Conduct and Competence Committee. Substantive Hearing. Monday 14 December Wednesday 16 December 2015 Friday 1 April 2016

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1 Conduct and Competence Committee Substantive Hearing Monday 14 December Wednesday 16 December 2015 Friday 1 April 2016 Nursing and Midwifery Council, 2 Stratford Place, London E20 1EJ Registrant Nurse: NMC PIN: Mercia Adejoke Akinbiyi 10F1786E Part of the register: Registered Nurse (sub part 1) Adult Oct 2010 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: London Misconduct Lucinda Barnett (chair, lay member) Dean Morris (registrant member) Margaret Lishman (lay member) Andrew Reid Panel Secretary: Sam Hughes [14-16 December 2015] Susan Curnow [1 April 2016] NMC: Represented by Saima Hirji [14-16 December 2015] and Derek Zeitlin [1 April 2016] instructed by the NMC Regulatory Legal Team Mrs Olaniyi Ayinde Oyelami: Present and represented by Ashitey Ollennu Facts proved by admission: 1 Facts proved: 2 Facts not proved: Fitness to practise: Sanction: n/a Impaired Caution order 5 years 1

2 Charges That you, whilst working as an in-house bank nurse at King George Hospital, part of Barking Havering and Redbridge University Hospitals Trust: 1. On 20 March 2014 incorrectly administered a nebuliser to a patient (Patient A) with type 2 respiratory failure and carbon dioxide retention, using a high flow of oxygen in excess of the level the patient was prescribed. 2. On and/or after 20 March 2014 retained confidential patient information, contained in a handover sheet, without authorisation to do so. And, in light of the above, your fitness to practise is impaired by reason of your misconduct. Determination on the facts The panel considered all the oral and documentary evidence before it together with the submissions of Ms Hirji on behalf of the NMC and the submissions of Mr Ollennu on your behalf. 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 the charges on the balance of probabilities, meaning that the facts in the charges were more likely than not to have occurred. The panel heard oral evidence from you and four other witnesses. They were Dr 1, Locum Doctor working at the Hospital at the material time; Ms 2, registered nurse and In-House Bank Manager at the Trust; Mr 3, Head of Resourcing and HR Services at the Trust; and Mr 4, your husband. 2

3 The panel found that Dr 1 gave a credible and overall reliable account, although there were some discrepancies with her recollection. She had a generally good recollection of the events, even though they occurred some time ago. The panel considered that the minor inconsistencies in her recollection were understandable in light of the passage of time that has elapsed since. Her oral evidence, which was clear and detailed, corroborated the contemporaneous notes. The panel found that Ms 2 gave a credible, reliable and compelling account of events. She had a good recollection of the events, even though they occurred some time ago. The panel found that Mr 3 gave a consistent account of his involvement in this matter. The panel found the evidence of Mr 4 to be consistent and credible. The panel did not consider your account of events to be entirely consistent and credible. For example, you were unclear as to the time of the incident even when your attention was drawn to the timing of a printed blood gas report. The panel preferred the evidence of Dr 1 on the occasions that it contradicted your evidence. The panel heard that you had worked as an in-house bank nurse at King George Hospital, part of Barking Havering and Redbridge University Hospitals Trust ( the Trust ). On 20 March 2014 you were on a long day shift 07:30 20:30 on Japonica Ward caring for a bay of eight patients and one in the side room. It is alleged that on 20 March 2014 you incorrectly administered a nebuliser to a patient (Patient A) using a high flow of oxygen in excess of the level the patient was prescribed. The patient had type 2 respiratory failure and was retaining carbon dioxide; she was prescribed nebulised medication which was to be given via air. The patient subsequently deteriorated and died. The post 3

