conduct and competence committee€¦ · 2016-08-22 · ellam’s registered address by recorded...

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Conduct and Competence Committee Substantive Hearing 15 – 22 August 2016

Nursing and Midwifery Council 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: Doreen Elizabeth Ellam NMC PIN: 71I1377E Part(s) of the register: RN1, Registered Nurse – Sub Part 1 Adult Nursing – 29 November 1974 RM, Registered Midwife Midwifery - 15 May 1977 Area of Registered Address: England Type of Case: Misconduct; Lack of Competence Panel Members: Robert Barnwell (Chair, Lay member)

Lynn Smith (Registrant member) Sarah Bowie (Lay member)

Legal Assessor: Angus Macpherson (16 – 19 August 2016) William Hoskins (22 August 2016) Panel Secretary: Atanas Angelov Miss Ellam: Not present and not represented in her

absence Nursing and Midwifery Council: Represented by Kristiina Reed, counsel,

instructed by NMC Regulatory Legal Team. Facts proved: 1, 2, 4, 5, 6, 7, 8, 9.1, 9.2 and 9.3 Facts not proved: 3 Fitness to practise: Impaired Sanction: Striking-off order Interim Order: Suspension order (18 months)

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Details of charge:

That you, a registered nurse whilst employed by Warrington and Halton Hospitals NHS

Trust failed to demonstrate the standards of knowledge, skill, and judgement required to

practise without supervision as a staff nurse in that you:

1. On 24 / 25 May 2014, failed to handover the correct resuscitation status of Patient A

to Colleague A;

2. On 24 / 25 May 2014 failed to recognise and / or act on Patient A’s deteriorating

condition;

3. Failed to take any and / or any adequate steps when Patient A required resuscitation

on 24 / 25 May 2014;

4. On 24 / 25 May 2014 discussed confidential information about Patient E and Patient

E’s family in front of another patient;

5. On 4 / 5 November 2014, failed to recognise and / or act upon Patient B becoming

breathless and looking unwell;

6. On 9 December 2014 failed to recognise and or act on Patient D’s deteriorating

condition;

7. On 9 December 2014, failed to take any and / or any adequate steps when Patient D

required resuscitation.

8. On an unknown date, administered paracetamol to Patient C who was allergic to

paracetamol.

9. Failed to complete a medication round in a timely and / or safe manner on: 9.1 24 May 2014

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9.2 4 November 2014 9.3 4 December 2014

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

misconduct and / or your lack of competence.

Decision on Service of Notice of Hearing: The panel was informed at the start of this hearing that Miss Ellam was not in

attendance and that written notice of this hearing had been sent to Miss Ellam’s

registered address by first class post and signed for delivery on 8 July 2016. Royal Mail

“Track and Trace” documentation confirmed that the notice of hearing was sent to Miss

Ellam’s registered address by recorded delivery on that date.

The notice letter provided details of the allegation, the time, dates and venue of the

hearing and, amongst other things, information about Miss Ellam’s right to attend, be

represented and call evidence, as well as the panel’s power to proceed in her absence.

The “Track and Trace” documentation also indicated that the notice was signed for as

received by Miss Ellam at 11:46 am on 13 July 2016. Ms Reed 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 Ellam has

been served with notice of this hearing in accordance with the requirements of Rules 11

and 34.

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Decision on proceeding in the absence of the Registrant: Rule 21 (2) (b) states:

“Where the registrant fails to attend and is not represented at the hearing, the

Committee...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...”

Ms Reed invited the panel to proceed in the absence of Miss Ellam on the basis that

she had voluntarily absented herself. Ms Reed submitted that there had been no

engagement at all by Miss Ellam with the NMC in relation to these proceedings and, as

a consequence, there was no reason to believe that an adjournment would secure her

attendance on some future occasion.

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 one that should be exercised “with the utmost care and caution”.

The panel has decided to proceed in the absence of Miss Ellam. In reaching this

decision, the panel has considered the submissions of the case presenter, and the

advice of the legal assessor. It has had regard first and foremost to Miss Ellam’s right to

a fair hearing and to the overall interests of justice and fairness to both. In support of

proceeding the panel has taken into account the following factors:

• No application for an adjournment has been made by Miss Ellam and there is no

reason to suggest that adjourning would secure her attendance at some future

date;

• 1 witness has attended today to give live evidence, eight other witnesses are

scheduled to attend;

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• not proceeding may inconvenience the witnesses, their employers and, for those

involved in clinical practice, the clients who need their professional services;

• The charges relate to events that occurred in 2014. Further delay may have an

adverse effect on the ability of witnesses to recall the events in question

accurately;

• There is a strong public interest in the expeditious disposal of the case.

