1

Nursing and Midwifery Council Fitness to Practise Committee

Substantive Hearing

2 July 2020

Virtual Hearing Name of registrant: Catherine Elizabeth Burniston NMC PIN: 04K0344E Part(s) of the register: Registered Midwife – 15 August 2006 Registered Adult Nurse – 7 January 2005 Area of registered address: Suffolk Type of case: Misconduct Panel members: Derek McFaull (Chair, lay member)

Lisa Lezama (Registrant member) Michael Glickman (Lay member)

Legal Assessor: Justin Gau Panel Secretary: Melissa McLean Nursing and Midwifery Council: Represented by Helen Guest, Case Presenter Ms Burniston: Not present and unrepresented Consensual Panel Determination: Amended Facts proved: All Facts not proved: None Fitness to practise: Impaired Sanction: Conditions of practice order (18 months) Interim order: Interim conditions of practice order (18 months)

2

Service of Notice of Hearing

The panel was informed at the start of this hearing that Ms Burniston was not in

attendance nor was she represented in her absence.

The panel was informed that notice of this hearing was sent via email to Ms Burniston on

30 June 2020. The Notice of Hearing was sent to Ms Burniston’s email address held on

the NMC’s register. The panel was also informed that notice of this hearing was also sent

to Ms Burniston’s representative on 29 June 2020. Ms Guest informed the panel that the

NMC, Ms Burniston and her representative agreed on this case being heard within short

notice due to the listing availability. She said that both Ms Burniston and her

representative consented to waiving the full notice period and directed the panel to

correspondence from Ms Burniston’s representative indicating this in writing.

Ms Guest told the panel that a normal notice period is at least 28 days, but in this case

both parties were working together to have this case heard before the panel. Ms Guest, on

behalf of the Nursing and Midwifery Council (NMC), submitted that it 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) given the circumstances.

The panel accepted the advice of the legal assessor.

The panel took into account that the notice of hearing provided details of the date and time

of the hearing and that it was to be held virtually. In addition it contained information about

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

power to proceed in her absence.

In the light of the information available, the panel was satisfied that the notice period was

reasonable in all the circumstances of this case, had been agreed by all parties and was

satisfied that notice had been served in compliance with Rules 11 and 34 of the Nursing

and Midwifery Council (Fitness to Practise) Rules 2004 (as amended) (the Rules).

3

Details of charge

That you, a registered midwife working at Ipswich Hospital:

1) On 1 January 2018, in relation to Patient A:

a) Misinterpreted a cardiotocograph ("CTG") as normal when, from 18.50 onwards

there had been decelerations lasting more than 60 seconds

b) Discontinued use of the CTG without clinical Justification

c) Failed to intermittently auscultate, and/or document such, at sufficiently regular

intervals

d) Failed to recognise the deviation from normal progress in the 2nd stage of labour

e) Failed to discuss the decision not to transfer, with the labour ward coordinator or

registrar

f) Failed, in all the circumstances, to arrange transfer to the most clinically

appropriate environment

2. On the night shift of 2/3 February 2018, in relation to Patient B:

(a) Failed to consistently seek and/or obtain “fresh eyes” hourly reviews of the CTG

(b) Failed to accurately assess the CTG

(c) Failed to accurately assess dilation

(d) Between 20.05 and 00.01, failed to make any entries in the patient notes

(e) Failed to make any notes in the partogram section of the patient’s notes

(f) Failed to complete patient records, namely

(i) SBAR sticker

(ii) CTG sticker

(iii) Vaginal Examination sticker

contemporaneously and/or in a timely manner

(g) Failed to recognise the deviation from normal progress in the 1st stage of labour

4

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

misconduct.

Consensual Panel Determination

At the outset of this hearing, Ms Guest informed the panel that a provisional agreement of

a Consensual Panel Determination (CPD) had been reached with regard to this case

between the NMC and Ms Burniston.

The agreement, which was put before the panel, sets out Ms Burniston’s full admissions to

the facts alleged in the charges, that her actions amounted to misconduct and that her

fitness to practise is currently impaired by reason of that misconduct. It is further stated in

the agreement that an appropriate sanction in this case would be a conditions of practice

order for a period of 12 months.

