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Conduct and Competence Committee
Substantive Meeting
5 July 2017
Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ
Name of Registrant Nurse: Miss Filomena Delicana Divinagracia NMC PIN: 03F0221O
Part(s) of the register: RN1, Registered Nurse – (sub part 1) Adult – (3 June 2003)
Area of Registered Address: Scotland
Type of Case: Lack of Competence
Panel Members: Nicholas Cook (Chair Lay member)
Jennifer Laing (Registrant member)
Sylvia Dean (Lay member)
Legal Assessor: David Clark
Panel Secretary: Vicki Watts
Facts proved: All
Facts not proved: N/A
Fitness to practise: Impaired
Sanction: Suspension Order – 12 Months
Interim Order: Interim Suspension Order – 18 Months
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Decision on Notice served
Notice of today’s meeting was sent to Miss Divinagracia’s registered address in
Scotland by first class post and recorded delivery on 25 May 2017.
The panel has heard and accepted the advice of the legal assessor on service. The
legal assessor advised the panel that the provisions of Rule 11A of the Nursing and
Midwifery Council (Fitness to Practise) Rules Order of Council 2004 (“the Rules”) had
been complied with. However, the Notice sent to the registrant incorrectly stated that
one of the powers available to the panel was a strike off order. This is incorrect because
the allegation involves a lack of competence and, at this stage, striking off is not an
available sanction. The legal assessor advised that, whilst there may be cases where a
registrant would be misled by such an error, the panel may conclude in the particular
circumstances of this case that the error in the Notice was of no material significance.
The panel is satisfied that notice of today’s meeting has been effected in accordance
with Rules 11A(1) and 34 of the Rules.
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Charges
That you a registered nurse
Between 24th July 2015 and 5th November 2015 failed to demonstrate the standards of
knowledge, skill and judgment required to practise without supervision as a band 5 staff
nurse in one or more of the following areas;
1.1.1.1. Nursing Reports/Handovers
1.1.1.2. Ward rounds
1.1.1.3. Care plans
1.1.1.4. Communication with patients and relatives
1.1.1.5. Patient diagnosis and management
1.1.1.6. Identifying and responding to patient needs
1.1.1.7. Organising workload
1.1.1.8. Infection control
1.1.1.9. Medicines management and safe administration of medications
And in light of the above, your fitness to practice is impaired by your lack of
competence.
Background . The NMC received a referral from NHS Greater Glasgow and Clyde (‘the GG&C’) on 25
February 2016. At the time of the events, Filomena Delicana Divinagracia was a Band 5
nurse with GG&C.
It is alleged that Miss Divinagracia failed to demonstrate competence as a nurse during
the second half of 2015, while based at the Queen Elizabeth Hospital (‘the Hospital’),
part of the GG&C. It is alleged that Miss Divinagracia failed to keep full patient records,
make satisfactory nursing assessments, communicate with colleagues, or demonstrate
either proficiency in procedures or adequate knowledge of medication.
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Miss Divinagracia was placed on Stage 1 of the GG&C’s Formal Capability Procedure
from 27 July 2015, following alleged failings in a number of areas including poor
handover of patient information to colleagues, lacking knowledge of patients’ conditions
or medications, and inconsistent record keeping. On 21 September 2015 following
supervisions and assessment, Miss Divinagracia was placed on Stage 2 of the Formal
Capability Procedure, allegedly because she had failed to improve sufficiently in any of
the areas. On 5 November 2015 Miss Divinagracia met with the Lead Nurse to assess
progress. Some improvement had been made, but it was too inconsistent and
unsustained, particularly as regards ensuring procedures were followed, records kept or
patients’ conditions responded to appropriately. She had failed to reach the required
standard of competency in all four objectives of the Capability Action Plan. As a result
Miss Divinagracia was advised in a letter of 27 November 2015 that she would be facing
dismissal or a downgrade to a Band 3 Support Assistant. However Miss Divinagracia
then took long term sickness absence, failing apparently to respond to the GG&C’s
requests for ‘fit notes’. Miss Divinagracia is no longer employed by the GG&C.