As Miss Ellam is not attending she will not be able to challenge the evidence relied upon

by the NMC and will not be able to give evidence on her own behalf. However, in the

panel’s judgment, this can be mitigated. The panel can make allowances for the fact

that the NMC’s evidence will not be tested by cross examination and, of its own volition,

can explore any inconsistencies in the evidence which it identifies. Furthermore, the

disadvantage is the consequence of Miss Ellam’s decision to absent herself from the

hearing. She has in effect waived her right to attend, to present evidence and make

submissions at the hearing.

In these circumstances, the panel has decided that it is fair, appropriate and

proportionate to proceed in the absence of Miss Ellam. The panel will draw no adverse

inference from Miss Ellam’s absence when considering the case.

Background

The charges arose whilst Miss Ellam was employed as a Band 5 Staff Nurse at the

Acute Medical Elderly Ward (“the Ward”) at Warrington Hospital (“the Hospital”) by

Warrington and Halton Hospitals NHS Trust (“the Trust”).

It is alleged that between 24 May and 4 December 2014 Miss Ellam made a series of

clinical errors and omissions, which raised concerns regarding her general competence

and ability to practise safely as a registered nurse. These problems included failing to

recognise that a patient’s condition was deteriorating and to know a patient’s

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resuscitation status, not assisting adequately in the resuscitation process and not

completing medication rounds in a timely and / or safe fashion.

The NMC contend that the Trust was supportive of Miss Ellam from the outset. An

action plan was instigated to address and remediate the deficiencies identified in her

practice. The action plan was reviewed and updated on 8 September 2014. A buddy

nurse was allocated to her.

Notwithstanding the support and supervision put in place, an incident allegedly occurred

whereby Miss Ellam administered paracetamol to a patient who was allergic to

paracetamol.

As part of the measures put in place to support Miss Ellam, a supervised drug round

was conducted on 4 December 2014 but the assessor brought it to a halt due to the

number of errors identified and the time which it was taking to complete the medication

round.

It is alleged that on 9 December 2014, Miss Ellam again failed to recognise that a

patient she was treating was deteriorating and potentially going into respiratory arrest.

Both senior and more junior colleagues intervened to treat the patient and Miss Ellam is

alleged to have provided little, if any, assistance to the patient and her colleagues at

that time.

Decision and Reasons on application under Rule 31

Prior to calling Ms 8 to give oral evidence, Ms Reed notified the panel that page three of

Ms 8’s witness statement was missing from the Witness Statement Bundle. Ms Reed

told the panel that it is uncertain, whether this Witness Statement Bundle, which was

sent to Miss Ellam, contained the missing page.

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The panel heard an application made by Ms Reed under Rule 31 of the Nursing and

Midwifery (Fitness to Practise) Rules Order of Council 2004 (the Rules) to allow into

evidence the page, which had not been served on Miss Ellam.

The panel heard and accepted the legal assessor’s advice on the issues it should take

into consideration in respect of this application. This included that Rule 31 of the Rules

provides that so far as it is ‘fair and relevant’ a panel may accept evidence in a range of

forms and circumstances whether or not it is admissible in civil proceedings.

The panel was satisfied that the witness statement of Ms 8 was relevant to the charges

and considered whether it was fair to Miss Ellam to admit the missing page into

evidence. Both the panel and Miss Ellam already had sight of the exhibits referred to in

the relevant page of Ms 8’s witness evidence. It determined that there would be no

unfairness to Miss Ellam for the panel to have sight of the relevant page.

Furthermore, it considered that there was also public interest in the issues being

explored fully which supported the admission of this evidence into the proceedings.

In these circumstances the panel decided that it would accept into evidence the

additional documentation, but would determine what weight it deemed appropriate to

give it, once the panel had heard and evaluated all the evidence in the case.

Decision on the findings on facts and reasons

In reaching its decisions on the facts, the panel took into account all the oral and

documentary evidence in this case. The panel heard oral evidence from nine witnesses

called on behalf of the NMC: Ms 1, Ward Manager at the Hospital, Ms 2, Staff Nurse at

the Hospital, Ms 3, Acting Ward Sister at the Hospital, Ms 4 Associate Director of

Nursing at the Hospital, Ms 5, Staff Nurse and Sister at the Hospital, Ms 6, Medicines

Safety Nurse at the Hospital, Ms 7, Staff Nurse at the Hospital, Ms 8, Clinical Nurse

Specialist Educator at the Hospital and Ms 9, Matron at the Hospital.