The panel has considered the provisional CPD agreement reached by the parties.

That provisional CPD agreement reads as follows:

The Agreed Facts

3. The Registrant appears on the register of nurses, midwives and nursing associates

maintained by the NMC as both a registered nurse – adult; and a registered midwife.

The Registrant joined the NMC register as a nurse in 2005 and as a midwife from

2006.

4. The Head of Midwifery at East Suffolk and North Essex NHS Foundation Trust (‘the

Trust), referred the Registrant to the NMC on 8 January 2019. At the relevant time, in

January/February 2018, the Registrant was working as a midwife within the Maternity

Department of Ipswich Hospital (‘the Hospital’) which is operated by the Trust. Whilst

the Registrant had been made part of a development programme and was able to act

5

up as a band 7 labour ward co-ordinator, on the shifts which feature in the referral and

charges, she was working as a band 6 midwife.

5. On 1 January 2018 (see charge 1), at approximately 19:55, the Registrant took over

the care of Patient A who was in labour in the Birthing Centre, known as Brook Ward

(‘Brook’). Prior to the handover, Patient A’s CTG had shown some concerning

decelerations and she was expected to be transferred by the Registrant to Deben

Ward (‘Deben’), which is the Delivery Suite with an attendant registrar. However,

following enquiry by the coordinator, the Registrant was of the opinion that the birth

was imminent and had decided that Patient A should remain on Brook. The decision

not to transfer, however, had not been discussed with either the labour coordinator or

the registrar. In addition the Registrant had discontinued the CTG at 20.00 as she had

assessed it as normal despite the fact that it featured more than 90 minutes of variable

decelerations. The Registrant had noted that there was to be regular auscultation.

Although local clinical and NICE guidance stipulate that auscultation of the foetal heart

is to be conducted every 5 minutes during the second stage of labour, the patient note

entries at 20.15, 20.30 and 20.41 indicated that this did not take place. Just before

21.00 the Registrant remained of the view that the birth was imminent when enquiry

was made by the coordinator. There were no entries at all made in relation to the

foetal heart between 21.00 and the birth of Baby A, at 22.22. Please see Patient A’s

notes at Appendix 1.

6. Although the birth was without complications, a fellow midwife raised concerns

regarding the misinterpretation of the relevant CTG; the non-transfer of Patient A to the

delivery suite given the concerns over the CTG; the apparent lack of frequent

auscultation and the inadequacies of the Registrant’s record keeping.

7. At a meeting on 9 January 2018 concerning the care of Patient A on 1 January 2018,

the Registrant conceded that her interpretation of the CTG had not been good and at

an interview on 18 January 2018 she agreed that although she had considered the

patient to be fully dilated after taking her off the CTG, she was only auscultating the

foetal heart every 15 minutes. The Registrant stated that she had monitored the foetal

6

heart between 21.00 and the birth despite the lack of documentation. She went on to

explain that, on reflection, she regretted being influenced by Patient A’s desire to have

a more positive birthing experience the second time round when she had discontinued

the CTG and kept the patient on Brook.

8. The Registrant’s practice was further called into question on 2/3 February 2018 (see

charge 2). The Registrant was working on Deben and caring for Patient B, who was

classified as high risk because her labour was being induced on account of her baby

being small for gestational age (‘SFGA’). At 20:05, the Registrant took over the care of

Patient B and this was marked by an SBAR sticker. However there were no entries in

the clinical records from after this time until 00:01, in the form of a CTG sticker.

9. When a verbal handover took place at 07.45 fellow midwife Ms 1 took over the care of

Patient B. She noted that the Registrant had made no notes after an entry by a

covering midwife at 05.45 and that the Registrant had stayed on to complete her notes

which included the filling in of an SBAR (Situation, Background, Assessment,

Recommendation) sticker, a CTG sticker and a VE sticker from the beginning of the

Registrant’s shift. This indicated that the Registrant’s records had not been written

contemporaneously or in a timely manner. Indeed the SBAR contained information

relating to findings of vaginal examinations undertaken throughout the shift, which

confirmed such. The Registrant also gave Ms 1 a piece of paper bearing unnamed,

untimed observations and asked her to write these in the notes on her behalf for about

03.00. Ms 1 declined to do so and just added the piece of paper to the notes. Ms 1 also

discovered, a little later, that the Registrant had not made any entry in the Partogram

section.

