Conduct & Competence Committee · Legal assessor: Paul Hester . Panel Secretary: Sam Hughes ....

Conduct and Competence Committee

Substantive Hearing

Thursday 28 April – Friday 29 April 2016

Monday 24 October – Wednesday 26 October 2016

Friday 4 November 2016

NMC, 2 Stratford Place, Greater London E20 1EJ Registrant: Annette Geraldine Roberts NMC PIN: 07F3243E Part(s) of the register: Registered Nurse (sub part 1) Mental

health Type of Case: Misconduct Area of Registered Address: England Panel Members: Alison Stone (chair, lay member)

Gi Cheesman (lay member) David Parry (registrant member)

Legal assessor: Paul Hester Panel Secretary: Sam Hughes Nursing and Midwifery Council: Leeann Mohamed, Terrance Wong and

Chris Scott NMC Regulatory Legal Team

Registrant: Present and not represented Facts proved by way of admission: 1, 2 and 6 Facts proved: 3, 4, 7 and 8 Facts not proved: 5 Fitness to practise: Impaired Sanction: Striking-off order Interim order: Interim suspension order -18 months

Application to amend charge 8 Charge 8 currently reads: “Your conduct as alleged at charges 7 and/or 8 was dishonest

in that you knew you were under investigation by the NMC.”

Ms Mohamed applied for an amendment to charge 8. She applied for the charges

referred to, to be changed from “7 and/or 8” to “6 and/or 7”. She submitted that this was

a typographical error and that no unfairness would be caused to you in making the

amendment. You made no objection to the application.

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

that at any stage before making findings of fact, it has the power to amend the charge

set out in the notice of hearing under Rule 28. He advised that the test is one of

fairness, having regards to the merits of the case.

The panel was of the view that the error was obvious and that no one, including you,

could have been misled. The panel concluded that the proposed amendment would not

cause injustice to you, and acceded to Ms Mohamed’s application.

Amended charges That you whilst employed as a Registered Nurse by Medbank Healthcare Solutions Ltd

and working at Bramley Court Care Home on 26 November 2013:

1. Administered 12.5mls of Oramorph solution to Resident A, when 2.5mls was the

prescribed dosage;

2. Failed to ensure that the administration of Oramorph, a controlled drug, to

Resident A was witnessed and/or countersigned in the controlled drugs book.

3. Failed to record the medication error alleged at charge 1 on Resident A’s care

plan.

4. Failed to correctly store medication prescribed to Resident A, following her

discharge from hospital.

5. Signed MAR charts in respect of one or more residents of the Home stating that

medication had been administered, when it had not, or, in the alternative, failed

to inform the nurse in charge that medication had not been administered on a

previous shift.

Further that you, a registered nurse:

6. On 2 September 2014, indicated in an application form to Meridian Agency that

you had not had any complaints registered against you with the NMC, when you

were subject to an NMC investigation.

7. On 29 October 2014, indicated in interview for the Meridian Agency that you did

not have any outstanding referrals and were not subject to any NMC

investigation, when you were subject to an NMC investigation.

8. Your conduct as alleged at charges 6 and/or 7 was dishonest in that you knew

you were under investigation by the NMC.

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

misconduct.

Admissions

At the outset, you admitted charges 1, 2 and 6. The panel therefore found these

charges proved by way of your admission.

Decision and reasons on application to admit evidence by video link

The panel heard an application made by Ms Mohamed to allow Ms 1 to give evidence

via a video link. Ms Mohamed submitted that Ms 1 was not present at this hearing and,

whilst the NMC had made efforts to ensure that this witness was present, she was

unable to attend today due to childcare commitments. Ms Mohamed informed the panel

that Ms 1 was willing to participate via a video link.

You did not oppose Ms Mohamed’s application.

The panel heard and accepted the legal assessor’s advice on the issues it should take

into consideration in respect of this application. This included that, so far as it is “fair and

relevant,” a panel may accept evidence in a range of forms and circumstances, whether

or not it is admissible in civil proceedings.

The panel was satisfied that Ms 1’s evidence was relevant. She was the Home Manager

at the material time and she was involved in the investigation of the incidents that gave

rise to charges 1, 2, 3, 4 and 5. The panel next considered whether it would be fair to

allow Ms 1 to give evidence via a video link.

The panel considered whether you would be disadvantaged by Ms 1 giving evidence via

a video link instead of attending the hearing to give live evidence. The panel noted that

you did not object to the application. The panel considered that, as Ms 1 was willing to

give evidence via a video link, you would have the opportunity to cross-examine the

witness and the panel would be able to see Ms 1 and assess her evidence. The panel

therefore considered that there would be no unfairness to any of the parties in this

regard as both you and Ms Mohamed will have the opportunity to question Ms 1 and the

panel will be able to see Ms 1 and fully assess her evidence.

In these circumstances, the panel came to the view that it would be fair and relevant to

allow Ms 1 to give evidence via a video link.

Accordingly, the panel granted the application.

Application to adjourn the hearing to call further witnesses

Ms Mohamed made an application for today’s hearing to be adjourned to allow further

NMC witnesses to attend. You did not contest the application for the adjournment. The

panel heard submissions from both parties and accepted the advice of the legal

assessor.

Ms Mohamed submitted that the next stage of the proceedings will involve hearing the

evidence of Mr 2, Ms 3 and Ms 4. However, none of these witnesses are available today

having previously been de-warned in light of your written response dated 5 April 2016

which appeared to admit all of the charges. Therefore, Ms Mohamed submitted that it is

necessary to adjourn until the remaining witnesses are available. She estimated that the

hearing will require four further days.