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The panel found all NMC witnesses to be honest, credible and reliable. It found that

they were consistent in their evidence and had good recollection of the events. The

panel was particularly impressed by Ms 2, Ms 3, Ms 5 and Ms 6 and considered that

they were very clear about the professional responsibilities of a registered nurse and

how Miss Ellam fell short of meeting these expectations.

The panel considered each charge and made the following findings:

The panel first considered charge 1.

That you, a registered nurse whilst employed by Warrington and Halton Hospitals NHS

Trust failed to demonstrate the standards of knowledge, skill, and judgement required to

practise without supervision as a staff nurse in that you:

1. On 24 / 25 May 2014, failed to handover the correct resuscitation status of Patient A

to Colleague A;

This charge is found proved.

In reaching this decision, the panel took into account all the relevant documentary

evidence and the oral evidence of Ms 1 and Ms 2. Ms 1 told the panel that Miss Ellam

was the nurse responsible for the care of Patient A on 25 May 2014 and therefore was

under a duty to know that Patient A had a ‘do not attempt resuscitation’ (‘DNAR’) status,

something clearly identified on the handover papers, and to inform her colleagues of

Patient A’s resuscitation status when required.

Ms 2 told the panel that, whilst on shift on 25 May 2014, she noticed that Patient A was

in a poorly condition: his face was purple, he looked very cyanosed and yet he was still

wearing a nebulising mask. Ms 2 told the panel that Miss Ellam was stood next to

Patient A’s bed looking at him. When asked by Ms 2 whether she needed a doctor Miss

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Ellam replied by saying ‘I think I might’. Ms 2 further told the panel that, when she asked

Miss Ellam whether Patient A was to be resuscitated, she replied ‘yes’.

Ms 2’s account was confirmed by Ms 3, who was working on the Ward with Miss Ellam

and Ms 2 at the relevant time. Ms 3 further told the panel that Miss Ellam did not

participate in the resuscitation and instead went to get Patient A’s notes. When she

returned, Miss Ellam made Ms 2, Ms 3 and the cardiac arrest team, who by then were in

attendance, aware of Patient A’s DNAR status. Resuscitation was therefore

discontinued.

The panel accepted the evidence of Ms 1, Ms 2 and Ms 3. It was therefore satisfied that

Miss Ellam had a duty to handover the correct resuscitation status of Patient A to

Colleague A and that that she failed to demonstrate the standards of knowledge, skill

and judgement required to practise without supervision as a staff nurse by breaching

that duty. Accordingly, the panel found charge 1 proved.

The panel next considered charge 2.

2. On 24 / 25 May 2014 failed to recognise and / or act on Patient A’s deteriorating

condition;



evidence and the oral evidence of Ms 2 and Ms 3. That evidence is set out above in the

panel’s determination concerning charge 1.

In addition Ms 3 told the panel that Patient A was clearly not breathing, purple in colour

and was cyanosed.

Both Ms 2 and Ms 3 told the panel that they would have expected a registered nurse to

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have been able to recognise Patient A’s deteriorating condition, to have called for

assistance by pulling the emergency buzzer and to have checked Patient A’s vital signs.

However, Ms 2 told the panel that Miss Ellam stood next to Patient A, looking at him,

without taking any action.

The panel accepted Ms 1’s, Ms 2’s and Ms 3’s evidence. It was therefore satisfied that

Miss Ellam failed to recognise and/or act on Patient A’s deteriorating condition thereby

failing to demonstrate the standards of knowledge, skill and judgement required to

practise without supervision as a staff nurse. Accordingly, the panel found charge 2

proved.


3. Failed to take any and / or any adequate steps when Patient A required

resuscitation on 24 / 25 May 2014;

This charge is found NOT proved.

The panel was mindful that Miss Ellam did not take part in the attempts to resuscitate

Patent A. However, the panel heard unambiguous evidence from a number of witnesses

that Patient A had a DNAR status and therefore did not require resuscitation on 24 / 25

May 2014. Accordingly, the panel found charge 3 not proved.


4. On 24 / 25 May 2014 discussed confidential information about Patient E and Patient

E’s family in front of another patient;


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evidence and the oral evidence of Ms 5.

The panel was mindful that as a registered nurse Miss Ellam was under a general duty

to respect her patient’s right to confidentiality.

The panel had regard to the evidence of Ms 5. Ms 5 told the panel that on 24 May 2014

Miss Ellam, who was responsible for the care of Patient E, approached her and

discussed with her, in front of another patient, the fact that she had spoken to Patient

E’s family and that they were not happy that Patient E be discharged. Ms 5 told the

panel that this was inappropriate, because it demonstrated a lack of respect for Patient

E’s privacy, but also because the patient Ms 5 was caring for at the time was distressed.