10. During the period of the Registrant’s care (from approximately 20.05 to 07.45) 4 CTG

stickers had been placed in the Patient’s notes, timed at 00.01, 01.20, 02.30 and

04.35. Two of them did not bear a “fresh eyes” signature in line with Hospital guidelines

but all of them indicated that the Registrant had assessed the CTG as normal. The

notes disclosed that the CTG was continued until 07.36 and was still deemed

“essentially normal” by the Registrant at 06.00 despite concerns expressed in an entry

7

by a fellow midwife covering the Registrant’s break at 05.30. In fact there were no

further CTG stickers or hourly “fresh eyes” reviews, as required, after 04.35.

11. In terms of dilation, assessed during vaginal examinations, the Registrant had

recorded 4cm at 00.05, 8cm at 05.00 and 9cm at 07.30.

12. Following handover at 07.45, Ms 1 looked back at the CTG and assessed it as

suspicious as it featured decelerations over a period of time. She also had misgivings

as to whether Patient B was in fact on the verge of the second stage of labour whereas

the Registrant had told her that Patient B was about to deliver. Ms 1 therefore

conducted a vaginal examination at 08.30 and found Patient B to be just 5cm dilated.

Thereafter she escalated the case to a doctor who agreed with her assessment of the

situation and made plans for a caesarean section given the slow progress. As it turned

out the patient was given fluids for a period of time and gave birth naturally at 09.43 but

the baby required transfer to the neonatal unit (‘NNU’) for respiratory distress

syndrome shortly after birth. Please see Patient B’s notes at Appendix 2.

13. The Hospital conducted an investigation into the care of Patient A but commissioned

an external investigation by Ms 2, Matron for Maternity Services at Colchester Hospital

(‘Colchester’) in respect of the care of Patient B. The investigation found that the

Registrant’s care was inadequate. A disciplinary hearing was held which resulted in the

Registrant being downgraded to a band 5 for at least a year. The Registrant was also

required to complete a Performance Improvement Programme (‘PIP’) at Colchester

Hospital, to be overseen by Ms 2. However, the Registrant resigned at the end of

December 2018 before she was able to complete the PIP.

14. Witness statements have been obtained from:

Ms 3, Consultant Midwife and Manager-on-call for the relevant shift on 1

January 2018. This witness, together with an In-patient Matron, conducted an

internal investigation into the care of Patient A on 1 January 2018

Ms 4, Labour Ward Co-ordinator on 1 January 2018 and 2/3 February 2018

8

Ms 5, Head of Midwifery

Ms 1, Band 6 Midwife who took over the care of Patient B from the Registrant at

07.45 on 3 February 2018

Ms 2, Matron for Maternity Services, external investigator in respect of the care

of Patient B on 2/3 February 2018

15. All facts, as detailed in the charges, are admitted by the Registrant.

Misconduct

16. In the case of Roylance v General Medical Council (No.2) [2000] 1 AC 311, Lord

Clyde stated that:

‘misconduct is a word of general effect, involving some act or omission which falls

short of what would be proper in the circumstances. The standard of propriety may

often be found by reference to the rules and standards ordinarily required to be

followed by the medical practitioner in the particular circumstances’.

17. The Registrant had been practising as a midwife since 2006 and the issues in this case

arose over the course of two night shifts on 1 January 2018 and 2 February 2018. The

failings in this case involve the Registrant providing inadequate care and failing to

demonstrate fundamental clinical skills, particularly in the assessment of CTGs and

record keeping. The actions of the Registrant constituted a serious departure from the

standards expected of a registered midwife and put Patients A, B and their babies at

risk of serious harm.

