Conduct and Competence Committee Substantive Hearing

Transcription

1 Conduct and Competence Committee Substantive Hearing 8-11 June 2015 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: Mrs Jacqueline Ellen Middleton NMC PIN: 71H1327E Part(s) of the register: Registered Nurse Adult (Level 1) 1995 Adult (Level 2) October 1973 Area of Registered Address: England Panel members: Legal Assessor: Andrew Gell (Chair, Lay member) Jennifer Frost (Registrant member) Michael Libby (Lay member) Michael Hosford-Tanner Panel Secretary: Rachael Victoria Omowo Nursing and Midwifery Council: Registrant: Represented by Robert Benzynie, Case Presenter, instructed, NMC Regulatory Legal Team Mrs Middleton was not present and was not represented Facts proved: 1.1, 1.2, 2.1, 2.2, 3, 4.1 and 4.2 Fitness to practice: Sanction: Interim Order: Impaired Striking off order Interim suspension order (18 Months) Page 1 of 27

2 Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Mrs Middleton was not in attendance or represented. In the light of the information available, the panel was satisfied that notice had been served, in compliance and 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). 11. (2) The notice of hearing shall be sent to the registrant (b) in every case, no later than 28 days before the date fixed for the hearing. 34. (1) Any notice of hearing required to be served upon the registrant shall be delivered by sending it by a postal service or other delivery service in which delivery or receipt is recorded to, (a) her address in the register Notice of this hearing was sent to Mrs Middleton on 1 May 2015 by recorded delivery and first class post to her address on the register. The Track and Trace print out indicated that notice was delivered and signed for on 2 May Determination on proceeding in the absence of Mrs Middleton: The panel then considered whether it should proceed in Mrs Middleton s absence. Mr Benzynie submitted that it would be in the public interest and in the interests of justice to hear this matter expeditiously and to proceed with today s hearing. Mr Benzynie referred the panel to the case management form dated 1 March 2015 in which Mrs Middleton provided dates to the NMC indicating when she would not be available to attend the substantive hearing. Mr Benzynie informed the panel that this hearing had been mistakenly scheduled to be heard during one of these periods. Mr Benzynie also referred the panel to the telephone note dated 15 May 2015, in which Mrs Middleton informed the NMC case officer that she was unsure whether she would be able to attend today s hearing. Mrs Middleton further stated that she would feel anxious/nervous if she Page 2 of 27

3 were to attend the hearing without a representative and she raised concerns regarding the costs involved in attending the hearing. Mrs Middleton had reminded the NMC via dated 15 May 2015 that she had already informed them that she was not available on the dates fixed. Mr Benzynie drew the panel s attention to the dated 20 May 2015 from Mrs Middleton to the NMC case officer. He observed that within this , Mrs Middleton stated that she was content for the hearing to proceed in her absence. However in her dated 4 June 2015 to the NMC case officer, Mrs Middleton stated that she was not content for the hearing to proceed in her absence. Mr Benzynie referred the panel to the telephone note dated 4 June Mrs Middleton informed the NMC case officer that she was content for the hearing to proceed in her absence and that she would not attend any future hearing. Mr Benzynie also drew the panel s attention to the telephone note dated 8 June 2015 between the NMC case officer and Mrs Middleton s husband. Mr Benzynie informed the panel that Mrs Middleton s husband stated that Mrs Middleton is currently away from London and that she does not intend to attend a hearing in London, or any hearing in the future. Mr Benzynie stated that the weight to be given to this telephone conversation is for the panel s judgement. Mr Benzynie stated that whilst there is some ambiguity as to whether Mrs Middleton is content for this hearing to proceed in her absence, Mrs Middleton has indicated that she would not attend, if the hearing was re-scheduled for a future date. Mr Benzynie submitted that there would be no useful purpose in adjourning the proceedings. Mr Benzynie stated that there were witnesses in attendance to give evidence and delay could have a detrimental effect on the witnesses memory of events. Accordingly, Mr Benzynie invited the panel to proceed in the absence of Mrs Middleton. The panel accepted the advice of the legal assessor that its discretion to proceed in the absence of the registrant was one which should be exercised with the utmost care and caution, with fairness to the registrant being of primary importance. The legal assessor referred the panel to the case of R. v Jones (Anthony William), (No.2) [2002] UKHL 5/ R. v Hayward (John Victor) (No.2) [2002] UKHL 5. The registrant has a right to a reasonable opportunity to attend a hearing if she wishes to do so. Page 3 of 27

