Conduct and Competence Committee. Substantive Order Review Hearing. 18 August 2015

Transcription

1 Conduct and Competence Committee Substantive Order Review Hearing 18 August 2015 Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: NMC PIN: Julie Elaine McNulty 83A3818E Part(s) of the register: Registered Nurse Sub Part 2 Adult Nursing April 1987 Area of Registered Address: Panel Members: Legal Assessor: Panel Secretary: Nursing & Midwifery Council: Ms McNulty: Order being reviewed: Outcome: England Pamela Mansell, Chair, Lay member Robert Lloyd-Richards, Lay member Catherine Gale, Registrant member Nigel Mitchell Zara Raza Represented by Mary-Clare Kennedy, Case Presenter, instructed by the NMC Regulatory Legal Team Not present nor represented Suspension Order - 12 months Suspension Order 6 months Page 1 of 10

2 Service of Notice of Hearing The panel was informed at the start of this hearing that Ms McNulty was not in attendance, nor was she represented in her absence. The panel was informed that notice of this hearing was sent to Ms McNulty on 17 July 2015 by recorded delivery and first class post to her registered address and was delivered on 18 July The panel was informed that this hearing was originally listed to be heard on today s date, at the NMC, Aldwych hearing venue. The panel secretary confirmed that Ms McNulty had not presented herself at either hearing venue. The panel also had sight of an from Ms McNulty dated 17 August 2015 stating that she would not be attending today s hearing. The panel heard and accepted the advice of the legal assessor. In the light of the information available the panel was satisfied that notice had been served 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 proceeding in the absence of Ms McNulty. The panel was mindful that the discretion to proceed in absence is one which must be exercised with the utmost care and caution. Ms Kennedy referred the panel to Ms McNulty s response dated 17 August In it, Ms McNulty stated that I will not be attending the hearing scheduled for tomorrow Page 2 of 10

3 Ms Kennedy submitted that there is a public interest in this mandatory review being carried out expeditiously. She therefore invited the panel to proceed in Ms McNulty s absence. The panel considered all of the information before it, together with the submissions made by Ms Kennedy, on behalf of the NMC. The panel heard and accepted the advice of the legal assessor. The panel also noted the contents of the dated 17 August 2015 from Ms McNulty, in which she stated that she would not be attending today s hearing. Ms McNulty had been sent notice of today s hearing and the panel was therefore satisfied that she was aware of today s hearing and it is of the view that she had chosen voluntarily to absent herself. The panel had no reason to believe that an adjournment would result in Ms McNulty s attendance. Having weighed the interests of Ms McNulty with those of the NMC and the public interest in an expeditious disposal of this hearing the panel determined to proceed in Ms McNulty s absence. Page 3 of 10

4 Decision and reasons on review of the current order: This is the second review of a substantive order originally imposed by a panel of the Conduct and Competence Committee on 31 July The original order imposed was a conditions of practice order for a period of twelve months. That order was reviewed at a substantive order review hearing on 22 July 2014 and was replaced with a suspension order for a period of twelve months. The current order is due to expire on 30 August This panel is reviewing the order pursuant to Article 30(1) of the Nursing and Midwifery Order 2001( the Order ). The sanctions available to the panel that made the substantive order, and accordingly that are available to this panel, are contained within Article 29 of the Order. This panel may allow the present order to lapse upon expiry, revoke the present order with immediate effect, extend the present order, make a caution order, make a conditions of practice order or impose a striking-off order. At the hearing held on July 2013, a panel of the Conduct and Competence Committee found a number of charges proved both by Ms McNulty s admission and on the evidence before it. The charges related to two main areas of concern: firstly, Ms McNulty had posted a number of documents containing confidential information about patients through a letterbox, mistakenly believing it to be the letterbox of a colleague. When Ms McNulty became aware of her mistake, she compounded it by not reporting it to her line manager. Secondly, Ms McNulty was found to have recorded that she had carried out a number of scheduled home visits to patients when she had in fact not visited them. She also claimed travel expenses for some of these visits. The original substantive hearing panel determined the following with regard to impairment: In the panel s view the failings found proved in this case are in principle remediable but there is no evidence before it that they have been remedied. The panel has a paucity of information from Ms McNulty as to her current practice, or any reflection on the incidents. There is no evidence of courses or training undertaken, either in relation to Page 4 of 10