4 mortem identified exacerbation of Chronic Obstructive Pulmonary Disease ( COPD ) as a cause of death. The panel heard that a subsequent Coroner s inquest did not find that your actions caused Patient A s death. After the event, a local investigation was carried out during which it was alleged that you demonstrated a lack of knowledge and understanding of the respiratory system. You stated that you gave the patient a nebuliser via oxygen as there was no nebuliser machine or air cylinder available and you believed this to be a suitable alternative. It was alleged that the oxygen flow rate had been set at 10 litres per minute. You denied this and stated that you had put the oxygen on a flow of six litres per minute. Both six litres and 10 litres would have been in excess of the prescribed amount of 0-3 litres. An outcome meeting was held on 30 April 2014 at which you were alleged to have produced a copy of a handover sheet that you had retained from the date of the incident. The handover sheet is alleged to have contained identifiable information of approximately 30 patients, including first and last names, ages and medical information. The handover sheet was removed from you at the meeting and destroyed. It is alleged that you demonstrated a lack of understanding at the meeting as to why your actions on the date of the incident were incorrect and the decision was made to remove you from the in-house bank. Charge 1 proved by way of admission On 20 March 2014 incorrectly administered a nebuliser to a patient (Patient A) with type 2 respiratory failure and carbon dioxide retention, using a high flow of oxygen in excess of the level the patient was prescribed. At the outset, you admitted charge 1 on the basis that you had administered nebulised medication via oxygen at six litres. The panel found the charge proved by way of admission. It subsequently heard evidence that you had 4

5 administered nebulised medication via oxygen at 10 litres. The panel therefore sought to determine what quantity of oxygen had been administered. Dr 1 told the panel that Patient A had respiratory failure which was thought to be due to right side consolidation and lung collapse. Dr 1 stated that Patient A s body was retaining carbon dioxide and that the oxygen given to her was titrated to maintain oxygen saturations between 88% and 92%. She explained that it is vital that oxygen levels are carefully controlled for a CO2 retaining patient, because a high dose of oxygen...would suppress the respiratory drive, this would lead to further accumulation of CO2 which is dangerous and could result in death. Patient A was therefore to be given nebulised medication via air, and not oxygen. Dr 1 stated that on the morning of the incident at approximately 08:50 she attended to Patient A and found her tired and short of breath but awake and responsive. Dr 1 s next contact with Patient A was at approximately 13:45 when you informed her that the patient s condition had deteriorated and advised her that you had raised the patient s oxygen levels and started a nebuliser. Dr 1 stated that she attended to Patient A immediately and found her unconscious and unresponsive. She said, I saw that the oxygen had been increased from 2 litres to 4 litres via the nasal cannula and the patient also had a nebuliser mask on, which was being driven by 10 litres of oxygen through the oxygen port on the wall, instead of being driven by air. Dr 1 stated that she immediately removed the mask and reduced the oxygen flow to one litre. After attending to the patient she spoke to you and explained why a nebuliser should not have been given to Patient A via oxygen. Dr 1 said that you did not provide a rationale for having given Patient A the nebuliser via oxygen. She told the panel that when you called her at around 13:45 you told her that you had increased the oxygen concentration to about four litres. Dr 1 further told the panel that after she had explained why Patient A should not have been given the nebuliser via oxygen, you told her that you had placed the patient on 6-8 litres of oxygen. However, Dr 1 said that she had clearly seen that the patient had been on 10 litres of oxygen. 5

6 The panel had before it copies of Patient A s physiotherapy and clinical records, nursing notes and comfort records and her inpatient prescription chart and administration record. The notes show that Patient A was being treated for type 2 respiratory failure and was retaining carbon dioxide (CO2). The chart shows that as of 16 March 2014 Patient A was prescribed oxygen at 0-3 litres, with levels titrated to maintain Patient A's saturation levels at 88-92%. The patient notes support the testimony of Dr 1 as to the patient s condition and her notes following the incident written at 14:15 can be seen in the clinical notes for 20 March It is noted that Dr 1 had clearly written and underlined the fact that the nebuliser was being driven by 10 litres of oxygen to Patient A. Ms 2 conducted an investigatory meeting on 21 March 2014, a copy of the notes of which were before the panel. During the meeting you were able to recall the patient s plan of care and admitted that you had given a nebuliser via oxygen in excess of the amount prescribed, however you stated that you had administered oxygen at six litres; not 10 litres. You stated that you had observed that Patient A was drowsy and unresponsive at approximately 13:00, so you connected the nebuliser tubing and mask to the oxygen port as you were unable to find the nebuliser machine. During the meeting you provided a statement with your account of events to Ms 2, a copy of which was before the panel. In your statement you set out that you used oxygen because, according to my experience is an alternative procedure to administer oxygen in case of nebuliser shortage and still serve the same purpose as the nebuliser machine. Ms 2 told the panel that your responses gave her cause for concern that you lacked basic respiratory knowledge. She stated, I would have expected Mercia to know that a nebuliser should never be given via oxygen to a clinically unwell patient who is retaining CO2, and that the only time it is given via oxygen is to asthmatics. This is because the higher the level of oxygen the more CO2 is generated and the patient's lungs will shut down. Mercia did not 6

