Nursing and Midwifery Council Fitness to Practise ...€¦ · Facts proved by admission: ... You dressed the arm of a palliative care resident ... Ms Nelson submitted that this case

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Nursing and Midwifery Council

Fitness to Practise Committee

Substantive Hearing

Monday, 22 January 2018 – Friday, 26 January 2018

Monday 16 April – Tuesday 17 April 2018

Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE

Name of registrant: Mrs Betty Anne Gay NMC PIN: 13H3547E Part(s) of the register: Registered Nurse – Sub-part 1 Adult Nursing – 1 February 2014 Area of Registered Address: England Type of Case: Misconduct and Lack of Competence Panel Members: Ms Mary Monnington (Chair, Registrant

member) Mrs Louise Poley (Registrant member) Ms Lindsey Rose (Lay member)

Legal Assessor: Mr Paul Housego Panel Secretary: Mr Philip Austin (22-26 January 2018); Mr

Calvin Ngwenya (16-17 April 2018) Registrant: Mrs Gay was present but not represented on

22-26 January 2018 and was present and represented by Counsel, Penny Maudsley on 16-17 April 2018.

Nursing and Midwifery Council: Represented by Ms Ayanna Nelson (22-26

January 2018); Simon Newman (16-17 April 2018), Case Presenter

Offering of no evidence accepted: Charges 1, 2 and 3 Facts proved: Charges 4.1, 4.2, 4.3, 4.4(a) in part, 4.4(b), 4.5,

4.6(b), 4.6(c)(ii) in part, 4.6(d) in part, 4.7(a)(i), 4.7(b)(i), 4.7(b)(ii).

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Facts proved by admission: Charge 4.7 (a) (iii) Facts not proved: Charges 4.6 (a), 4.6(c)(i), 4.6(c)(ii) in part,

4.6(d) in part, 4.7(a)(ii), 4.7(a)(iv), 4.7(b)(iii). Fitness to practise: Impaired Sanction: Conditions of Practice Order (15 months) Interim Order: Conditions of Practice Order (18 months)

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Details of charge (Before amendment):

That you, a Registered Nurse,

1) Whilst working at Stoke University Hospital, University Hospitals of North Midlands

NHS Trust, failed to demonstrate the standard of knowledge, skill, and judgement

required for practice without supervision as a Registered Nurse, in that:

1.1 You failed to escalate the deterioration of a patient to the nurse in charge and/or

the medical staff;

1.2 You omitted to record clinical observations for this patient for the duration of the

night shift;

1.3 You omitted to document care actions in the patient(s) care plan;

1.4 You denied knowledge of who put the patient onto 3 litres of oxygen, and later

when questioned, admitted it was you who did so;

2) Your actions at charge 1.4 above were dishonest in that when initially questioned,

you intended to mislead the person(s) concerned by stating that it wasn’t you who

had put the patient onto 3 litres of oxygen, when you knew that it was you who had

carried out these actions.

3) Whilst working at Amberley House Care Home, between approximately April 2015

and November 2015, you failed to demonstrate the standard of knowledge, skill, and

judgement required for practice without supervision as a Registered Nurse, in that:

3.1 Over the weekend of 23/24 May 2015:

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a. You failed to safeguard Residents B and C;

b. You did not carry out and/or record an assessment of Resident C;

c. You did not document an incident form in relation to this incident;

3.2 On 24/25 May 2015, you failed to safeguard Residents C and E;

3.3 You omitted to administer quetiapine to Resident E that should have been given

at 7am on 15 June 2015;

3.4 You gave a patient an additional dose of risperidone to Resident D on 16 June

2015;

3.5 You failed a medication competency assessment on 27 April 2015.

4) Whilst employed by Barchester at Hilderstone Hall Care Home, between

approximately November 2015 and March 2016, you failed to demonstrate the

standard of knowledge, skill, and judgement required for practice without supervision

as a Registered Nurse, in that:

4.1 On one or more occasions, you took excessive time to complete medication

rounds;

4.2 On one or more occasions, you did not complete Resident MAR charts

contemporaneously;

4.3 On or before 29 December 2015 you administered medication to a nil by

mouth resident who was on a PEG;

4.4 On or around 18 January 2016:

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a. You attempted to re-catheterise a resident in an unsafe and

unsuccessful manner;

b. You asked a care assistant to retrieve the soiled catheter and leg bag

from the waste and to wash it under the tap for re-use;

4.5 On 18 February 2016 you gave medication to an incorrect patient;

4.6 On or before 7 March 2016:

a. You dressed the arm of a palliative care resident using a compression

bandage, without having discussed and /or recorded that this was

discussed with a GP or tissue viability nurse;

b. You steri-stripped a resident’s skin tear in an inappropriate manner;

c. In relation to a palliative care resident with a chest infection, you:

(i) Failed to arrange a GP visit;

(ii) Failed to carry out and/or record observations;

d. In relation to a resident who was susceptible to infections and was

showing signs of a urinary tract infection, you failed to carry out and/or

record any observations;

4.7 During the nightshift of 12 March 2016:

a. When Resident A suffered a fall:

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(i) You failed to perform and/or document physical observations

and/or post-falls assessments of Resident A;

(ii) You failed to complete the relevant paperwork;

(iii) You were unable to provide appropriate information to the

emergency services call handler;

(iv) You failed to obtain statements from any witnesses;

b. When Resident B suffered a fall, you:

(i) Failed to perform and/or document physical observations and/or

post-falls assessment;

(ii) Failed to respond appropriately in that you did not communicate

with Resident B, and/or did not provide staff with any direction;

(iii) Failed to obtain statements from any witnesses.

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

competence and/or in the alternative, by reason of your misconduct.

Admissions:

At the outset of the hearing, you told the panel that you admitted charge 4.7(a)(iii).

The panel therefore found this charge proved by way of admission.

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Background:

The charges arose whilst you were employed in the role of a registered nurse at three

separate employers, which were Stoke University Hospital, University Hospitals of North

Midlands NHS Trust (“the Trust”), Amberley House Care Home (“Amberley”) and

Barchester at Hilderstone Hall Care Home (“Hilderstone Hall”).

It is alleged that, whilst working at Hilderstone Hall, there were numerous concerns

around your administration of medication. It allegedly took you an excessive amount of

time to perform medication rounds; you did not complete Residents MAR charts

contemporaneously; you attempted to administer medication to a nil by mouth resident;

and you administered incorrect medication to a resident.

On or around 18 January 2016, whilst employed by Barchester, it is alleged that you

attempted to re-catheterise a resident in an unsafe and unsuccessful manner. It was

also alleged that you had asked a care assistant to retrieve the soiled catheter

previously used by this resident from the waste and wash under a tap for reuse.

On or before 7 March 2016, it is alleged that you worked outside of your capabilities in

that you dressed the arm of a palliative care resident using a compression bandage

without having discussed and/or recorded that this was discussed with a general

practitioner (“GP”) or tissue viability nurse. It is also alleged that there were concerns in

respect of a resident with a skin tear in that you steri-stripped the tear and bandaged the

resident’s arm before removing the dressing and steri-strips in order for the tear to be

photographed. It is alleged that you then reapplied multiple steri-strips in an

inappropriate way. The removal of the first steri-strips was also inappropriate for a

resident with fragile skin.

In addition, material obtained from Hilderstone Hall alleges that there was a handover to

you on 7 March 2016 of a palliative care resident, who had been admitted with

symptoms of a chest infection. It is alleged that you failed to arrange a GP visit, and that

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you failed to carry out and/or record any observations for this resident. In addition,

another resident at Hilderstone Hall, who was susceptible to infections, was showing

signs of a urinary tract infection. It is alleged that you failed to carry out and/or record

any observations in respect of this resident.

On the nightshift of 12 March 2016, at Hilderstone Hall, a resident was found on the

floor of her room. It is alleged that you failed to perform and/or document physical

observations and/or post-falls assessment, and that you did not complete relevant

paperwork. It is further alleged that you were unable to provide appropriate information

to the emergency services call handler and that you failed to obtain statements from any

witnesses.

On the same shift, another resident suffered a fall and it is alleged that that you failed to

perform and/or document physical observations and/or post-falls assessment, and failed

to respond appropriately in that you did not communicate with the resident or provide

staff with any direction. It is also alleged that you failed to obtain statements from any

witnesses.

As a result of the referral by Barchester to the NMC, the NMC made enquiries with your

previous employers and were notified of concerns by the Trust and Amberley which

resulted in charges 1, 2 and 3.