Findings on facts and reasons
In reaching its decision on the facts, the panel took into account all the documentary
evidence provided in this case. The following witness statements were also taken into
account:
Ms 1 – Senior Charge Nurse
Ms 2 – Clinical Nurse Educator
The legal assessor advised the panel that the burden of proof was on the NMC to prove
its case. The standard of proof was the usual civil standard, the balance of probabilities.
The panel should draw no adverse inferences from the registrant’s lack of engagement.
The evidence before the panel comprises the material within the hearing bundle, and
the panel should base its findings of fact only on that material.
In reaching its decision, the panel had regard to the witness statement of Ms 1 dated 9
January 2017. In her statement of evidence, Ms 1 states:
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“…I first met Filomena on 29 July 2015 when she arrived on Ward 5B as a new member
of staff. I’d never met her before or had any knowledge of her background. In the week
prior to her arrival on the ward, Lead Nurse L R had advised me that a member of staff
was coming to my area who would be starting a capability program. I was not involved
in the initial creation of the Capability Stage 1 Plan and I was not I advised of what the
areas of concerns were.
On 29th July 2016 [sic] I met with her to have a one to one. First impressions were that
she was quite willing to engage with the support being offered, she did not appear
unhappy and came to work on time. I when I was speaking with her I felt she had some
insight as to why she was here with me but not a great deal. Filomena couldn’t tell me
word for word why she was here and I only had a partial understanding that she was to
start a capability but no further info had been provided. I felt a bit unprepared, not
knowing the expectations. I had to pause our one to one meeting and ask her to join in
with basic care round until I had spoken to L and her previous Senior Charge Nurse
(SCN) KH. When I spoke to K he told me that there had been a meeting, he had raised
concerns regarding Filomena’s professional practice and that’s why she was being
moved. K gave me some documentation regarding an incident with IV meds where by
Filomena had completed the process before being signed off as competent. In doing so
she had incorrectly interpreted infusion checks and there were associated
documentation issues. Following receiving further information form[sic] K I reconvened
my meeting with her and notes of this meeting were made.
Filomena’s Supported Improvement Plan/Action Plan had been developed with LR in a
meeting prior to her commencing on ward 5B. I had not been present at this meeting or
involved in creating the Action Plan. I had received this document from A. It contained
objectives but no specifics. In my work with Filomena I worked on a second version of
the Capability Plan,
As part of the Supported Improvement Plan/Action Plan Filomena was supervised on
every shift. If I was on shift she was supervised by me but if I was not on shift she would
be paired with a band 6 or 7. Records of each shift were noted and shared with
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Filomena as soon as possible so that feedback was given in real time. Filomena was
also given copies of the notes so that she could reflect on their content later on”.
Ms 1 also commented that Miss Divinagracia “cared and wanted to be a good nurse
…she was very good at basic care but in relation to registered nurse care she just didn’t
appear to have the insight.” In conclusion, Ms 1 said “I couldn’t confidently have her
working in my team as a registered nurse without supervision as she couldn’t be
assessed as competent. To be fair a lot of what we assessed her on was fundamentals
of a registered nurse role. These were basic aspects of care in relation to the
documentation and delivery of care.”
In her witness statement dated 11 January 2017, Ms 2 stated “when I worked with
Filomena I found her to have a really nice soft and very caring nature, when speaking to
patients you could hear she had care in her voice.”“ However, Ms 2 also commented
that “I felt she lacked insight into the need for her to improve with certain tasks.” Ms 2
concluded with the following comments: “Although there was improvement in some
areas this wasn’t sustained. She wasn’t questioning her practice with a view to keeping
the patients safe, there were continual small things that potentially indicated that some
quite serious harm could occur if she was allowed to practice unsupervised as a Band
5.”
The Capability Action Plan assessed performance against six levels of competence.
