Conduct and Competence Committee Substantive Hearing 5-8 ... · 6/8/2017 · Maternity Unit (the...

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Conduct and Competence Committee

Substantive Hearing

5-8 June 2017

Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH

Name of Registrant: Miss Shirley-Anne White

NMC PIN: 84Y0549S

Part(s) of the register: RN1, Registered Nurse (Sub part 1) – Adult

(22 December 1987)

RM, Registered Midwife (Midwives) – (18

March 1991)

Area of Registered Address: Scotland

Type of Case: Misconduct

Panel Members: Tim Mann (Chair, Lay member)

Lynn Smith (Registrant/Midwife member)

Anne Johnstone (Lay member)

Legal Assessor: Gerard Coll

Panel Secretary: Keyorra Shrimpton

Miss White: Present and represented by Ms Gillian

Merchant, counsel, on behalf of Thompsons

Solicitors

Nursing and Midwifery Council: Represented by Mr Yusuf Segovia, counsel,

instructed by the NMC Regulatory Legal Team

(Days 1-4)

Represented by Ms Samantha Forsyth,

counsel, instructed by the NMC Regulatory

Legal Team (Day 4)

Facts proved by admission: 1, 4(a)

Facts proved: 2, 3, 4(b), 5, 6

Facts not proved: None

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Fitness to practise: Impaired

Sanction: Striking-off order

Interim Order: Interim suspension order – 18 months

Charges (as amended and as read):

That you a registered midwife, on the night shift commencing 15 January 2015:

1. Were involved in the administration of 20mg of oramorph to Patient A when only

10mg was prescribed.

2. In relation to the administration described at charge 1 asked Colleague 1 to

assist and/or allow you to:

a. Amend the controlled drugs book.

b. Amend Patient A’s kardex.

3. Asked Colleague 1 to ignore the error described at charge 1.

4. Requested that Colleague 2 prescribe a 20mg dose of oramorph to Patient A:

a. After you had already administered this dose.

b. Without informing him that this had already been administered.

5. Altered the date of an entry on Patient A’s kardex for 20 mg of oramorph from 16

January 2015 to 15 January 2015.

6. Were dishonest in your conduct alleged at one or more of charges 2 to 5 in that

you deliberately intended to conceal your error described at charge 1.

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 amend charge 6:

Prior to the charges being read, the panel heard an application made by Mr Segovia, on

behalf of the NMC, to amend the wording of charge 6. Mr Segovia submitted that the

change in this charge reflects the true meaning of the charge and it was a typographical

error on the NMC’s part.

Ms Merchant, on your behalf, did not oppose this application.

The proposed amendment to charge 6 should read as follows:

Charge 6

Were dishonest in your conduct alleged at one or more of charges 2 to 6 5 in that you

deliberately intended to conceal your error described at charge 1.

The panel accepted the advice of the legal assessor that Rule 28 of the Rules states:

28 (1) At any stage before making its findings of fact …

(i) … the Conduct and Competence Committee, may amend

(a) the charge set out in the notice of hearing …

unless, having regard to the merits of the case and the fairness of the

proceedings, the required amendment cannot be made without injustice.

The panel was of the view that such an amendment, as applied for, was in the interest

of justice. The panel was satisfied that there would be no prejudice to you because the

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amendment is typographical and merely reflects the charges as intended. It was

therefore appropriate to allow the amendment.

Decision and Reasons on application pursuant to Rule 31:

During the course of Colleague 1’s/Ms 1’s evidence, Mr Segovia, on behalf of the NMC,

objected to a line of questioning from Ms Merchant, on your behalf, to Ms 1 during cross

examination.

Ms Merchant put to Ms 1 a question in relation to evidence that might be heard in

respect of which no NMC or defence witness statement or evidence had yet been

placed before the panel. Mr Segovia objected to this as calling for speculation. Ms

Merchant invited the panel to consider that her line of questioning was appropriate, and

was routinely done in this way in other proceedings elsewhere. The form of the question

was objected to, but she said that there was no other way that she could put your case

to Ms 1 at this stage.

Mr Segovia, on behalf of the NMC, objected to this application in its entirety. He invited

the panel to consider that there is no “evidence” in relation to the other NMC witness

that Ms Merchant is referring to, and the panel has no information in relation to that

witness at this stage, with the NMC only been provided the witness statements of Ms 1

and Dr 2 on the morning of Day 1.

The panel heard and accepted the advice of the legal assessor, in relation to Rule 31 of

the Rules (2004), which permits evidence to be led more widely than might be the case

in civil proceedings elsewhere in the UK, subject only to relevance and fairness.

The panel gave careful consideration to Mr Segovia’s objection to Ms Merchant’s

application to ask questions of Ms 1 in relation to evidence of another NMC witness

which the panel had no information about at this stage.

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The panel considered that there was merit in Mr Segovia’s objection in respect of the

form of the question, and that no witness should be asked to speculate during cross

examination. The panel took into account that it is right to put your case to Ms 1, given

the seriousness of the charges. The panel held closely in mind that Ms 1 is not subject

to charges within these NMC proceedings. However, it is proper within limits to ask her

questions that go to her credibility and reliability as an NMC witness, as this line of

enquiry appears to.

The panel determined that the permissive nature of Rule 31 allowed for fair and relevant

questions to be put to Ms 1, on the basis that it formed the challenge to Ms 1’s

credibility, reliability or motive. However, any questions should be put in the “future

conditional” and Ms 1 can answer the question to the extent that she can legitimately

comment. The panel decided that it was entitled to rely on Ms Merchant’s professional

obligation to only ask questions which have a proper foundation at this stage in

proceedings. The panel also bore in mind that Ms 1 has witness support with her, and

any future delay in recalling the witness will affect the expeditious disposal of this case

and potentially impact adversely or inconvenience Ms 1.