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NMC’s application to offer no evidence in respect of charges 1, 2 and 3:

At the outset of the hearing, Ms Nelson indicated that the NMC intended to offer no

evidence in relation to charges 1, 2 and 3. Ms Nelson referred the panel to the case of

Professional Standards for Health And Social Care v Nursing And Midwifery Council &

Anor [2018] EWHC 70 (Admin), in which a decision had been handed down on 19

January 2018 which altered the law directly on this point.

Ms Nelson submitted that this case required the NMC to open the case fully, and for the

panel to make an informed decision as to whether it would accept that no evidence

should be offered, or to require the NMC to make further enquiries as to why it proposed

to offer no evidence.

The panel heard and accepted the advice of the legal assessor.

Accordingly, Ms Nelson opened the case in relation to all of the charges which set out

the reasons the charges were laid, and described the attempts made by the NMC to

obtain evidence in support of them.

Ms Nelson stated that when the matters leading to charge 4 were brought to the

attention of the NMC, it made enquiries of your two previous employers. After doing so,

it became known to the NMC that there were competency concerns in respect of your

clinical nursing practice in respect of your two previous employments since your

qualification as a nurse.

Charges 1 and 2 occurred during your employment at the Trust. There were three

possible witnesses identified by the NMC. However, all of these witnesses said that they

had no personal knowledge or recollection of the matters set out in those charges.

Further, documentary evidence at the Trust in relation to these concerns was not

produced by these witnesses, nor the Trust’s Human Resources department. You had

resigned from the Trust prior to the conclusion of the investigation into your practice.

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You then commenced a new nursing role at Amberley.

In relation to charge 3, there was one possible witness. The NMC had attempted to

contact her on numerous occasions in order to obtain a signed copy of her witness

statement but these attempts were unsuccessful due to this witness’ very limited

engagement with and failure to respond to the regulator.

At Amberley, your 12 week probationary period was extended due to clinical concerns.

Prior to the conclusion of this extended period, your contract of employment was

terminated as Amberley considered your performance during this probationary period to

be inadequate.

The panel considered carefully the nature of the matters raised in charges 1 and 3,

compared to those raised in charge 4. The panel noted that the allegations in charge 4

relate to your employment with Barchester at Hilderstone Hall. The panel considered

the concerns raised in charges 1 and 3 to be similar to those alleged in charge 4, and

that those in charge 4 were more wide ranging in time and in content than in charges 1

and 3.

The panel was concerned lest the mischief might be a pattern of errors or competency

concerns over a period of time, but noted that charge 4 concerned a range of different

matters over a period from November 2015 – March 2016. Accordingly there was no

new or different concern raised by charges 1 and 3.

The panel also considered your rights under Articles 6 and 8 of the European

Convention on Human Rights to be engaged. The panel noted that the matters in

charges 1 and 3 relate to allegations that occurred in 2014 and 2015. The panel further

noted that the matters in charge 4 were now nearing two years old. The panel

considered the time that had elapsed, and was concerned about whether it was fair to

you to adjourn the hearing given the lapse of time since these incidents are alleged to

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have occurred. In respect of charge 1, the panel considered it to be drafted in very

vague terms, and it did not give a date or the identity of the resident said to be involved.

In respect of charge 2, the panel noted that this allegation of dishonesty derives from

your alleged actions in charge 1.4. The panel noted that no witness had been warned to

give evidence on this charge, and none had been identified.

Further, the panel also noted that while a file should be available to be retrieved and

exhibited to any witness statement, the charge was in part so broadly drafted as to be

very difficult to obtain evidential detail. It is asserted that you ‘failed to safeguard’ two

residents without giving any indication as to the failure that was alleged.

The panel also considered the NMC assertion that the Case Examiners had been

incorrect basis in charging you with charges 1 and 3, as this had been done when the

NMC had evidence in relation to charge 4, but had no evidence (as opposed to

allegations) about charges 1, 2 and 3 from the Trust or Amberley. The NMC had not

been able to obtain such evidence since. The panel had grave reservations about the

non-cooperation of registered nurses who had failed to obtain documentation requested

of them by the NMC or, in relation to charge 3, to provide a signed witness statement.

However, that concern did not bear on the question of whether to require the NMC to

seek more evidence in relation to these three charges.

The panel considered that its primary duty to protect the public was met by

consideration of charge 4 only, because of the range both in time and subject matter of

the sub charges. The panel also considered it would not be fair to you to adjourn the

hearing in order for the NMC to obtain evidence to support charges 1, 2 and 3. In any

event, it was not clear that if such an adjournment was granted, there was a realistic

prospect that any such evidence could or would be obtained.

The panel was of the view that, at this stage, it would not require the NMC to seek more

evidence in support of charges 1, 2 and 3. The panel decided it would consider whether

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there was no case to answer on its own volition at the close of the NMC’s case. At that

stage, the panel would then have heard all the NMC’s evidence in relation to charge 4.

The panel would then revisit this matter either to accept the NMC’s application of

offering no evidence and dismiss charges 1, 2 and 3, or to direct the regulator to

attempt to seek further evidence in relation to these charges.

Decision and reasons on application under Rule 19:

During Ms Nelson’s application to hear evidence via WebEx, she made a request that

parts of the hearing be held in private on the basis that the evidence would touch on

matters pertaining to Ms 2’s health. She submitted that it would be in her interests if

these matters were referred to in private.

You did not oppose this application.

The legal assessor reminded the panel that while Rule 19 (1) of the Nursing and

Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (as amended 2012)

(“The Rules”) provides, as a starting point, that hearings shall be conducted in public,

Rule 19 (3) states that the panel may hold hearings partly or wholly in private if it is

satisfied that this is justified by the interests of any party or by the public interest.

Rule 19 states

19.(1) Subject to paragraphs (2) and (3) below, hearings shall be conducted in

public.

(2) Subject to paragraph (2A), a hearing before the Fitness to Practise

Committee which relates solely to an allegation concerning the registrant’s

physical or mental health must be conducted in private.

(2A) All or part of the hearing referred to in paragraph (2) may be held in public

where the Fitness to Practise Committee—

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(a) having given the parties, and any third party whom the Committee considers

it appropriate to hear, an opportunity to make representations; and

(b) having obtained the advice of the legal assessor, is satisfied that the

public interest or the interests of any third party outweigh the need to

protect the privacy or confidentiality of the registrant.

(3) Hearings other than those referred to in paragraph (2) above may be held,

wholly or partly, in private if the Committee is satisfied

(a) having given the parties, and any third party from whom the Committee

considers it appropriate to hear, an opportunity to make representations;

and

(b) having obtained the advice of the legal assessor, that this is justified

(and outweighs any prejudice) by the interests of any party or of any

third party (including a complainant, witness or patient) or by the public

interest.

(4) In this rule, “in private” means conducted in the presence of every party and

any person representing a party, but otherwise excluding the public.

The panel accepted that substantive hearings are expected to be held in public unless

there is a good reason for them to be held in private. The panel concluded that the

matters relating to Ms 2’s health should be considered in private, as the need to protect

her interests outweighs the public interest in this being held in public session.

Application for WebEx for Ms 2:

Ms Nelson then applied to adduce Ms 2’s evidence via WebEx. She referred the panel

to Rule 31 of the Rules.

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Ms Nelson informed the panel that Ms 2 suffers from a complex mix of health

conditions. She submitted that Ms 2 had sought to obtain medical evidence from Ms 2’s

GP, but both had been unsuccessful in their attempts to do so.

Ms Nelson submitted that Ms 2 had hoped that her health would improve to the extent

that she would be able to give evidence in person at this hearing. However, this is not

the case.

Ms Nelson submitted that there is no unfairness to you in allowing Ms 2 to give her

evidence via WebEx. She submitted that you would still be able to cross-examine Ms 2,

and the panel would be able to assess her credibility via WebEx link.



In the circumstances, the panel agreed to hear Ms 2’s evidence via WebEx. The panel

noted that it did not have any medical evidence from Ms 2’s GP in front of it. However, it

had sight of the email correspondence between the NMC and Ms 2 which it accepted as

truthful and was content for the evidence to be heard in this way.

The panel noted that Ms 2 had made attempts to obtain medical evidence for the

purposes of this hearing. In an email from Ms 2 to the NMC dated 12 January 2018, she

stated “I have spoken to my GP practice this morning and they assured me they would

contact you. I am happy for this information to be shared. Thank you for understanding

my situation”. The panel noted that Ms 2’s GP services had not contacted the NMC.