7 seem to understand why her actions were wrong, and her written response did not demonstrate an understanding of respiratory treatments. In her oral evidence Ms 2 added that nebulised medication may also be given via oxygen to patients who are hypoxic. You told the panel that the Ward was an overflow ward and was particularly busy on 20 March 2014 and you were responsible for caring for a range of unwell patients including Patient A. It was your case that you looked for an available nebuliser machine but could not find one. You said that you decided to administer the nebulised medication using oxygen via the oxygen port on the wall by the patient s bedside. You explained that, according to your experience, this was an appropriate alternative procedure in the absence of an air cylinder or nebuliser machine. You initially gave the panel the impression that there was no nebuliser machine or air cylinder available on the Ward. On being questioned by the panel it became clear that you had used a nebuliser machine on previous occasions, one that was shared between patients on the Ward. You also stated that you had administered nebulised medication to Patient A via an air cylinder at 08:00 on 20 March You stated neither a nebuliser machine nor air cylinder were available in your bay at the time you needed them that afternoon for Patient A. It was your case that you had administered oxygen to Patient A at six litres. You told the panel that this had always been your case and that you had never deviated from this but accepted this was higher than the prescribed level of 0-3 litres. During your evidence you initially gave the impression that the shift of 20 March 2014 was the first occasion that you provided care to Patient A. However, it later became clear that you had worked with her on the previous day. You stated that you were not aware that Patient A had been diagnosed with respiratory failure or that she was retaining CO2 but that you did know that Patient A had been diagnosed with COPD, hypertension, had a chest 7

8 infection and was short of breath. You further accepted that it was your responsibility to have been aware of the patient s diagnoses when providing care to her. The panel did not accept your assertion that you administered oxygen to Patient A at six litres on 20 March The panel did not find your account credible due to the fact that Dr 1 s recollection and the contemporaneous notes contradict your versions of events. In light of Dr 1 s account and the patient notes, the panel is of the view that it is more likely than not that you did administer a nebuliser to Patient A at 10 litres of oxygen. It recognises that even if you had, as you claimed, administered at six litres, this would still have been a high flow of oxygen at double the prescribed level. Charge 2 proved On and/or after 20 March 2014 retained confidential patient information, contained in a handover sheet, without authorisation to do so During the outcome meeting on 30 April 2014 it is alleged that you produced a copy of a handover sheet that you had retained from the date of the original incident. Mr 3 told the panel that the sheet was an A4 document on which confidential patient information was written for approximately 30 patients who were being treated on the ward on that date. The information included each patient s first and last name, age and information about each patient s medical condition and other sensitive details. Mr 3 stated that you produced the document saying that you wished to refresh your memory as to Patient A s condition on the date of the incident; however the information written for Patient A is alleged to have stated only unwell. He said that you provided no rationale for having retained the document or for removing it from Trust premises without authorisation. Mr 3 said that, in doing so, your actions were a breach of the Trust s Confidentiality and Disclosure policy. The panel s attention was drawn to Section 4, Principle 2 of the policy which stipulates, 8