This was also corroborated by Ms 5’s contemporaneous notes of the incident on 24 May

2014.

The panel accepted Ms 5’s evidence and the fact that the information disclosed was

confidential. It was therefore satisfied that Miss Ellam breached her duty to respect

Patient E’s right to confidentiality by discussing confidential information about Patient E

in front of another patient. The panel was therefore satisfied that by doing so Miss Ellam

failed to demonstrate the standards of knowledge, skill and judgement required to

practise without supervision as a staff nurse. Accordingly, the panel found charge 4

proved.


5. On 4 / 5 November 2014, failed to recognise and / or act upon Patient B becoming

breathless and looking unwell;


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evidence and the oral evidence of Ms 7. Ms 7 told the panel that during the night of the

shift on 4/5 November 2014 she saw Miss Ellam taking Patient B to the toilet in a

wheelchair. Upon their return, when Ms 7 looked at Patient B, she noticed that he

appeared unwell and breathless. Ms 7 told the panel that she could clearly hear him

gasping and Miss Ellam seemed oblivious to Patient B’s condition. Ms 7 deemed it

necessary to prompt Miss Ellam to take Patient B’s observations.

Ms 7 explained to the panel that Miss Ellam should have carried out a check of Patient

B’s blood pressure, oxygen saturation and pulse. She told the panel that this should

only take a few minutes. However, after some time had passed and Ms 7 went to check

on Patient she found that Miss Ellam appeared very flustered and had still not

completed the relevant observations. Miss 7 told the panel that Miss Ellam should have

noticed that Patient B looked unwell and breathless, that she should have had the

initiative to take Patient B’s observations and that it should not have taken her so long to

do so.

The panel accepted Ms 7’s evidence. It was therefore satisfied that Miss Ellam failed to

recognise and/or act upon Patient B becoming breathless, thereby failing to

demonstrate the standards of knowledge, skill and judgement required to practise

without supervision as a staff nurse. Accordingly, the panel found charge 5 proved.


6. On 9 December 2014 failed to recognise and or act on Patient D’s deteriorating

condition;



evidence and the oral evidence of Ms 1 and Ms 3. Ms 3 told the panel that on 9

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December 2014, whilst carrying out the medication round for Miss Ellam, who was then

suspended from administering medication, she was asked to check on Patient D by a

student nurse. Ms 3 told the panel that she found Miss Ellam, standing at Patient D’s

bedside holding his dentures. She told the panel that Patient D appeared to be

struggling for breath and his movements were very erratic. Ms 3 told the panel that she

prompted Miss Ellam to take Patient D’s observations, but instead she began ‘faffing’

around. Ms 3 told the panel that Patient D then stopped breathing and she called Ms 1

for assistance. Ms 1 and Ms 3 began cardiopulmonary resuscitation (‘CPR’).

Patient D was under the care of Miss Ellam and she was therefore responsible for him.

Both Ms 1 and Ms 3 told the panel that they would have expected Miss Ellam, as the

registered nurse responsible for the care of Patient D, to have been able to recognise

Patient D’s deteriorating condition, to have called for assistance by pulling the

emergency buzzer next to Patient D’s bed and to have embarked upon the resuscitation

of Patient D. Instead, both Ms 1 and Ms 3 told the panel that Miss Ellam did not actively

embark upon the resuscitation of Patient D.

The panel accepted Ms 1’s and Ms 3’s evidence. It was therefore satisfied that Miss

Ellam failed to recognise and/or act on Patient D’s deteriorating condition thereby failing

to demonstrate the standards of knowledge, skill and judgement required to practise



7. On 9 December 2014, failed to take any and / or any adequate steps when Patient

D required resuscitation.


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evidence and the oral evidence of Ms 1 and Ms 3. In its findings of facts in relation to

charge 6 the panel had accepted Ms 1’s and Ms 3’s evidence. Further, it noted their

evidence that Miss Ellam did not actively participate in the resuscitation of Patient D

once it had begun and did not act with any urgency when asked for assistance. She did

not undertake observations and failed to pass Ms 3 the bag valve mask on the

resuscitation trolley. She appeared frozen. The panel was therefore satisfied that Miss

Ellam failed to take any steps to assist with Patient D’s resuscitation, thereby failing to

demonstrate the standards of knowledge, skill and judgement required to practise



8. On an unknown date, administered paracetamol to Patient C who was allergic to

paracetamol.


