Conduct and Competence Committee Substantive Hearing 7-9 ... · Page 1 of 31 Conduct and Competence...

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Conduct and Competence Committee Substantive Hearing

7-9 February 2017 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE

Name of Registrant Nurse: Miss Michelle Teresa McClintock

NMC PIN: 85A0020N

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

19 April 1988

Area of Registered Address: England

Type of Case: Misconduct

Panel Members: Sally Ruthen (Chair, Lay member)

Sue O’Sullivan (Registrant member)

Paul Powici (Lay member)

Legal Assessor: Trevor Jones

Panel Secretary: Keyorra Shrimpton Miss McClintock: Not present or represented

Nursing and Midwifery Council: Represented by Barnaby Hone, counsel,

instructed by the NMC Regulatory Legal Team

Facts proved by admission: 1 (except for Particular 7 in Schedule 1), 2.1, 2.2, 3, 6 (in relation to Schedule 2(b)).

Facts proved: 4, 5.1, 5.2, 5.3, 6 (in relation to Schedule 2(a)).

Facts not proved: 1 (Particular 7 in Schedule 1), 6 (in relation to Schedule 2(c)).

Fitness to practise: Impaired

Sanction: Striking-off order

Interim Order: Interim suspension order – 18 months

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Details of charges (as amended): That you, a registered nurse and working as a band 7 ward manager on Oxford Ward at William Harvey Hospital and employed by East Kent Universities Hospital NHS Foundation Trust: 1) Between 8 August 2013 and 22 May 2014 in relation to Electronic Discharge Notifications, acted beyond the scope of your competence by undertaking one or more of the actions set out in schedule 1 on the respective dates listed. 2) On 22 May 2014: 2.1 asked Colleague A to sign a prescription form for insulin when they were not authorised to do so 2.2 stated words to the effect of “sign it yourself, no one will recognise your signature in the community” 3) Your actions set out in charge 2 were dishonest as you knew Colleague A did not have authorisation to sign the prescription. 4) On one or more occasions on unknown dates between 17 July 2013 and 23 May 2014 you incorrectly and/or inappropriately completed and/or amended continuing care checklists. 5) Your conduct at charge 4 was dishonest in that you: 5.1. intended to conceal the patient’s/patients’ true continuing care needs; and/or 5.2. intended to expedite the patient’s/patients’ discharge; and/or 5.3 knew the continuing care checklists were inaccurate. 6) On an unknown date between 17 July 2013 and 23 May 2014 you were overheard in a clinical area stating words to the effect as those set out in Schedule 2 in relation to patients and/or colleagues. And in light of the above, your fitness to practise is impaired by reason of your misconduct. Schedule 1: Date of EDN form Named Clinician Action taken by

registrant

13 August 2013 Michelle McClintock Prescription sent

17 October 2013 Michelle McClintock Dispensed medication on

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the ward

8 November 2013 Dr 1 Revoked a prescription on 5 November 2013

8 November 2013 Michelle McClintock Dispensed medication on the ward

21 November 2013 Ms 4 Prescription sent to pharmacy

2 December 2013 Michelle McClintock Dispensed medication on the ward

8 January 2014 Michelle McClintock Added Buscopan and dispensed medication on the ward

27 February 2014 Michelle McClintock Dispensed medication on the ward; Revoked prescription

25 March 2014 Michelle McClintock Dispensed medication on the ward

2 April 2014 Michelle McClintock Dispensed medication on the ward

24 April 2014 Michelle McClintock Revoked prescription; Dispensed medication on the ward

15 May 2014 Michelle McClintock Revoked prescription from pharmacy

22 May 2014 Michelle McClintock Prescription sent

Schedule 2: a) “they can just shit in their own toilet at home get rid of them so I have a discharge” b) “she’s bleeding like a stuffed pig” c) “I’m bored, who can we get rid of next?”

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Decision on Service of Notice of Hearing: Miss McClintock was not in attendance and was not represented. Written notice of this

hearing had been sent to Miss McClintock’s registered address by recorded delivery

and by first class post on 15 December 2016. Royal Mail “Track and Trace”

documentation confirmed that the notice of hearing was sent to Miss McClintock’s

registered address by recorded delivery on that date.

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

time, dates and venue of the hearing and, amongst other things, information about Ms

McClintock’s 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 and signed for in the printed name of “MCCLINTOCK” on

16 December 2016.

Mr Hone 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 Miss

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

requirements of Rules 11 and 34.

Decision on proceeding in the absence of the Registrant: The panel had regard to Rule 21 (2) (b) which states:

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

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

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

notwithstanding the absence of the registrant...”