These were:
1 – can perform this activity but not without constant supervision and assistance
2 – can perform this activity satisfactorily but requires supervision and frequent prompting throughout
3 – can perform this activity satisfactorily but still require some supervision and assistance
4 – can perform this activity satisfactorily without supervision or assistance, however takes an excessively long time in doing so
5 – can perform this activity to a satisfactory standard and within more than acceptable speed
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6 – can perform this activity to a satisfactory standard, with a more than acceptable speed and used initiative to solve problems
It was made clear to Miss Divinagracia that, in order to complete Stage 1 of the
capability process, she would need to achieve level 5 across all areas, and that in order
to complete Stage 2, she would need consistently to achieve level 5/6 in all areas.
The panel considered the charges and made the following findings.
That you a registered nurse
Between 24th July 2015 and 5th November 2015 failed to demonstrate the standards of
knowledge, skill and judgment required to practise without supervision as a band 5 staff
nurse in one or more of the following areas;
1.1.1.1. Nursing Reports/Handovers
This charge is found PROVED
The panel also had regard to the Capability Action Plan (Stage 1) for the period 27
July 2015 to 21 September 2015; Capability Action Plan (Stage 2 ) for the period
21 September 2015 to 5 November 2015.
The panel noted in relation to this charge, at Stage 1 of the action plan, Miss
Divinagracia achieved level 3 and the following comments were made:
“Can give a reasonable handover to her peers from shift to shift about patients she has
provided care for but expanding on what the plans are for progression of care can at
times be lacking. Can take the nursing handover and is able to prioritise her care
according to the information received. Needs prompting to be more proactive with
progressing plans for moving care forward and for discharge planning”.
At Stage 2 of the action plan, Miss Divinagracia achieved level 3/4 the comments
were the same as set out in Stage 1 but with the additional comments:
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“Overall improvements seen in this area with the scope to extend practice in a more
consistent and structured way”.
The panel accepted the evidence of Ms 1 as set out in the Stage 1 and Stage 2
Capability Action Plans and determined that Miss Divinagracia failed to demonstrate the
standards of knowledge, skill and judgment required to practise without supervision as a
band 5 staff nurse in the areas of Nursing Reports/Handovers
The panel therefore found this charge proved.
1.1.1.2. Ward rounds
This charge is found PROVED
In reaching this decision, the panel had regard to the Capability Action Plan (Stage
1) for the period 27 July 2015 to 21 September 2015; Capability Action Plan (Stage
2 ) for the period 21 September 2015 to 5 November 2015.
The panel noted in relation to this charge, at Stage 1 of the action plan, Miss
Divinagracia achieved level 3 and the following comments were made:
“Has participated in ward rounds and is able to pass over accurate information to the
nursing team post round. Sharing information between the medical/nursing team to
allow medical staff to form plans based on all aspects [of] care is not performed well but
is a skill that can be practised and developed”.
At Stage 2 of the action plan, Miss Divinagracia achieved level 4 and the
comments made were the same as at Stage 1.
The panel accepted the evidence of Ms 1 as set out in the Stage 1 and Stage 2
Capability Action Plans and determined that Miss Divinagracia failed to demonstrate the
standards of knowledge, skill and judgment required to practise without supervision as a
band 5 staff nurse in the area of Ward rounds.
The panel therefore found this charge proved.
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1.1.1.3. Care plans
This charge is found PROVED
In reaching this decision, the panel had regard to the Capability Action Plan (Stage
1) for the period 27 July 2015 to 21 September 2015; Capability Action Plan (Stage
2 ) for the period 21 September 2015 to 5 November 2015.
The panel noted in relation to this charge, at Stage 1 of the action plan, Miss
Divinagracia achieved level 3 and the following comments were made:
“Is aware of what needs to be completed for each patient on a daily basis. As an
accurate knowledge of the timeframe in which Falls/PAC/MUST need to be completed
and PVC and catheter care plans. Does not complete these assessments consistently
and requires prompting even when asked if all documentation complete. Can overlook
completion of PVC/Food chart/Fluid Balance, therefore it is difficult for her team to be
directed to complete them. Can complete accurate reflection of care in nursing record
but needs to expand on adding patient plans from medical rounds – this is developing
but not consistent. If unable to complete certain aspects of care or documentation
needs to ensure that this is handed over to the next team. This can be overlooked”
At Stage 2 of the action plan, Miss Divinagracia achieved level 4 and the
comments made were the same as at Stage 1.