You told the panel that you did not contest the application for an adjournment because it

was necessary in the circumstances.

The panel determined that it was necessary in the circumstances to adjourn the hearing

to allow further NMC witnesses to attend. There could be no more progress made until it

is established whether the three remaining witnesses can become available to give oral

evidence. The panel considered that no injustice would be caused by an adjournment

and that it was in the interests of justice to hear the three remaining witnesses at the

first available opportunity.

For these reasons the panel accepted Ms Mohamed’s applications to adjourn the

hearing. The panel identified 24 – 27 October 2016 as a suitable period for the hearing

to resume. Whilst the panel identified 24 – 27 October 2016, it may not be able to sit on

27 October 2016 and therefore wishes to reserve 4 November 2016 as a fall-back day if

it is not able sit on 27 October 2016.

The panel having heard the evidence of Ms 1 and having read the documentary exhibits

direct that the following be obtained by the NMC for the resumed hearing:

• Resident A’s MAR charts;

• In the absence of MAR charts, any further and better evidence relating to

Resident A’s Oramorph dosage as at 26 November 2013;

• Extract from the then current controlled drug book for the period which covered

26 November 2013. For the avoidance of doubt, this was referred to by Ms 1 as

the “new controlled drug book”;

• Full induction records relating to your engagement at the Home.

In making the above directions the panel noted that, whilst you admitted charge 1, there

appears to be uncertainty over the exact dosage which was prescribed to Resident A on

26 November 2013.

Decision and reasons on application to admit evidence by video link

The panel heard an application made by Mr Wong to allow Mr 2 to give evidence via a

video link. Mr Wong submitted that Mr 2 was not present at this hearing and, whilst the

NMC had made efforts to ensure that this witness was present, he was unable to attend

today [PRIVATE]. Mr Wong informed the panel that Mr 2 was willing to participate via a

video link.

The panel noted that in an email to the NMC dated 20 October 2016, you stated “I

object to [Mr 2] not attending the meeting if he is still in the Uk”. You told the panel that

your objection had been on the grounds that you had made the effort of attending your

hearing so you thought it was fair that Mr 2 should do so too. However, you conceded

that, upon reflection, you did not oppose Mr Wong’s application.

The panel heard and accepted the legal assessor’s advice on the issues it should take

into consideration in respect of this application. This included that, so far as it is “fair and

relevant,” a panel may accept evidence in a range of forms and circumstances, whether

or not it is admissible in civil proceedings.

The panel was satisfied that Mr 2’s evidence was relevant. He was the Branch Manager

of Meridian Agency (“the Agency”) at the material time and his evidence goes to

charges 6, 7 and 8. The panel next considered whether it would be fair to allow Mr 2 to

give evidence via a video link.

The panel considered whether you would be disadvantaged by Mr 2 giving evidence via

a video link instead of attending the hearing to give live evidence. The panel considered

that, as Mr 2 was willing to give evidence via a video link, both you and Mr Wong would

have the opportunity to question him as would the panel who would be able to see him

and assess his evidence. The panel therefore considered that there would be no

unfairness to any of the parties in this regard.


allow Mr 2 to give evidence via a video link.


Application to hear evidence by telephone

Mr Wong made an application, to receive the evidence of Ms 3, via a telephone

conference.

Mr Wong submitted that whilst the NMC would have wanted Ms 3 to attend in person,

unfortunately she is abroad on annual leave and is unable to attend the hearing. Mr

Wong submitted that Ms 3’s evidence was relevant to the case and related to charges

1-5 and that in the circumstances it would be fair to hear her evidence.

The panel noted that in an email to the NMC dated 20 October 2016, you stated “I will

accept [Ms 3] is abroad and is unable to attend the nmc meeting”. You told the panel

that you did not oppose Mr Wong’s application.

The panel considered the application carefully, and accepted the advice of the legal

assessor.

The panel was satisfied that Ms 3’s evidence was relevant, and would assist it. She

conducted the local investigation and exhibits the relevant records, meeting notes,

policies, and disciplinary documentation.

The panel considered whether you would be disadvantaged by Ms 3 giving evidence by

telephone instead of attending the hearing to give live evidence. The panel considered

that, as Ms 3 was willing to give evidence by telephone, you would have the opportunity

to cross-examine her. The panel therefore considered that there would be no unfairness

to any of the parties in this regard as both you and Mr Wong would have the opportunity

to question Ms 3. The panel also noted that Ms 3 has provided a signed written

statement which contains the declaration of truth. Furthermore, Ms 3 is a witness who

acted primarily as an investigator and was not an eye witness to the disputed facts.


allow Ms 3 to give evidence by telephone.


Having announced its decision, you told the panel that you actually had no questions for

Ms 3. Mr Wong confirmed that he did not have any questions for Ms 3 either. As the

panel had no questions for Ms 3, it concluded that there was no reason for her to give

oral evidence.

Determination on submissions of no case to answer

The panel heard that you were an agency nurse who was hired on 18 November 2013

by Medbank. On 26 November 2013, you were booked to work a nursing shift at

Bramley Court, a general nursing care home for 75 residents who are aged over 65 and

may suffer with dementia.

During the shift, you were required to administer 2.5ml of Oramorph (a controlled drug)

to Resident A. However, it is alleged that you administered 12.5ml instead of 2.5mls.

Further, you are also alleged to have not ensured that a second nurse was present to

check and dispense the controlled drug with you as was the required protocol.