18. The Registrant admits that her conduct fell seriously short of the standards expected of

a registered midwife. Moreover, the Registrant accepts that her actions breached the

following paragraphs of the 2015 NMC Code of Conduct:

1 Treat people as individuals and uphold their dignity

To achieve this, you must:

9

1.2 make sure you deliver the fundamentals of care effectively

6 Always practice in line with the best available evidence

To achieve this you must:

6.2 maintain the knowledge and skills you need for safe and effective practice

8 Work Cooperatively

To achieve this, you must:

8.2 maintain effective communication with colleagues

8.3 keep colleagues informed when you are sharing the care of individuals with

other healthcare professionals and staff

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

8.6 share information to identify and reduce risk

10 Keep clear and accurate records relevant to your practice

To achieve this you must:

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

recording if the notes are written some time after the event

13 Recognise and work within the limits of your competence

To achieve this you must:

13.1 accurately assess signs of normal or worsening physical and mental health

in the person receiving care

13.2 make a timely and appropriate referral to another practitioner when it is in

the best interests of the individual needing any action, care or treatment

20 Uphold the reputation of your profession at all times

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

10

20.6 stay objective and have clear professional boundaries at all times with

people in your care (including those who have been in your care in the past),

their families and carers

19. The Registrant accepts that the conduct outlined in the charges, both individually and

collectively, amounts to misconduct.

Current Impairment

20. The Parties have considered the questions formulated by Dame Janet Smith in her

Fifth Shipman Report, approved in the case of CHRE v Grant & NMC [2011] EWHC

927 (Admin) (‘Grant’) by Cox J. They are as follows:

Do our findings of fact in respect of the doctor's misconduct, deficient professional

performance, adverse health, conviction, caution or determination show that his/her

fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a patient

or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the medical

profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the

fundamental tenets of the medical profession; and/or

d. ...

21. The Parties agree that the first 3 limbs a, b and c, are engaged in this case. The

Registrant admits that her conduct put patients at unwarranted risk of harm, brought

the reputation of the midwifery profession into disrepute and that she breached

fundamental tenets of the profession.

11

22. In respect of whether the Registrant’s fitness to practise is currently impaired, the

Parties have considered Cohen v GMC [2007] EWHC 581 (Admin), in which the court

set out three matters which it described as being ‘highly relevant’ to the determination

of the question of current impairment:

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

2. Whether it has been remedied

3. Whether it is highly unlikely to be repeated

23. The Parties agree that the clinical errors in this case are capable of being remedied.

However the Registrant resigned her position before completing the Performance

Improvement Programme and therefore it is agreed that the conduct has not yet been

remedied. In the absence of remediation it is accepted that there remains the risk that

such conduct will be repeated.

Remorse and Insight

24. At an early stage in NMC proceedings the Registrant accepted the regulatory concerns

and apologised for her failings. In her response to the regulatory concerns (dated 14

May 2019 – please see Appendix 3), the Registrant stated as follows:

25. “It was never my intention to cause any harm, physical or emotional to any woman or

her family I am devastated that my actions have resulted in a woman being unable to

bond with her baby and the long term implications. It is never far from my thoughts”

26. The Registrant also made reference to the difficult personal circumstances she was

encountering at the time of the incidents.

12

Impairment - public protection

27. Earlier referrals on the same subject matter were closed down by the NMC in October

2018 as the concerns were, at the time, being managed locally, by the PIP.

28. The Registrant is currently subject to an Interim Conditions of Practice Order imposed

on 31 January 2019 and is not currently working as a nurse or midwife. Consequently,

there is no evidence to suggest that the Registrant is able to work effectively and

safely. In these circumstances, there is an ongoing risk to the health, safety and

wellbeing of the public should the Registrant be permitted to practise without

restriction.

29. Accordingly, the Parties agree that a finding of current impairment is required on public

protection grounds.

Impairment – public interest

30. The Parties agree that this is a case where a finding of current impairment is also

required in order to declare and uphold proper professional standards of conduct and

to protect the reputation of the nursing profession. This is in accordance with the

comments of Cox J in Grant at paragraph 101:

“The Committee should therefore have asked themselves not only whether the

Registrant continued to present a risk to members of the public, but whether the

need to uphold proper professional standards and public confidence in the

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

fitness to practise were not made in the circumstances of this case.”

31. In summary, the Parties agree that the Registrant’s fitness to practise is impaired on

the grounds of both public protection and public interest.

13

Sanction

32. The Parties considered the NMC Sanctions Guidance in relation to this case and

arrived at an appropriate and proportionate sanction namely a Conditions of Practice

Order for a period of 12 months, with review before expiry.