The panel accepted the evidence of Ms 1 as set out in the Stage 1 and Stage 2
Capability Action Plans and determined that Miss Divinagracia failed to demonstrate the
standards of knowledge, skill and judgment required to practise without supervision as a
band 5 staff nurse in the area of Care Plans.
The panel therefore found this charge proved.
1.1.1.4. Communication with patients and relatives
This charge is found PROVED
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In reaching this decision, the panel had regard to the Capability Action Plan (Stage
1) for the period 27 July 2015 to 21 September 2015; Capability Action Plan (Stage
2 ) for the period 21 September 2015 to 5 November 2015.
The panel noted in relation to this charge, at Stage 1 of the action plan, Miss
Divinagracia achieved level 3 and the following comments were made:
“Needs to be more proactive in updating relatives and patients about ongoing plans of
care. Needs to be directed to this – information prompting is required. Communication
could be clearer, patients often find it difficult to comprehend, due to accent, and
Filomena has to repeat herself or the instruction”.
At Stage 2 of the action plan, Miss Divinagracia achieved level 4 and the
comments made were the same as at Stage 1.
The panel accepted the evidence of Ms 1 as set out in the Stage 1 and Stage 2
Capability Action Plans and determined that Miss Divinagracia failed to demonstrate the
standards of knowledge, skill and judgment required to practise without supervision as a
band 5 staff nurse in the area of communicating with patients and relatives.
The panel therefore found this charge proved.
1.1.1.5. Patient diagnosis and management
This charge is found PROVED
In reaching this decision, the panel had regard to the Capability Action Plan (Stage
1) for the period 27 July 2015 to 21 September 2015; Capability Action Plan (Stage
2 ) for the period 21 September 2015 to 5 November 2015.
The panel noted in relation to this charge, at Stage 1 of the action plan, Miss
Divinagracia achieved level 3 and the following comments were made:
“Background knowledge is of a basic nature. Has a basic knowledge about
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care/needs/condition/diagnosis. Needs to be prompted to initiate care that is not within
the normal routine.
At Stage 2 of the action plan, Miss Divinagracia achieved level 3/4 and the
comments made were the same as at Stage 1.
The panel accepted the evidence of Ms 1 as set out in the Stage 1 and Stage 2
Capability Action Plans and determined that Miss Divinagracia failed to demonstrate the
standards of knowledge, skill and judgment required to practise without supervision as a
band 5 staff nurse in the area of understanding patient diagnosis and management.
The panel therefore found this charge proved.
1.1.1.6. Identifying and responding to patient needs
This charge is found PROVED
In reaching this decision, the panel had regard to the Capability Action Plan (Stage
1) for the period 27 July 2015 to 21 September 2015; Capability Action Plan (Stage
2 ) for the period 21 September 2015 to 5 November 2015.
The panel noted in relation to this charge, at Stage 1 of the action plan, Miss
Divinagracia achieved level 3 and the following comments were made:
“Follows a task based approach to her care. Knowing what needs to be done and
completing it. Anything out with this approach is difficult. Does not show a good
background knowledge to support her actions in relation to professional judgement and
cannot propose a course of action to an identified problem without prompting and
direction focus is on the task and not the whole care of the patient. Professional
judgement is not supported by background knowledge. This is continued to be the pub
of practice”.
At Stage 2 of the action plan, Miss Divinagracia achieved level 3/4 and the
comments made were the same as at Stage 1.
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The panel accepted the evidence of Ms 1 as set out in the Stage 1 and Stage 2
Capability Action Plans and determined that Miss Divinagracia failed to demonstrate the
standards of knowledge, skill and judgment required to practise without supervision as a
band 5 staff nurse in the area of Identifying and responding to patient needs.
The panel therefore found this charge proved.