This alleged error was noticed by you after the administration and you contacted your

colleagues for help and advice. During this however, you allegedly asked another

registered nurse to countersign the controlled drugs book despite the fact that this

colleague had not witnessed the dispensing or administration of the medication.

It is also alleged that you failed to administer medication to a number of residents but

signed the Medication Administration Record (“MAR”) charts to indicate that you had.

Bramley Court’s manager found that the MAR charts had been signed suggesting that

medication had been administered. Yet when the blister packets were examined, they

were intact.

During the course of the investigation, it was found that you had confirmed to a new

potential employer, Meridian Agency, that you were not under investigation by the NMC

The panel heard oral evidence from three witnesses. They were:

• Ms 1, Home Manager and registered nurse at the material time;

• Ms 4, Unit Manager at the Home;

• Mr 2, Branch Manager at Meridian at the material time.

The panel also had before it the written statements from two other witnesses. They

were:

• Ms 3, Operations Manager at the Home;

• Mr 5, an NMC Case Investigations Manager.

The panel considered Rule 24(7) of the Rules which states:

Except where all the facts have been admitted and found proved under

paragraph (5),

at the close of the Council’s case, and—

(i) either upon the application of the registrant…

the Committee may hear submissions from the parties as to whether sufficient

evidence has been presented to find the facts proved and shall make a

determination as to whether the registrant has a case to answer.

Having heard the evidence the panel decided of its own volition to hear submissions

from the NMC and you as to whether sufficient evidence has been presented to find the

facts proved in relation to the outstanding charges, and in particular charges 3 and 5.

The panel accepted the advice of the legal assessor. He advised that the NMC has

brought these proceedings and it is for the NMC to prove its case. You are not required

to disprove the allegations and no useful purpose would be served in continuing any

particular allegations if the panel is satisfied that, on the basis of the case which has

been put before it, there is no real prospect of the NMC discharging that burden of

proof. The legal assessor referred the panel to the test laid down by Lord Lane CJ in the

case of R. v Galbraith [1981] 73 Cr App R 124, as follows:

“(1) If there is no evidence that the crime alleged has been committed by the

defendant, there is no difficulty. The judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous

character, for example because of inherent weakness or vagueness or because it is

inconsistent with other evidence. (a) Where the judge comes to the conclusion that the

prosecution evidence, taken at its highest, is such that a jury properly directed could not

properly convict upon it, it is his duty, upon a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness

depends on the view to be taken of a witnesses’ reliability or other matters which are

generally speaking within the province of the jury and where on one possible view of the

facts there is evidence upon which a jury could properly come to the conclusion that the

defendant is guilty, then the judge should allow the matter to be tried by the

jury….There will of course as always in this branch of the law be borderline cases.

They can safely be left to the discretion of the judge.”

The panel first considered charges 4, 7 and 8 in relation to the Galbraith test. The panel

noted that you are not legally represented and that you did not make any submissions

of no case to answer in respect of these charges. Nevertheless, the panel carefully

reviewed the evidence in relation to these charges and determined that there was

sufficient evidence presented for there to be a case to answer in respect of charges 4, 7

and 8.

Charge 3 – panel determined that there was a case to answer Failed to record the medication error alleged at charge 1 on Resident A’s care plan

You submitted that, in relation to charge 3, the evidence presented by the NMC was not

sufficient for the panel to find this charge proved. You submitted that in your nurse

training and during your subsequent practice you had not been told of any requirement

to update a care plan following a medication error.

In relation to charge 3, Mr Wong submitted that there is sufficient evidence for the panel

to find this charge proved. He reminded the panel that you that you admitted that you

made the medication error referred to in charge 1 and that you accept that you did not

record it in Resident A’s care plan. Mr Wong drew the panel’s attention to the evidence

of Ms 1, who stated that she would have expected you to be aware of the policy that

you should have recorded the error on the care plan. He also submitted that such a duty

is not just set out in local policies, but is common knowledge for registered nurses. He

submitted that the evidence before the panel indicates that you did fail in your duty to

record the medication error on Resident A’s care plan.

The panel noted that there were inconsistencies between the evidence of Ms 1 and Ms

4 in respect of what was expected of you after the medication error. The panel also

noted Ms 1’s evidence that you were not afforded as good an induction into the Home

or support as you might have had. Further, the NMC has not produced a copy of the

Home’s policy with regards to how a registered nurse should act in the event of a

medication error.

However, the panel had specific regard to the clear and consistent evidence of Ms 1

and Ms 4 on the issue that you had a duty to record the medication error and the panel

was of the view that there is sufficient evidence which is capable of suggesting that you,

as a registered nurse, should update a resident’s care plan in the event of a drug error.

The panel therefore concluded that there was sufficient evidence capable of finding this

charge proved. Accordingly, the panel found that there was a case for you to answer in

relation to charge 3.

Charge 5 – panel determined that there was no case to answer Signed MAR charts in respect of one or more residents of the Home stating that medication had been administered, when it had not, or, in the alternative, failed to inform the nurse in charge that medication had not been administered on a previous shift In respect of charge 5, Mr Wong submitted that there is evidence before the panel to

suggest you had accepted that you signed the MAR charts. He also submitted that there

is evidence to suggest that the nurse on the previous shift had not administered the

medication that you recorded had been administered.

You made no submissions regarding this charge.

The panel noted the NMC’s failure to provide evidence in the form of copies of the

relevant MAR charts which were ordered to be produced at the adjournment of this

hearing on 29 April 2016.