5 the failings proved against her or more generally. Its information is limited to her responses to the Trust s internal investigation and disciplinary hearing and her response to the NMC charges. While the panel noted that Ms McNulty made timely and frank admissions in relation to the failures in securing confidential information, there is little other evidence of insight, remediation, or remorse which might indicate that she would act any differently in the future. In the circumstances, the panel determined that Ms McNulty s conduct put patients at risk of harm. While it is not clear that any of the named patients suffered any actual adverse health outcomes, the potential consequences for patients have already been discussed. In the panel s judgment, in the absence of any evidence that Ms McNulty has taken steps to remedy her failings, there remains a risk of repetition. The panel is also satisfied that a right-thinking and fully-informed member of the public made aware of the circumstances would be seriously concerned by Ms McNulty s actions, particularly perhaps in relation to her failure to take appropriate steps after she became aware that confidential patient information had fallen into the wrong hands. The panel considered that Ms McNulty s misconduct brings the profession into disrepute. It is again unable to find that there is no risk of repetition. The original substantive hearing panel determined the following with regard to sanction: The panel then considered whether to make a conditions of practice order. The panel considered that the areas in which Ms McNulty has failed in her practice are remediable, as noted in its determination on impairment. It was therefore satisfied that there were sufficiently identifiable areas of Ms McNulty s practice in relation to which conditions could be formulated. The panel considered that Ms McNulty s failings were at the lower end of the spectrum of seriousness. As mentioned in its decision on impairment, the panel is not satisfied that she has breached a fundamental tenet of the profession. It is satisfied that there Page 5 of 10

6 were mitigating circumstances surrounding her failings, namely the personal difficulties which she faced at the time. The panel did not consider that Ms McNulty s conduct was so serious that a temporary removal from the register was necessary. While Ms McNulty has not engaged with the NMC hearing, she has engaged with the regulatory process to a point, and she engaged with the Trust s investigation and disciplinary hearing. The panel does not consider that her lack of engagement with this hearing was sufficiently indicative of an unwillingness to respond to retraining or to comply with conditions were they to be imposed. The panel is satisfied that imposing conditions will sufficiently protect patients, and is sufficient to maintain public confidence in the profession and its regulation. The first reviewing panel concluded that there had been no change in Ms McNulty s position and that she had not made any attempt to remedy her shortcomings. That panel replaced the conditions of practice order with a suspension order for 12 months. Decision on current fitness to practise The panel has considered carefully whether Ms McNulty s fitness to practise remains impaired. Whilst there is no statutory definition of the fitness to practise, the NMC has defined fitness to practise as a registrant s suitability to remain on the register without restriction. In considering this case, the panel has carried out a comprehensive review of the order in the light of the current circumstances. It has noted the decision of the previous substantive panel. However, it has exercised its own judgment as to current impairment. The panel has had regard to all of the documentation before it, including Ms McNulty s s dated 6 July 2015 and 17 August It has taken account of the submissions made by Ms Kennedy, on behalf of the NMC. Page 6 of 10

7 Ms Kennedy stated that a substantive order review meeting scheduled for 9 July 2015 concluded that the case should be referred to a hearing upon reading the of 6 July Ms Kennedy submitted that nothing has changed since the last review and that Ms McNulty, despite being given the opportunity to do so, has failed to demonstrate that she has remediated her practice. In her of 17 August 2015, Ms McNulty indicates that she has no intention to return to the nursing profession. As such her fitness to practise remains impaired by reason of her misconduct. Ms Kennedy remained neutral on the issue of sanction. The panel heard and accepted the advice of the legal assessor. In reaching its decision, the panel was mindful of the need to protect the public, maintain public confidence in the profession, and the need to declare and uphold proper standards of conduct and behaviour. The panel considered whether Ms McNulty s fitness to practise remains currently impaired. The panel noted that the previous reviewing panel had suggested that Ms McNulty had every opportunity over the last twelve months to demonstrate her willingness to engage with the NMC and found that she has shown a persistent lack of willingness to engage with this process Unfortunately this panel has received no information from Ms McNulty to assist it in this regard and as such it concluded that she has not remediated the failings identified in her practice. Without any evidence of insight or remediation, this panel concluded that Ms McNulty s fitness to practise remains currently impaired. Page 7 of 10