1.1.1.7. Organising workload
This charge is found PROVED
In reaching this decision, the panel had regard to the Capability Action Plan (Stage
1) for the period 27 July 2015 to 21 September 2015; Capability Action Plan (Stage
2 ) for the period 21 September 2015 to 5 November 2015.
The panel noted in relation to this charge, at Stage 1 of the action plan, Miss
Divinagracia achieved level 3 and the following comments were made:
“Again using a task based approach can transfer patients into the ward and complete
the correct paperwork correctly and within a reasonable timeframe. Needs to ensure
communication with patients is clear and that if able they are clear about the plan of
care. Can discharge patients safely using the correct paperwork and following the
correct process. Actions for drug ordering is now more structured and consistent in
practice and overall drug administration and the process involved is safer”.
At Stage 2 of the action plan, Miss Divinagracia achieved level 3/4 and the
comments made were the same as at Stage 1.
The panel accepted the evidence of Ms 1 as set out in the Stage 1 and Stage 2
Capability Action Plans and determined that Miss Divinagracia failed to demonstrate the
standards of knowledge, skill and judgment required to practise without supervision as a
band 5 staff nurse in the area of organising workload.
The panel therefore found this charge proved.
1.1.1.8. Infection control
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This charge is found PROVED
In reaching this decision, the panel had regard to the Capability Action Plan (Stage
1) for the period 27 July 2015 to 21 September 2015; Capability Action Plan (Stage
2 ) for the period 21 September 2015 to 5 November 2015.
The panel noted in relation to this charge, at Stage 1 of the action plan, Miss
Divinagracia achieved level 3 and the following comments were made:
“Is clear about her roles and responsibilities in relation to hand hygiene and basic
infection control policy and procedures. Needs to be reminded about the basic rules
from time to time. Understands the need for cleaning checklists and uses them well.”
At Stage 2 of the action plan, Miss Divinagracia achieved level 3/4 and the
comments made were the same as at Stage 1.
The panel accepted the evidence of Ms 1 as set out in the Stage 1 and Stage 2
Capability Action Plans and determined that Miss Divinagracia failed to demonstrate the
standards of knowledge, skill and judgment required to practise without supervision as a
band 5 staff nurse in the area of infection control.
The panel therefore found this charge proved.
1.1.1.9. Medicines management and safe administration of medications
This charge is found PROVED
In reaching this decision, the panel had regard to the Capability Action Plan (Stage
1) for the period 27 July 2015 to 21 September 2015; Capability Action Plan (Stage
2 ) for the period 21 September 2015 to 5 November 2015.
The panel noted in relation to this charge, at Stage 1 of the action plan, Miss
Divinagracia achieved level 3 and the following comments were made:
“Task based approach and can follow the correct procedure. Is now demonstrating
more consistent practice and is consistently using the tools needed for a more and
informed and safer process to drug administration. Interventions are less and practice is
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safer.”
At Stage 2 of the action plan, Miss Divinagracia achieved level 3/4 and the
comments made were the same as at Stage 1.
The panel accepted the evidence of Ms 1 as set out in the Stage 1 and Stage 2
Capability Action Plans and determined that Miss Divinagracia failed to demonstrate the
standards of knowledge, skill and judgment required to practise without supervision as a
band 5 staff nurse in the area of Medicines management and sage administration of
medications.
The panel therefore found this charge proved.
Decision on Lack of Competence and Impairment
The legal assessor reminded the panel that the allegation against the registrant is that
her fitness to practise is impaired by reason of lack of competence. In assessing the
statutory ground, there is no burden or standard of proof. It is a matter for the panel’s
professional judgement. The panel should measure the registrant’s performance against
the standard of a competent practitioner in her grade. Lack of competence connotes a
level of performance which is unacceptably low and which, usually, is demonstrated by
reference to a fair sample of the registrant’s work. The panel should take account of the
standards set out in the NMC Code, but should bear in mind that a breach of the
standards does not automatically result in a finding of impairment.
The legal assessor advised the panel that there is no burden or standard of proof in
relation to the assessment of impairment. It is, again, a matter for the panel’s
professional judgement. The NMC equates fitness to practise with the suitability of a
registrant to remain on the register without restriction. The panel should assess the
registrant’s fitness to practise as of today; it is a question of current fitness to practise.