Mr Hone guided the panel through the background to Miss McClintock’s case. He told

the panel that this matter was listed for a previous hearing on 13 October 2016, but that

the NMC agreed to an adjournment on the basis that the RCN had stopped being

instructed by Miss McClintock. Mr Hone told the panel that the outcome of a pre-

meeting on 9 December 2016 was that there was a request that Miss McClintock

engage with the NMC further. Mr Hone submitted there has been no further

engagement by Miss McClintock except for an email dated 3 February 2017 which

stated that Miss McClintock does not wish to attend her substantive hearing, the panel

has the submissions prepared for her by the RCN , and that she accepts the matter will

go ahead.

Mr Hone therefore invited the panel to continue in the absence of Miss McClintock on

the basis that Miss McClintock had voluntarily absented herself. He submitted that Miss

McClintock has not asked for an adjournment, and there is nothing before the panel

which would suggest that Miss McClintock would attend her substantive hearing in the

future.

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 and Davies v

HCPC 2016 EWCA Civ 1593.

The panel had sight of email correspondence dated 3 February 2017 which stated, “I

will not be attending the hearing...The Rcn (sic) have already provided my submissions

before unexpectedly with drawing (sic) from my case without prior notification to myself.

I am no longer a member...I will await the outcome and accept whatever that may be.”

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The panel has decided to proceed in the absence of Miss McClintock. In reaching this

decision, the panel has considered the submissions of Mr Hone, and the advice of the

legal assessor. It has had regard to the overall interests of justice and fairness to all

parties. It noted that:

• Miss McClintock has stated in email correspondence dated 3 February 2017 that

she will “await the outcome and accept whatever that may be”. The panel

considered that Miss McClintock has therefore voluntarily chosen not to

participate in this hearing;

• no application for an adjournment has been made by Miss McClintock;

• there is no reason to suppose that adjourning would secure Miss McClintock’s

attendance at some future date;

• three NMC witnesses have attended today to give live evidence;

• not proceeding may inconvenience the witnesses and their employer;

• the charges relate to events that occurred in 2013 and 2014; further delay could

affect the memory of witnesses;

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

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

proceed in the absence of Miss McClintock. The panel will draw no adverse inference

from Miss McClintock’s absence in its findings of fact.

Admissions to charges:

The panel had sight of Miss McClintock’s Standard Direction Form (SDF), and although

this is undated and unsigned, the panel noted that this was sent in by Miss McClintock’s

legal representatives at the Royal College of Nursing (RCN) on 10 May 2016.

Mr Hone, on behalf of the NMC, submitted that if Miss McClintock had any concerns

about her admissions in the SDF, she has had 9 months to raise this with her regulator.

Mr Hone told the panel Miss McClintock has not raised any concerns with the

admissions she has made on the SDF.

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The panel decided that Miss McClintock has had ample opportunity to raise any

concerns with the SDF submitted by the RCN on her behalf on 10 May 2016. Further, in

recent email correspondence dated 3 February 2017 between Miss McClintock and a

case officer at the NMC, Miss McClintock stated that “The Rcn (sic) have already

provided my submissions…” Miss McClintock has not made any objections in her recent

correspondence with the NMC, and therefore, the panel went on to carefully consider

the admissions Miss McClintock made on the SDF.

The panel found that Miss McClintock has admitted charge 1, except particular 7 in

Schedule 1, which she partly denies. The panel therefore found this charge proved,

albeit that the seventh particular in Schedule 1 is not proved. The panel considered that charges 2.1, 2.2 and 3 are admitted in their entirety and the

panel therefore found charges 2 and 3 proved in their entirety.

The panel considered that Miss McClintock has admitted charge 6, which relates to

Schedule 2, insofar as Schedule 2(b) is admitted. The panel therefore found Charge 6

proved only in relation to Schedule 2(b).

The panel therefore determined that charges 1 (except Particular 7 in Schedule 1), 2.1,

2.2, 3 and 6 (only in relation to Schedule 2(b)) are proved by way of Miss McClintock’s

admissions.

Decision and reasons on further application to amend charges:

During the course of Ms 2’s evidence, the panel heard an application made by Mr Hone,

on behalf of the NMC, to amend the wording of Schedule 1, particular 7, which goes to

Charge 1.

The proposed amendments to the charges are as follows, and are indicated in bold:

Schedule 1:

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Date of EDN form Named Clinician Action taken by registrant

8 January 2014 Michelle McClintock Revoked a prescription then added Buscopan Added Buscopan and dispensed medication on the ward

Mr Hone submitted that the proposed amendment to Charge 1 better reflects the

evidence as set out at page 73 of the NMC bundle. He submitted that such a change is

fair, clear and it qualifies the actions that are alleged to have taken place by Miss

McClintock.

The panel considered the application made by Mr Hone following the completion of Ms

2’s oral evidence.

