Dr Andy Thompson (Chair/ Lay member) Nalini Varma (Lay member) Hildah Jiah (Registrant member) Not present and not represented

Transcription

1 Conduct and Competence Committee Substantive Hearing Consensual Panel Determination 03 October 2014 Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE Name of Registrant: NMC PIN: Miss Sandra Gentles 99B1075E Part of the register: Registered Nurse Sub Part 1 Adult Nursing- February 2002 Type of Case: Panel Members: Legal Assessor: Misconduct Dr Andy Thompson (Chair/ Lay member) Nalini Varma (Lay member) Hildah Jiah (Registrant member) Cyrus Katrak Panel Secretary: Donald Ikpeama Nursing and Midwifery Council: Registrant: Represented by Henry Vallance, Counsel, instructed by Nursing and Midwifery Council Regulatory Legal Team Not present and not represented Facts proved: Fitness to practise: Sanction: All facts proved by admission Impaired Suspension Order (12 months) Interim order: Interim Suspension Order (18 months) Page 1 of 16

2 Decision on service of notice of hearing The panel was informed that Ms Gentles was not in attendance and she was not represented. Notice of this hearing was sent to Ms Gentles as well as to her representative, on 2 September 2014 by recorded delivery and first class post to her address on the register. The Royal Mail Track and Trace document shows that the item was delivered on 7 September 2014 and appears to be signed for by Ms Gentles. The panel heard and accepted the advice of the legal assessor. The panel was satisfied that notice had been served, as advised by the legal assessor, in accordance with Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended February 2012) ( the Rules ). Proceeding in absence The panel then considered whether to proceed in the absence of Ms Gentles. The panel heard the submissions made by Mr Vallance on behalf of the NMC and accepted the advice of the legal assessor. Mr Vallance submitted that Ms Gentles was aware of today s hearing. She has signed the provisional CPD agreement and returned this document by post, which was received by the NMC on 30 September She had also provided a reflective piece. Ms Gentles did not request an adjournment and there was no indication that an adjournment would result in her attendance at a later date. The panel was mindful that this was a discretion that must be exercised with the utmost care and caution. Page 2 of 16

3 In deciding whether to proceed in the absence of Ms Gentles the panel weighed its responsibilities for public protection and the expeditious disposal of the case with Ms Gentles entitlement to be present if she so wished. The panel considered that the signed agreement and the communication with Ms Gentles representatives was a clear indication that Ms Gentles is fully aware of today s hearing and what the proposed sanction is in line with the procedures of Consensual Panel Determinations (CPD). The panel concluded that Ms Gentles had chosen to voluntarily absent herself and had therefore waved her right to be present. Ms Gentles has not requested an adjournment and the panel concluded that an adjournment would serve no useful purpose. Having weighed the interests of Ms Gentles with those of the NMC and the public interest in an expeditious disposal of this hearing, the panel decided to proceed in Ms Gentles absence. Consensual Panel Determination The panel heard from Mr Vallance that a provisional agreement for a CPD had been reached between the NMC and Ms Gentles. The agreement, which was put before the panel, sets out Ms Gentles admissions of the facts of the charges and her admission that her fitness to practise is currently impaired by reason of her misconduct. It is further proposed in the provisional agreement that an appropriate and proportionate sanction in this case would be a suspension order for a period of 12 months. The panel has considered with care the provisional agreement reached by the parties. That provisional agreement reads as follows: CPD Provisional Agreement The Nursing and Midwifery Council ( the NMC ) and Sandra Gentles ( Ms Gentles ), PIN 99B1075E ( the parties ) agree as follows: Page 3 of 16