The panel concluded that Ms 2 appeared willing to give evidence to the panel via video

link. The panel determined that it was appropriate in the circumstances for Ms 2 to

provide evidence via WebEx.

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Application for telephone evidence:

During the administration of setting up the WebEx system, Ms Nelson made a

secondary application to hear Ms 2’s evidence via telephone. She again referred the

panel to Rule 31 of the Rules.

She submitted that technical problems have arisen which has prevented the video link

being established with Ms 2. She submitted that the NMC has been able to contact Ms

2 via telephone, and, in light of the time that has been lost in establishing this contact,

telephone evidence may be more appropriate in the circumstances.

She submitted that Ms 2 can give direct and important evidence in relation to the

charges.



The panel did not accede to Ms Nelson’s application in respect of telephone evidence at

this stage. The panel decided to give the NMC more time to establish contact with Ms 2

via WebEx before making a decision as to whether or not to accept her evidence by

telephone.

During the lunch break video contact was established with Ms 2 and so the panel

decided to hear her evidence via WebEx.

Panel’s decision on the offering of no evidence in respect of charges 1, 2 and 3:

After hearing all of the witness evidence in this case, the panel returned to its

deliberations on whether or not to accept the NMC’s submission of offering no evidence

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in respect of charges 1, 2 and 3. The panel considered whether you had a case to

answer in respect of these charges.

The panel took account of the submissions made and accepted the advice of the legal

assessor. He referred the panel to the case of R v Galbraith 73 Cr.App.R.124 CA which

gives guidance on the proper approach to follow in relation to this application. He

advised that the panel must consider whether there is no evidence before it which is

capable of finding this charge found proved, as per the first limb in R v Galbraith. He

further advised that, if there is some evidence before it, but it is of a tenuous character,

because of inherent weakness or vagueness or because it is inconsistent with other

evidence, then it should not remain before the panel (the second limb of R v Galbraith).

In deciding whether to accept the NMC’s application to offer no evidence in respect of

charges 1, 2 and 3, the panel looked at the charges in the round.

The panel was initially concerned that there may have been a pattern of alleged lack of

competency/misconduct. However, the panel noted that the concerns alleged in charge

4 were of a similar nature to the allegations identified in charges 1, 2 and 3 and the

length of time which encompasses charge 4. The panel noted that the NMC had closed

it case, and as such, would not be relying on any further evidence to be presented. The

panel considered there to be no evidence before it which is capable of finding charges

1, 2 and 3 found proved, as per the first limb in R v Galbraith.

The panel considered there to be sufficient evidence presented to it at this stage for it to

continue with charge 4.

Having heard all of the evidence at the facts stage, the panel reaffirmed its initial

decision not to require the NMC to seek further evidence in relation to charges 1, 2 and

3.

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The panel accepted the NMC’s application to offer no evidence in respect of charges 1,

2 and 3 and found that you had no case to answer in respect of these charges.

Decision and reasons on application to amend the charge:

The panel, on its own volition, proposed to amend charge 4.4(a) during its deliberations

on facts. The panel made this proposal prior to making any decision on the facts of this

charge.

Charge 4.4(a) currently reads as:


a You attempted to re-catheterise a resident in an unsafe and unsuccessful

manner;

The panel’s proposed amendment was to draft the charge in the alternative because as

the charge currently reads it would have to find both parts of the charge proved in order

for it to find charge 4.4(a) proved at the facts stage. The panel proposed to add ‘/or’

after the word ‘and’, in order for it to consider the limbs of the charge separately.

‘Unsafe’ and ‘unsuccessful’ were different concerns. The panel was of the view that this

proposed amendment would provide clarity and more accurately reflect the evidence.

The panel offered both parties the opportunity to respond to their proposed amendment.

Neither you nor Ms Nelson objected to the proposed amendment being made.

You were offered an adjournment to provide you with additional opportunity to consider

whether you may wish to make a further submission but you declined this offer and

agreed to the panel proceeding with the amendment as proposed.

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The panel accepted the advice of the legal assessor that Rule 28 of the Rules states:

28. (1) At any stage before making its findings of fact, in accordance with rule

24(5) or (11), the Investigating Committee (where the allegation relates to a

fraudulent or incorrect entry in the register) or the Fitness to Practise Committee,

may amend

(a) the charge set out in the notice of hearing; or

(b) the facts set out in the charge, on which the allegation is based,

unless, having regard to the merits of the case and the fairness of the

proceedings, the required amendment cannot be made without injustice.

(2) Before making any amendment under paragraph (1), the Committee shall

consider any representations from the parties on this issue.

The panel was of the view that it was fair to make the amendment, and it could be made

without injustice. The panel noted that it would not materially alter the evidence it had

received, or the way the case was presented or defended. The panel was satisfied that

there would be no prejudice to you and no injustice would be caused to either party by

the proposed amendment being allowed. It was therefore appropriate to make the

amendment proposed by the panel, to ensure clarity and accuracy, and the panel so

ordered.

Charge 4, as amended, now reads as follows:


a You attempted to re-catheterise a resident in an unsafe and/or unsuccessful

manner;

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Details of charge (After amendment):

That you, a Registered Nurse,

1) Whilst working at Stoke University Hospital, University Hospitals of North Midlands

NHS Trust, failed to demonstrate the standard of knowledge, skill, and judgement

required for practice without supervision as a Registered Nurse, in that:

1.1 You failed to escalate the deterioration of a patient to the nurse in charge and/or

the medical staff;

1.2 You omitted to record clinical observations for this patient for the duration of the

night shift;

1.3 You omitted to document care actions in the patient(s) care plan;

1.4 You denied knowledge of who put the patient onto 3 litres of oxygen, and later

when questioned, admitted it was you who did so;

2) Your actions at charge 1.4 above were dishonest in that when initially questioned,

you intended to mislead the person(s) concerned by stating that it wasn’t you who

had put the patient onto 3 litres of oxygen, when you knew that it was you who had

carried out these actions.

3) Whilst working at Amberley House Care Home, between approximately April 2015

and November 2015, you failed to demonstrate the standard of knowledge, skill, and

judgement required for practice without supervision as a Registered Nurse, in that:

3.1 Over the weekend of 23/24 May 2015:

a. You failed to safeguard Residents B and C;

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b. You did not carry out and/or record an assessment of Resident C;

c. You did not document an incident form in relation to this incident;

3.2 On 24/25 May 2015, you failed to safeguard Residents C and E;

3.3 You omitted to administer quetiapine to Resident E that should have been given

at 7am on 15 June 2015;

3.4 You gave a patient an additional dose of risperidone to Resident D on 16 June

2015;

3.5 You failed a medication competency assessment on 27 April 2015.





4.1 On one or more occasions, you took excessive time to complete medication

rounds;


contemporaneously;

4.3 On or before 29 December 2015 you administered medication to a nil by

mouth resident who was on a PEG;


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a. You attempted to re-catheterise a resident in an unsafe and/or


















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

competence and/or in the alternative, by reason of your misconduct.

Decision on the findings on facts and reasons:

In reaching its decisions on the facts, the panel considered all the evidence adduced in

this case, together with the submissions made by Ms Nelson, on behalf of the NMC and

those made by you.


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The panel was aware that the burden of proof rests on the NMC, and that the standard

of proof is the civil standard, namely the balance of probabilities. This means that the

facts will be proved if the panel was satisfied that it was more likely than not that the

incidents occurred as alleged.

The panel heard oral evidence from two witnesses tendered on behalf of the NMC. The

panel heard oral evidence from you.

Witnesses called on behalf of the NMC were, at the time of the events, employed in the

following roles:

Ms 1 – Senior Carer at Hilderstone Hall,

Ms 2 – General Manager at Hilderstone Hall.

The panel first considered the overall credibility and reliability of all of the witnesses it

had heard from, including you.

The panel found Ms 1 to be a clear and credible witness who assisted the panel to the

best of her ability. The panel noted that Ms 1’s oral evidence was consistent. She had

also compiled a clear and detailed record of events within two days of the matters about

which she gave oral evidence. Her evidence was consistent over time, internally

consistent and, save for your own evidence, consistent with other evidence. Ms 1

accepted that her memory may now be less good due to the lapse in time since these

events. However, the panel was of the view that she did not attempt to embellish her

account. The panel considered Ms 1 to be a straight forward, fair and reliable witness.