The panel decided to allow Ms Merchant to continue questioning Ms 1, in the form as

outlined above.

As such, the panel decided not to uphold Mr Segovia’s objection to the line of

questioning.

Background:

You qualified as a registered midwife in 1991. At the time of the allegations on 15-16

January 2015, you worked as a Band 6 midwife at the In-Patient Ward at the Ayrshire

Maternity Unit (the Unit) from September 2014. You were the senior midwife of three on

the ward and so you were the midwife in charge.

At approximately 21:20 on the night shift of 15 January 2015, you and Ms 1 went to the

drug stock room to prepare the medication for Patient A. You read the kardex record

and Ms 1 measured and drew up the dose of Oramorph to administer to Patient A as

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dictated by you. You admitted that the dose you verbally stated to Ms 1 was wrong. Ms

1 then administered a 20mg/10ml dosage of Oramorph to Patient A, which was double

the prescribed maximum dosage for Patient A at that time.

Ms 1 and another colleague later repeated the procedure for Patient A’s next dose and

Ms 1 at that time recognised that a drug error had occurred on the previous occasion.

She then approached you to explain the error and you responded by asking her to

agree to ignore the error. She refused, and you allegedly then attempted to alter Patient

A’s kardex and the Controlled Drug Book (CD) at the Unit. It is further alleged that you

then altered the date of Dr 2’s entry on Patient A’s kardex from 16 January 2015 to 15

January 2015 for the administration of 20mg/10ml dosage recorded on the kardex, to

retrospectively validate the dose that had been given.

It is also alleged that you asked Dr 2/Colleague 2 to prescribe a 20mg dose of

Oramorph to Patient A on the morning of 16 January 2015, after Ms 1had already

administered this dosage, and without telling Dr 2 that this dosage had already been

administered to Patient A.

It is alleged that you were dishonest in respect of your conduct following the drug

administration error and that you deliberately intended to conceal the drug error that had

occurred in relation to Patient A.

Decision on the findings on facts and reasons:

In reaching its decisions on the facts, the panel considered all the evidence presented in

this case together with the submissions made by Mr Segovia, on behalf of the NMC,

and submissions by Ms Merchant on your behalf.

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

The panel was aware that the burden of proof rests on the NMC, and that the standard

of proof is the civil standard, namely the balance of probabilities. This means that the

facts will be found proved if the panel is satisfied that it was more likely than not that the

incidents and that dishonesty occurred as alleged.

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The panel heard oral evidence from four witnesses called on behalf of the NMC:

At the time of the events:

Ms 1: Employed by NHS Aryshire and Arran staff bank as a Midwife working at Ayrshire

Maternity Unit (the Unit).

Dr 2: Employed as an Senior House Officer (SHO) at the Unit.

Ms 3: Senior Charge Midwife at the Unit.

Ms 4: Clinical Midwifery Manager at the Maternity Unit of Crosshouse Hospital, NHS

Ayrshire and Arran.

The panel considered Ms 1 was a clear, calm and credible witness, who was straight

forward in her evidence. The panel took into account that Ms 1 was a relatively newly

qualified midwife. She did not appear to have a reason to falsify or to inflate her

evidence, nor did she appear to have any ill feeling towards you.

The panel noted that in oral evidence Ms 1 did concede that there may be differences in

the evidence in parts, for example Ms 1 did not appear to be recorded as mentioning on

the night shift on 15/16 January 2015 that she saw you change Patient A’s kardex.

However, she was clear in her oral evidence and her NMC statement that this is what

she saw, and explained that she did not have responsibility for recording the notes of

the investigation meeting dated 13 April 2015. The panel also took into account that Ms

1 had been consistent about her own error in relation to not checking the kardex of

Patient A, which was required to be administered by two nurses/midwives who should

have completed all checks in the administration of medication by way of a controlled

drug process. The panel took into account that Ms 1 was not seeking to conceal her

own mistake, and that when she realised a drug error had occurred, she immediately

took steps to rectify the situation and bring it to both your attention, her supervisor of

midwives and to the attention of Ms 3 as soon as she came on shift at 08:30 on 16

January 2015. The panel considered that her credibility was enhanced in that, if true,

you were offering her a way to avoid her error being exposed during an early stage in

her career.

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The panel considered that Dr 2 was a credible witness, however, in parts his evidence

was not fully reliable, as he appeared vague and less certain of the events in question.

However, Dr 2 was clear about other parts of his evidence and, in cross examination, he

was emphatic in refuting an alternative account on your behalf, that he had made the

date correction on the drug kardex to rectify an error made by him, and also that he

knew that the dose had already been administered when he wrote the prescription.

When specifically asked about whether you told him on the first occasion that you had

administered Patient A Oramorph at 21:20, he stated that if that was the case it is

“highly unlikely” that he would have written a post-dated prescription for Patient A,

something that Dr 2 stated in his investigatory meeting taken in May 2015. He denied

that the date alteration from 16 to 15 January 2015 was made by him.

The panel considered that Ms 3 was credible and reliable, with no reason to have

falsified her evidence. She did not seek to embellish her evidence and she was clear in

what she recalled. Ms 3 does not give direct evidence to the facts other than stating

what was said to you when she came on shift on 16 January 2015. However, her

evidence sought to provide the panel with an overall picture of these allegations as

understood in the investigation at the time.

