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Nursing and Midwifery Council
Fitness to Practise Committee
Substantive Hearing
4 July 2019
Nursing and Midwifery Council 2 Stratford Place, Montfichet Road, London, E20 1EJ
Name of registrant: Marlynn Joy Tubana NMC PIN: 17G3160E
Part(s) of the register: Registered Nurse – Sub part 1 Children’s Nursing (5 October 2017)
Area of registered address: England Type of case: Lack of competence Panel members: Anthony Mole (Chair, lay member)
Deborah Tymms (Registrant member) Bernard Herdan (Lay member)
Legal Assessor: Lachlan Wilson Panel Secretary: Catherine Acevedo Miss Tubana: Not present and not represented Nursing and Midwifery Council: Represented by Assad Badruddin, Case
Presenter Consensual Panel Determination: Accepted with agreed amendment
Facts proved: All
Fitness to practise: Impaired
Sanction: Conditions of practice order (36 months)
Interim order: Interim conditions of practice order (18 months)
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Decision on service of Notice of Hearing
The panel was informed at the start of this hearing that Miss Tubana was not in
attendance and that written notice of this hearing had been sent to Miss Tubana’s
registered address by recorded delivery and by first class post on 9 May 2019. The
panel noted that notice of this hearing was also sent to Miss Tubana’s representative at
the Royal College of Nursing (RCN) on 9 May 2019.
The panel took into account that the Notice of Hearing letter provided details of the
allegation, the time, dates and venue of the hearing and, amongst other things,
information about Miss Tubana’s right to attend, be represented and call evidence, as
well as the panel’s power to proceed in her absence.
Mr Badruddin submitted the NMC had complied with the requirements of Rules 11 and
34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended
(“the Rules”).
The panel accepted the advice of the legal assessor.
In the light of all of the information available, the panel was satisfied that Miss Tubana
has been served with notice of this hearing in accordance with the requirements of
Rules 11 and 34. It noted that the Rules do not require delivery and that it is the
responsibility of any registrant to maintain an effective and up-to-date registered
address.
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Decision on proceeding in the absence of Miss Tubana:
The panel next considered whether it should proceed in the absence of Miss Tubana.
The panel had regard to Rule 21 (2) states:
(2) Where the registrant fails to attend and is not represented at the hearing, the
Committee
(a) shall require the presenter to adduce evidence that all reasonable
efforts have been made, in accordance with these Rules, to serve the
notice of hearing on the registrant;
(b) may, where the Committee is satisfied that the notice of hearing has
been duly served, direct that the allegation should be heard and
determined notwithstanding the absence of the registrant; or
(c) may adjourn the hearing and issue directions.
Mr Badruddin invited the panel to continue in the absence of Miss Tubana.
The panel accepted the advice of the legal assessor.
The panel noted that its discretionary power to proceed in the absence of a registrant
under the provisions of Rule 21 is not absolute and is one that should be exercised “with
the utmost care and caution” as referred to in the case of R. v Jones (Anthony William),
(No.2) [2002] UKHL 5.
The panel has decided to proceed in the absence of Miss Tubana. In reaching this
decision, the panel has considered the submissions of the case presenter, and the
advice of the legal assessor. It has had particular regard to the factors set out in the
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decision of Jones. It has had regard to the overall interests of justice and fairness to all
parties.
It noted that a Consensual Panel Determination agreement has been made between the
NMC and Miss Tubana. Miss Tubana has stated that she is content for the hearing to
proceed in her absence and the RCN have stated that they will be available, on Miss
Tubana’s behalf, by telephone if necessary.
In these circumstances, the panel has decided that it is fair, appropriate and
proportionate to proceed in the absence of Miss Tubana. The panel will draw no
adverse inference from Miss Tubana’s absence.
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Consensual panel determination (CPD)
At the outset of this hearing, Mr Badruddin, on behalf of the NMC, informed the panel
that prior to this hearing a provisional agreement of a consensual panel determination
had been reached with regard to this case between the NMC and Miss Tubana.
The agreement, which was put before the panel, sets out Miss Tubana’s full admission
to the facts alleged in the charges, that Miss Tubana’s actions amounted to lack of
competence, and that Miss Tubana’s fitness to practise is currently impaired by reason
of that lack of competence. It is further stated in the agreement that an appropriate
sanction in this case would be a conditions of practice order for 36 months.