4 Charges 1. Ms Gentles admits the following charges: That you, working as a registered nurse at Trafford General Hospital on 16 March 2013: 1. Failed to check the contents of a syringe before administering it to Patient A. 2. Incorrectly administered end of life medication via IV injection to Patient A. 3. Following the error in charge 2 above, failed to respond and/or act in Patient A s best interests. 4. Knowingly misled colleagues by stating that you did not know where Patient A s end of life medication had gone when you were aware you had mistakenly administered it. 5. Your conduct in relation to Charge 4 was dishonest. And as a result of the above your fitness to practice is impaired by reason of misconduct. Facts 2. The agreed facts are as follows: 2.1. The NMC received a complaint about Ms Gentles on 22 August On 16 March 2013, Ms Gentles was working on Ward 4 at the Trafford General Hospital in her capacity as a registered nurse, via NHS Professionals. At or around midday, Ms Gentles was in Patient A's room reviewing a plasma infusion which the patient was receiving and which had stopped running. Staff Nurse Miss 1 and Staff Nurse Miss 2 then entered the room. They had prepared a combination of end of life drugs in a 10mI syringe, namely Glycopyronium, Page 4 of 16

5 Levopromazine, Morphine and Midazolam. These were prescribed to be administered subcutaneously via a syringe driver to Patient A over a 24 hour period Miss 1 and Miss 2 approached Patient A s bed, and put the blue tray containing the end of life drugs on the patient s bedside table whilst they opened the syringe driver. Ms Gentles was at this time attempting to administer a saline flush to the intravenous line, to enable the plasma infusion to continue to be administered Miss 1 and Miss 2 completed the patient checks and unlocked the syringe driver. Turning to the patient s table to take the end of life drugs, they noticed the syringe was no longer in the tray. Miss 1 asked Ms Gentles about the location of the syringe. Ms Gentles replied that she was flushing the intravenous line for the platelets The staff reported that the syringe was missing to the nurse in charge, Miss 3, who in turn contacted Miss 4, Matron for Urgent Care at Trafford Hospital The hospital staff tried to locate the drugs in Patient A s room, but were unable to find the syringe. Miss 4 and Miss 3 asked Ms Gentles whether she had seen the drugs, as she had been in the room when they went missing. She stated that she hadn t, and that she had used her own flushes when administering the IV injections. Ms Gentles informed Miss 3 that she was going home as she was due to finish her shift at and she hadn t had a morning break The condition of Patient A changed. Whereas before he had been agitated, now he was flat and unresponsive. It was decided by Miss 4 and Miss 3 that the end of life drugs must have been administered to Patient A. An on-call pharmacist was called for advice, who advised that no further medical action should be taken in terms of trying to counteract the effect of the end of life drugs, as that would have made Patient A more uncomfortable and distressed. Page 5 of 16

6 2.8. Ms Gentles was called at home and asked to come back to the hospital. When she arrived at the hospital, Ms Gentles made a full and frank admission. She stated that she had given the drugs as a flush in error. She admitted that she had panicked, and didn t know what to do. She said she just wanted to get away, and be with her family. She knew she was in big trouble On 16 August 2013 Ms Gentles was dismissed for gross misconduct For the avoidance of doubt, there is no suggestion that Ms Gentles misconduct caused or contributed to the death of Patient A. Paragraph 15 of the statement of Miss 4 clearly states: Patient A eventually died at 11pm on 16 March 2013, ten hours after being given the injection. The subsequent pathology report stated that the administration of the drug did not have a long term effect on the death of Patient A. It would not have distressed him. The levels were not of a toxic amount, and the registrant was never called by the coroners when they were conducting their report. Misconduct 3. The term misconduct is not defined in the NMC s rules or in statute. However, the parties respectfully adopt and invite the Panel to adopt the definition of the term given by Lord Clyde in the case of Roylance v General Medical Council [2000] 1 AC 311: 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 a medical practitioner in the particular circumstances. 4. In this case, the relevant standards of propriety are those set out in the NMC s Code of Conduct, Standards of conduct, performance and ethics for nurses and midwives (Nursing and Midwifery Council, May 2008) ( the Code ). In particular, Ms Gentles agrees that by her actions and omissions as set out in the admitted charges, she has breached the following provisions of the Code: Page 6 of 16