33. The parties agree that the Registrant’s considerable experience as a midwife and the

fact that her conduct put patients and their babies at risk of harm, constitute

aggravating features. Whilst the Registrant relies upon difficult personal circumstances

at the time of the incidents, such mitigation is of limited relevance in the face of public

protection matters. As has already been noted however, the Registrant has expressed

remorse for her actions, accepted the regulatory concerns at an early stage and has

shown insight into her failings.

34. The Parties considered the available sanctions in ascending order of seriousness. The

Parties agree that taking no further action is not appropriate because, given the risk of

repetition of the misconduct, it would leave the public exposed to the unwarranted risk

of harm and would do nothing to satisfy public interest considerations.

35. The Parties also agree that a Caution Order would not be an appropriate disposal in

this case because it would not restrict the Registrant’s practice when there is an

identified risk of repetition. It would therefore be insufficient to either protect the public

or to maintain confidence in the profession and the NMC as the regulatory body whose

duty it is to declare and uphold proper standards of conduct.

36. The Parties agree that a Conditions of Practice Order would be an appropriate

sanction in that it would protect the public by appropriately and proportionately

restricting the Registrant’s practice whilst giving the Registrant the opportunity to

remediate in a clinical setting, under supervision. It would also serve to declare proper

standards of conduct and ensure the maintenance of trust in the profession and its

regulatory body. The Parties agree that the Registrant made genuine clinical mistakes

14

which had the potential to cause harm and that there are identifiable areas of the

Registrant’s practice in need of assessment and retraining. The Parties agree that the

misconduct in this case does not arise from any deep-seated attitudinal issues and

acknowledge that there have been expressions of remorse, early admissions and

demonstrations of insight. The Parties agree that it is possible to devise conditions

which are relevant, workable, measurable and practical. Those conditions are as

follows:

For the purposes of these conditions, ‘employment’ and ‘work’ mean any paid or

unpaid post in a nursing, midwifery or nursing associate role. Also, ‘course of study’

and ‘course’ mean any course of educational study connected to nursing, midwifery or

nursing associates.

1. You must ensure that you are supervised by your line manager or nominated

deputy any time you are working. Your supervision must consist of working at all

times on the same shift as, but not always directly observed by, another registered

midwife when working in that capacity or a registered nurse when working in that

capacity.

2. You must identify a clinical supervisor to work with you to create a personal

development plan (PDP) which addresses the following areas of your practise:

Clinical decision making

Documentation

Conducting and interpreting CTGs

In respect of conducting and interpreting CTGs your clinical supervisor must be a

registered midwife.

You must:

a) Send your case officer a copy of your PDP within 28 days of starting

employment.

15

b) Meet with your clinical supervisor at least every month to discuss your progress

towards achieving the aims set out in your PDP.

c) Send your case officer a report from your clinical supervisor at least 14 days

before any review of this order. This report must show your progress towards

achieving the aims set out in your PDP.

3. You must keep us informed about anywhere you are working by:

a) Telling your case officer within seven days of accepting or leaving any

employment.

b) Giving your case officer your employer’s contact details.

4. You must keep us informed about anywhere you are studying by:

a) Telling your case officer within seven days of accepting any course of study.

b) Giving your case officer the name and contact details of the organisation

offering that course of study.

5. You must immediately give a copy of these conditions to:

a) Any organisation or person you work for.

b) Any agency you apply to or are registered with for work.

c) Any employers you apply to for work (at the time of application).

d) Any establishment you apply to (at the time of application), or with which you

are already enrolled, for a course of study.

e) Any current or prospective patients or clients you intend to see or care for when

you are working independently

6. You must tell your case officer, within seven days of your becoming aware of:

Any clinical incident you are involved in.

Any investigation started against you.

Any disciplinary proceedings taken against you.

16

7. You must allow your case officer to share, as necessary, details about your

performance, your compliance with and / or progress under these conditions with:

Any current or future employer.

Any educational establishment.

Any other person(s) involved.

37. The Parties agree that the Conditions of Practice Order should continue for a period of

12 months and be reviewed before expiry. This should give the Registrant sufficient

time to both find suitable employment and then demonstrate safe and effective practice

as a registered midwife.