The panel found Ms 2 also to be a fair, reliable and credible witness who assisted the

panel to the best of her ability. The panel considered Ms 2 to give clear evidence in

respect of policy and procedure at Hilderstone Hall, and she was able to draw a clear

distinction between her own account and the accounts that were given to her by other

staff in relation to these incidents. The panel considered Ms 2 gave a fair and balanced

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account in her evidence, and she also volunteered positive information in relation to

your character and nursing knowledge. Her evidence was also credible, plausible and

consistent and was supported by contemporaneous documentary evidence.

The panel found your oral evidence to be largely inconsistent and at times confused.

The panel found that much of your oral evidence conflicted with both the documentary

evidence you had provided before the hearing, and with the notes made by Ms 2 and

others of contemporaneous discussions, which you agreed correctly recorded those

discussions. Your oral evidence contained inconsistencies and, during it, you gave

varying accounts of some events. This led the panel to have concerns around the

reliability of your evidence. The panel noted that you did not dispute the documentary

evidence provided by Ms 2.

At the start of this hearing, you admitted charge 4.7(a)(iii). This was therefore

announced as proved by way of admission.

The panel then went on to consider the remaining charges and made the following

findings:

Charge 4.1:





4.1 On one or more occasions, you took excessive time to complete medication rounds;

This charge is found proved.

In reaching this decision, the panel took account of yours and Ms 2’s evidence.

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The panel noted that in Ms 2’s witness statement, she stated “It was found that Betty

was still performing the morning medication round at lunchtime…something I observed

myself. It was evident to me because I would notice that the medication trolley was not

back by lunchtime”. Ms 2 stated in oral evidence that this was excessive and greatly

exceeded the time taken by other nurses to complete the morning medication round.

In your oral evidence, you accepted that the medication rounds took longer than two

hours but you did not think this was excessive. This was contrary to Ms 2’s evidence

which indicated that you frequently took up to three and a half hours to undertake the

morning medication round. You told the panel that no medication round is the same and

that you were dealing with residents with complex health needs, and it was often difficult

to get them to take their medication. You said that there were frequent interruptions

from staff and residents which delayed you.

The panel noted that the charge reads ‘On one or more occasions’ and Ms 2 had stated

during her oral evidence that she found you to take an excessive amount of time to

complete medication rounds on almost every occasion. According to Ms 2, it often took

you up to lunchtime, at approximately 12:30 hours, to complete a morning medication

round for a maximum of 20 residents. You accepted that the morning round could take

until at least noon.

The panel accepted the evidence of Ms 2 which was consistent with her documentary

evidence. The panel was of the view that a delay in residents receiving this medication

in a timely manner could impact negatively on a resident’s health and the time taken

was excessive.

Therefore, the panel found charge 4.1 proved.

Charge 4.2:

26


contemporaneously;



The panel noted that Ms 2 stated in her witness statement that “Betty described that she

was not signing the MAR charts until she had completed the medication round. I

explained to Betty that this was not acceptable: she should be looking at the MAR,

giving the medication and then going back to the trolley and marking the MAR sheet”.

Ms 2 confirmed this during her oral evidence. Ms 2 had made a note of this discussion

dated 29 December 2015.

You explained to the panel that you would take the residents’ MAR charts with you and

you would fill them in accordingly. You further told the panel that you would then re-

check all of the MAR charts for the residents and fill in any you may have missed.

However, the panel considered this to be inconsistent with earlier evidence you

provided to Ms 2 at the meeting of 29 December 2015, the records of which state

“Bettyanne reports that she is not signing the MAR charts until completing the

medicines round”. Even your oral evidence confirmed that, for some residents, you

would have overlooked filling in the MAR chart when giving the medication, and so

would not complete the MAR chart when the medication was administered, but some

hours later at the end of the medicines round.

The panel noted that Ms 2 stated that subsequent to the discussion, (noted on 29

December 2015), she had seen this practice continued and not corrected. The panel

accepted Ms 2’s evidence as correct.


27

Charge 4.3:

4.3 On or before 29 December 2015 you administered medication to a nil by mouth

resident who was on a PEG;


In reaching this decision, the panel took account of the file note dated 29 December

2015, completed by Ms 2. The panel noted that “I spoke to Bettyanne about the

potential risks associated with administering medication in this way as this lady had not

yet been assessed by SALT. Bettyanne assures me that this will not happen again and I

have re assessed her competency in administering medication via the PEG

(“Percutaneous Endoscopic Gastrostomy”)”.

In your oral evidence, you admitted that you administered medication to a nil by mouth

resident who was on a PEG. You told the panel that the resident’s care notes were a

mess and there was nothing to alert you to the fact that this resident was nil by mouth.

Ms 2’s oral evidence contradicts this however, as she provided evidence to the panel

that it was very clear on the front sheet of the resident’s notes that this patient was

prescribed a feeding regime for a PEG. You stated that when you were informed of your

error by Ms 2, you followed appropriate procedures and did not repeat this mistake.

The panel noted that it found Ms 2 to be a clear and credible witness whose oral

evidence was supportive of her documentary evidence. The panel did not accept your

explanation. The panel’s view was that if the notes were unclear, any competent nurse

would have checked the regime for any resident with a PEG feed before choosing to

administer medication in this way, because those with PEG feeds are frequently nil by

mouth.


28

Charge 4.4:


a. You attempted to re-catheterise a resident in an unsafe and/or




Charges 4.4(a) found proved in respect of attempting to re-catheterise a resident

in an unsafe manner, but not found proved in respect of attempting to re-

catheterise a resident in an unsuccessful manner.

Charge 4.4(b) found proved.


In respect of charge 4.4(a), the panel noted that Ms 2 stated, in her witness statement,

that “Betty had attempted to re-catheterise a resident in an unsafe and unsuccessful

manner; this was witnessed by a care assistant and raised to another nurse. Betty had

tried on numerous occasions to re-catheterise the resident but couldn’t do it and this left

the resident traumatised”.

You accepted that you were intending to re-catheterise the resident but said that you

were prevented from doing so.

The panel gave the word ‘unsafe’ its ordinary meaning in its deliberations.

29

The panel had regard to Ms 2’s evidence that you did not use a sterile catheterisation

pack when attempting to re-catheterise the resident, and you therefore did not have the

appropriate equipment in order to be able to do so. You did not dispute that you did not

use a sterile catheterisation pack, therefore using standard non-sterile gloves as

opposed to sterile gloves. You gave instructions to the care worker to rinse the leg bag

for re-use which had been discarded. You stated that you considered the leg bag to be

sterile as it was still in date.

Given that the gloves were not sterile, and rinsing and re-using a disposed leg bag

meant that those would also not be sterile would increase the risk of urinary infection

implicit in non-sterile equipment. The panel therefore found that your attempted re-

catheterisation was unsafe.

The panel was of the view that in re-using a leg bag which had already been soiled and

rinsed was not sterile. The panel determined that, in using a leg bag which had

previously been used by a resident and then washed, you attempted to re-catheterise a

resident in an unsafe manner.

The panel therefore found this part of charge 4.4(a) proved.

The panel also had sight of documentary hearsay evidence which was the only

evidence which suggested that you made numerous unsuccessful attempts to re-

catheterise a resident. There was no direct evidence to support this claim. However, the

panel also noted that you were stopped from re-catheterising the resident by staff who

were concerned by your approach, and so could not have been successful in your

attempt on this occasion. In taking this into account, the panel found this part of charge

4.4(a) not proved.

In respect of charge 4.4(b), the panel had sight of the file note dated 19 January 2016,

which read “Bettyanne states that she asked the carer to wash the catheter leg bag. I

30

have explained to Bettyanne that this is not acceptable and does not comply with

infection prevention and control policy and that she should always use a new leg bag

especially when one is visibly soiled as the bag was”.

In accordance with Ms 2’s evidence, you instructed the carer to rinse the leg bag to be

re-used. You told the panel that your reason for intending to use the same leg bag was

because you believed that there was no other leg bag available. You were intending to

do so until a carer said that another resident had a suitable bag which could be used for

this resident.

The panel therefore found charge 4.4(b) proved.

Charge 4.5:




The panel noted in Ms 2’s witness statement that “On 18 February 2016, I met with

Betty again as it had been raised to me that Betty had administered medication to the

incorrect resident that morning…Betty had been calling the resident by an incorrect

name…there was no harm caused and the resident’s GP was advised of the error”.