The panel should assess the extent to which the registrant has put patients at
unwarranted risk of harm in the past, and the extent to which she is liable to do so in the
future. The panel should take into account any evidence of insight and remediation on
the part of the registrant. The greater the level of insight and the steps taken to put right
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any failings in her practice, the less likelihood there is of repetition. The panel should
ask itself whether the deficiencies in the registrant’s practice are easily remediable,
whether they have been remedied and whether there is a likelihood of repetition. In
forming a view about the registrant's fitness to practise, the panel should also consider
the wider public interest and ask whether a finding of current impairment is necessary in
order to maintain public confidence in the profession and the regulatory process, and in
order to declare and maintain proper standards of conduct, behaviour and performance.
In considering whether Miss Divinagracia’s practice is currently impaired, the panel first
determined whether the facts found proved amount to a lack of competence and, if so,
whether her fitness to practise is impaired by reason of such lack of competence. In so
doing, it had regard to all the evidence and accepted the legal assessor’s advice. In
deciding this issue, the panel noted that there is no standard or burden of proof and that
it must exercise its own independent professional judgement.
The panel noted that neither The Nursing and Midwifery Order (2001) nor the NMC
(Fitness to Practise Rules) (2004) define what is meant by impairment of fitness to
practise. The NMC has, however, defined fitness to practise as a registrant’s suitability
to remain on the register without restriction.
The panel considered whether, on the basis of the matters found proved, Miss
Divinagracia’s fitness to practice is currently impaired by reason of lack of competence.
The panel was mindful that its duty is primarily one of public protection and also to
protect the public interest by upholding proper professional standards and public
confidence in the profession and the NMC as a regulator.
The panel considered that by virtue of the facts found proved, Miss Divinagracia
breached the following provisions of The Code: Professional standards of practice and
behaviour for nurses and midwives (2015).
1.2 . Make sure you deliver the fundamentals of care effectively
6.2 . Maintain the knowledge and skills you need for safe and effective practice.
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7. Communicate clearly
8. Work cooperatively
10. Keep clear and accurate records relevant to your practice
18. …dispense or administer medicines within the limits of your training and
competence, the law, our guidance and other relevant policies, guidance and
regulations
19. Be aware of, and reduce as far as possible, any potential for harm associated
with your practice
20. Uphold the reputation of your profession at all times
The panel noted that all of the facts found proved are where Miss Divinagracia has
demonstrated a lack of competence in the most basic skills required of every registered
nurse. The panel was mindful that Miss Divinagracia had qualified as a nurse in 2005.
The errors demonstrated by the charges occurred at time that she had been working as
a registered nurse for at least 10 years and was very well supported by her employers,
yet she still failed to satisfactorily complete the various objectives the Hospital set her.
The panel was mindful that although the patients were protected by the very close
supervision of Miss Divinagracia, her lack of progress, persistent deficiencies and
repeated errors in clinical practice demonstrated her lack of competence. This included
Miss Divinagracia’s inability to undertake basic elements of nursing practice including;
nursing reports/handovers, ward rounds, care plans, communication with patients and
relatives, patient diagnosis and management, identifying and responding to patient
needs, organising workload, infection control and medicine management and safe
administration of medications.
The panel concluded that the failures demonstrated and proved in the charges
amounted to a lack of competence in that Miss Divinagracia failed to demonstrate the
standard of knowledge, skill and judgment to practise without supervision between 24
July 2015 and 5 November 2015.
The panel next went on to consider whether Miss Divinagracia’s fitness to practise is
currently impaired by reason of her lack of competence.