38. The Parties nonetheless went on to consider the sanction of suspension but concluded

that temporary removal from the register was unnecessary and therefore

disproportionate in light of the matters stated above. A suspension order would not

enable the Registrant to demonstrate safe and effective practice as a midwife in a

clinical setting. Furthermore, the Parties are mindful that there is a public interest in

allowing, where appropriate, a registered nurse or midwife, who has shown developing

insight into remediable failings, being allowed to return to practice and demonstrate full

remediation.

Interim Order

39. Finally, the Parties agree that an interim order is required in this case. The order is

necessary for the protection of the public and is otherwise in the public interest for the

reasons outlined above. The order should be for a period of 18 months to guard

against the risk to the public in the event that the Registrant seeks to appeal against

the substantive order. The interim order should take the form of a Conditions of

Practice Order in the same terms as those outlined in the substantive order.

The Parties understand that this provisional agreement cannot bind a panel, and that the

final decisions in respect of misconduct/impairment and sanction is a matter for the panel.

17

The Parties understand that, in the event that a panel does not agree with this provisional

agreement, the admissions to the charges and the agreed statement of facts as set out at

section 2 above, may be placed before a differently constituted panel provided that it

would be relevant and fair to do so.

The provisional CPD agreement was signed by Ms Burniston and the NMC on 24 and 25

June 2020.

Decision and reasons on the CPD

The panel decided to amend the CPD.

Ms Guest informed the panel that the NMC did not investigate the allegations from the

outset. She said that the positon was managed locally and that Ms Burniston agreed to

complete a professional development programme (PDP) at Colchester Hospital. Ms Guest

said there were issues with Ms Burniston’s travel to Colchester Hospital and that she

resigned before the PDP could be completed. Ms Guest told the panel that as the alleged

failings could not be remediated at a local level, the matter was referred to the NMC. She

informed the panel that Ms Burniston has admitted all the charges and parties have

agreed a set of facts and drew the panel’s attention to the relevant pages within the

documentation.

Ms Guest told the panel that Ms Burniston is an experienced midwife and that these

incidents took place in just two shifts in the course of her career and therefore this is not a

matter of incompetence but misconduct. She told the panel Ms Burniston has not yet

remedied her failings but that the errors are capable of being remediated. With regard to

remorse and insight, Ms Guest reminded the panel that Ms Burniston admitted everything

at a local level and she is willing to undertake the PDP. Ms Guest told the panel that

parties have agreed that a 12 month conditions of practice order is sufficient to allow Ms

Burniston to remediate her failings in a clinical setting under supervision and would serve

18

the proper standards of conduct. Ms Guest submitted that the parties agreed that a

suspension order would be disproportionate and inappropriate.

The panel heard and accepted the legal assessor’s advice. Ms Guest referred the panel to

the ‘NMC Sanctions Guidance’ (SG) and to the ‘NMC’s guidance on Consensual Panel

Determinations’. She reminded the panel that they could accept, amend or outright reject

the provisional CPD agreement reached between the NMC and Ms Burniston. Further, the

panel should consider whether the provisional CPD agreement would be in the public

interest. This means that the outcome must ensure an appropriate level of public

protection, maintain public confidence in the professions and the regulatory body, and

declare and uphold proper standards of conduct and behaviour.

The panel noted that Ms Burniston admitted the facts of the charges and the factual

background. It was also provided with patient notes of Patient A and Patient B.

Accordingly the panel was satisfied that the charges are found proved by way of Ms

Burniston’s admissions, as set out in the signed provisional CPD agreement.

Decision and reasons on impairment

The panel then went on to consider whether Ms Burniston’s fitness to practise is currently

impaired. Whilst acknowledging the agreement between the NMC and Ms Burniston, the

panel has exercised its own independent judgement in reaching its decision on

impairment.

In respect of misconduct, the panel determined that the allegations are serious and the

misconduct involved basic midwifery skills that an experienced midwife should possess.

The panel determined that although these are isolated incidents, the allegations are

serious enough to amount to misconduct. Further, it agreed that Ms Burniston’s actions in

this regard breached the parts of the Code outlined in the CPD agreement. In this respect

the panel accepted paragraphs 16 to 19 of the provisional CPD agreement in respect of

misconduct.