During your oral evidence, you accepted that you gave medication to an incorrect

resident. You told the panel that you mistook one resident with another due to their

similar build and the fact that they both wore similar glasses. You explained that there

was some confusion as the residents identification photographs were similar.

31

In taking account of the above, the panel found this charge proved.

Charge 4.6(a):





This charge was found not proved


The panel had sight of the file note of a meeting dated 7 March 2016, in which you were

asked whether you “had been trying to do compression bandaging due to the amount

and area that had been covered”. You denied this at the time and stated that you were

using the ‘ward stock bandages’ (softband) during your oral evidence.

For this sub-charge to be proved, it was necessary for the NMC to prove that you had

used a compression bandage. You had consistently stated that you did not use a

compression bandage, but used ward stock bandaging because the resident had a

problem that involved fluid seeping from her arm. The NMC’s evidence was not

sufficiently clear to establish that the bandaging was a compression bandage. With the

burden of proof being on the NMC, the panel accordingly found charge 4.6(a) not

proved.

Charge 4.6(b):


32

This charge was found proved


You accepted, during oral evidence, that you had steri-stripped a resident’s skin tear in

an inappropriate manner. You told the panel that this was an error of judgment.

The panel had sight of the file note of the meeting dated 7 March 2016, in which you are

recorded as having stated “BG said that she had initially made a good, neat job but she

had forgotten to take a photograph so had removed all the steri-strips so that a picture

could be taken and then re-done it…BG repeated that she had to do it to take a photo

but is aware it was then more of a mess and also looked untidy”.

There was an inconsistency in your evidence in relation to this sub-charge. In your oral

evidence you denied removing the steri-strips in order to photograph the tear. The notes

of your meeting with Ms 2 (6:20) dated 7 March 2016 recorded you as saying that you

had removed the steri-strips in order that the tear might be photographed. You agreed

in your oral evidence that the notes correctly recorded what you had said at that

meeting. The panel found that you removed the dressing and steri-strips in order that

the tear could be photographed. You then re-applied an inappropriate number of steri-

strips to a resident with fragile skin, the condition of which had deteriorated during this

process. In oral evidence, you agreed that this was an oversight on your part in relation

to removing the dressing in order for the skin tear to be photographed. In the process of

re-applying the steri-strips you agreed that the number you used was excessive and

inappropriate.

In light of the above, the panel found charge 4.6(b) proved.

Charge 4.6(c):

33




Charge 4.6(c)(i) found not proved.

Charge 4.6(c)(ii) found proved in that you failed to record observations in relation

to a palliative care resident with a chest infection, but not found proved in that

you failed to carry out observations


In respect of charge 4.6(c)(i), the panel had regard to the file note of the meeting dated

7 March 2016. The panel noted that the NMC was inviting the panel to rely on hearsay

evidence for the purposes of finding this charge proved. The panel noted that the

nurses who took over from you on shift expressed their concern in relation to this.

However, none have been called to give evidence to this panel.

You disputed the content of this charge and said that you did arrange the GP visit for

this resident and you made a note of it in the diary. The panel heard Ms 2’s oral

evidence that you may have made reference to a GP visit for this resident in the diary

but she “cannot be sure”.

The panel noted that it does not have a copy of the resident’s care notes, or a copy of

the diary provided to it. The panel was of the view that there should be documentary

evidence available to clarify when the GP visited this resident. However, the NMC has

not produced any document as evidence. Therefore, the panel could not be certain that

you had not arranged a GP visit for this resident.

34

The panel concluded that the NMC had not discharged its burden of proof, and so the

panel found charge 4.6(c)(i) not proved.

In respect of charge 4.6(c)(ii), the panel noted that Ms 2 gave evidence that she,

herself, had physically checked whether you had recorded observations for this resident

in the care notes. Ms 2 told the panel that, having gone to check, there was no evidence

of you having made any recordings in respect of this resident. Further, the panel noted

that when you were asked during a meeting, you did not provide a response.

During your oral evidence, you told the panel that you always do your observations and

you ensure that you always record them.

The panel preferred the evidence of Ms 2 which was consistent with her documentary

evidence, in that you had not recorded any observations for this patient. Therefore, the

panel found this part of charge 4.6(c)(ii) proved.

However, the panel was of the view that the NMC had not been able to provide

evidence demonstrating that you had failed to carry out these observations. Therefore,

the panel found this part of charge 4.6(c)(ii) not proved.

Charge 4.6(d):




Charge 4.6(d) found proved in that you failed to record any observations in

respect of a resident susceptible to infections and was showing signs of a urinary

35

tract infection, but not found proved in that you failed to carry out any

observations.


The panel noted in Ms 2’s witness statement that she stated “It was however found that

Betty had not performed any of the observations required if someone is showing signs

of an infection: there was nothing in the resident’s care plan and no observations

documented”.

Furthermore, the panel had sight of the file note of the meeting dated 7 March 2016, in

which it was put to you that no observations had taken place in respect of this resident

as it had not been recorded in the resident’s notes. You are recorded as having made

no comment during this meeting.

You told the panel during your evidence that you always record your observations as

you appreciate how important they are.

As to recording, the panel preferred the evidence of Ms 2. The panel noted that Ms 2

had been consistent with her evidence throughout, and that the documentary evidence

supporting this charge was made contemporaneously. Therefore, the panel found that

you had failed to record observations in respect of this resident.

However, the panel was of the view that the NMC had not been able to provide

evidence demonstrating that you had failed to carry out these observations. You told the

panel that you did take observations for this resident. The panel noted that it is good

practice to assume that observations had only been taken when they have been

recorded in the resident’s notes. However, the panel concluded that the NMC had not

been able to prove that you did not take observations in respect of this patient as the

panel had not received any evidence demonstrating this.

36

Therefore, the panel found this part of charge 4.6(d) not proved.

Charge 4.7(a):









Charge 4.7(a)(i) is found proved. Charges 4.7(a)(ii) and 4.7(a)(iv) are found not

proved. Charge 4.7(a)(iii) was proved by admission at the start of the hearing

In reaching this decision, the panel took account of your evidence, as well as the

evidence provided by Ms 1 and Ms 2.

In respect of charge 4.7(a)(i), the panel noted that Ms 1’s witness statement stated

“Betty performed no physical observations or assessments of Resident A and she

remained in the doorway for most of the time…From where Betty was stood, I don’t

believe that it was possible for Betty to see Resident A’s right arm, and also that

Resident A had a sustained skin tear which was bleeding”. Ms 1 relied on the account in

her witness statement during her oral evidence.

37

According to Ms 1’s witness statement, you told Ms 1 at the time of the incident that you

had conducted a “full assessment” of Resident A.

In your oral evidence, you originally told the panel that you did the assessment of

Resident A immediately. However, you then provided conflicting evidence and told the

panel that you had conducted your assessment after Ms 1 had left the scene. You also

told the panel that you stooped over Resident A to examine the arm after the fall and

also felt the arm for injuries. Later on in your oral evidence you said that the injuries to

the arm were in fact first observed when the ambulance men arrived.

The panel received evidence from Ms 1, which it accepted, that Resident A was not

moved until an ambulance had arrived. It was of the view that you would not have been

able to conduct a proper physical assessment of the arm as Resident A was lying on

top of it.

The panel preferred the credible and consistent evidence of Ms 1 as opposed to your

evidence. The panel found Ms 1 to be a credible witness whose version of events was

clear and entirely plausible, particularly as it was supported by an in-depth note

prepared by her on 14 March 2016, two days after the incident.

Therefore, the panel found charge 4.7(a)(i) proved.

In respect of charge 4.7(a)(ii), Ms 2 was adamant that she did not receive the relevant

paperwork that you were supposed to complete in relation to this incident.

You told the panel that you definitely completed the relevant paperwork, and asked Ms

1 to countersign. You told the panel that the door to the office was locked so you put the

relevant paperwork under the door of the office for Ms 2 to pick up in the morning.

38

The panel noted that when Ms 1 was asked about this event during her oral evidence,

she accepted that she had no recollection of signing the relevant paperwork. Further,

the panel noted that there was also no mention of you having not filled out the relevant

paperwork in her detailed note completed some two days after the event.

The panel took account of the fact that the NMC had not produced evidence of Resident

A’s care notes at this hearing, which would show whether there was an absence of a

falls form in the record. In the absence of both this, and any positive evidence

demonstrating that you did not complete the relevant paperwork, the panel was of the

view that the NMC had not been able to discharge its burden of proof, in proving that

this had not been done. Therefore, the panel found charge 4.7(a)(ii) not proved.