7 4.1. The fundamental tenets of the Nursing Profession, as set out in 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 Paragraph 21 of the Code: You must keep your colleagues informed when you are sharing the care of others Paragraph 22 of the Code: You must work with colleagues to monitor the quality of your work and maintain the safety of those in your care Paragraph 28 of the Code: You must make a referral to another practitioner when it is in the best interests of someone in your care Paragraph 32 of the Code: You must act without delay if you believe that you, a colleague or anyone else may be putting someone at risk Paragraph 33 of the Code: You must inform someone in authority if you experience problems that prevent you working within this code or other nationally agreed standards Paragraph 54 of the Code: You must act immediately to put matters right if someone in your care has suffered harm for any reason. Page 7 of 16

8 4.8. Paragraph 61 of the Code: You must uphold the reputation of your profession at all times. 5. Although the issue of misconduct is entirely a matter for the Panel s professional judgment, Ms Gentles admits that the agreed facts amount to serious misconduct because by her actions in relation to Charges 1 and 2, Ms Gentles put Patient A at unwarranted risk of serious harm. 6. Furthermore (and in relation to the remaining charges), Ms Gentles accepts that she then compounded her misconduct, not only by failing to make full admissions regarding her mistake straight away, but also by knowingly and dishonestly misleading her colleagues as to what had happened to the end of life drugs, when as a matter of fact she had already mistakenly administered them to Patient A by that stage. Ms Gentles accepts that her behaviour in concealing her mistake, and misleading her colleagues about it, had the potential to put Patient A at an even greater risk of serious harm than he was already at as a result of her original mistake. Her actions and failures in respect of these particular charges can only be viewed as falling far short of what would be expected by a registered nurse in these circumstances. Impairment 7. Although it is entirely a matter for the Panel s professional judgment, the parties agree and Ms Gentles accepts that her fitness to practise is currently impaired for the following reasons: 7.1. The parties acknowledge that the concept of impairment of fitness to practise is not one which is defined in the rules or in statute However, the parties note that the NMC has defined fitness to practise as the suitability of a registrant to remain on the register without restriction. The parties agree with and adopt this definition. Page 8 of 16

9 7.3. To assist the Panel in making its judgment, the parties commend to the Panel the dictum of Mr Justice Silber (as he then was) in the case of Ronald Jack Cohen v General Medical Council [2008] EWHC 581 (Admin) (19 March 2008): It must be highly relevant in determining if a [nurse s] fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated The parties also commend to the Panel the test adumbrated by Dame Janet Smith in her 5 th Shipman Report, as endorsed by the High Court (per Cox J) in the case of Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council & Paula Grant [2011] EWHC 927 (Admin) (14 April 2011) ( Grant ), paragraph 76: "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. has in the past acted dishonestly and/or is liable to act dishonestly in the future." The value of this test, in my view, is threefold: it identifies the various types of activity which will arise for consideration in any case where fitness to practise is in issue; it requires an examination of both the past and the future; and it distils and reflects, for ease of application, the principles of interpretation which appear in the authorities. Page 9 of 16

10 7.5. When considering whether fitness to practise is currently impaired, the level of insight shown by the practitioner is central to a proper determination of that issue (Grant [2011], paragraph 116) Furthermore in determining whether Ms Gentles fitness to practise is impaired by reason of misconduct, the Panel should generally consider not only whether Ms Gentles continues to present a risk to members of the public in 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: (Grant [2011], paragraph 74) In respect of Charges 1 and 2, Ms Gentles misconduct is, in principle, capable of remediation for example by way of further training. There is no evidence that Ms Gentles has taken and completed any steps to remediate her misconduct in respect of these charges In respect of Charges 3 to 5, these involve the thought processes and actions taken by the Registrant when she has made a mistake in her clinical practise. The misconduct involves dishonesty. These can be viewed as attitudinal issues which are more difficult to remediate Consequently, although there is no burden or standard of proof on either side, the parties agree that there is insufficient evidence for the Panel to be satisfied that at this stage there is no risk of repetition of the misconduct. Accordingly, the Registrant s fitness to practise is currently impaired Having regard to the test set out in CHRE v NMC & Paula Grant [2011] EWHC 927 (Admin) Ms Gentles admits that her fitness to practise is impaired by reason of her misconduct because she: 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 Page 10 of 16