The panel has considered the provisional agreement reached by the parties.
That provisional agreement reads as follows:
“Fitness to Practise Committee
Consensual panel determination: provisional agreement Miss Tubana is aware of the CPD hearing. The Registrant does not intend to attend the
hearing, however she is represented by the RCN and is content for it to proceed in her
absence. The RCN will be available by telephone should any clarification on any point
be required.
The Nursing and Midwifery Council [“the NMC”] and the Registrant, [“the parties”] agree
as follows:
1. Charges
The Registrant admits the following charges:
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That you failed to demonstrate the standards of knowledge, skill, and judgement
required to practise without restriction as a band 5 nurse as follows:
1) On 14 December 2017, did not adequately monitor both of the patients in your care in
that you did not notice one of your patients was desaturating and required suction.
2) On 16 December 2017:
a) Did not escalate a patient’s poor blood gas results;
b) Did not adequately communicate with that patient’s family why you were
monitoring their blood gases;
c) Did not adequately communicate with that patient’s family the blood gas
results.
3) On 21 December 2017:
a) Did not notice that a patient under you care had a saturation reading of 35%;
b) Did not escalate that patient’s low saturation reading
4) At a performance improvement meeting on 3 January 2018, did not demonstrate that
you were meeting the following objectives fully:
a) Time management skills in relation to taking observations in a timely manner;
b) Communicating with patients and/or their families;
c) Escalating concerns to the Nurse in Charge, including:
i) Increasing PEWS,
ii) Clinical concerns,
iii) When uncertain how to complete a task;
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d) Asking at the beginning of shift for JAC and when medications are due;
e) Beginning preparation of medication so it can be checked in a timely manner;
f) Listening to ward rounds, communicating concerns to doctors, and ensuring
plan is understood;
g) Communicating concerns and asking for extra or specific support when
appropriate.
5) At a performance improvement meeting on 7 March 2018, did not demonstrate that
you were meeting the following objectives fully:
a) Time management skills in relation to taking observations in a timely manner;
b) Communicating with patients and/or their families;
c) Escalating concerns to the Nurse in Charge, including:
i) increasing PEWS,
ii) Clinical concerns,
iii) When uncertain how to complete a task;
d) Asking at the beginning of shift for JAC and when medications are due;
e) Beginning preparation of medication so it can be checked in a timely manner;
f) Listening to ward rounds, communicating concerns to doctors, and ensuring
plan is understood;
g) Communicating concerns and asking for extra or specific support when
appropriate.
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6) At a performance improvement meeting on 6 June 2018, did not demonstrate that
you were meeting the following objectives fully:
a) Time management skills in relation to taking observations in a timely manner;
b) Communicating with patients and/or their families;
c) Escalating deteriorating patients;
d) Correctly preparing medication;
e) Communicating concerns and ask for extra or specific support when
appropriate.
7) At a formal review meeting on 26 July 2018, did not demonstrate that you were
meeting the following objectives fully:
a) Time management skills in relation to:
i) Taking observations in a timely manner,
ii) Providing patient care in a timely manner,
iii) Administering medication when due;
b) Prioritising care whilst responsible for the care of two patients and taking new
admissions to the unit;
c) Communicating with patients and/or their families;
d) Communicating with colleagues;
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e) Escalating concerns, including:
i) Deterioration in condition of patients,
ii) Asking for help when struggling with time management,
iii) When uncertain how to complete a task.
AND in light of the above, your fitness to practise is impaired by reason of your lack of
competence.
2. Facts
2.1 The Registrant was employed by Southampton Children’s hospital in the Paediatric
High Dependency Unit [“PHDU”] between September 2017 and July 2018. This was a
unit where seriously ill children and babies were patients. They required a high level of
specialist care.
2.2 Her employer made the referral to the NMC as, despite support and assistance from
the Trust, the Registrant was unable to demonstrate sufficient competence to enable
her to practice safely throughout the course of her employment.
2.3 From the start of her employment the Registrant was unable to practise safely. In
her first two weeks of employment when working supernumerary she made basic
nursing errors. She was very shy and nervous. Taking this into account the Registrant
was offered support and assistance but was unable to improve her practice to the point
where she could practise unsupervised safely.
2.4 The Trust supported the Registrant, ensuring staff supervised her practice and
provided guidance with how to correctly complete tasks.