4 In deciding whether to proceed in the absence of Mrs Middleton, the panel had to consider any disadvantage to the registrant; whether the registrant wished to be present or represented; whether an adjournment would resolve matters; balancing fairness to both parties; the wider public interest, and the merits of disposing of the case expeditiously. Having determined that service had been effected in accordance with the Rules and having regard to the case management form dated 1 March 2015, the telephone note dated 15 May 2015, the dated 20 May 2015 and the telephone note dated 8 June 2015, the panel was satisfied that Mrs Middleton was aware of today s hearing. The panel noted that this hearing was listed on dates which Mrs Middleton had informed the NMC that she would not be able to attend. Whilst the panel found it inexplicable that the NMC listed this matter on dates which Mrs Middleton had indicated, well in advance, that she would not be available, the panel was of the view that there was no greater chance that an adjournment of this hearing would result in Mrs Middleton s future attendance. Further, the panel noted that in several communications, including in her recent dated 4 June 2015, Mrs Middleton had not requested an adjournment or provided the NMC with alternative dates when she would be able to attend in the future nor given any indication that she would attend a hearing in future. The panel considered the dated 15 May 2015, when Mrs Middleton stated, I have given this matter serious thought and have decided that I do not want to attend, and Mrs Middleton s dated 20 May 2015, in which she stated that she was content for this hearing to proceed in her absence. The panel also considered the dated 4 June In response to specific questions posed by the NMC case officer, Mrs Middleton had indicated that she was not content for the hearing to proceed in her absence. In the telephone note dated 4 June 2015, she indicated that she was content for this hearing to proceed in her absence and stated that she would not attend if the dates were rescheduled. The panel also considered that there were witnesses in attendance to give evidence. The panel noted that the charges date back to 2014 and any further delay could have a detrimental effect on the witnesses willingness to attend and their memory of events. The panel also noted that Page 4 of 27

5 Mrs Middleton had made written representations in response to all the allegations and concluded that Mrs Middleton would not be substantially disadvantaged if the matter proceeded. Having weighed the interests of Mrs Middleton with the wider public interest in the expeditious disposal of this hearing, the panel has determined to proceed in Mrs Middleton s absence. Application to amend the charges: In the course of the hearing, Mr Benzynie made an application under Rule 28 of the NMC Fitness to Practise Rules 2004 to amend charge 3. He stated that this amendment would serve to clarify this charge. The legal assessor stated that the panel has a power to amend the charges under Rule 28 of the NMC Fitness to Practise Rules at any stage prior to making its findings on the facts. It may do so provided the amendment can be made without causing injustice having regard to the merits of the case and the fairness of the proceedings. The panel accepted the advice of the legal assessor. The panel was of the view that the proposed amendment served only to clarify the charges and did not cause any prejudice to Mrs Middleton. The panel concluded that this amendment would not affect the substance of the case against her or otherwise result in any unfairness to her. The panel therefore decided to permit the amendment sought. Charges as amended: That you, whilst employed as a Registered Nurse at Denehurst Nursing Home: 1. On 7 February 2014 you: 1.1. Administered medication to Resident A covertly when there was no care plan for covert medication Administered Digoxin to Resident A in a cup of tea when it should not be mixed with any other liquids 2. On one or more occasions before 7 February 2014 you: 2.1. Administered medication to Resident A covertly when there was no care plan for covert medication. Page 5 of 27

6 2.2. Administered Digoxin to Resident A in a cup of tea when it should not be mixed with any other liquids 3. On or before 7 February 2014 you failed to record any discussions with an appropriate healthcare professional and/or Resident A s family to support the administration of medication covertly to Resident A. 4. On dates between 23 November 2013 and 7 February 2014: 4.1. Discontinued blood sugar monitoring on a Resident B following a meeting with a dietician and failed to record this discussion Failed to contact the Resident B s GP in order to discuss this course of action. And, in light of the above, your fitness to practise is impaired by reason of your misconduct. Background At the time of the alleged incident, Mrs Middleton was employed as a Registered Nurse (Level 1) at Denehurst Nursing Home ( the Home ). It is alleged that, on 7 February 2014, Mrs Middleton covertly administered medication in a cup of tea to Resident A. Further, it is alleged that Mrs Middleton failed to record any discussions with an appropriate healthcare professional and/or Resident A s family to support the administration of this medication covertly to Resident A. On the morning of 7 February 2014 the Care Home Manager of the Home, Ms 1, was in the dining room speaking to some of the residents when she noticed a black item floating in Resident A s cup of tea. She recognised this item as being a vitamin capsule. As there were other residents at the table the manager immediately removed the cup. Ms 1 then spoke to a kitchen assistant who advised her that the medication had been put into Resident A s tea by Mrs Middleton. Ms 1 then checked the drug administration sheet for the resident and established that the registrant was not prescribed covert medication and arranged for the contents of the cup to be photographed. It is further alleged that Mrs Middleton discontinued blood sugar monitoring for Resident B following a meeting with a dietician and failed to contact the resident s General Practitioner (GP) to discuss this course of action. Page 6 of 27