19

The panel then considered whether Ms Burniston’s fitness to practise is currently impaired

by reason of her misconduct. The panel determined that Ms Burniston’s fitness to practise

is currently impaired.

The panel accepted the submissions within the provisional CPD that limbs a) to c) of the

test set out in Dame Janet Smith’s Fifth Shipment Report are engaged in Ms Burniston’s

case. Specifically, that Ms Burniston placed patients at an unwarranted risk of harm,

brought the profession into disrepute and breached a fundamental tenet of the profession.

The panel noted that Ms Burniston admits her fitness to practise is currently impaired,

although the question of current impairment remains a matter for the panel’s independent

judgement. In this respect the panel endorsed paragraphs 20 to 31 of the provisional CPD

agreement.

The panel considered whether Ms Burniston has demonstrated insight. The panel noted

that Ms Burniston admitted the failings early on at a local level. The panel also took into

account Ms Burniston’s written statement dated 30 June 2020. The panel noted that Ms

Burniston has developing insight, but has not acknowledged how her actions has brought

the midwifery profession into disrepute. The panel noted that Ms Burniston has

demonstrated remorse and has apologised for her actions and acknowledged that she

placed patients at an unwarranted risk of harm. The panel considered whether the failings

are remediable and whether Ms Burniston has demonstrated remediation. The panel

noted that the misconduct in this case is remediable. However it noted that Ms Burniston

resigned from her role and therefore has been unable to demonstrate remediation in a

clinical setting. The panel determined that there is therefore a real risk of repetition should

Ms Burniston be allowed to return to unrestricted practice.

In light of this, the panel agreed that a finding of current impairment was required in order

to protect the public. It also agreed that a finding of current impairment was required on

public interest grounds, in order to maintain confidence in the nursing profession and the

NMC as a regulator.

20

Decision and reasons on sanction

Having found Ms Burniston’s fitness to practise currently impaired, the panel went on to

consider what sanction, if any, it should impose in this 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 SG. The decision on sanction is a matter for the panel independently

exercising its own judgement.

The panel then turned to the question of whether the sanction proposed in the CPD

agreement is appropriate. In so doing it considered each available sanction in turn,

starting with the least restrictive sanction and moving upwards. The panel first considered

whether to take no action but concluded that this would be inappropriate in view of the

seriousness of the case. The panel decided that it would be neither proportionate nor in

the public interest to take no further action. The panel also noted that taking no action

would not sufficiently protect the public. The panel noted that imposing a caution order

which imposes no restriction on Ms Burniston’s practice, would also be inappropriate for

the same reasons as taking no further action.

The panel next considered whether placing conditions of practice on Ms Burniston’s

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

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

account the SG, in particular:

No evidence of harmful deep-seated personality or attitudinal problems;

Identifiable areas of the nurse or midwife’s practice in need of

assessment and/or retraining;

No evidence of general incompetence;

Potential and willingness to respond positively to retraining;

Patients will not be put in danger either directly or indirectly as a result

of the conditions;

21

The conditions will protect patients during the period they are in force;

and

Conditions can be created that can be monitored and assessed.

The panel agreed that, in light of Ms Burniston’s engagement, the public could be

adequately protected by conditions of practice. It agreed that the conditions proposed

within the CPD agreement were appropriate and proportionate. The panel noted that Ms

Burniston’s failings could be addressed by a conditions of practice order and that they

would sufficiently protect the public. The panel determined that it would be possible to

formulate appropriate and practical conditions which would address the failings highlighted

in this case. The panel accepted that Ms Burniston would be willing to comply with

conditions of practice. The panel had regard to the fact that Ms Burniston has had an

unblemished career for a number of years as a midwife. The panel was of the view that it

was in the public interest that, with appropriate safeguards, Ms Burniston should be able

to return to practise as a midwife.

The panel determined that an 18 month order was a more appropriate length of order than

a 12 month order suggested in the CPD. The panel determined that 12 months would not

be adequate time to allow Ms Burniston to obtain a midwifery post and comply with the

conditions of practice order, given the circumstances of the current pandemic. The panel

noted that an 18 month order is not punitive, but would allow Ms Burniston sufficient time

to obtain a role and undertake the required training to remediate the current impairment. It

considered that any shorter time was unlikely to give Ms Burniston a chance to

demonstrate significant progress.