In the absence of the MAR charts the panel concluded that the evidence is so inherently

weak that taking the NMC’s evidence at its highest it could not properly find the first limb

of charge 5 to be proved on the balance of probabilities. In relation to the second limb of

charge 5, the panel has heard no direct evidence that you failed to inform the nurse in

charge that medication had not been administered. Accordingly, the panel found that

there was no case for you to answer in relation to charge 5.

Determination on facts

The panel considered all the evidence adduced together with the submissions of Mr

Wong on behalf of the NMC and your own. It heard and accepted the advice of the legal

assessor. The panel is aware that the burden of proof rests on the NMC to prove the

facts alleged in relation to each of the charges on the balance of probabilities, meaning

that the facts in the charges will be proved if the evidence establishes that the

allegations are more likely than not to be true. The panel considered each charge and

any alternatives separately.

The panel found that Ms 1 gave a consistent and clear account of the events. She had a

good recollection and when challenged she remained consistent throughout her

evidence. She was willing to concede that the induction and support you received might

have been better. For these reasons the panel found her to be credible and reliable.

The panel found that Ms 4 was somewhat guarded in her evidence. She appeared

cautious and careful in her recollection. At times during her evidence, she presented as

somewhat unforthcoming for a witness who was directly connected to the events on 26

November 2013. It was clear that she viewed her responsibility as your manager for

your induction to the Home and your support after the medication error occurred to have

been more limited than was expected by Ms 1.

The panel found Mr 2 gave an honest, consistent and credible account. He sought to

assist the panel by recalling the details of the events, even though they took place some

time ago and his colleagues at Meridian were more involved than he was in the events

which gave rise to the allegations. He recognised the limits of his recollection.

The panel found that you gave an honest, consistent and credible account. You offered

honest and frank explanations to all questions asked of you. You were open and candid

in that you readily accepted your wrongdoing.

Charge 3 – proved

Failed to record the medication error alleged at charge 1 on Resident A’s care plan Ms 1 told the panel that there was no MAR chart present for Resident A when she

returned to the Home on 27 November 2013 the day after the incident. She said that

when Resident A returned to the Home the day before from Hospital the chart should

have been returned. However, she said that it appeared that you failed to identify that it

was missing. She said that as you were the receiving nurse you should have checked

that all the documentation was present. If you had noticed that the MAR chart had not

been provided, you should have informed the hospital staff who returned Resident A

that the document was missing and that it was required. In addition to this she said that

you could have sought advice from Ms 4 and a temporary MAR chart could have been

used in the interim.

You told the panel that you accepted that a resident who has received an overdose of

Oramorph, such as Resident A, would be required to have their vital signs recorded for

a 24 hour period and that the next dose of Oramorph may need to be omitted. Further,

you accepted that such observation should have been recorded in the resident’s care

plan and it would have been insufficient to assume that staff would have been aware of

the medication error solely from the incident form. Furthermore, you accepted that the

incident form was a document which did not form part of the day to day clinical records

of a patient and that it was therefore imperative that the incidents of an overdose be

recorded on the patient’s records.

In light of the evidence of Ms 1 and your own oral testimony which fully admitted charge

3, the panel is of the view that it is more likely than not that you failed to record the

medication error alleged at charge 1 on Resident A’s care plan. The panel therefore

finds charge 3 proved.

Charge 4 – proved

Failed to correctly store medication prescribed to Resident A, following her discharge from hospital Ms 1 told the panel the actions which she had requested that you should complete as a

result of the medication error. This included completing comprehensive notes in the

resident’s care plan outlining exactly what had occurred, how it had occurred and what

action was taken. However, it is evident from the care plan that you had not made an

entry either detailing the facts of what had occurred nor the subsequent actions which

you had taken.

The panel had before it a copy of Resident A’s care plan in which it is clear that there

had been no entries made by you.

Ms 1 stated that as you were the nurse who accepted Resident A upon the resident’s

return from hospital, it was your responsibility to ensure that the medication which had

been provided by the hospital was correctly identified and processed. This included

ensuring that the controlled drugs were stored correctly and in accordance with both the

Home’s policies and the NMC Code.

Ms 1 said that she had returned to work the day after the incident to find that the

package of medication which had been prescribed and provided by the Hospital had not

been correctly stored away, in accordance with the Home’s Controlled Drugs Policy. In

fact it had been left on the side unit. Two of these medications were controlled drugs

namely Oramorph and MST (morphine slow release tablets). In evidence, you told the

panel that you were the receiving nurse and therefore responsible for Resident A. This

responsibility included checking all of her medications. You told the panel that you

accepted that you did not correctly store the medication prescribed to Resident A

following her discharge from hospital. Further, you accepted that it was your duty to

check and store all of Resident A’s prescribed medication. You told the panel that you

should have opened Resident A’s bag and checked its contents, but did not do so.

In light of the evidence and your own oral testimony, the panel is of the view that it is

more likely than not that you failed to correctly store medication prescribed to Resident

A, following her discharge from hospital. The panel therefore finds charge 4 proved.

Charge 7 – proved

On 29 October 2014, indicated in interview for the Meridian Agency that you did not have any outstanding referrals and were not subject to any NMC investigation, when you were subject to an NMC investigation

Mr 2 told the panel that, having successfully passed the pre-application stage, you were

asked to undertake a practical assessment at the Agency. You were also provided with

a date to attend the Agency to complete an interview. He said that you attended the

Agency on 29 October 2014 and had a telephone interview with Ms 6, a registered

nurse. The interview notes were completed, then sent over to the Agency, where you

were asked to complete a declaration in which it stated the following, “I confirm that I do

not have any outstanding referrals, restrictions on my practice and am not subject to

any investigation under Safeguarding, the NMC, NHS protect, Police or any other

regulatory body. I also confirm that I am not subject to any unresolved disciplinary or

grievance procedures regarding my practice. I understand that if this changes I must

inform Meridian immediately”. This declaration was signed and dated by you in the

presence of Mr 2, a copy of which was before the panel.