7 Ms 1 was alerted by Resident B that her blood sugar levels had not been checked for some time. As a result of what she had been told Ms 1 checked the care plan for Resident B and discovered that her blood sugar levels had not been checked since 26 November The care plan for Resident B stated that the blood sugar levels were to be checked weekly. On 10 February 2014, Ms 1 passed this information onto her Regional Manager, Ms 2, who initiated an investigation. On 13 February 2014, Ms 2 met with Ms 3, a Care Assistant at the Home, who confirmed that she had witnessed Mrs Middleton place the medication in Resident A s cup of tea. On 14 February 2014, Ms 2 met with Ms 4, a Kitchen Assistant at the Home, who confirmed that she had frequently seen the registrant place Resident A s medication into her cup of tea. On the same day Ms 2 wrote to Mrs Middleton advising her that she was suspended from duty and inviting her to attend an investigatory meeting. In order to avoid any possible conflict of interest, Ms 2 asked Mr 1, a manager at another care home in the group, to conduct the investigatory meeting. Mr 1 chaired an investigatory meeting attended by Mrs Middleton and held on 20 February On 27 February 2014, Mr 1 wrote to Mrs Middleton advising her to attend a disciplinary hearing to be chaired by Ms 5, Regional Manager for Healthcare Management Solutions. On 7 March 2014, Ms 5 chaired a disciplinary hearing. At this hearing it was found that Mrs Middleton s conduct constituted gross misconduct and her employment was terminated. Ms 5 referred the matter to the NMC on 28 March The panel was informed by Mr Benzynie that in response to the charges before it, Mrs Middleton submitted a written response, which included a statement that she had been bullied by the care home manager in respect of which she had raised a grievance. She further alleged that documentation she had completed, which had been placed in Resident A s and Resident B s care plans/notes, had been removed. Page 7 of 27

8 Application for telephone evidence Mr Benzynie made an application under Rule 23(1)(d) for the panel to hear the oral evidence of Mr 1 via telephone link. As part of this application, he made a further application for elements of his submission, concerning Mr 1 s health to be heard in private under Rule 19(3). The panel heard and accepted the advice of the legal assessor and agreed to hear the appropriate part of the submission in private. [PRIVATE] Mr Benzynie told the panel that due to these reasons Mr 1 is unable to attend today s hearing. The panel heard and accepted the advice of the legal assessor. The panel noted that Mr 1 s evidence is relevant to the charges and it concluded that there would be no unfairness caused to Mrs Middleton in hearing the evidence of Mr 1 via telephone link. In light of the above, the panel found that it was fair in all the circumstances for Mr 1 to give evidence via telephone link. The panel recognizes that it must determine the appropriate weight to be given to this evidence. Decision on the findings on facts and reasons: At the outset of this hearing, Mr Benzynie referred the panel to the response to charges form dated 1 March 2015 and invited it to find that Mrs Middleton had admitted charges 1.1 and 1.2. The panel noted that the charges on the response form, particularly charges 1.1 and 1.2 were drafted differently to the charges which were read out at this hearing. Accordingly, the panel did not accept Mrs Middleton s admission to charges 1.1 and 1.2 as it was presently drafted. These charges were not found proved by way of admission. The panel however decided to give credit to Mrs Middleton for the early admissions she had made to the charges which had been set out to her. The panel went on to consider all the charges. In reaching its decisions on facts, the panel considered all the oral and written evidence adduced in this case. It also considered the submissions advanced by Mr Benzynie on behalf of the NMC and various written submissions provided by Mrs Middleton, including a handwritten letter dated 2 September 2014 and comments in the response to charges form dated 1 March Page 8 of 27

9 2015. Whilst the panel accepted these documents as evidence, the panel noted that Mrs Middleton had not given evidence under oath and her evidence had not been subject to cross examination. The panel also received notes of meetings made by Ms 2, who interviewed Ms 3 and Ms 4, but bore in mind that it has not had an opportunity to see these witnesses nor ask them questions. The panel heard oral evidence from four witnesses for the NMC:- Ms 1- Home Manager Ms 2 Regional Manager Ms 5 - Regional Manager for Healthcare Management Solutions Mr 1 Nursing Home Manager for Healthcare Management Solutions The above named witnesses titles refer to their positions at the time of their involvement in this case. The panel has heard and accepted the advice of the legal assessor. The legal assessor advised the panel to assess the evidence given by each witness. He stated that the panel should not draw any adverse inference from Mrs Middleton s non-attendance. He advised the panel to also consider the evidence in written form and any corroboration of such evidence. He stated that the panel can attach less weight to hearsay evidence, as it has not heard evidence directly from the witness involved, nor had an opportunity to ask the witnesses questions. He stated that where Mrs Middleton is alleged to have failed to have done something, the panel will need to establish whether Mrs Middleton had a duty to do such a thing. The legal assessor reminded the panel to confine itself to the facts which have been alleged and evidence that has been produced, including Mrs Middleton s written submissions. He stated that the panel should not consider the outcome of any internal disciplinary procedure. The panel is aware that the burden of proof rests on the NMC throughout, and that the standard is the civil standard, namely the balance of probabilities. This means that the facts will be proved if the panel is satisfied that they are more likely than not to have occurred. The panel found Ms 2 to be a credible witness. Page 9 of 27