In reaching this decision, the panel took into account the oral evidence of Ms 1. Ms 1

told the panel that on a day she could not recall, she was told by a member of staff that

Miss Ellam had given paracetamol to Patient C, who was allergic to paracetamol. The

member of staff had discovered the error as he/she had carried out the drug round after

Miss Ellam’s drug round. Ms 1 told the panel that when she spoke to Miss Ellam in

relation to the incident, she admitted that she had made a medication error. She also

saw the Datix report on the incident and Patient C’s drug card, although these

documents were not before the panel.

The panel accepted Ms 1’s evidence. It was therefore satisfied that Miss Ellam

administered paracetamol to Patient C who was allergic to paracetamol, thereby failing

to demonstrate the standards of knowledge, skill and judgment required to practise

without supervision as a staff nurse. This action also had the potential for patient harm.

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Accordingly, the panel found charge 8 proved.


9. Failed to complete a medication round in a timely and / or safe manner on: 9.1 24 May 2014 9.2 4 November 2014 9.3 4 December 2014

This charge is found proved in its entirety.

In reaching this decision, the panel took into account all the documentary evidence and

the oral evidence of Ms 5, Ms 7 and Ms 6.

Ms 5 told the panel that on 24 May 2014 Miss Ellam began the medication round at

approximately 07:30 and finished at approximately 11:30. She told the panel that four

hours was too long for completing a medication round. Ms 5 told the panel that the

reason for the delay was that Miss Ellam was talking to patients and was providing their

personal care, something which is inappropriate during the medication round as there

should be a minimum of distractions to the nurse whilst administering medication.

Patients who receive their medications late could be put at risk of harm. Further, any

delay in the administration of medications to patients who are prescribed pain killers

could potentially result in these patients experiencing unnecessary pain. Moreover late

completion of a medication round could delay the round following and/or lead to the

omission of medication being administered.

Ms 5 told the panel that she expected Miss Ellam to have finished the medication round

no later than 10:00. She told the panel that she should have prioritised her work better

and should have delegated the providing of personal care to the Healthcare Assistants

to avoid delays in medicines’ administration.

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Ms 7 told the panel that she was concerned about the length of time it took Miss Ellam

to carry out the drug round on 4 November 2014. She could not recall the exact length

of time that she took to complete the drug round, but felt that it was longer than

necessary.

Ms 6 told the panel that she carried out Miss Ellam’s medicines competency

assessment on 4 December 2014. She told the panel that the assessed medication

round should have commenced at 08:00, but instead commenced at around 08:35 due

to Miss Ellam taking a long time to prepare the medicine trolley.

Ms 6 told the panel that at approximately 11:30 she decided to end the assessed drug

round as she was concerned that it would take too long to allow Miss Ellam to complete

it, causing delays in the administration of medications to patients; and also because of

the number and wide range of errors made by Miss Ellam. Ms 6’s told the panel that her

concerns arising from Miss Ellam’s assessed medication round included:

• The time it took for Miss Ellam to find the medications in the drugs trolley;

• The time it took for Miss Ellam to administer medicines;

• Miss Ellam broke tablets on two separate occasions instead of using the tablet

cutters in the medication trolley, despite being warned not to do so by Ms 6.

• Miss Ellam suggested disposing of a medication by flushing it down the toilet.

The correct procedure for disposing of medication would be to use the sharps

bin;

• Miss Ellam failed to check whether a patient had any allergies prior to

administering medication;

• Miss Ellam attempted to administer the wrong medication to a Patient;

• Miss Ellam failed to ensure that a patient had taken their medication, leaving it

unsupervised in the medication pot;

• Miss Ellam did not respect a patient’s right to privacy and dignity by discussing

with a Healthcare Assistant, very loudly and in front of other patients, private

matters about that patient.

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• Miss Ellam attempted to administer a controlled medication to a patient who was

no longer prescribed that medication;

• Miss Ellam was unaware of the procedure for obtaining a critical medicine;

• Miss Ellam failed to record the omission of a medication on the prescription chart

and further disagreed with Ms 6 when she pointed this out.

The panel recognised that a possible explanation for the failures as outlined in charge 9

could be the absence of up-to-date training. She had not received medication

administration training since April 2010. However, the panel was also mindful that Miss

Ellam had considerable support made available to her by her employer, namely an

action plan formulated to allow her to remediate the deficiencies in her practice, a

medical assessment of her administration of medicines, opportunities to have one to

one meetings with a clinical nurse specialist educator and to write reflective logs. This

was not something that Ms Ellam presented to the hearing by way of

defence/explanation. In any event the panel was of the view that Miss Ellam failed to

take full advantage of the support provided by her employer.