The panel considered that Ms 4’s evidence was straight forward, clear and reliable, and

sought to assist the panel to the best of her ability. The panel considered that she

responded fully and clearly when pressed during cross examination. Ms 4 was able to

explain how she received different accounts of the drug error for Patient A, and

explained how this was investigated.

You gave oral evidence before the panel. The panel considered that your evidence was

consistent and clear in denying the allegations that you had not admitted. You explained

that you had asked Dr 2 to write a prescription to retrospectively validate the drug

administration error, and that he altered the date “15.1.15” to correct his error on the

kardex. However, when questioned by Mr Segovia, on behalf of the NMC, you did not or

could not elaborate on your account of events and you responded in a fixed, emphatic

way in saying “I refute that”, although the questions really called to be answered more

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fully.

You do not have a burden of proof. You asserted that a doctor had made a

retrospective prescription of a scheduled drug that had already been administered

without seeing the patient or marking it as being a retrospective prescription. The panel

considered that this was an improbable occurrence and one that called for an

explanation or to be supported in some way. You were unable to do so in this, and in

other examples. Your credibility and reliability was undermined by you refusal or inability

to answer reasonable questions in cross examination.

The panel then went on to consider the following charges:

Charge 2

That you a registered midwife, on the night shift commencing 15 January 2015:



a. Amend the controlled drugs book.

In relation to this charge the panel took into account the evidence of Ms 1.

Ms 1’s evidence was that “On the…night shift on 15th January 2015. Shirley was acting

as the ward coordinator…At the start of the shift I had been allocated to work in area

three alongside Shirley and was allocated to care for women and babies in room 26-

34... At 21:20 I was advised that Patient A in room 24b was requesting Oromorph

analgesia.”

Ms 1 explained that you both attended to Patient A, after you had gone into the “prep

room” to draw up the dose of Oramorph. Ms 1’s evidence was that you opened the

kardex for Patient A, and that during this time, you were interrupted by another staff

member advising that another patient also needed Oramorph. Ms 1 explained that you

told her that Patient A was due “20mg/10ml of Oramorph.” Ms 1 told the panel that she

did not double check the dosage of Patient A’s Oramorph against the kardex at 21:20,

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and she “drew up the 20mg/10ml of Oramorph as advised by Shirley and countersigned

the witness section in the CD book.” Ms 1’s evidence was that at that time she was

unaware a drug error had occurred. When she returned from her break at 2am, Patient

A requested further analgesia (Oramorph) and Ms 1 and another nurse colleague (Ms

5) attended the prep room to draw up this dose. It was at this point that Ms 1 “realised

Patient A was only prescribed 10mg/5ml and not the 20mg/10ml as given at 21:20.”

Following discussion with Ms 5 as to what action to take next, Ms 1 told the panel that

she informed you of the drug error when you came off your break at 02:30. Ms 1 told the

panel you “started to panic, and…already had a drug error fragmin [for

administration]…” Ms 1 told the panel that you first said to her could we just “ignore it”,

to which you said “no”. You then asked Ms 1 “can we not change the CD book”, but Ms

1 again refused, reasoning that in any event the CD book contains a running total and

any alteration would have “messed all the figures up” and that you were not thinking

rationally.

Ms 1 wholly denied giving false evidence in regard to the events after 02:30am or of

misremembering them.

Ms 3’s evidence was that after she came on duty at 08:30am on 16 January 2017, Ms 1

reported that you allegedly “had asked Ms 1 to change Patient A’s Kardex and the

controlled drug book.” Ms 3 told the panel that she spoke with you about the drug error

and the attempt to change the records of Patient A. Ms 3 told the panel that “The

registrant did not deny that they were looking at changing the record.”

You told the panel that no such discussion with Ms 1 ever took place. You refute this

charge in its entirety. It is your evidence that you accept an incorrect dosage of

Oramorph was administered to Patient A at approximately 21:20 because although you

recognised the correct dose on the kardex, you had incorrectly stated the wrong dose to

Ms 1. You did not offer a reason or explanation for that occurring.

The panel accepted the evidence of Ms 1, which was corroborated by Ms 1’s statement

written on 22 July 2015, in which Ms 1 stated that “I showed her the entry in the

controlled drug book and she asked if we could change the entry to show the correct

dose of 10mg/5ml. I stated no we could not do this as this was not correct.” Ms 1’s

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evidence was also corroborated by the evidence of Ms 3, which the panel also

accepted.

The panel rejected your assertion that no such discussion ever took place.

The panel found proved that on 15 July 2015, you asked Ms 1 to assist and/or allow you

to amend the controlled drugs book of Patient A.

Accordingly, the panel found charge 2(a) PROVED.

Charge 2(b)



b. Amend Patient A’s kardex.

In relation to this charge the panel took into account the evidence of Ms 1, Ms 3 and Dr

2.

Ms 1’s evidence was that you suggested to her to change the kardex “to show mls

instead of mg”, which Ms 1 says she “refused to do.” Ms 1 told the panel that you were

asking her to agree your amendment to the kardex, which would “then justify the fact a

larger dose had been given.”

Ms 3’s evidence was that after she came on duty at 08:30am on 16 January 2017, Ms 1

told her that you allegedly “had asked Ms 1 to change Patient A’s Kardex and the

controlled drug book.”

You told the panel that you are “totally denying” that you changed the date of Patient A’s

kardex or that Ms 1 saw you change it, since neither of these events had occurred.

The panel had sight of Patient A’s kardex, and considered that it was not clear there

had been an alteration to the date of the administration of Patient A’s oramorph for the

dosage of 5-10mg. It did not have sight of the time of the entry as at 21:20 as this page

was missing from the documentation, as evidenced by Ms 1.