10 The panel noted that although Mr 1 s evidence related to the limited scope of his investigation, he was a credible witness. The panel bore in mind that, as Mr 1 gave evidence via telephone, it did not have the ability to assess his demeanour. The panel was of the view that whilst Ms 1 s evidence was reliable, it found that Ms 1 s answers were, at times, calculated and her account of the incident, in relation to Resident A was careful, rather than totally open and forthcoming. The panel was further of the view that it is likely that Ms 1 s personal relationship with Mrs Middleton was strained and this may have affected the way Ms 1 gave her evidence. The panel was of the view that Ms 5 had undertaken a thorough and independent investigation. The panel found Ms 5 to be a persuasive, credible and honest witness. The panel noted that although Ms 5 was not a direct witness to the incidents, there was nothing to suggest in her evidence that she had any hostility towards Mrs Middleton. The panel considered that there was not anything untoward in the way in which she spoke to Mrs Middleton about the incidents at the disciplinary hearing or how she attempted to investigate further matters raised by Mrs Middleton, for example by examining the residents records for herself. Ms 5 said that she had checked the record of the disciplinary hearing as being accurate, although she accepted that she did not know if it had not been sent to Mrs Middleton at the time. Charge 1.1 On 7 February 2014 you: Administered medication to Resident A covertly when there was no care plan for covert medication This charge was found PROVED. The panel took account of the photograph of Resident A s cup dated 7 February 2014 and of the statement of events by Ms 1 dated 7 February The panel also considered the response to charges form dated 1 March 2015, in which Mrs Middleton admitted that she inappropriately administered medication to Resident A covertly when there was no care plan for covert medication. The panel also took account of Mrs Middleton s admission, at the disciplinary hearing, to administering medication to Resident A covertly. Page 10 of 27

11 A care plan must be writing to ensure continuity of care and verbally discussions alleged by Mrs Middleton to have taken place cannot constitute a care plan. The panel further noted that as stated in Mrs Middleton s handwritten statement accompanying the response to charge form, she stated that administering medication to Resident A was, at the time, the only way to ensure Resident A takes her medication. In light of Mrs Middleton s admissions, the panel was of the view that she had administered medication to Resident A covertly. The panel considered the Quality Care Manual (Healthcare Management Solutions Ltd 2012) for the covert administration of medication. The panel noted that there was no evidence in the resident s records that the procedure detailed in this manual had been followed and indeed the statements by Mrs Middleton also indicated that the procedure had not been followed. Further, the panel heard from Ms 5 that although she had looked through Resident A s care plan thoroughly, page by page and had examined the daily diary, there was no care plan provision for covert medication in place. The panel accepted this evidence and was of the view that on a balance of probabilities, Mrs Middleton administered medication to Resident A covertly when there was no care plan for covert medication. The panel therefore found charge 1.1 proved. Charge 1.2 On 7 February 2014 you: Administered Digoxin to Resident A in a cup of tea when it should not be mixed with any other liquids This charge was found PROVED. The panel considered the notes from the disciplinary meeting which took place on 7 March The panel noted that when questioned by Ms 5, Mrs Middleton admitted that she placed all of Resident A s medication in her tea. This included the Digoxin Elixir medication. The panel also noted the MAR chart entry signed by Mrs Middleton for Digoxin on 7 February Page 11 of 27

12 The panel considered that the photograph of Resident A s cup dated 7 February 2014 did not assist and noted that Digoxin Elixir is a fluid and it would not be seen as granules in the cup, rather it would have dissolved in Resident A s tea. The panel took account of the Patient Advisory Leaflet for Lanoxin-PG Elixir (Digoxin), which clearly states It should be swallowed without mixing with any other liquids. Ms 1 had accepted that PG means Paediatric Geriatric dosage and the insolute dose would have been low. In light of Mrs Middleton s admission and the guidance given in the Patient Advisory Leaflet, the panel concluded that Mrs Middleton administered Digoxin to Resident A in a cup of tea when it should not have been mixed with any other liquids. The panel therefore found charge 1.2 proved. Charge 2.1 On one or more occasions before 7 February 2014 you: Administered medication to Resident A covertly when there was no care plan for covert medication. This charge was found PROVED. The panel considered the notes from the disciplinary meeting. The panel noted that when questioned by Ms 5, Mrs Middleton admitted that she had been placing Resident A s medication in her tea for approximately 2/3 months. The panel noted that as the disciplinary meeting took place on 7 March 2014, by Mrs Middleton s admission, she had been administering Resident A s medication covertly since December 2013/January Mrs Middleton was suspended from duty by her employer on 14 February 2014 and so the period of 2/3 months might have started earlier. The panel further noted that as Resident A s medication was to be taken daily, in accordance with the Resident A s MAR chart, Mrs Middleton would have administered her medication covertly on more than one occasion, before 7 February Mrs Middleton s usual work pattern was to undertake 2 long day shifts every week. The panel checked this proposition against the MAR chart provided in the bundle and noted that Mrs Middleton had signed as Page 12 of 27