The panel had regard to Rule 28 of the Nursing and Midwifery Council (Fitness to

Practise) Rules 2004, as amended (“the Rules”):

28. (1) At any stage before making its findings of fact, in accordance with [ rule 24(5) or

(11) ] , the Investigating Committee (where the allegation relates to a fraudulent or

incorrect entry in the register) [ , the Health Committee ] or the Conduct and

Competence Committee, may amend

(a) the charge set out in the notice of hearing; or

(b) the facts set out in the charge, on which the allegation is based,

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

required amendment cannot be made without injustice.

(2) Before making any amendment under paragraph (1), the Committee shall consider

any representations from the parties on this issue.

In considering Mr Hone’s application, the panel accepted that these amendments would

cause no prejudice to Miss McClintock.

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The panel decided to allow Mr Hone’s application.

Accordingly, the panel accepted the application to amend Particular 7 of Schedule 1 in

relation to Charge 1.

Background:

Miss McClintock was employed by East Kent Hospitals University NHS Foundation

Trust (“the Trust”) from 1 April 2000. At the time of the allegations Miss McClintock was

the Ward Manager on Oxford Ward at William Harvey Hospital.

The allegations relate to Miss McClintock’s inappropriate behaviour towards staff and

patients, amending continuing care checklists which affect patient discharge/ care, and

practising beyond the scope of her competence in amending Electronic Discharge

Notifications (EDN).

Ms 2 carried out an investigation into Miss McClintock’s practice and recommended

disciplinary action be taken by the Trust. Ms 1 and Mr 3 worked as Staff Nurses, with

Miss McClintock as their line manager, and also raised concerns about Miss

McClintock’s practice.

Following a disciplinary hearing, Miss McClintock was dismissed from the Trust on 8

July 2014.

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 Hone, on behalf of the NMC.

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

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

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

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

incidents occurred as alleged.

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

At the time of the events:

• Ms 1: Employed as a Staff Nurse at East Kent Hospitals University NHS

Foundation Trust, William Harvey Hospital, Kent (the Trust).

• Ms 2: At the time of the events in question was employed by East Kent Hospitals

University NHS Foundation Trust as the Clinical Governance Matron for the

Urgent Care and Long Term Conditions Division. Ms 2 began her current role as

Senior Matron at William Harvey Hospital in April 2016.

• Mr 3: Employed as a Staff Nurse at East Kent Hospitals University NHS

Foundation Trust, William Harvey Hospital, Kent (the Trust).

The panel considered that Ms 1 was open and honest with the panel, and tried to assist

the panel to the best of her ability. It considered that she was a credible and reliable

witness.

The panel found Ms 2 was a credible and consistent witness who was detailed and

articulate in her oral evidence. The panel found Ms 2 to be honest and reliable and

knew the limits of her own knowledge.

The panel considered that Mr 3 was an open and honest witness, and was trying to

assist the panel to the best of his ability. He was a reliable and credible witness.

The panel then went on to consider the following charges:

Details of charges: Charge 1:

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That you, a registered nurse and working as a band 7 ward manager on Oxford Ward at

William Harvey Hospital and employed by East Kent Universities Hospital NHS

Foundation Trust:

1) Between 8 August 2013 and 22 May 2014 in relation to Electronic Discharge Notifications, acted beyond the scope of your competence by undertaking one or more of the actions set out in schedule 1 on the respective dates listed.

Schedule 1:

Date of EDN form Named Clinician Action taken by registrant

8 January 2014 Michelle McClintock Added Buscopan and

dispensed medication on

the ward

When considering this charge, the panel took into account the evidence of Ms 2.

Ms 2 told the panel that it would appear that Miss McClintock has approved the

medications listed in the patient’s discharge notification dated 8 January 2017 as being

appropriate for that patient for those conditions, which included Buscopan medication.

She told the panel that Miss McClintock, who is listed as the “clinician” although she did

not have prescribing rights, authorised Buscopan on the EDN, because it does not look

like a doctor, nurse or therapist had any input on the EDN summaries for the 8 January

2017. Ms 2 explained that it appears Miss McClintock then dispensed the Buscopan on

the ward. Ms 2 told the panel that Miss McClintock did not have the right to prescribe

drugs as she was not a registered Prescriber nurse and had not undertaken further

training to gain this qualification.

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Ms 2 told the panel in oral evidence that to be certain of her interpretation of this

evidence she would need the pharmacist who explained how this was to be interpreted

during the course of the investigation, or a member of the IT department at the Trust to

give a clearer picture. Ms 2 told the panel that her findings are as a result of what her

pharmacy colleagues told her, and that they did not give her a full explanation of how

they came to that conclusion. As a result, she could not be certain whether Miss

McClintock added Buscopan to the EDN or whether she has amended an existing entry.

The panel considered that it did not have the evidence of the pharmacist, or the IT

person who explained to Ms 2 how Appendix 7 should be interpreted. The panel was

not provided with sufficient evidence by the NMC that could evidence that Miss

McClintock had added Buscopan, thus acting beyond the scope of her competence in

relation to this EDN.