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2.5 On 14 December 2017, the Registrant was unable to look after two patients
simultaneously. She did not adequately monitor both of the patients in her care, failing
to notice that one of the patients was desaturating and required suction. Ms A (the
Registrant’s preceptor) had to step in and deal with the situation.
2.6 On 16 December 2017 the Registrant did not escalate the poor blood gas readings
for a 17 day old baby. Again, Ms A had to step in and escalate the concerns to prevent
patient harm. A referral to intensive care was subsequently made. The Registrant also
failed to adequately communicate with the family why she was monitoring the blood
gases or communicate the results with them.
2.7 On 21 December 2017 the Registrant did not notice that a patient under her care
had a saturation reading of 35% and further did not escalate that patient’s low saturation
reading. The Registrant failed to notice physical symptoms (showing a blue tinge to the
skin) and failed to escalate this. She should have asked for help or escalated the low
reading immediately. No patient harm occurred as the Registrant’s preceptor was
supervising and prevented any further deterioration in the patient’s condition.
2.8 As a result of the concerns regarding the Registrant’s practise a performance
improvement meeting was held on 12 November 2017 and a performance improvement
plan was formulated and agreed. On 3 January 2018 this was reviewed. The Registrant
had not met the objectives fully. Those objectives are set out in Charge 4 (see page 2).
2.9 A further meeting was held on 7 March 2018. The Registrant had not shown
sufficient improvement and had not met any of her targets.
2.10 A further performance improvement meeting was held on 6 June 2018. By this time
the Registrant had met some of her targets but was still to achieve her targets in respect
of the following:
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a) Time management skills in relation to taking observations in a timely manner;
b) Communicating with patients and/or their families;
c) Escalating deteriorating patients;
d) Correctly preparing medication;
e) Communicating concerns and ask for extra or specific support when
appropriate.
2.11 At the last formal review meeting on 26 July 2018, the Registrant could not
demonstrate her competence in regard to the following:
a) Time management skills in relation to:
i) Taking observations in a timely manner,
ii) Providing patient care in a timely manner,
iii) Administering medication when due;
iv) Prioritising care whilst responsible for the care of two patients and
taking new admissions to the unit;
v) Communicating with patients and/or their families;
vi) Communicating with colleagues;
vii) Escalating concerns, including:
viii) Deterioration in condition of patients,
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ix) Asking for help when struggling with time management
x) When uncertain how to complete a task.
2.12 It is to be noted that some of the issues (highlighted above in bold) had been
present at the first performance meeting and still had not been fully remediated some 6
months after being identified as issues.
2.13The Registrant subsequently resigned from the Trust.
3. Impairment 3.1. The Registrant admits that her fitness to practice is impaired by reason of her lack
of competence. The parties have considered Calheam v General Medical Council
[2007] EWHC 2606 (Admin) and Holton v NMC [2006] EWHC 2960 (Admin). The
parties agree that the charges above represent a fair sample of this Registrant’s work
for the relevant period and that this Registrant’s standard of practise was unacceptably
low when compared to a competent practitioner in her circumstances.
3.2. The Registrant accepts that her lack of competence means she has breached NMC
code of Practice - The Code: Professional standards of practice and behaviour for
nurses and midwives (2015) which were in force at the applicable time of the events,
namely:
1.2 Make sure you deliver the fundamentals of care effectively hold the
reputation of your profession at all times
6.2 Maintain the knowledge and skills you need for safe and effective
practice
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8.4 Work with colleagues to evaluate the quality of your work and that of
the team
8.5 Work with colleagues to preserve the safety of those receiving care
13.1 Accurately identify, observe and assess signs of normal or worsening
physical and mental health in the person receiving care
13.2 Make a timely referral to another practitioner when any action, care or
treatment is required
13.3 Ask for help from a suitable qualified and experienced professional to
carry out any action or procedure that is beyond the limits of your
competence
3.3 From the outset of these proceedings this Registrant has admitted the regulatory
concerns against her and that her practice is currently impaired. She has provided two
reflective statements, evidence of relevant CPD in relation to administration of
medication and a number of testimonials. These are included at Appendix 1.