9 Personal data shall be obtained only for one or more specified and lawful purposes(s) and shall not be further processed in any manner incompatible with the purpose(s). Data obtained for a specified purpose, for example medical purposes, may not be used for a purpose that differs from that specified. The handover sheet was removed from you at the meeting and destroyed. However, the panel had before it a copy of a letter dated 30 April 2014 from Mr 3 to you which details the outcome of the meeting. It was your case that, following the shift on 20 March 2014, you removed your uniform, in the pocket of which was the handover sheet, and placed it in a locker on the Ward. You said that you were unable to return to the locker until 30 April 2014 when you collected its contents before making the short journey to the outcome meeting with Mr 3. You said that, having realised that the handover sheet was still in your uniform, you thought that this document might prove useful at the meeting. It was your case that your normal practice was to keep one day s handover sheet for use the following day if you were to be on the same ward. A copy of the Trust s Confidentiality and Disclosure Policy was before the panel. In answers to questions from the panel, Mr 3 conceded that there is no mention in the policy of staff requiring authorisation when seeking to retain handover sheets in the manner in which you say you did; nor is there any formal requirement for disposal at the end of the shift. Mr 3 nevertheless stated that you should have been aware of the fact that you were expected to dispose of such information at the earliest opportunity and that it should not be removed from the Ward. In light of all the evidence before it, the panel was of the view that you should not have retained the notes in your locker from 20 March 2014 until 30 April The panel was also of the view that you should not have taken the 9

10 notes away from the Ward at any time. However, it accepted your account, corroborated by your husband, of what happened on this occasion. In these circumstances the panel found that your account is consistent with the charge that you retained confidential patient information, contained in a handover sheet, and that you did not have authorisation to do so. Accordingly the panel finds charge 2 proved. Decision on impairment The panel has considered whether your fitness to practise is now impaired by reason of your misconduct. It has heard the submissions of Ms Hirji on behalf of the NMC and of Mr Ollennu on your behalf. The panel has had regard to all the evidence presented and has accepted the advice of the legal assessor. The panel was referred to the case of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin), the case of R (on the application of Dr. Malcolm Calhaem) v General Medical Council [2007] EWHC 2606 (Admin), the case of Ronald Jack Cohen v General Medical Council [2008] EWHC 581 (Admin) and the case of R (on the application of Remedy UK Ltd) v GMC [2010] EWHC 1245 (Admin). The panel considered the NMC Code: Standards of conduct, performance and ethics for nurses and midwives of 2008 ( the Code ). The panel has exercised its own independent judgment in determining the issues before it. In considering your fitness to practise the panel reminded itself of its duty to protect patients and its wider duty to protect the public and the public interest which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process. Ms Hirji submitted that the facts found proved constitute misconduct and that your fitness to practise is currently impaired. She submitted that your actions 10

11 breached fundamental tenets of the profession and she drew the panel s attention to applicable parts of the Code. Mr Ollennu, on your behalf, submitted that the incorrect administration of a nebuliser to Patient A was a single isolated mistake, albeit a serious one. He drew the panel s attention to the numerous clinical courses which you have undertaken since the incident, at your own expense. He submitted that you are currently employed by MedicsPro agency and have been practising on various wards since March Mr Ollennu drew the panel s attention to your professional reference from your Clinical Nurse Manager. The panel concluded that, on the facts found proved, you have breached the following fundamental tenets of the profession as set out in the preamble of the Code: 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 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. The panel has also concluded that you have breached the following additional paragraphs of the Code: 11

12 5. You must respect people s right to confidentiality. 26. You must consult and take advice from colleagues when appropriate. 33. You must inform someone in authority if you experience problems that prevent you working within this code or other nationally agreed standards. 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. The panel noted that misconduct is not defined in the applicable statutory framework governing the regulatory process of the NMC. The panel had regard to the case of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311 in which the Privy Council held that misconduct is a word of general effect involving some act or omission that 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. The panel accepted that not every breach of the Code automatically constitutes misconduct. However, your failures in the care of Patient A put her at unwarranted risk of harm. She was vulnerable and entirely dependent on your care. In these circumstances the panel was satisfied that your actions as 12