The panel was therefore not satisfied that this charge is proved on the balance of

probabilities.

Accordingly, the panel found this charge NOT PROVED.

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Charge 4: 4) On one or more occasions on unknown dates between 17 July 2013 and 23 May 2014 you incorrectly and/or inappropriately completed and/or amended continuing care checklists. When considering this charge, the panel took into account the evidence of Ms 1 and Mr

3.

Ms 1’s evidence is that “The continuing healthcare checklist is a document used for

patients who cannot look after themselves at home and who need support from

residential care or a nursing home…this form is completed by a nurse. The form is then

given to the continuing healthcare team. The…team then make a decision on whether

to approve, reject or alter the recommendation made by the nurse. The continuing

healthcare checklist is made up of three categories. Each category differs in the level of

care required for a patient. Category ‘A’ is very high, meaning that the patient needs

assistance with everything. Category ‘B’ is medium, meaning that the patient needs

assistance with certain things. Category ‘C’ is low, meaning that the patient can do most

things, however needs assistance with the odd task.”

Ms 1 told the panel that on one occasion which occurred prior to 23 May 2014, Miss

McClintock marked a patient (Lady C) as a Category ‘C’ on the continuing healthcare

checklist, and that she knew this because Ms 1 recognised Miss McClintock’s writing.

She told the panel that when Ms 1 questioned Miss McClintock about this, she did not

provide a response, and Ms 1 explained that Miss McClintock did not actually nurse

Lady C.

Ms 1 explained that “Lady C should have been put into Category ‘A’… I was

concerned…that the registrant had put Lady C into Category ‘C’. I was concerned that

Lady C would not receive the appropriate level of follow on care. The risk of harm to

Lady C on Category ‘C’ would be high as her health would be more likely to deteriorate.”

Ms 1 told the panel that Miss McClintock had a tendency to “get patients discharged as

frequently as possible.”

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Mr 3 told the panel that there were two or three occasions that he knew of where Miss

McClintock changed the continuing care checklist of a patient from a ‘high’ score (for

example an ‘A’), to a lower score (for example a ‘B’ or a ‘C’).

The panel acknowledged that it had no documentary evidence of a continuing care

checklist in the evidence before it. However, the panel accepted Ms 1’s oral evidence,

which was consistent with her NMC witness statement and the investigatory notes of 23

May 2014.

The panel noted that Ms 1 was able to give a clear recollection of the care needs of

Lady C, and was able to describe specific details about her in relation to her weight,

frame and the fact that she was elderly. The panel noted that Ms 1 was able to explain

why she disputed what Miss McClintock had recorded on the continuing care checklist.

The panel also noted that Ms 1 told the panel that this type of behaviour occurred more

than once on the ward. The panel had sight of the disciplinary transcript dated 23 May

2014, exhibited by Ms 1, where Ms 1 stated in response to questioning as to whether

Miss McClintock’s behaviour is regular that “Yes, it’s quite regular. I’ve had staff tell me

before. And I’ve said she can’t really do that and then I’ve witnessed it once and then

I’ve seen it another three.”

The panel noted that the evidence of Ms 1 was corroborated by that of Mr 3, who stated

that there were two or three occasions where Miss McClintock altered the continuing

care checklist, to reduce the dependency/ complexity of the patients’ care needs.

Accordingly, the panel found that on the balance of probabilities, Miss McClintock on

one or more occasions on unknown dates between 17 July 2013 and 23 May 2014

incorrectly and inappropriately completed and amended continuing care checklists.

Accordingly, the panel found this charge PROVED. Charge 5: 5) Your conduct at charge 4 was dishonest in that you: 5.1. intended to conceal the patient’s/patients’ true continuing care needs; and/or

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When considering this charge, the panel took into account the evidence of Ms 1 and Mr

3 as outlined in charge 4 above.

The panel had sight of the disciplinary transcript dated 23 May 2014, exhibited by Ms 1,

where Ms 1 stated, “I said Michelle do you know who did this continuing care checklist. I

could see it was her writing. She said but that lady doesn’t have complex nursing needs

so I said to her have you nursed this patient then. She said no but I can tell you she has

got no complex. I said Michelle she’s double incontinent and went through it all. She

said oh but if you put her down as B she’ll be here even longer. But I said that lady has

a right, it’s her safety and welfare and we’re supposed to be here in a caring

environment and she just walked off. And I said to Ms 5 I’m happy to change it for you. I

said you know I have asked her about it and she still wanted to give this lady all C’s

because she didn’t want her sitting on the ward for a few more days…it’s quite regular.

I’ve had staff tell me before. And I’ve said she can’t really do that and then I’ve

witnessed it once just before I saw you and since then I’ve seen another three.”