At the outset of the hearing, you admitted charge 4.7(a)(iii). The panel reminded itself

that it had found this proved by way of admission.

In respect of charge 4.7(a)(iv), the panel had regard to Ms 2’s witness statement which

stated “In dealing with a fall, the nurse should complete a comprehensive accident

form…Statements from any witnesses should have been requested”.

You accepted that you did not obtain statements from witnesses in relation to Resident

A’s fall. You said that you were not aware that this was a requirement.

The panel noted that the charge alleges that you ‘failed’ to obtain statements in relation

to this incident. The panel considered that this charge required the NMC to prove that

there was an obligation upon you to obtain statements in order for this charge to be

found proved.

The panel had regard to Barchester’s falls policy titled ‘Reducing Risk of Falls and

Associated Fracture’ in considering this issue, and noted that the policy did not stipulate

that you needed to obtain statements in relation to falls.

39

Therefore, the panel was of the view that there was no duty imposed on you to obtain

statements in relation to Resident A’s fall, and therefore, found charge 4.7(a)(iv) not

proved.

Charge 4.7(b):







Charges 4.7(b)(i) and 4.7(b)(ii) are found proved.

Charge 4.7(b)(iii) is found not proved

In reaching this decision, the panel took account of your evidence, as well as the

evidence of Ms 1 and Ms 2.

In respect of charge 4.7(b)(i), the panel had sight of Ms 1’s witness statement, in which,

she states “Betty remained half-way across [the] room and I felt she was not taking

control as a nurse…Betty did not go near Resident B…I therefore checked Resident B

while she remained on the floor to see if she could move her limbs and that there was

no head injury…I also directed observations should be taken and Ms 3 went to go and

get the equipment for this; Ms 3 was gone for longer than expected as she could not

find some of the required equipment. Betty then produced the missing thermometer and

SATS machine from her pocket. I felt this had wasted time”. In her oral evidence, Ms 1

40

told the panel that she felt she was acting above her role as Senior Carer, as a result of

the lack of direction from you.

You told the panel that you directed Ms 1 to be in charge of the incident and you did

give directions for staff to follow in relation to Resident B’s fall. Your oral evidence was

contradictory as you told the panel that you conducted parts of Resident B’s

assessments, before stating that Ms 1 had done them.

The panel considered this further conflicted with the earlier documentary evidence you

provided by way of a statement on 12 March 2016, in which you state “[Ms 1] did basic

observations everything was well. I then turned and said to [Ms 1] I will leave her with

you as they were putting her in bed”.

In this instance, the panel preferred the consistent evidence of Ms 1. The account

provided by you in the documentary evidence stated that Ms 1 had dealt with everything

and at no point mentioned that you had physically examined Resident B. The panel

therefore found charge 4.7(b)(i) proved.

In respect of charge 4.7(b)(ii), the panel had regard to Ms 1’s handwritten statement

dated 14 March 2016. The panel noted that this reads “[Betty] did not get involved with

moving [Resident B] but stood and watched despite the difficulty we were having due to

the environment and the fact that Resident B became very agitated and was screaming

– unknown at that point if this was due to pain or her dementia…[Betty] had not touched

the patient or even spoken to her”. Furthermore, Ms 1 stated that the other staff present

had also expressed concerns in respect of the lack of input from you in this situation

and that generally they lacked confidence in your handling of emergency situations.

You told the panel that you stopped giving directions because the staff had stopped

listening to you.

41

The panel accepted the evidence of Ms 1. The panel noted that Ms 1 had felt that she

was in effect left by you in acting beyond her role as a Senior Carer, and that she was in

charge of the situation. The panel was of the view that you should have taken charge of

the clinical situation as the nurse in charge of the shift. However, the evidence the panel

received and accepted was that you did not communicate with Resident B or give staff

any direction. Therefore, the panel found charge 4.7(b)(ii) proved.

In respect of charge 4.7(b)(iii), the panel took account of its findings and the evidence

presented in relation to charge 4.7(a)(iv). The panel reminded itself that the

Barchester’s falls policy did not stipulate that you needed to obtain statements in

relation to residents’ falls.

The panel therefore concluded that there was no duty imposed on you to obtain

statements in relation to Resident B’s fall, and therefore, found charge 4.7(b)(iii) not

proved.

Determination on Interim Order:

Ms Nelson invited the panel to consider whether an interim order is necessary in the

circumstances.

She advised the panel that an Investigating Committee panel of the NMC imposed an

interim order previously in relation to this matter which expires on 22 March 2018. She

submitted that this panel do not have the power to extend that interim order.

You told the panel that you have not been able to find work as a registered nurse in a

hospital or a care home with your current interim conditions of practice order. You told

the panel that you were successful in receiving a conditional job offer, but have since

received a letter from that prospective employer notifying you that due to the current

interim conditions of practice order, they will be unable to employ you in the role of a

registered nurse.

42

You asked the panel whether the interim order could be varied as you have been

unable to secure employment as a registered nurse, but did not specify in what way.

You told the panel that you are the only member of your household that works in any

capacity.

You told the panel that you want to be able to practice as a safe practitioner in the

future, and you want to be able to address the concerns identified by the panel at the

facts stage of this hearing.

The panel accepted the advice of the legal assessor.

The panel noted that it has now made a finding on the facts of this case. The panel

further noted that the current interim order for this matter will expire before this panel is

due to reconvene on 16 April 2018.

The panel noted that upon reconvening, it would be considering whether the charges

found proved amount to misconduct and/or lack of competence and if so, whether your

fitness to practise is currently impaired.

Whilst the NMC offered no evidence in respect of charges 1, 2 and 3, the panel have

found several matters in charge 4 proved that are multiple and wide-ranging in nature

and time.

The panel heard evidence that you had previously had periods of supervision, support

and competency assessments at Hilderstone Hall where you had worked at in the role

of a registered nurse.

You had resigned from the Trust after competency issues had been raised, and were

dismissed for failing a probationary period at Amberley.

43

The panel further noted that you were moved on to the night shift at Hilderstone Hall in

an attempt to assist your nursing practice, and that your probationary period at

Hilderstone Hall was extended twice. However, before the expiry of that extended

period your contract of employment was terminated.

The panel heard evidence that despite the extra support given to you by Hilderstone

Hall your performance as a registered nurse did not improve.

The panel was satisfied that an interim order should be made on the grounds that it is

necessary for the protection of the public. The panel had regard to the facts found

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

decision to impose an interim order. The panel considered this order to be proportionate

as you are not currently working as a registered nurse and the resuming hearing is

some 10 weeks away.

In so deciding the panel makes no prejudgment of its findings as to misconduct and/or

lack of competence, current impairment or, if appropriate, a final sanction.

The period of this order is for the remainder of the existing interim order which expires

on 22 March 2018.

44

Resumed Hearing:

Monday 16 April – Tuesday 17 April 2018 at Nursing and Midwifery Council, 61

Aldwych, London WC2B 4AE.

You were present and represented by Counsel, Penny Maudsley.

Submission on lack of competence and impairment:

Having announced its findings on the facts, the panel then considered whether, on the

basis of the facts found proved, your fitness to practise is currently impaired by reason

of your lack of competence. The panel took into account all the evidence before it,

including a bundle of evidence submitted on your behalf consisting of your reflective

piece, curriculum vitae (CV) and training certificates.

Mr Newman on behalf of the NMC submitted that this was now solely a lack of

competence case in light of the panel’s findings on facts and the dismissal of charges 1,

2 and 3. He referred the panel to the cases Holton v GMC [2006] EWHC 2960 (Admin)

and Calhaem v General Medical Council [2007] EWHC 2606 (Admin), in its

consideration on whether the facts found proved amount to a lack of competence. He

submitted that the facts found proved demonstrated a pattern of conduct relating to a

range of failings in clinical documentation, communication, record keeping, aseptic

techniques and medicines management. Mr Newman submitted that the failings, which

occurred during the whole period of your employment at Hilderstone Hall were of an

unacceptably low standard for a registered nurse and put patients at risk of harm. Mr

Newman noted that although you were a newly qualified nurse at the time, you were

offered extensive support and training but you failed in fundamental aspects of nursing

practise.

Mr Newman referred the panel to the standards of The Code: Professional standards of

practice and behaviour for nurses and midwives (2015) (the Code) and identified where

45

your actions amounted to a lack of competence. He submitted that you failed to adhere

to the requirements of standards 1 (1.2 and 1.4) 6 (6.2), 7, 8 (8.2), 10 (10.1) and 18.