3.4 The Registrant admits that her fitness to practise is impaired by reason of her lack of
competence because she has been unable to raise her practice to a level where she
could practise safely unsupervised. It is accepted that a number of basic failures were
made over a period of time that had the potential to seriously harm vulnerable paediatric
patients. Harm was prevented largely due to the intervention of the supervising
preceptor and other nursing colleagues who stepped in to assist with/resolve issues as
they arose.
3.5 The parties have considered the factors outlined by Dame Janet Smith in the Fifth
Shipman Report, and approved by Cox J in the case of CHRE v Grant & NMC [2011]
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EWHC 927 (Admin) (‘Grant’). The Registrant accepts that as a result of her lack of
competence she:
1.1. 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
1.2. Has in the past brought and/or is liable in the future to bring the professions
into disrepute; and/or
1.3. Has in the past breached and/or is liable in the future to breach one of the
fundamental tenets of the professions
3.6 The Registrant accepts that she still lacks competence and as such, there is a
substantial risk of repetition at the present time.
3.7 The NMC has also considered the comments of Cox J in Grant at paragraph 101:
“The Committee should therefore have asked themselves not only whether the
Registrant continued to present a risk to members of the public, but whether the
need to uphold proper professional standards and public confidence in the
regulator and in the profession would be undermined if a finding of impairment of
fitness to practise were not made in the circumstances of this case.”
3.8 The parties agree that a finding of impairment is necessary on the grounds of public
protection and to declare and uphold proper professional standards. The parties further
agree that public confidence in the nursing profession and in the NMC as regulator
would be undermined if a finding of impairment were not made in this case. Allowing the
Registrant to practise unrestricted when she has repeatedly made wide ranging basic
errors, would be a cause of serious concern to members of the public.
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4. Sanction
4.1 The parties agree that the appropriate sanction in this case is a 36 month
conditions of practice order. In determining the appropriate sanction the principle of
proportionality has been taken into account. That is, the Registrant’s interests have
been balanced against the risk to public protection and the public interest to impose the
least restrictive sanction that is necessary. The parties are mindful that the purpose of a
sanction is not to punish the Registrant for her actions/omissions. Sanction has been
considered in ascending order and in light of the NMC’s Sanctions Guidance [“the SG”]
4.2 The parties took into account the following aggravating factors in this case (non-
exhaustive):
a) There were wide ranging failures to carry out basic nursing tasks over a 6
month period.
b) Assistance and support from the Trust did not rectify the issues.
4.3 In terms of mitigation the parties agree the following factors are relevant in this case
(non-exhaustive):
a) The Registrant fully admitted all charges, lack of competence and current
impairment at the earliest opportunity and has engaged with the NMC
investigation. She has provided a reflective piece which demonstrates her insight
and her commitment to upholding standards within the profession (see Appendix
1).
b) The Registrant has undertaken relevant training in an effort to remediate her
practice (see Appendix 1).
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c) The Registrant has engaged fully with the regulatory process.
d) The Registrant is in the early stages of her career.
4.4 In considering what, if any, sanction to impose, the parties considered the range of
sanctions available to them in ascending order of seriousness. Given that the Registrant
has yet to remedy the deficiencies in her practice and that these deficiencies are liable
to put patients at unwarranted risk of harm, the parties agree that it would not be
appropriate to take no further action.
4.5 Similarly, as a caution order would not restrict the Registrant’s practice, it would
not provide any protection to the public against the risks that arise from the Registrant’s
lack of competence. A caution order would therefore be fundamentally incompatible with
the NMC’s overarching objective, which includes the need to protect the public, declare
and uphold proper professional standards and maintain public confidence in the nursing
profession.
4.6 The parties agree that a conditions of practice order is the appropriate order in
this case.
4.7 With regard to the SG it is noted that there are only concerns with the Registrant’s
clinical practice. Given that this case involves specific identifiable areas of clinical
practice, proportionate and workable conditions can be formulated which provide
adequate protection for the public. In addition, conditions would allow the Registrant the
opportunity to try and remedy the deficiencies in her practice.
4.8 The following factors from the SG are present in this case:
a) no evidence of harmful deep-seated personality or attitudinal problems;
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b) identifiable areas of the nurse or midwife’s practice in need of assessment
and/or retraining;
c) potential and willingness to respond positively to retraining;
d) patients will not be put in danger either directly or indirectly as a result of the
conditions;
e) the conditions will protect patients during the period they are in force;
f) conditions can be created that can be monitored and assessed.