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The panel accepted the evidence of Ms 1, which was corroborated by Ms 1’s statement

written on 22 January 2015, which stated “S/M S White then stated that she thought the

drug kardex had read as 5-10ml which would equate to 10-20mg and could we just

agree that we both had read the drug kardex as such. I again replied No I wasn’t willing

to do so as this was wrong and also stated I couldn’t recollect having checked the drug

kardex at the original time of the error at 21:20.” Her evidence was also corroborated by

the evidence of Ms 3, which the panel also accepted.

The panel found proved that on 15 January 2015, you asked Ms 1/Colleague 1 to assist

and/or allow you to amend Patient A’s kardex.

Accordingly, the panel found charge 2(b) PROVED.

Charge 3

3. Asked Colleague 1 to ignore the error described at charge 1.

When considering this charge, the panel considered the evidence of Ms 1 and your

evidence.

It is Ms 1’s evidence that after you became aware that there had been a drug error with

Patient A, you said to her “can we pretend that we haven’t noticed that there had been a

drug error.” Ms 1’s evidence was that she responded and said no, and that she would

have to tell the supervisor of midwives about what happened.

The panel had sight of Ms 1’s statement given on the date of the incident on 16 January

2015. Ms 1’s evidence was that, “As soon as I advised S/M White of the identified drug

error she stated that she had already had a previous drug error for Fragmin [for

administration] and asked me what we should do about it. She asked if we could ignore

it and I said “No” we couldn’t ignore it and I stated that s/m Ms 5 was aware of the

previous error also as she had checked the administration of the subsequent dose”

It is your evidence that you accept a drug error occurred and Patient A was given

20mg/10mls of Oromorph at 21:20 as opposed to the 10mg/5mls that Patient A was

prescribed. You explained to the panel that the conversation with Ms 1 asking her to

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ignore your drug error did not occur, and that it is “not correct” that you wanted Ms 1 to

ignore the fact a drug error had occurred.

The panel rejected your assertion that you did not ask Ms 1 to ignore the drug error in

relation to Patient A which occurred on the night shift of 15/16 January 2015, which you

accept occurred.

Ms 1’s evidence is consistent with other aspects of her evidence, namely, various

attempts by you to conceal the fact of the drug error. The panel also accepted the

evidence of Ms 3 that when Ms 3 came on shift at 08:30 on 16 January 2015, Ms 1

immediately told her what had happened, including you asking her to ignore the drug

error.

The panel accepted Ms 1’s evidence as being truthful and accurate in that after she

notified you of a drug error, you said to Ms 1 “could we not just pretend we hadn’t

noticed” the drug error.

Accordingly, the panel found charge 3 PROVED.

Charge 4(b)

4. Requested that Colleague 2 prescribe a 20mg dose of oramorph to Patient A:

b. Without informing him that this had already been administered.

When considering this charge, the panel considered the evidence of Dr 2, Ms 3 and

your evidence.

Dr 2’s evidence was that “My recollection of this (sic) circumstances was that I was

asked to provide a prescription for a higher dose of Oramorph for post-partum analgesia

for a patient on the in-patient ward. Following discussions between myself and the

midwife, Shirley-Ann White, it was felt there was no clinical concern that would require

review of the patient and the prescription was provided. A short time later I was

informed by Shirley-Ann White that this dose had in fact been given hours earlier,

invalidating my prescription. I scored this prescription through. She appeared anxious

and I believe she stated this incident was going to be reported. My recollection of this

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meeting was that I could not say definitively, but I felt the date had indeed been altered

as I did not seem to recognise the handwriting.”

Ms 3 told the panel that you admitted to her on 16 January 2015 that you had “asked…

Dr 2 to come up and write another prescription” for Patient A, retrospectively.

You told the panel that you paged Dr 2 and explained to him that you had made a drug

error and you had misread Patient A’s dosage. You explained that you had given

Patient A the extra dosage, and that Dr 2 then agreed to give a one off prescription to

cover for the additional medication. You said you had already checked with the

Registrar (a more senior doctor than Dr 2) around that time who said that the dose

given to Patient A was within the “therapeutic range.” You told the panel that you later

asked Dr 2 to “cancel the one-off prescription” because you “had time to reflect and

thought it would appear dishonest because it was a backdated prescription.”

The panel had sight of Patient A’s kardex for “medicines to be given once” and took into

consideration that there is a dosage of Oramorph that has been cancelled, according to

his evidence, by Dr 2 at 03:25.

The panel considered Dr 2’s local written statement dated 22 May 2015, which stated, “I

was not made aware at this point that there had been a drug error. At a later point SN

SAW returned and stated that the dose had already been given…” Dr 2’s immediate

response was that his prescription was accordingly invalidated because it was not

intended as a prescription for a dose already given, but was a prescription to meet a

need for analgesia which was required at the time.

The panel heard evidence from Dr 2 that there had been a practice in the Unit to write

prescriptions retrospectively, however, this was for prescriptions for non-scheduled non

controlled medication such as Syntocinon, used to induce labour or antibiotics. Dr 2 said

that the practice had been the subject of adverse comment, but that in any event, he

would not have written a retrospective prescription for Oramorph.

The panel considered that Dr 2’s written statement dated 22 May 2015, closer in time to

the events, is a reliable and accurate account supported by his oral testimony. The

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panel heard no evidence other than from you about the involvement of the Registrar,

and it seems unlikely that the local investigation would not have identified their role in

these matters. Whilst the panel noted that under cross examination, Dr 2 said it was

possible that you had told him that the dose had already been given to Patient A, he

then clearly stated that it would be “highly unlikely” that if he had been told then he

would have provided a retrospective prescription for Oramorph. The panel accepted his

account on this matter.