11 Has in the past brought and/or is liable in the future to bring the profession into disrepute; and/or Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; and/or Has in the past acted dishonestly and/or is liable to act dishonestly in the future As to insight, Ms Gentles has shown remorse regarding the several allegations of misconduct. Miss 4 states in her witness statement: [Ms Gentles] was extremely remorseful and distraught regarding her mistake. However, Ms Gentles displayed little insight into her actions during the internal investigation conducted by the Trust. Miss 4 s statement goes on: I don t feel that she displayed sufficient insight regarding it. The registrant argued that she was doing everyone else a favour by doing the IV injections on top of her other duties. She argued that if she hadn t agreed to help out with these injections, then the incident wouldn t have happened. I don t feel this shows sufficient insight into what was an extremely serious mistake Although Ms Gentles has since completed and asks the Panel to consider a reflective piece (attached herewith), the parties agree that Ms Gentles needs further time to reflect on her misconduct more deeply before she is able to demonstrate full insight into it. Accordingly her fitness to practise is currently impaired Finally, in respect of the wider public interest, the parties agree that Ms Gentles misconduct in this case was so serious that the public interest demands a finding of current impairment. The parties agree that not to find current impairment given the agreed facts as set out above would seriously undermine public confidence in the Nursing Profession and in the NMC as the regulator of the profession. Accordingly, Ms Gentles fitness to practise is currently impaired. Sanction Page 11 of 16

12 8. The parties agree that the appropriate sanction in this case is a suspension order for a period of twelve (12) months. In reaching this agreement, the parties have had regard to the following aggravating and mitigating factors: Aggravating factors 8.1. This was a very serious drug error which had an adverse effect upon Patient A Rather than admitting her error immediately and seeking to put matters right, Ms Gentles concealed it and knowingly misled her colleagues about what had happened Ms Gentles then left the premises and did not admit her mistake until she was summoned back to the hospital By her dishonesty, Ms Gentles put Patient A at even greater risk of harm than had been occasioned by her original mistake, because her dishonesty lead to a delay in ascertaining what had happened to the end of life drugs. It meant that Ms Gentles colleagues were not in possession of the full facts which they needed to know in order to be able to care for Patient A appropriately Ms Gentles displayed very limited insight during the Trust s internal disciplinary procedures. Mitigating factors 8.6. The drug error, while serious, does not appear to have had a long term adverse effect on Patient A or to have caused or contributed to his death It is clear from the evidence of Miss 4 at paragraph 10 that the syringe did not have the correct label on it, albeit this does not excuse Ms Gentles misconduct Ms Gentles has demonstrated considerable remorse. Page 12 of 16

13 8.9. This was an isolated incident in an otherwise unblemished career Although she did not admit her error immediately, Ms Gentles nevertheless made full admissions at an early stage, indeed on the same day as the incident Ms Gentles has fully engaged with her regulator. 9. It is clear that to take no further action in this case would be wholly inappropriate, having regard to the seriousness of the admitted facts, especially Ms Gentles dishonesty. 10. For the same reason, a caution order, even for the maximum period, would be insufficient to protect members of the public and to safeguard the wider public interest. A caution order would not affect Ms Gentles ability to practise without restriction and the misconduct is so serious that Ms Gentles should not be allowed to practise without restriction. A more serious sanction is required to uphold and declare proper standards of conduct and behaviour, to protect the reputation of the profession and of the NMC as regulator of the profession. 11. Equally, at this time, there are no conditions of practice which would be workable, proportionate or adequate to protect members of the public and to uphold the wider public interest. However, it may be that such conditions could be formulated in the future. 12. In any event, the parties agree that Ms Gentles misconduct is so serious that it necessitates a period of suspension from the register. Nothing less will suffice to protect members of the public and uphold and declare proper standards of conduct and behaviour. The public interest requires and demands a period of suspension. The parties consider that in this case, no less than twelve months would be appropriate for Ms Gentles to provide further and better evidence of insight and remediation and to declare and uphold proper standards of conduct and behaviour. Page 13 of 16