The panel accepted the evidence of Ms 1 and Mr 3. The panel determined that Miss

McClintock did intend to act dishonestly and conceal patients’ true continuing care

needs.

Accordingly, on the balance of probabilities, the panel found this charge PROVED.

5.2. intended to expedite the patient’s/patients’ discharge; and/or When considering this charge, the panel took into account the evidence of Ms 1 and Mr

3 as outlined above.

The panel noted that Ms 1’s oral evidence was that Miss McClintock was “happy” that

she had more discharges than other wards. The panel noted that in the disciplinary

transcript dated 23 May 2014, exhibited by Ms 1, Ms 1 stated that Miss McClintock

“…still wanted to give this lady all C’s because she didn’t want her sitting on the ward

for a few more days.” The panel found that in this way Miss McClintock intended to

expedite patients’ discharge despite their continuing care needs.

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The panel also considered Mr 3’s oral evidence where he told the panel that Miss

McClintock would say to him during his preceptorship, when he would disagree with her

decisions in regards to continuing care check lists that, “I have been doing this for

years, I know how to get the patients out the door.”

The panel accepted the evidence of Ms 1 and Mr 3. The panel determined that Miss

McClintock did intend to act dishonestly and expedite patients’ discharge.

Accordingly, on the balance of probabilities, the panel found this charge PROVED. 5.3 knew the continuing care checklists were inaccurate. When considering this charge, the panel took into account the evidence of Ms 1 and Mr

3, as outlined above.

The panel noted that Ms 1 and Mr 3 both challenged Miss McClintock in her decision to

change the continuing care checklists on more than one occasion. This is evidenced by

Ms 1 and Mr 3’s oral evidence, as well as the evidence from Ms 1 as outlined in the

disciplinary transcript dated 23 May 2014, exhibited by Ms 1.

The panel noted that Mr 3’s evidence was that Miss McClintock would “rewrite

Continuing Care Checklists that Nursing Staff had already completed (so Patients met

the criteria easier). I felt this was not always in the Patients’ best interest and confronted

her several times on forms I had filled in (she had then changed) and was told: “to get

on with it.””

In light of all the evidence the panel has before it, the panel determined that Miss

McClintock knew the continuing care checklists were inaccurate.


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Charge 6: 6) On an unknown date between 17 July 2013 and 23 May 2014 you were overheard in a clinical area stating words to the effect as those set out in Schedule 2 in relation to patients and/or colleagues. Schedule 2: a) “they can just shit in their own toilet at home get rid of them so I have a discharge” When considering this charge, the panel took into account the evidence of Ms 1 as well

as the oral evidence of Mr 3.

Ms 1 told the panel that “On one occasion which occurred prior to 23 May 2014 whilst I

was working with the registrant, I heard the registrant say in front of a patient “they can

just shit in their own toilet at home to get rid of them so I’ve got a discharge.” Ms 1

confirmed this in oral evidence. Ms 1 told the panel that when she heard Miss

McClintock say this she was “…within touching distance” of her. Ms 1 told the panel that

it was quite frequent that Miss McClintock would say the exact phrase as set out in

Schedule 2(a).

Mr 3 told the panel in oral evidence that he had heard Miss McClintock say “they can

just shit in their own toilet at home get rid of them so I have a discharge” and that it was

her practice to be quite vulgar and rude in front of other members of staff. He explained

he heard inappropriate language come from Miss McClintock “constantly.” Mr 1 told the

panel that due to the nature of the ward, constant inappropriate language from Miss

McClintock often came about in relation to “people’s toilet habits.”

The panel accepted Ms 1’s evidence and found her evidence was reliable and

consistent with her NMC witness statement. The panel noted that her evidence was

corroborated by the oral evidence of Mr 3, who explained that he had heard Miss

McClintock use the phrase as set out in Schedule 2(a).


c) “I’m bored, who can we get rid of next?”

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The panel determined that there was insufficient information provided to the panel, and

a lack of direct evidence provided by the NMC to prove this charge.

Accordingly, on the balance of probabilities, the panel found this charge NOT PROVED.

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Submissions 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 Miss

McClintock’s fitness to practise is currently impaired. The NMC has defined fitness to

practise as a registrant’s suitability to remain on the register unrestricted.

The panel carefully considered the submissions made by Mr Hone on behalf of the

NMC.

As to misconduct, Mr Hone referred the panel to the case of Roylance v GMC (No 2)

[2000] 1 A.C. 311. He explained that misconduct is “a word of general effect, involving

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

circumstances.”

Mr Hone invited the panel to consider that for the following reasons you had breached

the following parts of the NMC Code: 1, 3, 4, 24, 26, 35 and 61. Mr Hone guided the

panel through the relevant facts which support the breaches of the Code. Mr Hone

submitted that Miss McClintock’s conduct was to manipulate the EDN system, to make

discharges her priority rather than appropriate care of patients, she used bad language

in the Trust and was dishonest in her failings. Mr Hone submitted that Miss

McClintock’s failings are serious and Mr Hone invited the panel to find misconduct.