The panel also took into account that it is your evidence that having asked Dr 2 to write

a one off prescription for 20 mg to “regularise” a drug already administered, you

reflected that this was not the right thing to do, that this could be perceived as dishonest

and therefore went back to the doctor to ask for that prescription to be cancelled. The

panel considered that this evidence supported the improbability of a doctor agreeing to

write such a retrospective prescription. It concluded that your account could be entirely

disregarded as being neither credible nor reliable.

Accordingly, the panel found charge 4(b) PROVED.

Charge 5

5. Altered the date of an entry on Patient A’s kardex for 20 mg of oramorph from 16

January 2015 to 15 January 2015.

When considering this charge, the panel considered the evidence of Ms 1, Dr 2 and

your evidence.

Ms 1 told the panel in oral evidence that you changed the date of Patient A’s kardex in

front of her. Ms 1 told the panel that when she saw you change the date on Patient A’s

kardex from 16 January 2015 to 15 January 2016, she “basically just looked at her [you]

and said what are you doing, you can’t do that.”

You told the panel that you refute this charge in its entirety. You invited the panel to

consider that the alteration looks similar to Dr 2’s handwriting in his written statement

written a few months after the incident dated May 2015, and to accept that he made the

alteration. You explained that you asked Dr 2 to “regularise” the dosage that would have

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been given to Patient A and that he made a similar dating error, referring to that that

appeared below his signature at the end of his statement dated 26 May 2015.

The panel had sight of Patient A’s drug kardex, including the one-off prescription. The

panel took into account that this does not appear as a specific allegation that Ms 1

made in the Hospital investigation.

The panel took into account that in Ms 1’s statement dated 16 January 2015, which

stated, “She then showed me the back of the drug kardex and stated that she had

changed the date to be the 15.1.15.” The panel noted that in this contemporaneous

statement, Ms 1 does not clearly mention that she saw you change the date. However,

the panel considered that in this statement she asserted that you were responsible for

the alteration, and that the central impact of her evidence was unchanged. The panel

therefore accepted the evidence of Ms 1 that you altered the date on the kardex.

The panel considered that in reading the “medicines to be given once” kardex, Dr 2 in

his oral evidence was able to read all aspects of what he had written, and was certain

that he had not changed the date from 16 January 2015 to 15 January 2015. The panel

rejected the assertion that Dr 2 changed the date on Patient A’s kardex.

The panel noted that it was implausible to accept that only changing the date from

16.1.15 to 15.1.15, yet leaving the time as remaining at 03:00 was something Dr 2

would do. By your own admission, you approached Dr 2 a second time to ask for this

same prescription to be cancelled, which can be seen in the kardex.

Accordingly, the panel determined that you did change the date of Patient A’s kardex for

20 mg of Oramorph from 16 January 2015 to 15 January 2015.


Charge 6

6. Were dishonest in your conduct alleged at one or more of charges 2 to 5 in that

you deliberately intended to conceal your error described at charge 1.

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It is your position that you had not attempted to conceal your drug error in relation to

Patient A. The panel have rejected this and determined that charges 2-5 are proved in

their entirety.

The panel considered the test for dishonesty, as set out in R v Ghosh [1982] 3 WLR

110.

The panel first considered whether according to the the ordinary standards of a

reasonable and honest midwife/ member of the public, would your actions be

considered dishonest.

This was a matter for the panel’s judgment. However, the panel took into account the

evidence of Ms 3 who stated that were this case confined to a drug error, the matter

would have been dealt with internally. The reason that the matter was escalated to a

Hospital investigation was because of your subsequent actions in attempting to conceal

that error. That illustrates that any reasonable member of the public, and any

reasonable member of the midwifery profession, would regard your actions as contrary

to the standards expected of a reasonable and honest person.

The panel considered that a midwife who asked another colleague to conceal a drug

error in relation to Patient A, asked a colleague to ignore that error, who altered the date

of an entry on a patient’s kardex in an attempt to conceal that error, and who arranged

for Dr 2 to cancel a prescription, which by her own acceptance was dishonest conduct,

is to be considered by a reasonable and honest midwife/ member of the public to be

dishonest.

The panel then considered whether you yourself must have realised that what you were

doing was by those standards, dishonest. The panel had little difficulty in concluding

that this was the case. The panel held in mind the evidence of the Hospital investigation

in which, revealingly, you accepted that such a course of conduct would be dishonest.

The panel had little difficulty in being satisfied on this second limb of the test.


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Submissions on misconduct and impairment:

The panel then considered whether the facts found proved amount to misconduct and, if

so, whether your fitness to practise is currently impaired. The panel acknowledged that

determinations on misconduct and impairment were matters for its own independent

judgement.

The panel bore in mind that misconduct is a word of general effect relating to actions or

omissions falling seriously short of the standards expected of a registered midwife; and

there was no burden of proof on either party at this stage. The panel also recognised its

obligation to have regard to the public interest. The public interest includes not only the

protection of patients, but also the declaration and upholding of proper standards of

conduct and behaviour, and the maintenance of public confidence in the profession and

its regulator.

Mr Segovia submitted that this case was centrally about integrity and dishonesty. Mr

Segovia told the panel that for you to act in a dishonest way is simply wrong. He

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

in relation to misconduct. He stated that it makes no difference that your attempts to

conceal your error did not work; the misconduct of dishonesty is exactly the same,

which is dishonest. He also invited the panel to consider that your attempt to involve

another colleague in your attempt to conceal the drug error was a factor that made the

dishonesty even more serious. He submitted that your course of dishonest conduct is

serious enough to amount to misconduct.