The panel accepted the evidence of Ms 5, Ms 7 and Ms 6. It was therefore satisfied that

Miss Ellam failed to complete a medication round in a timely manner on 24 May, 4

November and 4 December 2014 and that she failed to complete it in a safe manner on

4 December 2014. She thereby failed to demonstrate the standards of knowledge, skill

and judgement required to practise without supervision as a staff nurse. Accordingly,

the panel found charge 9 proved in its entirety. Submissions on misconduct / lack of competence and impairment

Having announced its finding on all the facts, the panel then moved on to consider,

whether the facts found proved amount to lack of competence or misconduct and, if so,

whether Miss Ellam’s fitness to practise is currently impaired. The NMC has defined

fitness to practise as a registrant’s suitability to remain on the register unrestricted.

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In her submissions Ms Reed invited the panel to take the view that Miss Ellam’s actions

amount to a breach of The Code: Standards of conduct, performance and ethics for

nurses and midwives 2008 (“the Code”). Ms Reed submitted that the charges found

proved were sufficiently serious to amount to misconduct and did not address the panel

on the lack of competence limb of the charges. She then directed the panel to specific

paragraphs and identified where, in the NMC’s view, Miss Ellam’s actions amounted to

misconduct.

Ms Reed referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311

which defines misconduct as a word of general effect, involving some act or omission

which falls short of what would be proper in the circumstances.

She then moved on to the issue of impairment, and addressed the panel on the need to

have regard to protecting the public and the wider public interest. This included the

need to declare and maintain proper standards and maintain public confidence in the

profession and in the NMC as a regulatory body. Ms Reed referred the panel to the

cases of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin).

The panel has accepted the advice of the legal assessor.

The panel adopted a three-stage process in its consideration, as advised. First, the

panel must determine whether the facts found proved either individually or collectively

amount to lack of competence. Second, if the panel decides that the facts found proved

amount to a lack of competence the panel must decide whether or not they are

sufficiently serious to amount to misconduct. In the alternative the panel must determine

whether any of the facts found proved on their own are sufficiently grave to amount to

misconduct.

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Only if the facts found proved amount to lack of competence or misconduct, the panel

must decide whether, in all the circumstances, Miss Ellam’s fitness to practise is

currently impaired as a result of that misconduct or lack of competence.

Decision on lack of competence / misconduct

When determining whether the facts found proved amount to lack of competence or

misconduct the panel had regard to the terms of The code: Standards of conduct,

performance and ethics for nurses and midwives 2008 (the Code).

The panel, in reaching its decision, had regard to the public interest and accepted that

there was no burden or standard of proof at this stage and exercised its own

professional judgement.

The panel was of the view that Miss Ellam’s actions did fall significantly short of the

standards expected of a registered nurse, and that her actions amounted to breaches of

the Code. Specifically:

Preamble The people in your care must be able to trust you with their health and wellbeing

To justify that trust, you must:

• make the care of people your first concern, treating them as individuals and

respecting their dignity

• work with others to protect and promote the health and wellbeing of those in your

care, their families and carers, and the wider community

• provide a high standard of practice and care at all times

As a professional, you are personally accountable for actions and omissions in your

practice, and must always be able to justify your decisions.

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The numbered paragraphs

5 You must respect people’s right to confidentiality.

21 You must keep your colleagues informed when you are sharing the care of

others.

22 You must work with colleagues to monitor the quality of your work and maintain

the safety of those in your care.

26 You must consult and take advice from colleagues when appropriate.

38 You must have the knowledge and skills for safe and effective practice when

working without direct supervision.

39 You must recognise and work within the limits of your competence.

40 You must keep your knowledge and skills up to date throughout your working life.

41 You must take part in appropriate learning and practice activities that maintain

and develop your competence and performance.

43 You must complete records as soon as possible after an event has occurred.

61. You must uphold the reputation of your profession at all times.

The panel appreciated that breaches of the Code do not automatically result in a finding

of lack of competence or misconduct. Accordingly, the panel had careful regard to the

context and circumstances of the matters found proved. In relation to misconduct the

panel bore in mind that the conduct alleged must amount to a serious departure from

the standards to be expected of a registered nurse if it was properly to be characterised

as misconduct. In relation to lack of competence the panel considered that there was an

unacceptably low standard of performance in the context of a fair sample of Miss

Ellam’s work.

The panel considered that had either one of charges 1 or 2 occurred in isolation, they

would not themselves be sufficient individually to warrant a finding of lack of

competence or misconduct. However, taken together, they revealed a pattern of

behaviour, which the panel considered did amount to lack of competence.

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In relation to charge 4, the panel considered that it was a fundamental aspect of nursing

practice not to discuss confidential information about patients and their in the presence

of other patients and the panel had no difficulty in concluding that to do so amounted to

misconduct.