You told the panel that you did attend an interview at the Agency on 29 October 2014

during which you answered a series of questions put to you over the telephone by Ms 6.

You accepted in your evidence that a document entitled “RGN face to face interview

questions” completed by Ms 6 was sent to you whilst you were at the office of Meridian.

You stated in evidence that you read this document and duly signed dated the

declaration at page 1. Furthermore, the panel noted at page 4 of the document that you

again signed and dated the questionnaire under a confirmation which reads, “I confirm

that the above information is true and accurate”.

In light of the evidence and your own oral testimony, the panel is of the view that it is

more likely than not that you indicated in interview for the Agency that you did not have

any outstanding referrals and were not subject to any NMC investigation, when you

were subject to an NMC investigation. The panel therefore finds charge 7 proved.

Charge 8 – proved

Your conduct as alleged at charges 6 and/or 7 was dishonest in that you knew you were under investigation by the NMC The panel considered the case of Kirschner v General Dental Council [2015] EWHC

1377 (Admin). The panel first determined whether on the balance of probabilities you

acted dishonestly by the standards of ordinary and honest registered nurses; and, if you

did so, went on to determine whether it is more likely than not that you realised that

what you were doing was by those standards, dishonest. The onus of proof rests

throughout on the NMC and the applicable standard of proof is the civil standard,

namely on the balance of probabilities.

The panel first considered whether your actions as described in charges 6 would be

regarded as dishonest according to the standards of ordinary and honest nurses. The

panel noted that you were asked a question on the application form which required you

to disclose whether you were subject to an NMC investigation. However, you answered

in the negative when asked the question “Have you any complaints registered against

you with the NMC?” when you were clearly subject to an investigation. The panel was of

the view that a reasonable and honest nurse would consider you to be dishonest when

you withheld material information regarding the fact that you were subject to an NMC

investigation when you were asked in the application form.

In your evidence you told the panel that you accept that your action as described in

charge 6 was dishonest. You stated that you were trying to conceal your NMC referral

from the Agency because you wanted them to employ you and you knew that other

previous prospective employers had looked upon your applications unfavourably when

they were made aware of the referral. The panel is therefore satisfied that you would

have been aware that your actions in charge 6 at the time were dishonest.

The panel next considered whether your actions as described in charge 7 would be

regarded as dishonest according to the standards of ordinary and honest nurses. The

panel noted that you signed and dated a declaration within the interview questionnaire

that confirmed that you were not subject to any unresolved disciplinary or grievance

procedure regarding your practice. The panel was of the view that a reasonable and

honest nurse would consider you to be dishonest when you signed the declaration

indicating that you were not subject to an NMC investigation.

In your evidence you told the panel that you accept that your actions as described in

charge 7 were dishonest. Again, you accepted that you were trying to conceal your

NMC referral from the Agency because you wanted them to employ you and you knew

that other prospective employers had looked upon the referral unfavourably. The panel

is therefore satisfied that you would have been aware that your actions at the time were

dishonest.

For all the reasons set out above the panel finds proved that your conduct as alleged at

charges 6 and 7 was dishonest in that you knew you were under investigation by the

NMC. The panel therefore finds charge 8 proved.

Determination on misconduct and impairment

The panel took into account the submissions of Mr Wong on behalf of the NMC and

your evidence and submissions. It accepted the advice of the legal assessor, who

referred it to the cases of Roylance v General Medical Council (No 2) [2000] 1 A.C.

311, GMC v Meadow [2007] QB 462, Nandi v GMC [2004] EWHC 2317 (Admin) and

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

Grant [2011] EWHC 927 (Admin) and the Fifth Shipman Report.

In coming to its determination the panel exercised its own independent judgement. It

had regard to all the evidence presented and to The code: Standards of conduct,

performance and ethics for nurses and midwives (May 2008) (“the Code”).

Mr Wong invited the panel to find that your actions in administering the incorrect dosage

of Oramorph, failing to record it and failing to correctly store the medication, amounted

to misconduct. He also said your actions in dishonestly concealing your referral to the

NMC amounted to misconduct. He referred the panel to the Code, the NMC’s Record

Keeping Guidance for Nurses and Midwives (“the Guidance”) and the NMC’s Standards

for Medicines Management (“the Standards”). He submitted that your fitness to practise

is impaired by reason of your misconduct.

You told the panel that you accept that you had made mistakes in terms of the care of

Resident A and that in future you would ensure that any medication errors would be

recorded in the care plan. You provided the panel with references from your last

employer as well as evidence that you have successfully undertaken online courses in

preparing and administering medication and dosage calculation. You submitted that you

have reflected on your shortcomings and that they would not be repeated in the future.

The panel was mindful that not every instance of falling short of what would be proper in

the circumstances, and not every breach of the Code, would be sufficiently serious that

it could properly be described as misconduct. Accordingly, the panel had careful regard

to the context and circumstances of the matters found proved.

The panel determined that by virtue of the facts found proved, you have breached the

following provisions of the Code:

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 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:

22 You must work with colleagues to monitor the quality of your work and

maintain the safety of those in your care.

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

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

practice.

38 You must have the knowledge and skills for safe and effective practice

when working without direct supervision.