13 administering medications to Resident A on a number of occasions from 15 January 2014 until 7 February The panel also noted that as stated in the notes from the disciplinary meeting, Mrs Middleton was not aware if there was a care plan for covert medication. As the panel had no evidence that there was a care plan in place on or before 7 February 2014, the panel considered that a care plan had not been in place when Mrs Middleton administered medication to Resident A covertly. The panel therefore found charge 2.1 proved. Charge 2.2 On one or more occasions before 7 February 2014 you: Administered Digoxin to Resident A in a cup of tea when it should not be mixed with any other liquids This charge was found PROVED. The panel considered the notes from the disciplinary meeting which took place on 7 March The panel noted that when questioned by Ms 5, Mrs Middleton admitted that she placed all of Resident A s medication in her tea. This included the Digoxin medication. The panel also noted that at this meeting, Mrs Middleton admitted that she had been administering Resident A s medication covertly for approximately 2/3 months and by putting the medication in a cup of tea. As the evidence indicates that Mrs Middleton administered Resident A s medication all together, the panel was of the view that Mrs Middleton had also been administering Digoxin to Resident A covertly for this same period. The panel also considered Resident A s MAR chart which indicates that Mrs Middleton administered Digoxin to Resident A on a number of occasions before 7 February On the basis of Mrs Middleton s admission at the disciplinary meeting, the panel was of the view that on a balance of probabilities, Mrs Middleton had administered Digoxin to Resident A in a cup of tea on these occasions and probably further earlier occasions from about the beginning of December Page 13 of 27

14 Further the panel was satisfied that the guideline in the Patient Advisory Leaflet for Lanoxin-PG Elixir (Digoxin) would have remained the same and Digoxin should not have been mixed with any other liquids. The panel therefore found charge 2.2 proved. Charge 3 On or before 7 February 2014 you failed to record any discussions with an appropriate healthcare professional and/or Resident A s family to support the administration of medication covertly to Resident A. This charge was found PROVED. The panel took account of Mrs Middleton s handwritten letter dated 2 September The panel noted that in this letter, Mrs Middleton stated that she had a meeting with Resident A s family, the social worker and Ms 1 to discuss Resident A s medication. The panel also took account of the notes from the investigatory meeting, which took place on 20 February 2014 and noted that Mrs Middleton stated that she had discussed with Resident A s family and GP ways in which Resident A s medication could be administered. By virtue of these statements, the panel was of the view that Mrs Middleton had a discussion with Resident A s family and her social worker although it did not accept that there was a discussion between Mrs Middleton and the GP. The panel was of the view that as a registered nurse, Mrs Middleton had a duty to record any discussions with healthcare professionals and/or Resident A s family, to ensure patient safety and that Resident A received continuity of care, but had not done so. The panel therefore found charge 3 proved. Charge 4.1 On dates between 23 November 2013 and 7 February 2014: Page 14 of 27

15 Discontinued blood sugar monitoring on a Resident B following a meeting with a dietician and failed to record this discussion. This charge was found PROVED. The panel took account of Resident B s care plan and care plan evaluation, which stated that Resident B s blood sugar levels were to be monitored weekly. The panel however considered Resident B s blood sugar monitoring record and noted that there were no entries confirming that Resident B s blood sugar levels had been checked since 26 November The panel took account of the notes from the disciplinary meeting which took place on 7 March At this meeting, Mrs Middleton stated that she had a meeting with a dietician, who had told her that there was no need to record Resident B s blood sugar. This was the reason that Mrs Middleton gave for discontinuing Resident B s blood sugar monitoring. The panel accepted Mrs Middleton s account that she had had a meeting with a dietician. The panel was of the view that as a registered nurse, Mrs Middleton had a duty to record this discussion to ensure other nurses were aware of this change. As there is no evidence that this discussion was recorded, the panel was satisfied that Mrs Middleton had failed to do so. The panel considered Mrs Middleton s account that these discussions had been removed from Resident B s care plan. However, the panel accepted Ms 5 s evidence that she had conducted a thorough investigation and she did not find any evidence in the resident s records that this discussion with the dietician had taken place. The panel therefore found charge 4.1 proved. Charge 4.2 On dates between 23 November 2013 and 7 February 2014: Failed to contact the Resident B s GP in order to discuss this course of action. This charge was found PROVED. Page 15 of 27

16 The panel was of the view that in discontinuing Resident B s blood sugar monitoring, Mrs Middleton had a duty to report this to Resident B s GP, particularly as this is a medical decision and Resident B s GP should have made the decision as to whether Resident B s blood sugar monitoring should be discontinued. As there is no evidence that Mrs Middleton contacted the GP, the panel was of the view that she failed in her duty to contact the GP. The panel considered the notes from the disciplinary meeting which took place on 7 March 2014 and noted that when questioned by Ms 5, Mrs Middleton stated that she didn t know why she did not contact the doctor. The panel was satisfied that Mrs Middleton had therefore accepted that she did not contact Resident B s GP. Accordingly, the panel therefore found charge 4.2 proved. The panel went on to consider misconduct and impairment in relation to the charges found proved. Determination on misconduct Page 16 of 27