As to impairment, Mr Hone submitted for the following reasons that Miss McClintock is

currently impaired on the grounds of both public protection and public interest.

Mr Hone submitted that whilst Miss McClintock has made admissions to some of the

charges, she has not shown insight or remorse for her actions. He submitted that Miss

McClintock had abused her leadership position for at least a period of 8/9 months, and

created an environment where patient discharge was a priority over patient care.

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Mr Hone referred the panel to the case of CHRE v NMC & Grant EWHC (Grant) and

referred to elements (a)-(d) of that test. He submitted that Miss McClintock has

breached all four limbs of that test, and that she is currently impaired.

The panel heard and accepted the advice of the Legal Assessor.

Panel’s consideration on misconduct: The panel, in reaching its decisions regarding misconduct, had regard to public

protection and the wider public interest. This includes the declaring and upholding of

proper standards of behaviour and public confidence in the profession and the NMC as

its regulator. The panel accepted that there was no burden or standard of proof at this

stage and exercised its own professional judgement.

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

regard to the terms of the 2008 NMC Code.

The 2008 Code contains underlying principles that guide the nursing profession and are

in place to protect the public and to ensure that proper standards of the profession are

upheld. The panel has reminded itself that registrants are personally accountable, under

the relevant Code, for acts and omissions in their practice.

The panel was of the view that Miss McClintock’s actions did fall significantly short of

the standards expected of a registered nurse, and many of her actions amounted to a

breach of the 2008 Code which was in force at the time of the events in question.

In particular 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

• work with others to protect and promote the health and wellbeing of those in your

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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.”

In particular from the numbered standards:

1 You must treat people as individuals and respect their dignity.

3 You must treat people kindly and considerately.

4 You must act as an advocate for those in your care, helping them to access

relevant health and social care, information and support.

24 You must work cooperatively within teams and respect the skills, expertise and

contributions of your colleagues.

26 You must consult and take advice from colleagues when appropriate.

27 You must treat your colleagues fairly…

35 You must deliver care based on the best available evidence or best practice.

39 You must recognise and work within the limits of your competence.

42 You must keep clear and accurate records of the…assessments you make

57 You must not abuse your privileged position for your own ends.

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

The panel was mindful that a breach of the Code did not lead to an automatic finding of

misconduct.

The panel considered all the charges found proved at the facts stage, as well as those

found proved by Miss McClintock’s admissions. The panel also noted that in the NMC

bundle there was a written response from Miss McClintock which appears to have been

provided at her disciplinary hearing on 8 July 2014.

The panel considered that Miss McClintock had encouraged staff who were more junior

than her to sign prescriptions when they were not authorised to do so. The panel noted

that Miss McClintock had abused her position of seniority in the Trust to influence others

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with less experience than her. The panel determined that Miss McClintock did not

provide adequate care to patients by expediting patients’ discharge, inappropriately

completed continuing care check lists, and also amended them. Miss McClintock

practised beyond the scope of her competence in amending Electronic Discharge

Notifications (EDN).

The panel considered that Miss McClintock, in repeatedly dismissing the concerns of

others, dishonestly pursued her own agenda to improve the Trust’s discharge rate. The

panel found that Miss McClintock compromised patient care needs by inaccurately

completing documentation. Miss McClintock also used inappropriate language whilst on

duty in clinical areas.

Therefore, in the panel’s judgement, all the charges found proved amounted,

individually and collectively, to misconduct.

Panel’s decision on impairment:

The panel next went on to consider whether Miss McClintock’s fitness to practise is

currently impaired by reason of her misconduct.

In considering impairment, the panel had regard to all the relevant information available

to it and to the submissions made by Mr Hone on behalf of the NMC, as well as the

Standard Directions Form provided by the Royal College of Nursing on Miss

McClintock’s behalf. The panel also took into account the advice of the legal assessor.

The panel, in reaching its conclusion in relation to Miss McClintock’s misconduct, took

account of the guidance given by Dame Janet Smith in her Fifth Shipman Report, cited

with approval by Mrs Justice Cox in the case of Grant. Accordingly, the panel

considered whether Miss McClintock had in the past and/or was liable in the future to

act in such a way as to:

• Put a patient or patients at unwarranted risk of harm; and/or

• Bring the profession into disrepute; and/or

• Breach one of the fundamental tenets of the profession; and/or

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• Act dishonestly.

The panel considered that all four limbs of that guidance were engaged by Miss

McClintock’s serious and wide-ranging misconduct.