8 Determination on sanction Having found Ms McNulty s fitness to practise currently impaired, the panel then considered what, if any, sanction it should impose in this case. The panel noted that its powers in relation to sanction are set out in Article 29 of the Order. The panel has also taken into account the NMC s Indicative Sanctions Guidance (ISG) and has borne in mind that the purpose of a sanction is not to be punitive, though any sanction imposed may have a punitive effect. The panel found that Ms McNulty has not engaged with the NMC process in any meaningful way and has demonstrated a continuous failure to understand the NMC s role in public protection, the public interest and maintaining standards of the profession. The panel first considered whether to take no action but concluded that this would be inappropriate in view of lack of engagement by Ms McNulty and the lack of information before it today. The panel decided that it would be neither proportionate nor in the public interest to take no further action. The panel then considered whether to impose a caution order but concluded that this would be inappropriate in view of the ongoing public protection concerns. The panel decided that it would be neither proportionate nor in the public interest to impose a caution order. The panel considered substituting the current suspension order with a conditions of practice order. The panel bore in mind that a previous conditions of practice order had been imposed and subsequently replaced with a suspension order due to Ms McNulty s lack of engagement with the process. The panel decided that it would be neither proportionate nor in the public interest to impose another conditions of practice order. The panel has no evidence that Ms McNulty would respond positively to any new conditions of practice in any case. The panel considered the imposition of a further period of suspension. It was of the view that a suspension order would allow Ms McNulty further time fully to reflect on her failings. It considered that Ms McNulty needed to gain a full understanding of the NMC s Page 8 of 10

9 role in protecting the public and the public interest and maintaining standards in the profession and also that the role of the NMC does not involve punishment of nurses. The panel noted Ms McNulty s dated 6 July 2015 in which she states that My lack of engagement with the NMC is not down to unwillingness to cooperate with the process but due to the fact that I m not in a position to be able to comply I have accepted that my conduct was not acceptable however, I believe I have been let down by a profession I was proud to be part of as I have received no support or guidance as to how to address the issues and move forward. The panel also noted Ms McNulty s dated 17 August 2015 in which she states I wish to inform the panal [sic] that I have no intention to return to a profession that has treated me with so little thought Nevertheless, the panel recognises that Ms McNulty may have a residual interest in returning to the nursing profession, not least because she reports in her of 17 August 2015 that after three years she has come to terms with the events of the past. The panel wishes to offer Ms McNulty a final opportunity to re-consider her position in relation to the nursing profession and to provide Ms McNulty with adequate time further to develop her insight and remediation. In all the circumstances the panel concluded that the only suitable sanction would be to continue the current suspension order. The panel concluded that the order should be for 6 months, during which an opportunity presents itself for Ms McNulty to re-engage with the NMC. It would also be in the public interest for a nurse of such experience as Ms McNulty to move towards actively rehabilitating and re-joining her profession. The panel noted that Ms McNulty has had a significant amount of time to demonstrate that she has remediated her practice, but has failed to avail herself of the opportunity. This would provide Ms McNulty with a further six months and a final opportunity to reengage with the process. The panel formed the view that none of the original charges found proved resulted in harm to patients and did not result in a striking off order. Page 9 of 10

10 The panel considered that a striking-off order would, at this time, be disproportionate. Under Article 30(1)(a) of the Nursing and Midwifery Order 2001, this order will come into force at the end of 30 August 2015, when the current suspension order expires. The panel echoed the suggestions of previous panels by suggesting to Ms McNulty that a future reviewing panel would be assisted by: Ms McNulty s attendance at a future review hearing; Written consideration of how the allegations against her impacted upon patients, the public and standards of the profession; An outline of Ms McNulty s wish to return to nursing, how she would progress her nursing career and how she has kept her theoretical knowledge up to date; Details and evidence of relevant courses undertaken; Up-to-date references and testimonials from any work undertaken paid or unpaid The panel would like to highlight to Ms McNulty that the next reviewing panel will also have the power to strike her off the register. This decision will be confirmed to Ms McNulty in writing. That concludes this determination. That concludes this hearing. Page 10 of 10