the findings in this particular case demonstrate that Mrs

Jones’ actions were serious and to allow her to continue practising would undermine

public confidence in the profession and in the NMC as a regulatory body.

Balancing all of these factors and after taking into account all the evidence before it

during this case, the panel determined that the appropriate and proportionate sanction

is that of a striking-off order.

The panel considered that this order was necessary not only for public protection, but

also to mark the importance of maintaining public confidence in the profession, and to

send to the public and the profession a clear message about the standard of behaviour

required of a registered nurse.

37

Determination on Interim Order The panel has considered the submissions made by Ms Fung that 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 striking-off order 28

days after Mrs Jones is sent the decision of this hearing in writing.

That concludes this determination.