The panel considered that while there was no reported actual harm caused to patients,

the potential for patient harm was significant. For example, the failure by Miss

McClintock to provide the appropriate score for patients’ continuing care checklists

meant that patients were likely to have been discharged to an inappropriate setting and

therefore possible deprived of appropriate continuing care. A further example of

potential harm to patients was acting beyond her competence by amending EDNs when

Miss McClintock was not a Nurse Prescriber and therefore not authorised to do so.

The panel determined that Miss McClintock’s wide ranging failings seriously

undermined the confidence of the public and patients in the nursing profession. The

panel considered that Miss McClintock has brought the profession into disrepute by

acting dishonestly on several occasions, swearing whilst on duty in front of staff with the

potential for patients and visitors to overhear her, and acting beyond the scope of her

competence whilst undertaking a leadership role at the Trust. The panel considered that

Miss McClintock has breached fundamental tenets of the nursing profession of integrity

and trustworthiness.

The panel considered that whilst Miss McClintock has made some admissions at the

earliest opportunity in May 2016, the panel has received no material evidence of insight,

reflection, remorse or remediation. In the absence of any such information before it, the

panel determined that it could not rationally conclude that Miss McClintock would not act

in the same manner in the future, should similar circumstances arise. As such, it

determined that there was a real risk of repetition and Miss McClintock was liable in the

future, to breach fundamental tenets of the profession, damage the reputation of the

nursing profession or place patients at risk of harm and act dishonestly.

The panel therefore decided that a finding of impairment was necessary on the grounds

of public protection and in the wider public interest. The panel was in no doubt that Miss

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McClintock’s actions had the potential to cause harm to patients and bring the

profession into disrepute. Her actions could undermine public confidence in the

profession and in the NMC as its regulator if a finding of impairment were not made in

all the circumstances of this case.

In all the circumstances, the panel has concluded that Miss McClintock’s fitness to

practise is currently impaired by reason of her misconduct.

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Determination on sanction:

Having determined that Miss McClintock’s fitness to practise is impaired by reason of

her misconduct, the panel considered what sanction, if any, it should impose in relation

to her registration.

Mr Hone invited the panel to have regard to the NMC’s Indicative Sanctions Guidance

(“ISG”) as published in September 2016. He submitted that sanction was a matter for

the panel’s own professional judgement. He outlined some of the mitigating and

aggravating features in Miss McClintock’s case.

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 ISG. It recognised that the decision

on sanction is a matter for the panel, exercising its own independent judgement.

The panel found the following aggravating features:

• Multiple severe breaches of the Code;

• Breaches of fundamental tenets of the profession as outlined in the Preamble of

the Code;

• No material evidence of insight, remorse or remediation;

• Miss McClintock abused a position of authority as a Band 7 Ward Manager,

including attempting to influence more junior members of staff;

• Miss McClintock’s misconduct continued for a 9 month period.

• Miss McClintock dishonestly pursued her own agenda, ignoring the concerns of

her colleagues, in order to improve the ward’s discharge rate.

The panel identified the following mitigating features:

• Miss McClintock has engaged to some extent with the NMC, by way of

completing an SDF dated 10 May 2016 and has recently emailed an NMC Case

Officer on 3 February 2017;

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• The panel has no evidence of actual patient harm;

• Miss McClintock has made some admissions to the charges at the earliest

opportunity;

• The panel has no evidence that Miss McClintock has had any prior NMC fitness

to practise referrals during her long career;

• Miss McClintock’s ability to amend EDNs in the capacity as a Nurse Prescriber

was a system error rather than a deliberate act on her part;

• At the time of the disciplinary hearing, Miss McClintock raised health issues and

specific personal circumstances at the time of the misconduct;

• Miss McClintock may have felt that she was under pressure to expedite patients’

discharge more quickly from the Trust.

The panel first considered whether to take no action but concluded that, given its

findings on misconduct and impairment, this would be inappropriate because it would

not serve to protect the public by restricting Miss McClintock’s practice, nor would it take

into account the wider public interest in this case. The panel decided that it would be

neither proportionate nor sufficient 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

practice and the panel wishes to mark that the behaviour was unacceptable and must

not happen again.’ The panel considered that Miss McClintock’s misconduct was not at

the lower end of the spectrum and further, that a caution order would not restrict Miss

McClintock’s nursing practice in any way. A caution order would therefore not

adequately protect the public or the public interest.

The panel next considered whether placing conditions of practice on Miss McClintock’s

registration would be a sufficient and appropriate response to the charges found proved.

The panel was mindful that any conditions imposed must be proportionate, measurable

and workable. The panel took into account the ISG, in particular:

“63.1 Will imposing conditions be sufficient to protect patients and the public interest?”