The panel did consider whether to impose a suspension order or a striking-off order but

decided that both of these sanctions would be disproportionate in this case for the reasons

given in paragraph 38 of the CPD.

Having regard to the matters it has identified, the panel has concluded that a conditions of

practice order will mark the importance of maintaining public confidence in the profession,

22

and will send to the public and the profession a clear message about the standards of

practice required of a registered midwife.

The panel agreed with the CPD that the following conditions are appropriate and

proportionate in this case:

For the purposes of these conditions, ‘employment’ and ‘work’ mean any paid or

unpaid post in a nursing, midwifery or nursing associate role. Also, ‘course of study’

and ‘course’ mean any course of educational study connected to nursing, midwifery or

nursing associates.

1. You must ensure that you are supervised by your line manager or nominated

deputy any time you are working. Your supervision must consist of working at all

times on the same shift as, but not always directly observed by, another registered

midwife when working in that capacity or a registered nurse when working in that

capacity.

2. You must identify a clinical supervisor to work with you to create a personal

development plan (PDP) which addresses the following areas of your practise:

Clinical decision making

Documentation

Conducting and interpreting CTGs

In respect of conducting and interpreting CTGs your clinical supervisor must be a

registered midwife.

You must:

a) Send your case officer a copy of your PDP within 28 days of starting

employment.

23

b) Meet with your clinical supervisor at least every month to discuss your progress

towards achieving the aims set out in your PDP.

c) Send your case officer a report from your clinical supervisor at least 14 days

before any review of this order. This report must show your progress towards

achieving the aims set out in your PDP.

3. You must keep us informed about anywhere you are working by:

a) Telling your case officer within seven days of accepting or leaving any

employment.

b) Giving your case officer your employer’s contact details.

4. You must keep us informed about anywhere you are studying by:

a) Telling your case officer within seven days of accepting any course of study.

b) Giving your case officer the name and contact details of the organisation

offering that course of study.

5. You must immediately give a copy of these conditions to:

a) Any organisation or person you work for.

b) Any agency you apply to or are registered with for work.

c) Any employers you apply to for work (at the time of application).

d) Any establishment you apply to (at the time of application), or with which you

are already enrolled, for a course of study.

e) Any current or prospective patients or clients you intend to see or care for when

you are working independently

6. You must tell your case officer, within seven days of your becoming aware of:

Any clinical incident you are involved in.

Any investigation started against you.

Any disciplinary proceedings taken against you.

24

7. You must allow your case officer to share, as necessary, details about your

performance, your compliance with and / or progress under these conditions with:

Any current or future employer.

Any educational establishment.

Any other person(s) involved.

The period of this order is for 18 months.

Before the end of the period of the order, a panel will hold a review hearing to see how

well Ms Burniston has complied with the order. At the review hearing the panel may

revoke the order or any condition of it, it may confirm the order or vary any condition of it,

or it may replace the order for another order.

Ms Burniston may ask that the order be reviewed at any time if there is new information

which she wishes to put before a panel.

Decision and reasons on interim order

As the conditions of practice order cannot take effect until the end of the 28-day appeal

period, the panel has considered whether an interim order is required in the specific

circumstances of this case. It may only make an interim order if it is satisfied that it is

necessary for the protection of the public, is otherwise in the public interest or in Ms

Burniston’s own interest until the conditions of practice sanction takes effect. The panel

heard and accepted the advice of the legal assessor.

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

and is otherwise in the public interest. The panel had regard to the seriousness of the

facts found proved and the reasons set out in its decision for the substantive order in

reaching the decision to impose an interim order.

25

The panel agreed with the CPD that the only suitable interim order would be that of a

conditions of practice order, as to do otherwise would be incompatible with its earlier

findings. The conditions for the interim order will be the same as those detailed in the

substantive order for a period of 18 months.

If no appeal is made, then the interim conditions of practice order will be replaced by the

substantive conditions of practice order 28 days after Ms Burniston is sent the decision of

this hearing in writing.

That concludes this determination.