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

40 You must keep your knowledge and skills up to date throughout your

working life.

43 You must complete records as soon as possible after an event has

occurred.

51 You must inform any employers you work for if your fitness to practise is

called into question.

54 You must act immediately to put matters right if someone in your care has

suffered harm for any reason.

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

The panel determined that by virtue of the facts found proved, you breached the

following provisions of the Guidance:

7 You should record details of any assessments and reviews undertaken,

and provide clear evidence of the arrangements you have made for future

and ongoing care. This should also include details of information given about

care and treatment.

25 If you have any problems relating to access or record keeping, such as

missing records or problems accessing records, and you cannot sort out the

problem yourself, you should report the matter to someone in authority. You

should keep a record that you have done so.

32 You have a duty to keep up to date with, and adhere to, relevant

legislation, case law, and national and local policies relating to information

and record keeping.

33 You should be aware of, and develop, your ability to communicate

effectively within teams. The way you record information and communicate is

crucial. Other people will rely on your records at key communication points,

especially during handover, referral and in shared care.

The panel determined that by virtue of the facts found proved, you breached the

following provisions of the Standards, specifically standards 2, 6 and 8:

Standard 2: Checking

1. Registrants (1st and 2nd level) must check any direction to administer a

medicinal product.

2. As a registrant you are accountable for your actions and omissions. In

administering any medication, or assisting or overseeing any self-administration

of medication, you must exercise your professional judgement and apply your

knowledge and skill in the given situation. As a registrant, before you administer

a medicinal product you must always check that the prescription or other

direction to administer is:

2.6 in the case of controlled drugs, specifies the dosage and the number of

dosage units or total course; and is signed and dated by the prescriber using

relevant documentation as introduced, for example, patient drug record cards.

Standard 6: Storage

1. Registrants must ensure all medicinal products are stored in accordance with the

patient information leaflet, summary of product characteristics document found in

dispensed UK-licensed medication, and in accordance with any instruction on the

label.

Standard 8: Administration

2. As a registrant, in exercising your professional accountability in the best interests

of your patients:

2.3 you must know the therapeutic uses of the medicine to be administered, its

normal dosage, side effects, precautions and contra-indications

2.4 you must be aware of the patient’s plan of care (care plan or pathway)

2.7 you must have considered the dosage, weight where appropriate, method of

administration, route and timing

In respect of controlled drugs:

5. These should be administered in line with relevant legislation and local standard

operating procedures.

6. It is recommended that for the administration of controlled drugs a secondary

signatory is required within secondary care and similar healthcare settings.

8. Although normally the second signatory should be another registered health care

professional (for example doctor, pharmacist, dentist) or student nurse or

midwife, in the interest of patient care, where this is not possible, a second

suitable person who has been assessed as competent may sign. It is good

practice that the second signatory witnesses the whole administration process…

9. In cases of direct patient administration of oral medication from stock in a

substance misuse clinic, it must be a registered nurse who administers, signed

by a second signatory (assessed as competent), who is then supervised by the

registrant as the patient receives and consumes the medication.

Drug calculations

15. Some drug administrations can require complex calculations to ensure that the

correct volume or quantity of medication is administered. In these situations, it is

good practice for a second practitioner (a registered professional) to check the

calculation independently in order to minimise the risk of error. The use of

calculators to determine the volume or quantity of medication should not act as a

substitute for arithmetical knowledge and skill.

In the panel’s judgment, the charges found proved amounted, individually and

collectively, to conduct which fell significantly short of what would be expected and

required of a registered nurse in the circumstances.

The panel first considered the group of charges which related to the first incidents,

namely charges 1, 2, 3 and 4. The panel considered that these charges amounted to

incidents where you administered the incorrect dosage of a controlled drug to a

resident, without having the administration witnessed or countersigned. You then failed

to correctly document the maladministration in the resident’s care plan and failed to

correctly store her prescribed medication following her discharge from hospital to the

Home.

The panel considered that your actions did not put Resident A’s interests first and put

her at risk of significant harm. Your failure to record your error in the care plan deprived

your colleagues of the essential information they required to care for Resident A which

placed her at further risk of harm.

The panel then considered the group of charges which related to the second incident,

namely charges 6, 7 and 8. The panel noted these charges flowed from your

misconduct in charges 1, 2, 3 and 4. The panel considered that this amounted to you

dishonestly failing to disclose your NMC referral to the Agency when you were

attempting to obtain employment with them. By your own admission, you had done this

in order to gain an advantage in obtaining employment as a registered nurse through

the Agency. This placed the safety of patients second to your own interests. The panel

considered that this showed a total disregard for the regulatory process and a failure to

disclose information which could impact on patient safety.

The panel was satisfied that your actions, whether viewed individually or collectively,

were serious. You put a resident at a real risk of serious harm and demonstrated a lack

of regard to the potential implications for her, as well as a lack of accountability and

poor judgment. Your actions also involved deliberate and dishonest concealment on two

occasions of your NMC referral to the Agency. The panel concluded that they amounted

to misconduct.

The panel then went on to consider the question of impairment. In considering your

current fitness to practise the panel reminded itself of its duty to protect patients and its

wider duty to protect the public interest, which includes declaring and upholding proper

standards of conduct and behaviour, and maintaining public confidence in the

profession and the regulatory process.

The panel was mindful that “Impairment of fitness to practise” has no statutory

definition. However, the NMC has defined “fitness to practise” as a registrant’s suitability

to remain on the register without restriction.

The panel was assisted by the observations 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 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.”