4.9 The parties considered if a suspension order would be appropriate in this case, but
agree that it would not. The parties agree that the errors in practice are not seriousness
enough to warrant temporary removal from the register as the risks in this case can be
effectively managed by conditions. The parties consider that a suspension order would
make it more difficult for the Registrant to remedy the deficiencies in her practice. It
would also go beyond what is needed to protect the public and would therefore be
disproportionate and unduly punitive in effect.
4.10 A striking-off order is not available at this point in time given that the charges
admitted relate to lack of competence.
4.11 In light of the above, the parties agree the following conditions of practice are
appropriate:
1. You must only work for one substantive employer and must not undertake
agency work as a registered nurse.
2. 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,
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mentor or supervisor nominated by your employer, such supervision to consists of
working at all times on the same shift as, but not necessarily under the direct
observation of, a registered nurse or above who is physically present in or on the
same ward, unit, floor or home that you are working in or on.
3. You must not administer medication unless directly supervised until you are
signed off as competent to do so by another registered nurse.
4. You must work with your line manager, mentor or supervisor (or their nominated
deputy) to create a personal development plan designed to address the concerns
about the following areas of your practice:
4.1.1. Time management;
4.1.2. Escalation of a deteriorating patient;
4.1.3. Communication with patients, families and colleagues; and
4.1.4. Prioritisation of care skills.
5. You must meet with your line manager, mentor or supervisor (or their nominated
deputy) at least every two weeks to discuss the standard of your performance and
your progress towards achieving the aims set out in your personal development
plan.
6. 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 personal development plan to the NMC
prior to any NMC review hearing or meeting.
7. You must tell the NMC within 7 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.
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8. You must tell the NMC about any professional investigation started against you
and/or any professional disciplinary proceedings taken against you within 7 days of
you receiving notice of them;
9. 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;
10. 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.
11. You must immediately tell 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 (10) above, to them:
11.1. Any organisation or person employing, contracting with, or using you to
undertake nursing work;
11.2. Any prospective employer (at the time of application) where you are
applying for any nursing appointment; and
11.3. 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).
4.11 The parties agree that the conditions of practice order should be for a period of
36 months. The Registrant is not currently employed as a registered nurse, rather she
is in the process of completing a 20 month Nursery Nursing Apprenticeship.
Accordingly, 36 months should give her sufficient time to both complete her
Apprenticeship, find suitable nursing employment and then demonstrate that he has
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remedied the deficiencies in her practice. Further, a period of 36 months also means
that the restriction on the Registrant’s practice will be reviewed by a Panel in a
reasonable period.
5. Interim order
5.1 Finally, given that the parties agree that there is a risk that patients would be placed
at an unwarranted risk of harm and the public interest would be engaged should the
Registrant be permitted to practise without any restrictions, the parties agree that an
interim order is necessary in this case.
5.2 For these reasons, the parties agree that an interim conditions of practice order in
the same terms as the substantive order for a period of 18 months is necessary on the
grounds of public protection and otherwise in the public interest. In the event no appeal
is made, the interim order will fall away once the 28-day appeal period has elapsed, and
the substantive order will take effect.
6. Review
6.1 The parties invite the Panel to direct a review of the conditions of practice before
expiry. The protection of the public and upholding the public interest demands that a
Panel assess the Registrant’s fitness to practise at that date.
6.2 The parties understand that this provisional agreement cannot bind a Panel and that
the final decision on findings of fact, impairment and sanction is a matter for the Panel.
The parties understand that, in the event that a Panel does not agree with this
provisional agreement, the admissions to the charges and the agreed statement of facts
(set out above) may be placed before a differently constituted Panel that is determining
the allegation.”
Here ends the provisional agreement between the NMC and Miss Tubana. The
provisional agreement was signed by Miss Tubana and the NMC on 28 June 2019.
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Decision and reasons on the consensual panel determination:
The panel decided to accept the CPD with agreed amendments to the conditions of
practice. The amendments were proposed by the panel in the course of their
deliberations and put to the parties via the NMC case presenter for their comments.
The panel reached its determination after agreement had been communicated on behalf
of the NMC and Miss Tubana.
Reference throughout the CPD has been made to an Appendix 1 (defence bundle)
while this appendix has not been reproduced in this decision, the panel have had full
sight of the contents therein.