13 set out in charge 1 were sufficiently serious that they can be properly described as misconduct going to fitness to practise. While the panel was of the view that you should not have retained confidential patient information without authorisation to do so as described in charge 2, it accepted your account, corroborated by your husband, of what happened on this occasion. In the circumstances, the panel did not consider that your actions in this regard were sufficiently serious that they can properly be regarded as misconduct going to fitness to practise. In the circumstances the panel finds that only your actions as described in charge 1 amount to misconduct for impairment purposes. Having found misconduct in respect of charge 1, the panel next turned to the question of impairment. It noted that the NMC defines impairment as a registrant s suitability to remain on the register without restriction. In approaching the question of impairment the panel took particular account of the wider public interest, including the need to protect patients and service users, to declare and uphold proper standards of behaviour and to maintain public confidence in the profession. The panel first asked itself whether your fitness to practise had been impaired by reason of your misconduct in relation to charge 1. It had no doubt that the serious misconduct in question breached fundamental tenets of the profession as set out above, to an extent that would bring the profession into disrepute. In addition, the panel found that this misconduct had put Patient A at unwarranted risk of harm. For these reasons the panel concluded that your fitness to practise had been impaired by reason of your misconduct as set out in charge 1. The panel then went on to consider whether your fitness to practise remains impaired. It had careful regard to the issues of insight, remediation and history. 13

14 The facts relating to charge 1 related to clinical failings in the care of a vulnerable patient during a period when you were under significant pressure at work. There is no evidence that such clinical failings have occurred before or since. You have been practising as a nurse, working regularly for an agency, since March 2015 without any other reports of concern. This was corroborated by the positive reference from your current manager. You told the panel that you regret the error you made and you acknowledged the seriousness of it. You explained that at the material time you were experiencing stress from challenges presented on the Ward. The panel is in no doubt that you have reflected on and learnt from this incident. It is satisfied that you have demonstrated insight into your shortcomings and have taken steps to remedy your clinical error, including through additional study and training courses. In the light of your insight, positive reference, remediation, and the absence of any repetition of matters of the kind found proved, the panel was of the view that the risk of repetition is now low. Accordingly, the panel determined that a finding of impairment is not necessary in order to protect the public. However, the panel also had regard to the question of 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 in the circumstances of this case. The panel found the answer to this question to be finely balanced. While you have taken effective steps to guard against the risk of repetition your error was a particularly serious one which put a vulnerable patient at significant risk of harm. In the circumstances the panel concluded that proper professional standards and public confidence in the profession would be undermined if it did not make a finding of current impairment of your fitness to practise by reason of your misconduct in relation to charge 1. For all the reasons outlined above, the panel determined that your fitness to practise is currently impaired by reason of your misconduct. 14

15 The hearing resumed on 1 April 2016 at 2 Stratford Place, London E20 1EJ Determination on Sanction: At the commencement of the hearing the panel received and read a written impact statement from Patient A s daughter. Having determined that your fitness to practise is impaired, the panel considered what sanction, if any, it should impose on your registration. The panel can dispose of the case by taking no action, imposing a caution order for one to five years, a conditions of practice order for no more than three years, a suspension order for a maximum of one year or a striking-off order. In reaching its decision, the panel has considered all the evidence that has been placed before it and the submissions of Mr Zeitlin on behalf of the NMC and those of Mr Ollennu on your behalf. The panel gave careful consideration to the impact statement, and was grateful to Patient A s daughter for providing it with a timely reminder that this case involved a real patient with a family and loved ones who have all been impacted by the matters found proved. Mr Zeitlin, in his submissions referred the panel to the NMC s Indicative Sanctions Guidance ( ISG ). Mr Zeitlin noted the panel s finding of impairment on public interest grounds only and submitted that the appropriate sanction in this case was a matter for the panel, taking into account the need to maintain public confidence in the profession and to declare and uphold the standards expected of a Registered Nurse. Mr Zeitlin submitted that the misconduct found was serious and for that for reason to take no further action was not appropriate. He invited the panel to consider either a caution order or a suspension order as an appropriate sanction, depending on the panel s view of the seriousness of your departure from the standards expected of a Registered Nurse. Mr Ollennu submitted that the panel should have in mind proportionality and the impact any sanction would have on you. He told the panel that you are 15