17 Having announced its finding on all the facts, the panel then moved on to consider whether the facts found proved amount to misconduct and, if so, whether Mrs Middleton s fitness to practise is currently impaired. The NMC has defined fitness to practise as a registrant s suitability to remain on the register unrestricted. Mr Benzynie on behalf of the NMC referred the panel to various sections of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ), which is the relevant edition. He highlighted specific paragraphs in the Code that, in his assertion, had been breached by Mrs Middleton s actions and failings. He submitted that these breaches of the Code were serious enough to amount to misconduct. Mr Benzynie further made reference to the case of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311, in which misconduct was described as 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. By way of background, Mr Benzynie stated that when Mrs Middleton placed all Resident A s medication in a cup of tea, this may have compromised the effectiveness of some of these medicines. In relation to the matter of impairment, Mr Benzynie referred the panel to the following cases: Cheatle v General Medical Council [2009] EWHC 645 (Admin), Cohen v General Medical Council [2008] EWHC 581 (Admin) and CHRE v NMC and Grant [2011] EWHC 927 (Admin). He submitted that although Mrs Middleton has provided written submissions, which have been placed before the panel, she has not provided any evidence of remediation or insight. Mr Benzynie submitted that a finding of impairment would also be in the public interest. The legal assessor advised that the panel must adopt a two stage process. First, the panel must determine whether the facts found proved, taken individually or collectively, amount to misconduct. Secondly, if the facts found proved amount to misconduct, the panel must decide whether, in all the circumstances, Mrs Middleton s fitness to practise is currently impaired as a result of that misconduct. Page 17 of 27

18 He advised the panel that it must be careful in considering matters which merely form the background of the allegations but have not been charged. He referred the panel to the following cases: R (on the application of Remedy UK Ltd) v General Medical Council [2010] EWHC 1245 (Admin) and Johnson and Maggs v NMC [2013] EWHC 2140 (Admin). The panel, in reaching its decision, accepted that there was no burden or standard of proof at this stage and exercised its own judgement. In reaching its determination, the panel took account of all the evidence presented, including material submitted by Mrs Middleton, together with Mr Benzynie s submissions on behalf of the NMC. Decision on whether the facts found proved amount to misconduct: The panel was of the view that Mrs Middleton s conduct set out in the charges found proved constituted serious departures from the following standards of The Code: Standards of conduct, performance and ethics for nurses and midwives 2008 ( the Code ): 13: You must ensure that you gain consent before you begin any treatment or care; 15: You must uphold people s rights to be fully involved in decisions about their care; 16: You must be aware of the legislation regarding mental capacity, ensuring that people who lack capacity remain at the centre of decision making and are fully safeguarded; 35: You must deliver care based on the best available evidence or best practice; 42: You must keep clear and accurate records of the discussions you have, the assessments you make, the treatment and medicines you give, and how effective these have been; 61: You must uphold the reputation of your profession at all times. In addition, the panel considered that Mrs Middleton s failings breached Section 4 of the NMC s Standard for Medicine Management, in particular Standard 3.7: You must have considered the dosage, weight where appropriate, method of administration, route and timing. The panel considered Mrs Middleton had also breached the NMC s Guidance on Record Keeping Guidance for nurse and midwives, in particular Standard 7: You should record details of any assessments and reviews undertaken, and provide clear evidence of the arrangements Page 18 of 27

19 you have made for future and ongoing care. This should also include details of information given about care and treatment. The panel recognised that not every breach of the Code, and not every area where there were shortfalls in proper practice, would constitute misconduct. As expressed in more detail throughout the panel s determination on its findings on fact, the charges comprised wide ranging medication management failings, including unsafe drug administration and poor record keeping. Mrs Middleton s shortcomings, particularly those identified in charges 1.1, 1.2, 2.1 and 2.2 and 4.1 and 4.2, included serious failings in nursing care which compromised the ongoing health of elderly, dependant residents. The panel was of the view that these vulnerable, elderly residents required a consistently high standard of nursing care and there was a particular expectation that Mrs Middleton would recognise and assess their needs appropriately and plan the necessary care following proper procedures and by making appropriate changes to their care plans. In respect of charge 4.1, Mrs Middleton s actions could have had serious consequences. By discontinuing Resident B s blood sugar monitoring, failing to record her discussion with the dietician and failing to contact Resident B s GP, Mrs Middleton could have misled her nursing colleagues and prematurely halted Resident B s blood sugar from being monitored, in the period from 26 November 2013 to the 7 February In the light of all of the above, the panel concluded that taken both individually and collectively Mrs Middleton s failings, particularly in respect of the safe administration of medication and appropriate record keeping, fell far short of the conduct and standards expected of a registered nurse and were sufficiently serious to constitute misconduct. The panel further noted that during the course of the hearing it had been shown that Mrs Middleton had achieved an NVQ in Understanding the Safe Handling of Medication in September 2013 and thus ought to have known what was required, especially as she was an experienced nurse. However she failed to follow the correct procedures. The panel next considered whether, as a result of the misconduct identified, Mrs Middleton s fitness to practise is currently impaired. Page 19 of 27