The panel had regard to the NMC’s Sanctions Guidance (“SG”). The panel noted that it
could accept, amend, or outright reject the provisional agreement reached between the
NMC and Miss Tubana. Further, the panel was aware of the need to consider whether
the provisional agreement would be in the public interest. The outcome must ensure an
appropriate level of public protection, maintain public confidence in the professions and
the regulatory body, and declare and uphold proper standards of conduct and
behaviour.
The panel noted that Miss Tubana admitted the facts of the charges. Accordingly, the
panel was satisfied that the charges were found proved by way of Miss Tubana’s
admissions as set out in the signed provisional agreement before the panel.
The panel then went on to considered whether Miss Tubana’s fitness to practise is
currently impaired. Whilst acknowledging the agreement between the NMC and Miss
Tubana, the panel has exercised its own independent judgement in reaching its
decision on impairment.
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The panel noted that Miss Tubana’s failings related to fundamental nursing skills where
she had shown a lack of competence, in which her preceptor had found cause to
intervene on at least three occasions without which there was a risk of serious harm to
patients. There had been five episodes of review over a period of seven months where
she had been unable to make sufficient progress on a number of issues identified in her
assessments. The panel also noted that in the CPD agreement it states, “Harm was
prevented largely due to the intervention of the supervising preceptor and other nursing
colleagues who stepped in to assist with/resolve issues as they arose”.
The panel took into account the comprehensive reflective pieces provided by Miss
Tubana and noted that she has shown encouraging insight into the difficulties that she
was experiencing in her practice. Miss Tubana knows what she has to do and she is
making progress in achieving some of the areas of development. However, the panel
was of the view that she had not yet shown adequate remediation in respect of the
failings identified by the panel and therefore remains a risk to patients.
The panel determined that Miss Tubana’s fitness to practise is currently impaired. In this
respect the panel endorsed paragraphs 3.8 of the provisional agreement. Further,
applying the test in the case of Grant, the panel agreed that as a result of Miss
Tubana’s failing in competence she:
1.1. 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
1.2. Has in the past brought and/or is liable in the future to bring the professions
into disrepute; and/or
1.3. Has in the past breached and/or is liable in the future to breach one of the
fundamental tenets of the professions,
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Having found that Miss Tubana’s fitness to practise is currently impaired, the panel went
on to consider what sanction, if any, it would impose in this case. In deliberating this
issue, the panel were mindful that a sanction had been agreed between the NMC and
Miss Tubana, but the panel did not feel constrained by that agreement and approached
the issue of sanction, as it is guided to do, by considering the least sanction available
which offers the level of public protection which the panel is constituted to achieve.
The panel has borne in mind that any sanction imposed must be 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 NMC’s Sanctions
Guidance. Decision on sanction is a matter for the panel exercising its own independent
judgement.
The panel first considered whether to take no action but concluded that this would be
inappropriate in view of the seriousness of the case. The panel decided that it would be
neither proportionate nor in the public interest to take no further action.
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 decided that a caution order would not be sufficient to
protect the public nor to maintain public confidence in the profession.
The panel next considered whether placing conditions of practice on Miss Tubana’s
registration would be a sufficient and appropriate response. The panel is mindful that
any conditions imposed must be proportionate, measurable and workable. The panel
took into account the specific guidelines contained within the SG in respect of such an
order. The panel determined that it would be possible to formulate appropriate and
practical conditions, which would address the failings highlighted in this case which was
notably a case concerning fundamental competence. The panel accepted that Miss
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Tubana would be willing to comply with conditions of practice and, indeed, this much is
plain to acknowledge from the existence of a provisional agreement between Miss
Tubana and the NMC which envisages the imposition of conditions on her practice.
The panel considered the conditions which had been agreed to in the provisional
agreement placed before the panel. In the panel’s view, the originally agreed conditions
did not go far enough to protect members of the public against some of the fundamental
failings in competency which had been shown by Miss Tubana and which, in the panel’s
view, were likely to be repeated unless more fundamental remediative steps were
employed. In particular, the panel was of the view that for reasons of public protection,
Miss Tubanan should be subject to an enhanced degree of supervision compared to
that which had been agreed in the draft CPD.
Accordingly, the panel proposed amendments to the originally agreed conditions and
put these amendments to the parties, relying upon the NMC case presenter to
communicate those suggested amendments to Miss Tubana’s RCN representative.