The panel further took into account the guidance formulated by Dame Janet Smith in

her fifth report of the Shipman inquiry, which was cited with approval in the case of

Grant, as follows:

“Do our findings of fact in respect of the [registrant’s] misconduct […] show that [she]

fitness to practise is impaired in the sense that [she]:

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 [nursing]

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 [nursing] profession; and/or

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

future”

The panel concluded that your misconduct engaged all four limbs of this guidance. Your

actions fell into two broad categories: the inappropriate maladministration of controlled

medication and a failure to respond appropriately; and two matters of dishonesty

whereby you sought to conceal your NMC referral from prospective employers.

The panel considered that these actions had placed Resident A at unwarranted risk of

harm. They had also brought the profession into disrepute and breached the

fundamental tenets of the profession. You had acted dishonestly on more than one

occasion when concealing your NMC referral to a prospective employer. For all these

reasons, the panel had no doubt that at the time of the incidents in question your fitness

to practise was impaired by reason of your misconduct.

The panel next considered whether your fitness to practise remains impaired. To that

end, the panel had particular regard to the issues of remorse, insight, remediation and

the risk of repetition. It had close regard to your oral evidence.

The panel was particularly concerned that, beyond acknowledging that you have made

mistakes, you have demonstrated no remorse and very limited insight into your

shortcomings. The panel was of the view that the limited insight you have shown is

superficial. The panel considered that you have not demonstrated insight into why your

actions in this regard were wrong. You have shown only limited recognition of the

potential harm at which you placed Resident A and the importance of keeping records

up to date. You showed no insight into your personal accountability or the potential

effect upon patients, their families and the public.

The panel considered whether your misconduct is remediable, whether it has been

remedied and whether it is likely to be repeated. The panel considered that the issues in

relation to the administration of medication and record keeping were capable of being

remedied. However, notwithstanding your further training and your practice without

incident since the allegations, the panel was of the view that you have not yet

demonstrated that they have been fully remedied. The panel bore in mind that

dishonesty is, by its nature, difficult to remedy, and if it is to be remedied a significant

degree of insight and reflection are required. The panel considered that you have not

yet demonstrated a sufficient degree of insight and have not demonstrated that you

have been able to remedy your dishonesty. The panel noted that you have acted

dishonestly on two separate occasions and you have demonstrated no insight as to the

impact of your dishonesty upon the nursing profession.

The panel concluded that there remains a risk of repetition of your misconduct, and

therefore that you remain liable in the future to act in such a way as to put patients at

unwarranted risk of harm, bring the nursing profession into disrepute, breach

fundamental tenets of the profession and to act dishonestly.

The panel further considered whether the need to uphold proper professional standards

and public confidence in the profession would be undermined if a finding of impairment

of fitness to practise were not made. The panel was satisfied that the seriousness of the

misconduct in this case, the risk it posed to patients and the fact that it involved

repeated dishonesty, meant that a finding of current impairment is required in the

circumstances of your case in order to declare and uphold proper professional

standards and maintain public confidence in the profession. The panel was satisfied that

public confidence in the profession would be undermined if no finding of impairment

were made.

For all the reasons outlined above, the panel determined that your fitness to practise is

currently impaired by reason of your misconduct.

Determination on sanction In reaching its decision on sanction, the panel considered all the evidence that had

been placed before it throughout the hearing and had regard to its earlier findings at the

facts and impairment stages. It took into account the submissions of Mr Scott, on behalf

of the NMC, and your own submissions. It accepted the advice of the legal assessor

and took into account the NMC’s Indicative Sanctions Guidance (“ISG”).

Mr Scott referred the panel to the ISG and reminded the panel of some of the principles

set out in that guidance. He made no positive submission on behalf of the NMC as to

the appropriate sanction in this case, but submitted that the panel should consider the

section that addresses dishonesty within the ISG.

In your submissions you told the panel that you are very sorry for your dishonesty and

that you now accept that your actions in this regard were “shameful”. You said that,

while you should not have acted dishonestly, you concealed your NMC investigation

from the Agency because you did not want your application to be rejected. You

submitted that by doing so, you did not put the public at risk of harm because you had

completed a drug calculation course since making the initial drug error for which you

were referred to the NMC.

The panel approached the question of which sanction, if any, to impose, by considering

the least restrictive sanction first and moving upwards. The panel bore in mind that the

purpose of a sanction is not to be punitive, although it may have this effect, but is to

protect patients and the wider public interest. The wider public interest includes

maintaining public confidence in the profession and the regulatory process, and

declaring and upholding proper standards of conduct and behaviour.

The panel had regard to the public interest, which includes the overarching objective of

protecting the public and also the maintenance of confidence in the profession and the

NMC as its regulator. It applied the principles of proportionality, weighing the interests of

the public with your interests, and took into account the mitigating and aggravating

factors in this case.

The panel considered that the aggravating factors in this case are as follows:

• The drug error was a very serious one and could have had grave consequences

for a vulnerable resident;

• There was limited evidence of remorse or reflection;

• The panel was not satisfied that you have demonstrated any real insight into your

misconduct or the impact that it has had on residents, colleagues and the

reputation of the profession;

• You continue to attempt to justify your dishonesty and have no realisation of the

potential consequences on patients, the public and your profession;

• You showed disregard for safe procedure by administering medication

unsupervised;

• The panel is concerned that there remains a real risk of repetition;

• There was little evidence of your failings having been remedied. There is no

evidence of you having undertaken a course specifically addressing controlled

drugs;

• You appear to lack any recognition of your responsibilities as a registered nurse.