16 remorseful, and that it was your clear intention at all times to do the best you could for Patient A, albeit that your actions fell short of what was expected of you as a Registered Nurse. He reminded the panel of the difficult circumstances you faced on the temporary ward at the time in question, and the lack of equipment available. He told the panel that this single incident had affected you greatly and that you had reflected on the incident and acknowledged the serious nature of your failings. He said you have learnt a salutary lesson and, as the panel had found, are not liable to repeat your misconduct. With these factors in mind he asked the panel to impose a fair and proportionate sanction. He invited the panel to impose a caution order as the most appropriate sanction in these circumstances. He submitted that public confidence in the profession and in you as a Registered Nurse would be upheld by the imposition of a caution order, and that it would serve to mark the unacceptability of your actions. The panel accepted the advice of the legal assessor. He reminded the panel that the purpose of sanctions is to protect patients and the wider public interest by maintaining public confidence in the profession and declaring and upholding proper standards of conduct and performance. He reminded the panel of its finding of impairment on public interest grounds only and of its duty to act proportionately. He referred the panel to the ISG and reminded it that this document acts as guidance and no more. In considering which, if any, sanction to impose, the legal assessor referred the panel to the case of Rashid v General Medical Council [2012] EWHC 2862 (Admin) and the judgement made in that case that the panel is centrally concerned with the reputation or standing of the profession rather than the punishment of the individual. The panel has borne in mind that the purpose of a sanction is not to be punitive, though it may have a punitive effect. It has applied the principles of fairness, reasonableness and proportionality, weighing the interests of patients and the public with your own interests and taking into account any 16

17 mitigating and aggravating factors in the case. The public interest includes the protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and performance. The panel bore in mind that on day 1 of the hearing Ms Hirji stated that: The registrant is not charged with any nexus or causal link in relation to that death [Patient A], either causing or contributing, and this is due to the information obtained following an inquest, I set that out now at the outset so that the panel has no question in its mind as to why the NMC had not charged any nexus to the death and indeed for the Registrant s benefit so that the panel does not have this in its mind when proceeding The panel reminded itself of its conclusions on misconduct: The panel accepted that not every breach of the Code automatically constitutes misconduct. However, your failures in the care of Patient A put her at unwarranted risk of harm. She was vulnerable and entirely dependent on your care. In these circumstances, the panel was satisfied that your actions as set out in Charge 1 were sufficiently serious that they can be properly described as misconduct going to fitness to practise. Whilst the panel was of the view that you should not have retained confidential patient information without authorisation to do so as described in Charge 2 it accepted your account, corroborated by your husband, of what happened on this occasion. In the circumstances, the panel did not consider that your actions in this regard were sufficiently serious that they can properly be regarded as misconduct going to fitness to practise. In the circumstances, the panel finds that only your actions as described in Charge 1 amount to misconduct for impairment purposes. 17

18 The panel determined that the aggravating features of this case, in respect of Charge 1, are that: Your misconduct related to clinical failings in basic nursing care and knowledge Your error was serious and put a vulnerable patient at risk of significant harm You considered at the time that your actions were an acceptable alternative and commenced treatment without the correct knowledge of the patient s condition The panel determined that the mitigating factors are that: You made early admissions that you had exceeded the prescribed rate of oxygen Your error occurred at a time when you had received a poor handover in a poorly resourced environment You accept the seriousness of your failing You have reflected on the incident and shown insight, regret and remorse You have fully engaged with the NMC process There is no evidence of serious clinical failings occurring before or since the incident You have been working regularly for an agency and there have been no other reports of concern. A positive reference has been provided by your current manager You have remediated the deficiencies in your practice through additional studies and training courses The panel also reminded itself of its own findings on impairment: The facts relating to Charge 1 related to clinical failings in the care of a vulnerable patient during a period when you were under significant pressure at work. There is no evidence that such clinical failings have occurred before or since. You have been practising as a nurse, working regularly for an agency, since March 2015 without any other reports of 18