Mr Segovia invited the panel to take the view that your actions amount to a breach of

The Code: Standards of conduct, performance and ethics for nurses and midwives 2008

(“the Code”), in particular paragraphs 44, and 61. He also referred the panel to the

NMC’s Record Keeping guidance.

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Mr Segovia then moved on to the issue of impairment. He referred the panel to Council

for Health Care Regulatory Excellence v Nursing and Midwifery Council [2011]

EWHC927 (Admin). He submitted that this is a case where there is current impairment

on the basis of your failings, and on the basis of the panel not having been provided any

information which would minimise the risk of repetition in the future. He referred the

panel to Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin), and submitted that all four limbs of the

test referred to therein are invoked.

Ms Merchant, on your behalf, did not make any submissions. However, she submitted

that it is your position that misconduct and impairment are admitted by you.

The panel has accepted the advice of the legal assessor, who referred the panel to

Cohen v GMC [2008] EWCA 581 (Admin), Council for Healthcare Regulatory

Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin); R

(Remedy UK Limited) v General Medical Council [2010] EWHC 1245 (Admin); Mallon v

General Medical Council [2007] CSIH 70.

Panel’s decision on misconduct:

The panel, in reaching its decision, accepted that there was no burden or standard of

proof at this stage and exercised its own professional judgement.

The panel first considered the NMC Code: Standards of conduct, performance and

ethics for nurses and midwives 2008 (“the Code”) and considered you have breached

the following sections:

From the preamble:

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

• make the care of people your first concern, treating them as individuals and

respecting their dignity

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• 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.

As a professional, you are personally accountable for actions and omissions in your

practice, and must always be able to justify your decisions.

From the numbered standards:

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.

61 You must uphold the reputation of your profession at all times.

The panel took into account that breaches of the Code do not automatically result in a

finding of misconduct.

The panel also had sight of NMC’s Record Keeping Guidance (2009), and the panel

considered that the following had been breached:

10 You must not alter or destroy any records without being authorised to do so

16 You should not falsify records

The panel also had sight of the NMC’s Standards for Medicines Management (April

2010), and the panel considered the following had been breached:

24 As a registrant, if you make an error you must take any action to prevent any

potential harm to the patient and report, as soon as possible the prescriber, your line

manager or employer (according to local policy) and document your actions. Midwives

should also inform their named supervisor of midwives.

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The panel considered whether the acts and omissions in relation to the charges found

proved fell short of what is proper in all the circumstances, thereby amounting to

misconduct.

The panel considered that charge 1, if read in isolation, does not of itself amount to

sufficiently serious misconduct as to call into question your fitness to practise.

However, the panel considered that charges 2-6 individually and collectively amounted

to serious misconduct in light of all the circumstances of this case.

The panel considered that you took a number of dishonest actions as outlined at

charges 2-5 after you were informed by Ms 1 about the drug error involving Patient A,

and that you attempted to involve a relatively newly qualified colleague and the SHO on

duty, in your concealment. The panel considered that this amounted to behaviour which

fell far below the standards required of a registered midwife, and had the potential to put

Patient A at risk of harm. The panel considered that honesty and integrity are the

“bedrock” of the midwifery profession, and you have breached that trust.

The panel considered that your actions did fall significantly short of the standards

expected of a registered midwife and charges 2-6, both individually and collectively

amounted to serious misconduct.

Panel’s decision on impairment:

The panel next went on to consider whether your fitness to practise is currently impaired

by reason of your misconduct

The panel noted that midwives occupy a position of privilege and trust in society and are

expected at all times to be professional and to maintain professional standards. Patients

and their families must be able to trust midwives with their lives and the lives of their

loved ones. To justify that trust, midwives 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

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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:

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 also endorsed the impairment test set out by Dame Janet Smith in her

fifth Shipman report as follows:

“Do our findings of fact in respect of the [registrant’s] misconduct…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. has in the past acted dishonestly and/or is liable to act

dishonestly in the future.

The panel considered your failings have met the criteria set out above in paragraphs a,

b, c and d.

The panel took into account the fact that Patient A had been given double the

prescribed maximum dose of Oramorph which would have gone undetected had it not

been for Colleague 1 reporting the drug error once she became aware of it, and

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informing you of it on the night duty of 15/16 January 2016. The panel considered that

you did put a patient at unwarranted risk of harm by attempting to conceal a drug error

in relation to Patient A. The panel determined that the circumstances surrounding the

charges were of such a nature and seriousness which did bring the profession into

disrepute and that you have breached a fundamental tenet of the profession by not

acting with honesty and integrity. In all the circumstances, the panel has found that your

actions at charges 2-5 mean you have in the past acted dishonestly, as the panel has

found at charge 6 above.

The panel then turned to the question of future risk. In reaching its decision, the panel

considered the case of Cohen and, in particular, the three matters which are described

as being ‘highly relevant’ to the determination of the question of current impairment,

namely:

1. Whether the conduct that led to the charge(s) is remediable?

2. Whether it has been remedied?

3. Whether it is highly unlikely to be repeated?

In relation to the charges found proved, whilst the panel considers your failings are

potentially capable of remediation, albeit that dishonesty is difficult to remediate, the

panel had no information from you at all to indicate that you have remediated your

failings. In light of this, the panel could not be satisfied that there is no risk of repetition.