On the question of impairment, Mr Newman referred the panel to the case of Council for

Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011]

EWHC 927 (Admin) and submitted that the first three limbs in paragraph 76 of Mrs

Justice Cox’s judgement in the case of Grant are engaged in your case. He invited the

panel to consider whether the deficiencies in your practice had been, or were capable of

being, remedied, and whether there was a risk of repetition. He submitted that lack of

competence is remediable, however, in the context of your case the failings were wide

ranging and seemed to stem from an inability to apply your theoretical knowledge to

nursing practice. He referred the panel to the bundle submitted on your behalf and

acknowledged that you have undertaken training targeting the areas of concern.

However, he submitted that there is a risk of repetition as you have not had the

opportunity to put your learning into practice. He therefore submitted that a finding of

impairment was necessary on both public protection and public interest grounds.

Ms Maudsley on your behalf concurred with the legal principles to be taken into account

at this stage as outlined by Mr Newman. She also referred the panel to paragraph 76 of

Mrs Justice Cox’s judgement in the case of Grant and accepted that there were a

number of failings in relation to your practice at the time of the incidents. She invited the

panel to consider that you have since had the time to reflect on your lack of competence

and referred to your written reflection, noting that you have to a large extent accepted

your failings. Ms Maudsley outlined how you have reflected on the concerns in relation

to medicines administration, record keeping, PEG feeding, catheterisation and wound

care. She referred the panel to certificates of training courses you have undertaken

which are pertinent and directly address the failings identified in your practise, noting

that these were Royal College of Nursing (RCN) accredited courses.

Ms Maudsley addressed the panel on each area of concern and submitted that you

have demonstrated insight, remediation and expressed remorse in your reflective

46

statement. She noted that you were able to identify the factors that led to the incidents,

what went wrong, learned from them and explained how you would apply your learning

if faced with a similar situation. She submitted that you have considered the potential

impact of your conduct on the risk to patients, colleagues and the nursing profession as

a whole and you appreciated the damage your conduct has caused on the public’s

perception of the profession. Ms Maudsley submitted that you have rightly identified the

relevant breaches of the Code as a result of your actions. She submitted that it is clear

that you are anxious to improve your practice and have shown a willingness to

remediate your failings. Ms Maudsley invited the panel to take into account that you

were a newly qualified nurse at the time of the incidents and to consider whether in the

light of your reflection, insight and remorse, your fitness to practise is currently impaired

by reason of your lack of competence.

The panel heard and accepted the advice of the legal assessor which included

reference to the cases of Grant; Cohen v General Medical Council [2008] EWHC 581

(Admin) and Chukwugozie Ujam v GMC [2012] 683 (Admin). He stressed that this was

a competence case and not a misconduct case.

The panel adopted a two stage process, as advised. First, the panel had to determine

whether the facts found proved amount to a lack of competence. Secondly, only if the

facts found proved amount to a lack of competence, the panel would then decide

whether, in all the circumstances, your fitness to practise is currently impaired as a

result of lack of competence now.

Decision on lack of competence:

The panel, in reaching its decision, noted that there is no burden or standard of proof at

this stage and exercised its own professional judgement.

The NMC has defined a lack of competence as:

47

“A lack of knowledge, skill or judgment of such a nature that the registrant

is unfit to practise safely and effectively in any field in which the registrant

claims to be qualified or seeks to practice.”

The panel bore in mind, when reaching its decision, that you should be judged by

the standards of the reasonably competent registered nurse and not by any

higher or more demanding standard. However, the panel concluded that your

actions did fall significantly short of the standards expected of a reasonably

competent registered nurse, and that your actions amounted to breaches of the

Code, which are the standards by which every registered nurse is measured. The

panel considered that your failings breached the following aspects of the Code:

“1. Treat people as individuals and uphold their dignity.

To achieve this, you must:

1.2 make sure you deliver the fundamentals of care effectively;

1.4 make sure that any treatment, assistance or care for which you are responsible is

delivered without undue delay.

8. Work cooperatively


8.2 maintain effective communication with colleagues.

10. Keep clear and accurate records relevant to your practice…


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

the notes are written some time after the event

13. Recognise and work within the limits of your competence.

48

18. Advise on, prescribe, supply, dispense or administer medicines within the

limits of your training and competence, the law, our guidance and other relevant

policies, guidance and regulations.”

The panel considered that its finding of facts showed a sustained pattern which

demonstrated a lack of competence in a broad range of areas covering both clinical and

administrative responsibilities. These included record keeping, communication,

administration of medication (including the timely completion of MAR charts), clinical

procedures such as urinary catheterisation, wound management and management of

PEG fed patients. The panel determined that taken collectively the charges found

proved demonstrated a lack of competence. The panel noted that numerous failings in

your practice were serious and some related to basic and fundamental aspects of

nursing care notwithstanding the supervision and support you were given. In the light of

this, the panel concluded that your practice fell significantly below the standard

expected of a competent registered nurse. In all the circumstances, the panel

determined that your performance, in respect of the charges found proved,

demonstrated a lack of competence.

Decision on impairment:

The panel next went on to decide if as a result of your lack of competence, your fitness

to practise is currently impaired.

The panel was mindful of the need to consider not only whether you continue to present

a risk to patients but whether public confidence in the profession would be undermined

if a finding of impairment were not made in the particular circumstances of your case.

The panel had regard to the guidance given in the judgment of Mrs Justice Cox in the

case of Grant. At paragraph 76 of that judgment, she said:

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Do our findings of fact in respect of the doctor’s misconduct,

deficient professional performance, adverse health, conviction,

caution or determination show that his/her fitness to practise is

impaired in the sense that s/he:

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

put a patient or patients at unwarranted risk of harm; and/or

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

medical profession into disrepute; and/or

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

one of the fundamental tenets of the medical profession; and/or

d. […]”

In light of its findings of fact, the panel determined that your actions had engaged the

first three limbs of the guidance in Grant. The panel concluded that you have in the past

acted so as to put patients at unwarranted risk of harm. Furthermore, your clinical

failings related to basic and fundamental tenets of nursing practice and demonstrated a

concerning pattern of lack of competence, liable to bring the nursing profession into

disrepute.

The panel was mindful that the issue it had to determine was that of current impairment

as at today. It therefore had to consider whether you are liable in future to act in such a

way as to put patients at unwarranted risk of harm, breach fundamental tenets or bring

the profession into disrepute. The decision about the risk of repetition was informed by

consideration of the level of insight and remorse you have demonstrated, whether your

lack of competence is capable of being remedied and, if so, whether it has been

remedied. The panel had careful regard to your reflective statement.

The panel first considered your insight into your clinical shortcomings and whether they

had been remediated. The panel had regard to the fact that you have reflected on your

failings and demonstrated remorse and some insight in your reflective statement, noting

your apologies to those affected by your actions. Through your written reflection, you

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were able to explain how you would act appropriately if faced with similar situations in

the future. The panel noted in your reflective statement that you have demonstrated an

understanding of what was wrong, the risks associated with your clinical failings and

how this has impacted negatively upon patients, colleagues and the reputation of the

nursing profession as a whole. You also identified the potential breaches of the Code.

However, the panel concluded that your insight was still developing as you do not

appear to fully accept responsibility for your failings and to some extent seek to

apportion blame for your failings on other factors.

With regard to remediation, the panel formed the view that clinical failings relating to a

lack of competence are remediable. The panel noted the training you have undertaken,

which is pertinent to the concerns highlighted in your practice. However, the panel

considered that the issue, even at the time of the incidents, seemed to relate to you

having theoretical knowledge but failing to apply it in practice. The panel also took into

account that you have not practised as a registered nurse since 2016. Therefore, you

have not been able to demonstrate the application of your theoretical learning in a

clinical environment and that you can practice safely without supervision as a registered

nurse. Taking into account all those factors, the panel determined that there is a risk of

repetition of your lack of competence. Therefore, the panel concluded that a finding of

impairment on the grounds of public protection is necessary.

The panel bore in mind the overarching objective of the NMC: to protect, promote and

maintain the health safety and well-being of the public and patients and the wider public

interest which includes promoting and maintaining public confidence in the nursing and

midwifery professions and upholding the proper professional standards for members of

those professions. In the judgement of the panel public confidence in the profession and

the regulator would be undermined if a finding of impairment was not made in the

particular circumstances of your case.