19 concern. This was corroborated by the positive reference from your current manager. You told the panel that you regret the error you made and you acknowledged the seriousness of it. You explained that at the material time you were experiencing stress from challenges presented on the ward. The panel is in no doubt that you have reflected on and learnt from this incident. It is satisfied that you have demonstrated insight into your shortcomings and have taken steps to remedy your clinical error, including through additional study and training courses. In the light of your insight, positive references, remediation, and the absence of any repetition of matters of the kind found proved, the panel was of the view that the risk of repetition is now low. Accordingly, the panel determined that a finding of impairment is not necessary in order to protect the public. However, the panel also had regard to the question of 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 in the circumstances of this case. The panel found the answer to this question to be finely balanced. While you have taken effective steps to guard against the risk of repetition, your error was a particularly serious one which put a vulnerable patient at significant risk of harm. In the circumstances, the panel concluded that proper professional standards and public confidence in the profession would be undermined if it did not make a finding of current impairment of your fitness to practise by reason of your misconduct in relation to Charge 1. The panel first considered taking no action. Such a course would not mark the seriousness of your misconduct. The panel concluded that it is necessary to impose a sanction which would do so, and which would serve to declare and uphold proper standards of conduct and performance and maintain public confidence in the profession. 19

20 The panel next considered imposing a caution order on your registration. The panel has taken account of the ISG as it relates to caution orders, as follows: 59. A caution order is recorded on the Register and published on the NMC s website. It can be imposed for a period of between one and five years. It is disclosed to anyone enquiring about the nurse or midwife s fitness to practise history. 60. Therefore, a caution may be appropriate where the case is at the lower end of the spectrum of impaired fitness to practise and the panel wishes to mark that the behaviour was unacceptable and must not happen again. 61. When fitness to practise is impaired by reason of misconduct and a panel is minded to impose a caution order, it should consider whether such an order provides adequate public protection, bearing in mind that it does not restrict the nurse or midwife s practice rights. It might be appropriate where the nurse or midwife s history is such that the panel is confident that there is no risk to the public or to patients which requires the nurse or midwife s practice rights to be restricted. At the impairment stage the panel determined that a finding of impairment of your fitness to practise was not necessary in order to protect the public. However, the panel had found that the question of impairment in the public interest was finely balanced, and went on to conclude that your fitness to practise was currently impaired on public interest grounds. With this in mind, the panel has concluded that this case is at the lower end of the spectrum of impaired fitness to practise, and further that it does wish to mark that the behaviour was unacceptable and must not happen again. The panel noted that it had earlier found that this is a case where it is confident that there is no risk to the public or to patients which requires your practice rights to be restricted. 20

21 For all these reasons, the panel considered that a caution order may be the appropriate and proportionate sanction in this case. Due to the seriousness of the matter found proved, the panel considered that nothing less than the maximum period of a 5 year caution order would be appropriate. The panel did go on to consider whether a more restrictive sanction might be appropriate. In light of its finding that there is no current public protection issue in this case, it determined that a conditions of practice order would be inappropriate as no conditions could be formulated to properly address the panel s remaining public interest concern. As a consequence, the panel went on to consider whether a suspension order might be appropriate in this case. The ISG provides the following guidance in relation to this sanction: 65.1 Does the seriousness of the case require temporary removal from the register? 65.2 Will a period of suspension be sufficient to protect patients and the public interest? 66. When considering seriousness, the panel should take into account the extent of the departure from the standards to be expected and the risk of harm to the public interest caused by that departure, along with any particular factors it considers relevant on each case. 67. This sanction may be appropriate where the misconduct is not fundamentally incompatible with continuing to be a registered nurse and there is where: 67.1 A single instance of misconduct but where a lesser sanction is not sufficient. 21

22 The panel had careful regard to its earlier findings. In light of these, it concluded that while this is a serious matter, the seriousness of the case does not require temporary removal from the register. To that end it concluded that this was a single instance of misconduct in an otherwise exemplary career where a lesser sanction, in the form of a 5 year caution order, is sufficient. The panel found that, in all the circumstances of this case, a suspension order would be disproportionate and punitive. Accordingly, it determined to impose a 5 year caution order on your registration. The panel considers that this sanction is proportionate and sufficient. The effect of this order is that your name on the NMC register will show that you are subject to a caution order and anyone who enquires about your registration will be informed of this order. At the end of this period the note on your entry in the register will be removed. However, the NMC will keep a record of the panel s finding that your fitness to practise had been found impaired. If the NMC receives a further allegation that your fitness to practice is impaired, the record of this panel s finding and decision will be made available to any practice committee that considers the further allegation. This will be confirmed to you in writing. That concludes this determination and these proceedings. 22

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