The panel then went on to consider your insight and remorse in this matter. The panel

noted that you do accept that you are currently impaired, and therefore, display some,

albeit very limited, insight. However, the panel had no information about your current

circumstances, no evidence of remorse on your part, and insufficient information upon

which it could conclude that you are unlikely in future to repeat your actions, cause

patient harm, breach fundamental tenets of the profession, damage its reputation and

act dishonestly. In the circumstances, the panel considered therefore, that there

remains a significant risk of repetition of your misconduct.

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The panel considered that a finding of current impairment on public protection grounds

is necessary, in the absence of any remediation, insight or remorse, and given the panel

has found there is a risk of repetition.

The panel then considered whether a finding of impairment was also necessary to

maintain public confidence in the profession and the NMC. The panel was in no doubt

that your past actions did bring the profession into disrepute and that public confidence

in the profession would be seriously damaged if a finding of current impairment was not

made. Given the circumstances of this case, and the seriousness of the misconduct

identified, including dishonesty, the panel has also concluded that public confidence in

the NMC as a regulator would be undermined if a finding of current impairment was not

made.

The panel has therefore decided that a finding that your fitness to practise is currently

impaired both on public protection grounds and is in the wider public interest to maintain

public confidence in the profession and the NMC as its regulator.

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Determination on sanction:

Having determined that your fitness to practise is impaired, the panel has considered

what sanction, if any, it should impose. In reaching its decision, the panel has

considered all the evidence provided, together with Ms Forsyth’s submissions, on behalf

of the NMC, Ms Merchant’s oral submissions, made on your behalf, and the oral

evidence given by you at this stage.

You gave oral evidence to the panel.

[PRIVATE]

[PRIVATE]

[PRIVATE]

You told the panel that following the incident, you worked up until March 2015, where

there were no concerns raised about your practice, nor any repeat of the incidents in

question. You told the panel that in relation to Oramorph, you did have to undertake

Oramorph medication training and be observed administering it on three occasions by

two colleagues, which you completed.

[PRIVATE]

You explained there was a lot of study and training involved in becoming a midwife and

you would “hate to see that would be lost.”

You told the panel that during these NMC proceedings you have gained more insight

that you would perhaps need to acknowledge and be aware that if you were not coping

with a situation, you would have to face and admit that to yourself. You told the panel

that you have to accept the panel’s finding of dishonesty. You told the panel that you

are “disappointed” in the finding of dishonesty, and what people would think of you. You

explained how members of the public may perceive dishonesty. You explained that in

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relation to Patient A, you cannot comment on what she may have felt about your

dishonest behaviour. You told the panel that your professional reputation means a lot to

you.

You explained that in relation to medication errors in the future, the first thing you would

do is have “improved and robust recordings”. You explained that you wish you had

documented matters in Patient A’s case notes. You told the panel that you would make

sure you would report this to the hospital coordinator, even if another member of staff

did that as well, in order to “clarify things and be a written record in the patient’s notes.”

You told the panel that it would be helpful for you to write a personal journal for any

incidents that may come before the NMC.

You told the panel that from this whole case, you have been afforded a lot of time to

reflect on your practice and by giving your evidence you can only give your word that

the misconduct would not be repeated. You told the panel that you “certainly do” feel

remorseful about what happened because you have proven to be dishonest, and you

therefore have brought your profession into disrepute.

Ms Forsyth, on behalf of the NMC, submitted that when you were asked whether you

were remorseful, your evidence was more in relation to how this affects you rather than

the public perception. Ms Forsyth submitted that there are no references or a reflective

statement demonstrating remediation or remorse on your part. Ms Forsyth submitted

that there is no evidence to suggest you have kept your skills up to date since March

2015 and that a conditions of practice order in your case may not be appropriate. Ms

Forsyth added that given your dishonest conduct, your misconduct is at the “higher end”

of serious misconduct.

Ms Merchant, on your behalf, submitted that when determining sanction, the panel

consider that you have worked as a midwife for 26 years, and were a hard working

individual, committed to her job. As to mitigating factors, Ms Merchant said you have no

history of dishonesty, no allegations or disciplinary action taken against you since the

incident and that your character is exemplary. Ms Merchant told the panel that you

advised Patient A of the medication error on the date of the incident.

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[PRIVATE]

Ms Merchant referred the panel to the case of SRA v Sharma [2010] EWHC 2022 in

which there is described a small residual category where a striking-off order would be

disproportionate in all the circumstances. The factors outlined in that case included the

nature, scope and the extent of dishonesty, whether it was momentary, and the adverse

effects it had on others. Ms Merchant submitted this is similar to your case, and there

are circumstances that could prevent you from being struck off the register.

Ms Merchant submitted that the dishonesty found proven by the panel lies at the lower

end of the spectrum. Ms Merchant submitted that your dishonesty was one incident that

took place over one 12 hour night shift, and was not something which went on over a

long period of time.

Ms Merchant told the panel that there was no benefit to you from your dishonesty. Ms

Merchant submitted that the panel should not strike your registration from the record.

She submitted that there is a basis for your misconduct to be remediable with training,

supervision and guidance. It may be considered that you need further training to ensure

the situation you found yourself in 2015 never arises again.

The panel heard and 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.

Before making its decision on the appropriate sanction, the panel established the

aggravating and mitigating features in this case.

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The panel found the following aggravating features in your case:

- You engaged in a course of dishonest conduct;

- You put patient A at unwarranted risk of harm;

- You attempted to involve colleagues in your concealment of a drug error, in

particular, a relatively newly qualified midwife;

- No cogent evidence of remediation;

- You committed a deliberate act of dishonesty;

- There was an abuse of trust on your trust;

- There was a previous incident in July 2014 which you had support in relation to a

medication error;

- You were a senior midwife with many years’ experience;

- You persistently denied your failings;

- You breached the Code of conduct (2008), the NMC’s Record Keeping Guidance

(2009), and the NMC’s Standards for Medicines Management (April 2010);

- You have demonstrated very limited insight into your failings.