The parties were invited, again through the case presenter, to make submissions on the
amendments proposed by the panel and, following a period to enable them to
communicate their thoughts, both the NMC, through the case presenter, and Miss
Tubana, through the RCN, communicated their agreement to the panel’s proposed
amendments.
The panel, therefore, imposed a conditions of practice order. The panel determined that
the appropriate period for this order was for 36 months. The panel was of the view that
this would give Miss Tubana sufficient time to allow her to finish her nursery nursing
apprenticeship, find suitable employment as a registered nurse, and then be able to
formulate and then implement a personal development plan with the aim of wholly
remediating her past failings.
The panel was of the view that it was in the public interest that, with appropriate
safeguards, Miss Tubana should be able to return to practise as a nurse.
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The effect of this order is that Miss Tubana’s name on the NMC register will show that
she is subject to a conditions of practice order and anyone who enquires about her
registration will be informed of this order.
The panel was of the view that to impose a suspension order would be wholly
disproportionate and would not be an appropriate response in the circumstances of
Miss Tubana’s case. The panel noted that the issues identified in Miss Tubana’s
practice were remediable.
Having regard to the matters it has identified, the panel has concluded that a conditions
of practice order will mark the importance of maintaining public confidence in the
profession, and will send to the public and the profession a clear message about the
standards of practice required of a registered nurse.
The panel determined that the following conditions are appropriate and proportionate in
this case:
1. You must only work for one substantive employer and must not undertake
agency or bank work as a registered nurse.
2.1 At any time that you are employed or otherwise providing nursing services, you
must place yourself and remain under the direct observation of a registered
nurse of band 6 or above. This should continue until your line manager, mentor
or supervisor nominated by your employer has assessed you to be safe and
competent to progress to work under indirect supervision as defined in 2.2 below.
2.2 Once assessed as safe and competent in accordance with 2.1 above, at any time
that you are employed or otherwise providing nursing services, you must place
yourself and remain under the indirect supervision of a workplace line manager,
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mentor or supervisor nominated by your employer, such indirect supervision to
consist of working at all times on the same shift as, but not necessarily under the
direct observation of, a registered nurse of band 6 or above who is physically
present in or on the same ward, unit, floor or home that you are working in or on.
3. You must not administer medication unless directly supervised until you are
signed off as competent to do so by another registered nurse.
4. You must work with your line manager, mentor or supervisor (or their nominated
deputy) to create a personal development plan designed to address the concerns
about the following areas of your practice:
4.1.1. Time management;
4.1.2. Escalation of a deteriorating patient;
4.1.3. Communication with patients, families and colleagues; and
4.1.4. Prioritisation of care skills.
5. You must meet with your line manager, mentor or supervisor (or their nominated
deputy) at least every two weeks to discuss the standard of your performance and
your progress towards achieving the aims set out in your personal development
plan.
6. 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 personal development plan to the NMC
prior to any NMC review hearing or meeting.
7. You must tell the NMC within 7 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.
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8. You must tell the NMC about any professional investigation started against you
and/or any professional disciplinary proceedings taken against you within 7 days of
you receiving notice of them;
9. 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;
10. 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.
11. You must immediately tell 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 (10) above, to them:
11.1. Any organisation or person employing, contracting with, or using you to
undertake nursing work;
11.2. Any prospective employer (at the time of application) where you are
applying for any nursing appointment; and
11.3. 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 see how
well 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 for another order.
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Any future panel reviewing this case would be assisted by:
Evidence relating to conditions 4 and 6.
Evidence of continuing professional development.
Any documentary evidence of completion of any relevant courses.
Testimonials from supervisor, line manager or employer that detail your current
work practices.
Determination on Interim Order
The panel considered the submissions made by Mr Badruddin that an interim order
should be made on the grounds that it is necessary for the protection of the public and
is otherwise in the public interest.
The panel accepted the advice of the legal assessor.
The panel was satisfied that an interim conditions of practice order is necessary for the
protection of the public and is otherwise in the public interest. The panel had regard to
the seriousness of 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. To do otherwise
would be incompatible with its earlier findings.
The conditions for the interim order will be the same as those detailed in the substantive
order.
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 conditions of practice
order 28 days after Miss Tubana is sent the decision of this hearing in writing.
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That concludes this determination.
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