20 The panel had in mind the case of CHRE v (1) NMC (2) Grant [2011] EWHC 927 (Admin) and the judgment of this case which cites Dame Janet Smith s Fifth Report from Shipman. The panel considered the issue of Mrs Middleton s current impairment in the terms set out by Dame Janet Smith, specifically the questions of whether she: a) has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b) has in the past brought and/or is liable in the future to bring the [ ] 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 [ ] profession; [ ] d) [N/A]. The panel was of the view that, at the relevant time, Mrs Middleton s conduct placed elderly dependant residents at unwarranted risk of harm, particularly as she failed safely to administer medication to Resident A by following the correct procedure and according to the care plan. Further, mixing all of Resident A s medication in her cup of tea could have had a harmful effect on Resident A and/or reduced the effectiveness of the medicines. The panel heard no evidence of actual harm to Resident A. The panel also considered that she brought the profession into disrepute, not least by failing to provide a high standard of practice and care at all times, failing to make the care of people her first concern, treating them as individuals, respecting their dignity and by failing to uphold the reputation of the profession. In considering whether Mrs Middleton is liable in the future to place patients at unwarranted risk of harm and bring the profession into disrepute, the panel, in addition to assessing the gravity of the misconduct, gave careful regard to matters of insight and remediation which are important factors in any evaluation of the likelihood of repetition. In relation to insight, the panel had received no evidence from Mrs Middleton which demonstrated remorse or more than partial insight. At the outset of this hearing, the panel took account of the admissions made by Mrs Middleton to certain charges in their earlier draft form and noted that she had made limited admissions to the allegations against her. The panel considered the record of the disciplinary hearing which was held on 7 March 2014 and took into account that, when asked why she did not check Resident A s care plan before administering her medication covertly, Mrs Middleton stated that she relied on her colleagues to do so. Page 20 of 27

21 Further, when questioned why she had not check Resident B s care plan, Mrs Middleton stated that she did not have time to check it. The panel also noted that Mrs Middleton sought to divert attention from her actions, by stating that records of the meetings with both Resident A s and Resident B s families and the social worker had been removed from the patients notes/care plans. The panel found that Ms 5 had checked the residents documents thoroughly and not found any evidence of missing records. In the panel s view, Mrs Middleton has not provided any further material to the panel to demonstrate any development of this limited insight and had not shown remorse or consideration of the potential harm to Residents A and B. Whilst Mrs Middleton s misconduct might be capable of remediation, through relevant training and reflective practice, the panel took into account that some repetition of unsafe medication practice occurred even after having completed an NVQ in Understanding the Safe Handling of Medication in September Mrs Middleton has provided no information to the panel about any steps which she has taken to remediate any of her failings. There is accordingly no evidence that her misconduct has in fact been remedied. In the absence of full insight, remorse or remediation, the panel considered that there is a risk of repetition, which could, once again, place patients at risk of harm and bring the profession into disrepute. Further, the panel had in mind that its primary function is to protect patients and the wider public interest, which includes maintaining confidence in the nursing profession and upholding proper standards of behaviour. The panel took account of the case of Grant in which Mrs Justice Cox stated: In determining whether a practitioner s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances. The panel concluded that confidence in the profession and the NMC as its regulator would be undermined if a finding of impairment was not made in the light of Mrs Middleton s misconduct, as she failed to follow the NMC Code of Practice, Standard for Medicines Management and the procedure for the covert administration of medication as set out in the Quality Care Manual (Healthcare Management Solutions Ltd 2012) and as such she placed Resident A, who was under her care, at risk of serious harm. Furthermore, her failings in respect of discontinuing blood sugar monitoring for Resident B had also placed Resident B at risk of harm. Page 21 of 27

22 For these reasons, the panel determined that Mrs Middleton s fitness to practise is currently impaired by reason of her misconduct. Determination on sanction: The panel has determined to make a striking off order. The effect of this order is that Mrs Middleton will be removed from the nursing register, and she may not apply for restoration until five years after the date that this decision takes effect. Having determined that Mrs Middleton s fitness to practise is impaired, the panel considered what sanction, if any, it should impose in her case. In reaching its decision on sanction, the panel has heard submissions from Mr Benzynie and considered all the evidence that has been placed before it. Mr Benzynie, on behalf of the NMC, made no specific submissions with regard to the level of sanction, however he directed the panel to the NMC Indicative Sanctions Guidance (ISG) and sought to identify the aggravating and mitigating features in this case. The legal assessor reiterated the need for the panel to act proportionately and to consider sanctions in ascending order of severity, starting with the option of taking no action and only proceeding to a more restrictive sanction if the lesser sanction was insufficient. He referred the panel to the NMC s Indicative Sanctions Guidance ( ISG ) and reminded it that this document acts as guidance and no more. He stated that the guidance must not fetter the panel s decision. The panel considered the sanctions available to it under Article 29 of the Nursing and Midwifery Council Order The panel can take one of the following actions in ascending order: it can take no action; make a caution order for one to five years; make a conditions of practice order for no more than three years; make a suspension order for a maximum of one year; or it can make a striking off order. The panel has borne in mind that the purpose of a sanction is not to be punitive, although it recognises that it may have a punitive effect. The panel has applied the principles of fairness, reasonableness and proportionality, weighing the interests of patients and the public with Mrs Middleton s own interests. The public interest includes the protection of patients, the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour. The panel has also taken account of the current ISG. Page 22 of 27