The panel considered that charge 8 was sufficiently serious to amount to misconduct as

it was a fundamental error, which demonstrated a blatant disregard of the Hospital’s

policies in relation to the administration of medicines, and the standards expected of a

registered nurse.

The panel considered that charges 5, 6, 7 and 9 were sufficiently serious to amount to

misconduct when taken collectively with charges 1, 2 and 4, especially as they were

repeated failures that should have been addressed by Miss Ellam. A specific action plan

had been devised to support Miss Ellam in remediating her practice. Further, Miss Ellam

completed a resuscitation acute illness management training on 14 October 2014 and

was expected to undertake further training in relation to the deficiencies outlined in the

relevant charges, but she failed to do so. The panel was of the view that Miss Ellam’s

failings as outlined in charges 5, 6, 7 and 9 demonstrated a pattern of behaviour and

were sufficiently grave to amount to misconduct as they related to pre-existing issues in

her practice that she should have addressed.

Accordingly the panel found that Miss Ellam’s actions and behaviour, as outlined in the

charges, fell seriously short of the conduct and standards expected of a nurse and were

sufficiently serious to amount to misconduct.

Decision on impairment The panel next went on to decide if as a result of this misconduct Ms Ellam’s fitness to

practise is currently impaired.

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Nurses occupy a position of privilege and trust in society and are expected at all times

to be professional and to make sure that their conduct at all times justifies both their

patients’ and the public’s trust in the profession. In this regard the panel considered the

judgement of Mrs Justice Cox in the case of Council for Healthcare Regulatory

Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in

reaching its decision.

In paragraph 74 she said:

In determining whether a practitioner’s fitness to practise is impaired by

reason of misconduct, the relevant panel should generally consider not

only whether the practitioner continues to present a risk to members of the

public in his or her current role, but also whether the need to uphold

proper professional standards and public confidence in the profession

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

particular circumstances.

Mrs Justice Cox commended the following as the appropriate test for panels:

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.

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The panel found that Miss Ellam’s misconduct engaged parts a, b and c of the

questions set out above both in relation to her past behaviour and to her liability to

repeat that behaviour in the future.

Miss Ellam has not engaged with the NMC in these proceedings. Therefore there was

nothing before the panel to suggest that she has insight into the seriousness of and

understands the implications of her actions and behaviour on her patients, colleagues

and the nursing profession.

Miss Ellam has presented no evidence, written or otherwise, to suggest acceptance,

accountability, understanding or reflection upon her actions. There is also no evidence

of any remediation. Conversely, the panel was mindful that Miss Ellam has had

considerable support made available to her by her employer, but she failed to take full

advantage of it and repeatedly made same errors. The panel was therefore of the view

that if Miss Ellam was permitted to return to unrestricted practice, there would be a risk

of repetition of her misconduct in the future.

The panel bore in mind that its primary function is to protect patients and the wider

public interest, which includes maintaining confidence in the nursing profession and

upholding proper standards and behaviour.

Having regard to all of the above, the panel was satisfied that Miss Ellam’s fitness to

practise is currently impaired.

Determination on sanction:

The panel has considered this case very carefully and has decided to make a striking-

off order. It directs the registrar to strike Miss Ellam off the register. The effect of this

order is that the NMC register will show that Miss Ellam has been struck-off the register.

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

adduced in this case. The panel accepted the advice of the legal assessor. 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 Indicative Sanctions Guidance (“ISG”) published by

the NMC. It recognised that the decision on sanction is a matter for the panel,

exercising its own independent judgement.

The panel considered the aggravating and mitigating factors in this case. It found the

following to be aggravating factors:

1. The misconduct involved a considerable number of serious and wide-ranging

failures sustained over a long period of time.

2. Miss Ellam’s misconduct put patients at a risk of significant harm.

3. Miss Ellam had ample opportunity to engage in the support programme prompted

by her employer to assist her in remediating the deficiencies in her practice, but

failed to avail herself of that opportunity.

4. Miss Ellam has failed to engage with her Regulator in these proceedings

5. There is no evidence of remediation, insight or remorse.

The panel found the following to be mitigating factors:

1. Miss Ellam has had a long career and there is no evidence of any NMC or other

disciplinary proceedings against her prior to the incidents outlined in the facts

found proved.

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2. In her witness statement Ms 8 described Miss Ellam as ‘… very polite, caring and

compassionate when it came to her patients care. In addition to this, the

Registrant’s knowledge of anatomy and physiology systems was very good and

the Registrant could always explain what medicines were for, why they would be

given and the effect that medications would have on patients.

The panel considered each of the sanctions in ascending order.