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The panel noted that Miss McClintock made an offer to a disciplinary hearing panel at

the Trust on 8 July 2014 that she would “…be willing to do anything deemed necessary

by the panel to make amends”. The panel considered that although there are some

identifiable areas of Miss McClintock’s practice that could be remediated, there would

be others that would be hard to remediate, for example dishonesty found proved in

relation to two charges. The panel bore in mind that this case concerned attitudinal

issues, in that Miss McClintock pursued her own agenda to improve her Ward’s

discharge rate, and that in this respect, her behaviour is not readily susceptible to

conditions. Furthermore, the panel considered that a conditions of practice order would

not satisfy the wider public interest in this case.

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

appropriate sanction. Paragraphs 66-68 of the ISG indicates that a suspension order

would be appropriate where (but not limited to):

“66.1 Does the seriousness of the case require temporary removal from the register?

66.2 Will a period of suspension be sufficient to protect patients and the public interest?

68.1 A single instance of misconduct but where a lesser sanction is not sufficient.

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

68.3 No evidence of repetition of behaviour since the incident.

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 was of the view that Miss McClintock’s actions were not isolated incidents in

themselves, but that her failings occurred over a 9 month period, with two instances of

dishonesty. In particular repeated conduct over a prolonged period of time gives rise to

a significant risk of repetition which is amplified by the lack of material insight or any

information of any steps taken by Miss McClintock to attempt to remedy her failings.

The panel considered that some of the charges relate to dishonesty, and demonstrate

an attitudinal issue on Miss McClintock’s part. The panel was particularly concerned

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about the dishonesty in this case, which made it likely that harm would follow, indicating

that Miss McClintock was not making patient care her first priority. She also attempted

to encourage more junior colleagues to adopt a similar approach at the onset of their

career, which the panel found concerning, considering that she acted as a mentor for Mr

3 during his preceptorship period and was acting in the senior role of Ward Manager.

The panel was mindful that although there is no evidence before it to suggest that she

has repeated such dishonest behaviours since these events, it had found that she was

liable to do so. The panel noted that Miss McClintock has had some time since the

offences were committed in 2013/2014 to reflect on her actions, yet despite this length

of time it is unfortunate that there is no information provided by her to this panel for the

purpose of this hearing to indicate any material insight or remediation on her part.

The panel concluded that in those circumstances, a suspension order, whilst it

would protect the public whilst it was in force, would not be likely to result in any

development of insight on the part of Miss McClintock or any remediation by her

of the failings involved in this case.

The panel determined that Miss McClintock’s conduct amounted to a serious departure

from the standards expected of a registered nurse. The panel determined that the

behaviour in this case was so serious that a suspension order would not be sufficient to

mark the charges found proved in order to satisfy the public interest in this case. The

panel considered that while it would prevent Miss McClintock from practising as a nurse,

it would not be the necessary or proportionate response in all the circumstances of this

case.

The panel then went on to consider a striking off order. The panel took note of the

following paragraphs of the ISG:

“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)?

71.3 Can public confidence in the professions and the NMC be sustained if the nurse or midwife is not removed from the register?

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72 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 (this list is not exhaustive): 72.1 Serious departure from the relevant professional standards as set out in key standards, guidance and advice including (but not limited to): 72.1.1 The code: Standards of conduct, performance and ethics for nurses and midwives … 72.2 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 72.3 Abuse of position, abuse of trust, or violation of the rights of patients, particularly in relation to vulnerable patients 72.6 Dishonesty, especially where persistent or covered up

72.7 Persistent lack of insight into seriousness of actions or consequences”

The panel considered that Miss McClintock’s actions were such significant departures

from the standards expected of a registered nurse, and were so serious in nature, that

they were fundamentally incompatible with her remaining on the register. The panel was

of the view that members of the public would not consider that a nurse who has

demonstrated repeated dishonest conduct, as well as a serious disregard for the care of

vulnerable patients, linked with wide ranging failings, should be allowed to remain on

the register.

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

during this case, the panel determined that the only sanction which would be sufficient

to satisfy the public interest in this case was a striking-off order.

The panel considered that such an order was necessary to mark the seriousness of the

misconduct, in order to declare and uphold proper professional standards for registered

nurses and maintain public confidence in the profession and the regulatory process.

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The panel directs the registrar to strike Miss McClintock off the register. The effect of

this order is that the NMC register will show that Miss McClintock has been struck off

the register.

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Decision on interim order and reasons: The panel has considered the submission made by Mr Hone that an interim suspension

order should be made on the grounds that it is necessary for the protection of the public

and is otherwise in the public interest. He submitted that an interim suspension order for

a period of 18 months is appropriate to allow for any potential appeal period.

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. The panel decided to impose an

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

do otherwise would be incompatible with its earlier findings. 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 suspension order 28 days after Miss McClintock is sent the decision

of this hearing in writing.

That concludes this determination.

This decision will be confirmed to Miss McClintock in writing.

Conduct and Competence Committee Substantive Hearing 7-9 ... · Page 1 of 31 Conduct and Competence...

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