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On the advice of the legal assessor the panel bore in mind the guidance set out in the
judgment in CHRE v NMC and Grant [2011] EWHC 927, including the relevant parts of
the test formulated by Dame Janet Smith in the Fifth Shipman report which states;
Do our findings of fact in respect of the [nurse’s] … deficient professional performance,
show that her fitness to practise is impaired in the sense that she:
a. has in the past acted and/or is liable in the future to act so as to put a
patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the
profession into disrepute; and/or
c. has in the past and/or is liable in the future to breach one of the
fundamental tenets of the profession; …
The facts found proved included failures which relate to knowledge and skills which are
fundamental to the safe practice of any registered nurse. These errors persisted over a
period of 5 months despite close supervision and extensive support from the Hospital
and from more senior members of staff on the ward who were assigned to work with
Miss Divinagracia. All considered that Miss Divinagracia was not safe to practise
unsupervised.
The panel was of the view that Miss Diviniagracia has shown limited insight into her lack
of competence. She went off sick in November 2015 and despite the Hospital’s attempts
to contact her on numerous occasions in order to ascertain her status regarding her
fitness to work, she did not respond to them and she has not engaged with the NMC at
any stage of its investigation into these charges. The panel could not be satisfied that
Miss Diviniagracia has shown any real insight into her lack of competence or its
potential implications for patient safety.
The panel noted that it has no information about Miss Divinagracia’s current situation or
whether she has made any attempt to remedy her deficiencies.
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In the light of all these considerations, the panel concluded that there is insufficient
evidence to alleviate its concerns regarding Miss Divinagracia’s fitness to practise and
that there remains a real risk of repetition of her clinical errors, with a consequential risk
of serious harm to patients.
The panel is therefore satisfied that Miss Divinagracia’s fitness to practise is currently
impaired by reason of her lack of competence.
In view of the serious nature of Miss Divinagracia’s lack of competence, which includes
deficiencies in basic and fundamental nursing skills and knowledge, the panel further
concluded that the need to uphold proper professional standards and public confidence
in the profession would be undermined if a finding of impairment were not made in this
case.
Decision on Sanction and Reasons
The panel has heard and accepted the advice of the Legal Assessor. The legal
assessor drew the panel's attention to the NMC Indicative Sanctions Guidance (ISG),
the most recent edition of which was published in September 2016. The purpose of
sanction is not to punish the registrant, although the sanction may have a punitive
affect. The primary purposes of sanction are the protection of patients and the
maintenance of public confidence in the professions and the regulatory process, and the
declaring and upholding the proper standards of conduct and behaviour. Any decision
on sanction should be proportionate. This means that it should strike an appropriate
balance between the interests of the registrant and the wider public interest. The panel
should impose the least restrictive sanction which is consistent with the proper
protection of the patients and public interest. The legal assessor confirmed that the
option of a strike off order was not available to the panel because of the circumstances
of the case.
The panel has borne in mind that any sanction imposed must be reasonable,
appropriate and proportionate. The purpose of any sanction is not intended to be
punitive even though it may have a punitive effect. The panel had careful regard to the
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ISG published by the NMC. It has recognised that the decision on sanction is a matter
for the panel exercising its own independent judgement.
The panel was mindful, given the facts found proved, that protection of the public was
their main concern.
The panel noted as mitigating factors the following matters: both Ms 1 and Ms 2
emphasised Miss Divinagracia’s caring nature and that she appeared willing, albeit
unable, to work with her mentors and supervisors to improve her practice.
In relation to aggravating factors the panel noted the wide ranging and persistent in
nature of Miss Divinagracia’s failures, despite the close monitoring and support which
her employers provided.
The panel first considered whether to take no action but concluded that this would be
inappropriate in view of the findings set out above regarding Miss Divinagracia’s
impaired fitness to practise and her lack of full insight. To impose no sanction would
allow Miss Divinagracia to practise as a registered nurse without restriction. Further, it
would be neither proportionate nor in the public interest to take no further action.
The panel then considered whether it would be appropriate to impose a caution order in
this case. The panel concluded that the lack of competence found in this case was not
“at the lower end of the spectrum of impaired fitness to practise” as Miss Divinagracia’s
lack of competence relates to deficiencies in basic nursing skills. The panel was not
satisfied that such an order would provide adequate protection to the public, nor would it
address the shortcomings in Miss Divinagracia’s practice as identified by the panel in its
earlier determination on impairment.