The panel identified the following mitigating features in your case:

- The panel has no evidence of previous regulatory or disciplinary proceedings;

- You have a long career as a midwife spanning 24 years.

The panel first considered whether to take no action. The panel concluded that due to

the seriousness of the misconduct, the dishonesty found proved and the risk of

repetition identified, it would not be appropriate to take no action. To do so, would not

satisfy the public interest or public protection in this matter.

Next, in considering whether a caution order would be appropriate in the circumstances,

the panel took into account the ISG, which states:

“60. A caution order is the least restrictive sanction that can be applied in a case

where a panel has concluded that a nurse or midwife’s fitness to practise is impaired. It

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does not restrict the nurse or midwife’s ability to practise, but is recorded on the

Register and published on the NMC’s website.”

The panel noted 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 your 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 and the dishonesty found

proved. The panel decided that it would be neither proportionate, protect the public, nor

would a caution order be in the public interest.

The panel next considered whether placing conditions of practice on your 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:

“64.1 No evidence of harmful deep-seated personality or attitudinal problems

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

will be monitored.”

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

be formulated, given your persistent denial of dishonesty which you have not fully

accepted. The dishonest conduct identified in this case is not something that can be

addressed through retraining. The panel considered the mischief of this case was not

about your clinical skills, albeit that a drug error occurred, but rather about dishonesty.

The panel determined that there is evidence of harmful deep-seated personality or

attitudinal problems on your part, given your persistent denial of dishonesty, your

formulaic answers to the impact that your actions may have had on others, and your

lack of remorse or insight into your behaviour.

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

appropriate sanction. The panel considered the ISG, in particular:

“68.2 No evidence of harmful deep-seated personality or attitudinal problems.

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68.4 The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour.”

The panel considered that your conduct, as highlighted by the facts found proved, was a

significant departure from the standards expected of a registered midwife, which

involved your attempt to conceal a drug error and implicate colleagues in your

concealment of that drug error. The panel considered that there is evidence of harmful

deep-seated attitudinal problems because of the way in which you have persistently

denied that your failings took place, and that the misconduct was a course of

dishonesty, which demonstrates an approach to your professional practice, in respect of

which you were willing to involve other colleagues. The panel was not satisfied that you

have fully accepted its findings in relation to dishonesty.

The panel considered that honesty and integrity lie at the foundation of the midwifery

profession. In the absence of evidence of any remediation, the limited insight displayed

by you and the risk of repetition identified by the panel, it determined that a suspension

order would not sufficiently mark the public interest in this matter. The panel did have

regard to your personal mitigation, however, the panel determined that a suspension

order is insufficient to satisfy the public interest in maintaining public confidence in the

profession and the NMC as the regulator.

The panel then went on to consider a striking-off order, and considered the ISG, in

particular:

“71.1 Is striking-off the only sanction which will be sufficient to protect the public interest? 71.2 Is the seriousness of the case incompatible with ongoing registration (see paragraph 66 above for the factors to take into account when considering seriousness)? 72.1 Serious departure from the relevant professional standards as set out in key standards, guidance and advice… … 72.6 Dishonesty, especially where…or covered up 72.7 Persistent lack of insight into seriousness of actions or consequences 73 The courts have supported decisions to strike off healthcare professionals where there has been lack of probity, honesty or trustworthiness, notwithstanding that in other regards there were no concerns around the professional’s clinical skills or any risk of

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harm to the public. Striking-off orders have been upheld on the basis that they have been justified for reasons of maintaining trust and confidence in the professions.”

In considering a striking-off order, the panel took into account your serious departure

from the standards expected of a registered midwife. The panel considered that your

persistent dishonest actions, which you attempted to conceal on a number of occasions,

including in giving evidence to the panel, was so serious that your misconduct is

fundamentally incompatible with you remaining on the register.

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

your actions were so serious that to allow you 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. Having regard to the matters it identified, in particular the

effect of your actions in bringing the profession into disrepute, the panel has concluded

that nothing short of this would be sufficient in this case. The panel listened carefully to

your evidence and to the submissions made on your behalf. The panel was not

persuaded that you had any real insight into the impact and consequences of your

misconduct on patient safety, your colleagues and the wider public interest in upholding

the reputation of the profession.

The panel considered that this order was necessary 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

midwife.

The panel considered the significant adverse impact this decision may have on you but

your dishonest misconduct is such that the public interest outweighed your own

interests.

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Decision on interim order and reasons:

The panel has considered the application made by Ms Forsyth. She submitted that an

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

public interest grounds is necessary to cover any appeal period if an appeal is made by

you.

Ms Merchant, on your behalf, did not oppose this application.

The panel accepted the advice of the legal assessor.

The panel was satisfied that an interim order was necessary for the protection of the

public and was otherwise in the public interest. In reaching the decision to impose an

interim order, the panel had regard to the seriousness of the facts found proved and the

reasons set out in its decision for the substantive order. To do otherwise would be

inconsistent with its earlier findings. The panel decided it was necessary to impose an

interim suspension order for the same reasons as it imposed the substantive order. The

panel did not consider that an interim conditions of practice order was appropriate in this

case for the same reasons as given in the determination on sanction.

The period of this interim suspension 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 you are sent the decision of this

hearing in writing.

That concludes this determination.

This decision will be confirmed to you in writing.

Conduct and Competence Committee Substantive Hearing 5-8 ... · 6/8/2017 · Maternity Unit (the...

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