Having regard to all of the above, the panel was satisfied that your fitness to practise is

currently impaired by reason of your lack of competence.

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Determination on sanction:

The panel has considered this case very carefully and has decided to impose a

conditions of practice order for a period of 15 months. The effect of this order is that

your name on the NMC register will show that you are subject to a conditions of practice

order and anyone who enquires about your registration will be informed of this order.

In reaching this decision, the panel has had regard to all the evidence that has been

adduced in this case, together with the submissions of Mr Newman on behalf of the

NMC and those of Ms Maudsley on your behalf.


The panel has borne in mind that any sanction imposed must be appropriate and

proportionate and, although not intended to be punitive in its effect, may have such

consequences. The panel had careful regard to the Sanctions Guidance (“SG”)

published by the NMC. It recognised that the decision on sanction is a matter for the

panel, exercising its own independent judgement.

The panel then turned to the question of which sanction, if any, to impose. It considered

each available sanction in turn, starting with the least restrictive sanction and moving

upwards.

The panel first considered whether to take no action. The panel bore in mind that it had

identified at the impairment stage that these were serious failings and that there

remained a risk of repetition of your lack of competence. Any repetition would bring with

it a risk of harm to patients. To take no action would therefore not provide protection to

the public. In addition, the panel considered that to take no further action would be

inadequate to mark the seriousness of the lack of competence in this case. It would not

be in the public interest in declaring and upholding standards and maintaining public

confidence in the profession.

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Next, in considering whether a caution order would be appropriate in the circumstances,

the panel took into account the SG, which 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 considered that your lack of competence was not at the

lower end of the spectrum and that a caution order would be inappropriate in view of the

serious clinical shortcomings identified. A caution order would offer no protection to the

public. Therefore the panel decided that it would be neither proportionate nor in the

public interest to impose a caution order given its findings at the impairment stage.

The panel next considered whether placing conditions of practice on your registration

would be a sufficient and appropriate sanction. The panel was mindful that any

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

into account the SG, in particular where it states: “Conditions may be appropriate when

some or all of the following factors are apparent:

no evidence of harmful deep-seated personality or attitudinal problems

identifiable areas of the nurse’s practice in need of assessment and/or retraining

potential and willingness to respond positively to retraining

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

conditional registration

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

it is possible to formulate conditions and to make provision as to how conditions

will be monitored.”

The panel concluded that these factors were applicable to the circumstances of your

failings.

The panel therefore determined that it would be possible to formulate appropriate and

practical conditions, as set out in the SG, which would address the failings identified in

your case. The panel had regard to its findings that you have reflected on your failings,

apologised for them, and demonstrated developing insight into your lack of competence

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and some of the factors which contributed to it at the time. In the panel’s judgement, the

matters found proved are remediable and there are identifiable areas of your practice in

need of assessment. The panel found no evidence of harmful deep-seated personality

or attitudinal problems and noted the remorse you expressed for your failings. It took

into account that you have sought to remediate your clinical shortcomings by

undertaking relevant training including Catheterisation training; Gastronomy Tube Care,

Medication Safety Practice Workshop and Wound Care and Management. However, the

panel bore in mind that your learning and training has not been tested in a clinical

environment.

The panel determined that in the circumstances it would be proportionate to afford you a

further period of time to consolidate your process of reflection, learning and supervised

practice, further develop your insight and fully remedy your practice. The panel

considered that during that time the public could be sufficiently protected from any risk

of harm associated with the lack of applying your learning and theoretical knowledge in

actual nursing practice. The panel determined that a conditions of practice order was

sufficient to satisfy the wider public interest considerations of declaring and upholding

proper professional standards and maintaining public confidence in the profession and

the NMC as a regulator.

The panel considered whether a suspension order would be an appropriate and

proportionate sanction. Although the matters found proved were serious, the panel took

into account your full engagement with the NMC’s regulatory process, your developing

insight and your willingness to address your failings. In the panel’s judgement a

suspension order would be disproportionate. It was not the least restrictive sanction

which would be sufficient to protect the public and it would not resolve, or offer you the

opportunity to address, the concerns identified in this case. The panel considered that

the imposition of a suspension order would not serve the public interest in allowing you

to remedy your failings in order to resume safe and effective nursing practice.

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

practice order would protect the public and mark the importance of maintaining public

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confidence in the profession. It would also send a clear message about the standards of

practise required of a registered nurse. The panel considered that the order should be

for a period of 15 months to enable you to secure employment and demonstrate safe

practice as a registered nurse. The panel therefore concluded that a period of 15

months would be required to provide protection to the public while you take those steps.

Balancing all of these factors the panel therefore determined to impose the following

conditions:

1. At any time that you are employed or otherwise providing nursing services, you

must place yourself and remain under the supervision of a workplace line

manager, mentor or supervisor nominated by your employer, such supervision to

consist of working at all times on the same shift as, but not necessarily under the

direct observation of, another registered nurse (Band 5 or above of at least 5

years post qualification experience) who is physically present in or on the same

ward, unit, floor or home that you are working in or on.

2. You must work with your line manager, mentor or supervisor (or their nominated

deputy) to formulate a Personal Development Plan (PDP) specifically designed to

address the deficiencies in the following areas of your practice:

a. Communication with patients and colleagues;

b. Record keeping and documentation;

c. Administration and management of medication;

d. Wound management;

e. Urinary catheterisation;

f. Management of PEG fed patients.

3. Following a period of successful supervision, you must undertake a formal

assessment in practise in the following areas: communication; record keeping

and documentation; medicines administration; wound management; urinary

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catheterisation and management of PEG fed patients. Documentary evidence of

such formal assessments must be forwarded to assist a reviewing panel. You

must remain supervised, in accordance with condition 1, following any successful

assessment.

4. You must send a report from your line manager, mentor or supervisor (or their

nominated deputy) setting out the standard of your performance and your

progress towards achieving the aims set out in your PDP to the NMC before any

NMC review hearing.

5. You must notify the NMC within 14 days of any nursing appointment (whether

paid or unpaid) you accept within the UK or elsewhere, and provide the NMC

with contact details of your employer.

6. You must inform the NMC of any professional investigation started against you

and/or any professional disciplinary proceedings taken against you within 7 days

of you receiving notice of them.

7. a) You must within 7 days of accepting any post or employment requiring

registration with the NMC, or any course of study connected with nursing or

midwifery, provide the NMC with the name/contact details of the individual or

organisation offering the post, employment or course of study.

b) You must within 7 days of entering into any arrangements required by these

conditions of practice provide the NMC with the name and contact details of

the individual/organisation with whom you have entered into the arrangement.

8. You must immediately inform the following parties that you are subject to a

conditions of practice order under the NMC’s fitness to practise procedures, and

disclose the conditions listed at (1) to (7) above, to them:

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a) Any organisation or person employing, contracting with, or using you to

undertake nursing work.

b) Any agency you are registered with or apply to be registered with (at the time of

application)

c) Any prospective employer (at the time of application)

d) Any educational establishment at which you are undertaking a course of study

connected with nursing or midwifery, or any such establishment to which you

apply to take such a course (at the time of application).

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

whether you have complied with the order. At the review hearing the panel may revoke

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

may replace the order with another order.

You may apply at any time for an early review of this order.

Determination on Interim Order:

Mr Newman, on behalf of the NMC, submitted that an interim conditions of practice

order should be imposed on the basis of public protection and the public interest. He

submitted that the interim conditions of practice order, which would take immediate

effect, should be for a period of 18 months to cover the possibility of an appeal being

lodged by you in the 28 day appeal period.

Ms Maudsley on your behalf did not object to the application.


The panel considered that an interim conditions of practice order is necessary for the

protection of the public and the wider public interest. It concluded that to not make such

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an order would be incompatible with its earlier findings and with the substantive

sanction that it has imposed.

The panel decided to impose an interim conditions of practice order in the same terms

and for the same reasons as it imposed the substantive order; and to do so for a period

of 18 months in light of the likely length of time that an appeal would take to be heard.

The effect of this order is that, if no appeal is lodged, the substantive conditions of

practice order will come into effect 28 days after notice of the decision has been sent to

you and the interim conditions of practice order will lapse. If an appeal is lodged then

the interim conditions of practice order will continue until the appeal is determined.

The panel’s decisions will be sent to you in writing.

That concludes this determination.

Documents

Nursing and Midwifery Council Fitness to Practise ...€¦ · Facts proved by admission: ... You dressed the arm of a palliative care resident ... Ms Nelson submitted that this case