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 ISG, 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 was of the view that Miss Ellam’s misconduct was not at

the lower end of the spectrum and that a caution order would be inappropriate in view of

the seriousness of the case and the public protection concerns. The panel decided that

it would be neither proportionate nor in the public interest to impose a caution order.

The panel next considered whether placing conditions of practice on Miss Ellam’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 ISG, in particular the requirements at 63.8 that:

63.8 It is possible to formulate conditions and to make provision as to how

conditions will be monitored.

The panel is of the view that there are identifiable areas of Miss Ellam’s practice that

could potentially be addressed through retraining. However, Miss Ellam had been given

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ample opportunity to engage with the support programme instigated by her employer to

assist her in remediating the deficiencies in her practice, but failed to do so. The panel

considered that this indicated that Miss Ellam has attitudinal issues. Furthermore, due to

Miss Ellam’s lack of engagement with her employer’s support programme and with her

Regulator, the panel could not be satisfied that she would be able or willing to comply

with a conditions of practice order.

In any event, the panel concluded that the placing of conditions on Miss Ellam’s

registration would not adequately address the seriousness of this case and would not

protect the public.

The panel then went on to consider whether a suspension order would be an

appropriate sanction. Paragraph 71 indicates that a suspension order would be

appropriate where (but not limited to):

67 This sanction may be appropriate where the misconduct is not

fundamentally incompatible with continuing to be a registered nurse or

midwife in that the public interest can be satisfied by a less severe

outcome than permanent removal from the register. This is more likely

to be the case when some or all of the following factors are apparent

(this list is not exhaustive):

67.2 No evidence of harmful deep-seated personality or attitudinal

problems.

67.4 The panel is satisfied that the nurse or midwife has insight and

does not pose a significant risk of repeating behaviour.

The panel was of the view that Miss Ellam has had a significant amount of time to

demonstrate that she has reflected on and remediated her practice, but has failed to

avail herself of the opportunity. Therefore, there is no evidence before the panel of any

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insight, remorse or remediation. The panel has found that there is a significant risk of

repetition of her misconduct.

The misconduct, as highlighted by the facts found proved, was a significant departure

from the standards expected of a registered nurse. The panel was of the view that the

serious breach of the fundamental tenets of the profession coupled with Mrs Ellam’s

persistent lack of insight and her attitudinal issues are fundamentally incompatible with

her remaining on the register.

The panel had taken into account the limited mitigating factors. However, in this

particular case, the panel was of the view that a suspension order would not be a

sufficient, appropriate or proportionate sanction.

In looking at a striking-off order, the panel took note of the ISG and found the following

paragraphs to be engaged:

70.1 Is striking-off the only sanction which will be sufficient to protect

the public interest?

70.2 Is the seriousness of the case incompatible with ongoing

registration?

70.3 Can public confidence in the professions and the NMC be

sustained if the nurse or midwife is not removed from the

register?

71 This sanction is likely to be appropriate when the behaviour is

fundamentally incompatible with being a registered professional,

which may involve any of the following …

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71.1 Serious departure from the relevant professional standards

as set out in key standards, guidance and advice …

71.2 Doing harm to others or behaving in such a way that could

foreseeably result in harm to others, particularly patients or

other people the nurse or midwife comes into contact with

in a professional capacity, either deliberately, recklessly,

negligently or through incompetence, particularly where

there is a continuing risk to patients. Harm may include

physical, emotional and financial harm. The panel will

need to consider the seriousness of the harm in coming to

its decision.

Miss Ellam’s actions were significant departures from the standards expected of a

registered nurse, and are fundamentally incompatible with her remaining on the register.

The panel was of the view that the findings in this particular case demonstrate that her

failures were serious and that to allow her to continue practising would undermine public

confidence in the profession and in the NMC as a regulatory body.

Balancing all of these factors and after taking into account all the evidence before it

during this case, the panel determined that the appropriate and proportionate sanction

that would be sufficient to protect the public is that of a striking-off order. Having regard

to the matters it identified, in particular the effect of Mrs Ellam’s actions in bringing the

profession into disrepute by adversely affecting the public’s view of how a registered

nurse should conduct herself, the panel has concluded that nothing short of this would

be sufficient.

The panel considered that this order was necessary to protect the public, to mark the

importance of maintaining public confidence in the profession, and to send to the public

and the profession a clear message about the standard of behaviour required of a

registered nurse.

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Determination on Interim Order The panel has considered the submissions made by Ms Reed 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 suspension 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 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 striking-off order 28

days after Miss Ellam is sent the decision of this hearing in writing.

That concludes this determination.

conduct and competence committee€¦ · 2016-08-22 · ellam’s registered address by recorded...

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