23 The panel has taken into account all the mitigating and aggravating factors in Mrs Middleton s case. The aggravating factors can be summarised as follows: The charges relate to incidents which took place over a considerable period of time There was a series of failures involving 2 patients who were vulnerable, elderly residents of the Home and who required consistently high standards of nursing care. In particular Resident A, did not have mental capacity as stated by Ms 1; When questioned at the investigatory and disciplinary hearing, Mrs Middleton sought to deflect her accountability onto others; By administering Digoxin Elixir in Resident A s cup of tea, there was a potential risk of harm caused to Resident A, as it might have compromised the prescribed level of medication and/or adverse drug interaction; Mrs Middleton has demonstrated a limited amount of insight, a lack of remorse and has provided no evidence of remediation. The mitigating factors can be summarised as follows: Mrs Middleton s long service of over 30 years in the nursing profession. The panel noted that she was a qualified Level 2 SEN (State Enrolled Nurse) in 1973 and then qualifed as a Level 1 nurse in 1995; To the panel s knowledge, this is the first time since qualifying that Mrs Middleton s fitness to practise has been called into question; Mrs Middleton has had some engagement with the NMC, which included limited admissions to two out of 7 charges at the outset of the hearing, indicating partial insight. The panel considered all the available sanctions in ascending order, considering the least restrictive first. The panel first considered whether to take no action but concluded that this would be manifestly insufficient given the seriousness of Mrs Middleton s misconduct and the risk of repetition identified at the impairment stage. It also took account of the aggravated nature of her misconduct and the scant mitigation. The panel noted paragraph 61 of the ISG which states that: panels will usually need to take action to secure patient safety, to secure public trust and confidence in the profession, or to Page 23 of 27

24 declare and uphold proper standards of conduct and behaviour. The panel determined that to take no action would not be in the wider public interest, nor would it protect the public. In considering a caution order, the panel took into account that the ISG states that a caution order 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. The panel recognised that a caution order would not restrict Mrs Middleton s practice. Given the gravity of the misconduct and the significant risk of repetition, which has not been offset by any evidence of sufficient insight, remorse or remediation, the panel concluded that such an order would not sufficiently protect the public or mark the seriousness of Mrs Middleton s misconduct. The panel then considered a conditions of practice order. The panel recognised that individually Mrs Middleton s failings might, in theory, be capable of being addressed through conditions. In this case, the seriousness of the failings and the number of areas where Mrs Middleton had been deficient led the panel to conclude that it could not formulate conditions which would address Mrs Middleton s deficiencies. The panel considered that there was no evidence from Mrs Middleton of a willingness to respond positively to retraining or that any such training would be effective. The misconduct took place over a considerable period and started shortly after Mrs Middleton had undergone relevant medicines administration training. Therefore the panel concluded that Mrs Middleton would not respond positively to conditions, if imposed and that it is unlikely that her practice could now be remedied. Mrs Middleton has stated that she considers that she has removed her name from the register and thereby indicated that she would be unlikely to co-operate in any attempt to remedy her nursing practice. Further, the panel was of the view that the demonstration of an appropriate level of insight is a key component to the workability of conditions. As the panel determined that Mrs Middleton has only demonstrated a limited level of insight into her failings, it determined that appropriate and workable conditions could not be formulated which would sufficiently protect the public. Having concluded that a conditions of practice order was not appropriate, the panel considered the remaining available sanctions of suspension and striking off. It first considered whether to Page 24 of 27

25 impose a suspension order. The ISG indicates that suspension may be appropriate where some or all of the following factors are apparent (this list is not exhaustive): A single instance of misconduct but where a lesser sanction is not sufficient. The misconduct is not fundamentally incompatible with continuing to be a registered nurse or midwife in that the public interest can be satisfied by a less severe outcome than permanent removal from the register. No evidence of harmful deep-seated personality or attitudinal problems. No evidence of repetition of behaviour since the incident. The panel is satisfied that the nurse or midwife has insight and does not pose a significant risk of repeating behaviour. The panel was of the view that Mrs Middleton s misconduct did not relate to a single instance of misconduct. The panel considered that there had been sustained periods of failings in key areas of her practice. There was no evidence that she had acknowledged or reflected on her misconduct, or that she had considered the wider implications of it on the vulnerable residents, or her colleagues, the public or the reputation of the profession. There appeared to be a persistent lack of remorse in respect of her misconduct and lack of any acceptance of her accountability. These are all matters that have led the panel to conclude that Mrs Middleton poses a significant risk of repeating her behaviour. Whilst Mrs Middleton had engaged with these proceedings and made partial admissions to the charges, there has been no evidence placed before the panel to indicate any degree of meaningful insight, remorse or evidence of remediation. There are no references or testimonials. Had Mrs Middleton showed any significant insight or provided evidence of remediation or plans for future remediation, the panel might have considered a suspension order to be sufficient to protect patients and the wider public interest, whilst Mrs Middleton took such steps. Since this is not the case, and having regard to the ISG, the panel has concluded that a suspension order is not sufficient to protect the public or the public interest. With regards to a striking off order, the ISG suggests that key considerations are; Is striking-off the only sanction which will be sufficient to protect the public interest? Page 25 of 27