14 13. Although this is a dishonesty case and a serious one, Ms Gentles misconduct is not fundamentally incompatible with ongoing registration. There is no evidence that, apart from this incident, she has ever put patients at risk of harm or brought the profession into disrepute. Accordingly, the parties agree that a striking-off order would be a disproportionate sanction in this case. There is a clear public interest in allowing an apparently competent practitioner like Ms Gentles to return to practise once she has demonstrated adequate remediation and insight. Should she fail to do so, a reviewing panel would of course be fully entitled to direct erasure. 14. Although this is a dishonesty case and dishonesty is rightly viewed very seriously, Ms Gentles position is rather different to that of the registrant in the case of Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin) in which the High Court stated: a nurse found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register. A nurse who has acted dishonestly, who does not appear before the panel, either in person or through counsel, to remonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, forfeits the small chance of persuading the panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct erasure. 15. Ms Gentles has engaged with her Regulator. She has demonstrated remorse, a realisation that the conduct was dishonest and has undertaken that there will be no repetition. Accordingly, the Panel is entitled (in principle) to adopt a lenient or merciful outcome and to suspend for a period rather than to direct erasure. The parties believe that twelve months would be an appropriate period. Should Ms Gentles fail to satisfy a reviewing panel that she is fit to return to practise, then clearly that panel would be entitled either to extend her suspension, or to direct erasure if appropriate. Interim order Page 14 of 16

15 16. The parties agree that for all the reasons set out above, it is also necessary for the protection of the public and otherwise in the public interest for there to be an interim suspension order of 18 months to cover the appeal period. Panel decision The panel heard submissions from Mr Vallance and had regard to the provisional consensual panel determination. The panel noted that Ms Gentles admits all of the charges, misconduct and current impairment The panel heard and accepted the advice of the legal assessor. The panel agreed that Ms Gentles actions fell far short of the standards expected of a registered nurse and were sufficiently serious to amount to misconduct. Ms Gentles made medication errors as well as dishonestly misleading her colleagues. In light of this information, the panel determined that the charges amounted to misconduct, both individually and collectively. Finally, the panel took note of the fact that Ms Gentles has admitted all the charges, and she considers her failures to be sufficiently serious to amount to misconduct. The panel next considered whether Ms Gentles was currently impaired. The panel considers that the clinical failings in this case are remediable, but that they have yet to be remedied because Ms Gentles is not currently working in a clinical nursing environment. Until the failures have been remedied, there remains a risk that the behaviour will be repeated. There therefore remains a real risk of harm to patients if Ms Gentles is allowed to return to clinical practice without restriction. The panel also considered that the reputation of the profession and the NMC as a regulator would be undermined if a finding of impairment were not found. The panel was aware of its responsibility to protect the public and uphold the reputation of the profession and the NMC as its regulator. Whilst there was insight shown by Ms Gentles in her reflective Page 15 of 16

16 piece, the panel considered the charges severe, and that, to maintain public confidence, a finding of impairment needed to be made. The panel concluded that the sanction agreed by the parties in the CPD document, namely a suspension order for 12 months, was in the context of this case appropriate and proportionate. In these circumstances, the panel accepted the provisional agreement reached by the parties. This decision will be confirmed to Ms Gentles in writing. That concludes this determination. Page 16 of 16