The panel was particularly concerned that you appear to view working as a bank

nurse as carrying with it less of a duty than working as a nurse in a substantive

post;

• The charges involved failures in carrying out the most basic of nursing duties;

• You breached a substantial number of sections of the Code, the Guidance and

the Standards;

• Your dishonesty was not isolated but repeated on two occasions and you

desisted from it only when told twice by NMC staff that you must disclose to your

employer that you are under investigation.

The panel considered that the mitigating features of this case could be summarised as

follows:

• There was some evidence that the induction you received and support you were

given at the Home was more limited than it should have been;

• You have fully engaged in this hearing, travelling each day from your home in

Birmingham;

• You expressed remorse in your submissions today;

• There has been no evidence of repetition since the incidents which gave rise to

the charges;

• You completed an online course on drug calculation;

• You have provided two references from your current employer;

• At the time of your dishonesty you were experiencing some difficulties in your

personal life;

• You have since been working without concern, managing a team of healthcare

assistants;

• When giving evidence at the previous stages of this hearing you were open,

frank and did not seek to evade answering any questions.

The panel first considered taking no further action but concluded that, given the serious

nature of the misconduct and the risk of repetition, this would be wholly inappropriate.

To take no further action would impose no restriction on your practice and would

therefore not serve to protect patients from the risk of harm arising from any repetition of

your failings. In addition, the nature and seriousness of the misconduct in this case,

particularly the dishonesty, were such that to take no further action would not serve to

declare and uphold proper professional standards and maintain public confidence in the

profession. To take no further action would therefore not satisfy the public interest

considerations in this case.

For the same reasons, the panel concluded that a caution order would not be a

sufficient or appropriate sanction.

The panel then considered a conditions of practice order. While such an order might

address outstanding concerns about your ability to administer medication, your

misconduct included dishonesty. This is a matter which cannot readily be addressed by

a conditions of practice order and the panel concluded that workable conditions of

practice could not be formulated which would be sufficient to protect the public. The

panel also considered that a conditions of practice order would be insufficient to satisfy

the public interest considerations in this case.

The panel next considered a suspension order. It bore in mind that you have engaged

with the NMC process, attended the hearing, made admissions and demonstrated

some, albeit very limited, remorse.

The panel had to set against this the fact that the failings in this case were very serious.

Honesty, integrity and trustworthiness are the bedrock of the nursing profession and

failings in this regard are a serious matter and undermine public confidence in the

profession. Your conduct amounted to a serious departure from the professional

standards set out in the Code and the Guidance and the Standards and a breach of

fundamental tenets of the profession.

The panel considered that the incident in November 2013 was a serious one and you

displayed poor judgment and a disregard for procedure by administering a controlled

drug to a vulnerable resident without it being witnessed or countersigned in the

controlled drugs book. You then displayed further poor judgment by not documenting

your error in accurately calculating the correct dosage. This was compounded by your

dishonesty in applying for a job and concealing your NMC referral.

The panel considered that your explanations for your actions were inadequate and you

had demonstrated only limited remorse. Furthermore, your evidence showed no

realisation that the conduct criticised is serious and has wide-ranging consequences.

The panel was mindful that it had found at the impairment stage that you were liable to

demonstrate dishonesty again in future.

The panel had particular regard to paragraphs 67 to 72 of the ISG. It considered that

this case involved dishonesty, and that this could be regarded as an attitudinal issue.

Although there was no evidence of subsequent repetition following the two instances of

dishonesty, there is insufficient evidence to demonstrate that the failings had been

remedied, and there is only limited evidence of remorse and no evidence of meaningful

insight. There is a significant risk of repetition of drug administration errors and further

acts of dishonesty. This has the potential to harm patients. In addition, the panel

considered that members of the public would be significantly concerned about a

member of the nursing profession being permitted to continue to practise if they were

liable to act in this way in future.

In the circumstances the panel concluded that the nature and seriousness of your

misconduct were fundamentally incompatible with your continued registration as a

nurse. A period of suspension would be insufficient to satisfy the public interest

considerations in this case, and that public confidence in the profession and in the NMC

as a regulator could only be sustained by your removal from the register.

The panel concluded that, notwithstanding the personal and professional hardship

which such a sanction will inevitably cause you, a striking-off order is the only sufficient

and appropriate sanction. Such an order is necessary to satisfy the public interest in

declaring and upholding proper professional standards and maintaining public

confidence in the profession and the NMC.

Accordingly, the panel determined to direct the Registrar to strike your name from the

Register.

You may not apply for restoration until five years after the date that this decision takes

effect.

Decision on interim order and reasons

The panel invited you and Mr Scott to make submissions on the imposition of an interim

order.

Mr Scott invited the panel to impose an interim suspension order on the grounds of

public protection and being otherwise in the public interest. He submitted that an interim

order should be imposed for 18 months.

You submitted that you intended to appeal the striking-off order that has been imposed.

You did not oppose Mr Scott’s application.

The panel has accepted the advice of the legal assessor.

The panel has decided to make an interim suspension order for the same reasons as

the striking-off order. It has decided that it is necessary to do so for the protection of the

public and is in the public interest.

The period of this order is for 18 months to allow for the possibility of an appeal to be

made and determined.

If no appeal is lodged then the interim order will be replaced by the substantive order 28

days after you are sent the decision of this hearing in writing.

Conduct & Competence Committee · Legal assessor: Paul Hester . Panel Secretary: Sam Hughes ....

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Transcript of Conduct & Competence Committee · Legal assessor: Paul Hester . Panel Secretary: Sam Hughes ....