The panel next considered whether placing conditions of practice on Miss Divinagracia’s
registration would be a sufficient and appropriate response. The panel is mindful that
any conditions imposed must be proportionate, measurable and workable.
Page 20 of 22
The panel again noted the nature of Miss Divinagracia’s deficiencies, and the fact that
they involve a number of basic nursing skills. Whilst there was no evidence that her
actions caused actual harm to any patients, the panel considered that there would have
been the potential for patient harm, but for the fact that Miss Divinagracia was subject to
close supervision and intervention.
The panel determined in its findings of impairment that the areas of the lack of
competence relate to basic nursing skills. The supervision, mentorship and support
given by the Hospital was extensive, yet she failed to demonstrate any significant or
sustained improvement in her clinical practice or ability.
The panel noted that in many competence cases, conditions of practice are appropriate.
Miss Divinagracia has already been through a period of intensive supervision and
mentorship by the Hospital and she has not subsequently engaged at any stage with
the NMC. The panel also considered that for conditions of practice to be workable, Miss
Divinagracia would need to demonstrate her willingness to cooperate with any
conditions and her commitment to a successful outcome. The panel therefore
concluded that a conditions of practice order would neither be workable or
proportionate.
The panel then went on to consider whether a suspension order would be an
appropriate sanction. The panel considered the seriousness of Miss Divinagracia’s
departure from the standards to be expected. The failures in Miss Divinagracia’s clinical
care identified in this case were serious, with her actions falling well short of the
fundamental standards of care expected of a registered nurse.
Balancing all of these factors and after having taken into account all the evidence before
it, the panel has determined that the appropriate and proportionate sanction is that of a
suspension order. In fact, having regard to the matters it has identified the panel has
concluded that no lesser sanction than a suspension order would be sufficient or
appropriate in this case.
Page 21 of 22
The panel considers that this order is necessary to protect the public, and maintain
public confidence in the profession, by sending a clear message to the public and the
profession about the standards required of a registered nurse.
The panel took into account the potential financial hardship and damage to her
professional reputation that such an order could cause Miss Divinagracia.
Notwithstanding the absence of any information as to Miss Divinagracia’s
circumstances, the panel concluded that in any event the need to protect the public
interest outweighs Miss Divinagracia’s own interests in this regard.
The panel concluded that a suspension order for a period of 12 months is a
proportionate and appropriate sanction in this case and would adequately address the
need to protect the public and the public interest. Moreover, this period would give Miss
Divinagracia time to reflect on her actions.
Towards the end of the period of suspension a future panel will review the order. At the
review hearing the panel may revoke the order, or it may confirm the order, or it may
replace the order with another order. The panel believes that the reviewing panel may
be assisted by Miss Divinagracia supplying the following to the NMC:
Evidence, by way of a written reflective piece outlining that Miss Divinagracia has
considered the panel’s findings and is willing to address the shortcomings in her
clinical practice and the impact on patient care.
Miss Divinagracia’s engagement with the NMC.
Evidence of training and keeping skills up to date.
Evidence of successfully working in a related area, albeit not as a registered
nurse.
Any relevant references or testimonials.
Page 22 of 22
Decision and reasons on interim order
The legal assessor advised the panel that, pursuant to Article 31(2) of the Nursing and
Midwifery Order 2001, an interim order could be imposed on the grounds that it was
necessary for the protection of the public, otherwise in the public interest, or in the
registrant’s own interests. The maximum duration of an interim order is 18 months. The
imposition of an interim order is not automatic and the panel should give proper
consideration to the requirements of Article 31.
The panel accepted the advice of the legal assessor.
The panel was satisfied that an interim suspension order is necessary for the protection
of the public and is otherwise in the public interest. To do otherwise would be
incompatible with its earlier findings.
The period of this order is for 18 months to allow for the possibility of an appeal to be
made and determined.
If no appeal is made, then the interim order will be replaced by the substantive order 28
days after Miss Divinagracia is sent the decision of this hearing in writing.
That concludes this determination.
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