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Conduct and Competence Committee Hearing

20-27 March 2017 NMC, 2 Stratford Place, Montfichet Rd, London E20 1EJ

Name of Registrant Nurse: David Andrew Dalton

NMC PIN: 05F0847E

Part(s) of the register: Registered Nurse – Sub Part 1

Adult Nurse, September 2005

Area of Registered Address: Wiltshire

Type of Case: Misconduct

Panel Members: Alexander Coleman (Chair – Lay member)

Jacqueline Nicholson (Registrant member)

Richardo Childs (Lay member)

Legal Assessor: Nigel Pascoe QC (20- 23 March 2017)

Richard Ferry Swainson (24 March 2017

only)

James Holdsworth (27 March 2017 only)

Panel Secretary: Anita Abell

Mr Dalton: Present and represented by Chris Geering,

Counsel instructed by the Royal College of

Nursing

Nursing and Midwifery Council: Represented by Simon Walters, Counsel,

instructed by NMC Regulatory Legal Team

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Facts found proved by admission: Charges 2)i, 2)ii, 3)i, 3)ii, 3)iii, 3)iv

Facts found proved: Charge 1

Facts found not proved: Charges 4, 5)i, 5)ii, 5)iii, 6

Fitness to practise: Impaired

Sanction: Caution order for two years

Application under Rule 19 for part of the hearing to be held in private

Mr Geering stated that he may wish to refer to health matters and applied for those

parts of the hearing which relate to you to be held in private.

Mr Walters did not object to this application.

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

The panel reminded itself of Rule 19 which was:

Hearings…may be held, wholly or partly, in private if the Committee is

satisfied⎯

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

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

and

(b) having obtained the advice of the legal assessor,

that this is justified (and outweighs any prejudice) by the interests of any party

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

public interest.

The panel agreed to hear those parts of the hearing that refer to your health in

private, but that all other parts of the hearing will be held in public.

Application in respect of charge 6

Charge 6 read as follows:

6. Your conduct in respect of one or more of your actions as described in charge 4

and/or 5 above was dishonest.

Mr Geering informed the panel of the background to the case.

On 7 January 2016 a panel of the Conduct and Competence Committee of the NMC

and you agreed a Consensual Panel Disposal. You accepted the charges drafted by

the NMC in relation to the incident and a two year caution was agreed as the

appropriate sanction.

The Professional Standards Authority for Health and Social Care (PSA) appealed

that decision on the grounds that it was the product of a serious procedural

irregularity. A number of individual grounds were formulated to support that general

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proposition but, in short, the PSA contention was that you had been significantly

“undercharged” and the charges did not reflect the extent of your misconduct.

On 29 July 2016 the appeal was allowed save for one ground which is not relevant to

the panel’s consideration. The decision of the Conduct and Competence Committee

was quashed and the matter remitted back to the NMC for further consideration.

The order handed down by Mr Justice Wyn Williams stated at paragraph 4 “The

fresh set of charges shall include allegations of dishonesty in respect of the matters

identified by the [PSA]in its submission headed “Matters relied upon in respect of

ground 1(c)”.

Ground 1 (c) reads as follows:

1. The decision of the Conduct and Competence Committee …arose from a serious

procedural irregularity, in that the [NMC] failed to

(c) allege that, on being confronted with the error …[you] acted dishonestly in

claiming that:-

(i) the error in the rate at which midazolam was administered to Patient A was

discovered when [you] checked upon her, when other members of the nursing staff

on the ward had drawn it to his attention;

(ii) prior to the time at which [you] replaced the midazolam infusion for the

second time on 10 March 2014 only 5-6mg of the midazolam infusion had been

administered to Patient A, when the full dose for 24 hours (30mg) had been

administered;

(iii) when [you] handed over at the end of shift on 10 March 2014 [you]

explained what had happened, when [you] had not done so (the nurse assuming

responsibility for the ward was told about the overdose by another member of the

nursing staff);….

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Mr Geering submitted that that in drafting the new charges the NMC had gone

beyond the directions specified in the court order in relation to charge 6 insofar as it

refers to charge 4. In particular he referred the panel to paragraph 19 of the

Judgment which states that “if an allegation of dishonesty is to be made… it should

be pleaded”. Mr Geering stated that the allegation contained in charge 6 in relation

to charge 4 had not been pleaded by the PSA.

Mr Walters informed the panel that the PSA submitted as ground 1(b) that

1. The decision of the Conduct and Competence Committee …arose from a serious

procedural irregularity, in that the [NMC] failed to

(b) allege that [you] (i) acted or failed to act in the respects described…: and/or (ii)

failed to make an accurate record of the infusion of midazolam …in order to mislead

[your] employer and/or to protect [your] own interests”.

He submitted that the wording of this ground and of the word “mislead” in particular

should be given its plain meaning, that is, to cause someone to have a wrong idea or

impression. Mr Walters submitted that it was the NMC case that you deliberately

mislead your colleagues and that your behaviour in doing so was dishonest. He

submitted that if the NMC did not make this allegation it would fall foul of

undercharging for a second time.

The panel heard and accepted the advice of the legal assessor. He advised that it

was for the panel to decide if charge 6 in relation to charge 4 went beyond the

directions given in the High Court directions. Whilst the High Court has instructed

the NMC to revisit the charges, the NMC must do so within any limitations specified

by the High Court. This was a matter for the panel to interpret the directions of the

High Court.

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When interpreting the directions of the High Court the panel looked carefully at the

wording of the Order, and in particular at paragraph 4. In addition, the panel took into

account that the specific issue of dishonesty in relation to paragraph 1(b) had not

been pleaded at the appeal hearing by the PSA. Paragraph 4 of the Judge’s Order is

clear and explicit in that it states that dishonesty should be alleged in relation to the

charges specified in paragraph 1(c) above. By contrast, there is no such direction in

relation paragraph 1(b) given by the Judge.

The panel conclusion in this regard is supported in the panel’s view by the Judge

stating at paragraph 19 “In my judgment it is well established, too, that if an

allegation of dishonesty is to be made against a registrant it should be pleaded,

specifically, as an allegation of misconduct…”.

The panel therefore concluded that it should amend charge 6 by deleting any

reference in it to charge 4.

The charges (as amended): That you, whilst employed by the University Hospital Southampton NHS Foundation

Trust as a band 6 charge nurse, on 10 March 2014:

1. At approximately 12:40pm, commenced an infusion of Midazolam to Patient A at

an incorrect infusion rate, resulting in Patient A receiving a 24 hour dose of

Midazolam within around an hour;

2. At approximately 14:00hrs, commenced a second infusion of midazolam to

Patient A:

i) When you knew that Patient A had already received an overdose of

Midazolam;

ii) When you had no prescription or medical authorisation to do so;

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3. Further, you failed, in relation to the incidents described in charges 1 and/or 2, to

i) Complete an incident report in relation to your actions, until after you were

prompted to do so, and until on or around 8 April 2014;

ii) Make an accurate record of the doses of Midazolam given to Patient A;

iii) Escalate either or both of the incidents to a more senior nurse and/or a doctor;

iv) Conduct observations on Patient A following either or both of the incidents;

4. By some or all of the conduct described in charges 2 and/or 3 you sought to

conceal your errors.

5. During the investigatory meeting you sought to mislead the Trust and/or minimise

the seriousness of your actions in that you stated that:

(i) Only 5-6 mg of the midazolam had been administered, when you knew

this was not the case;

(ii) You had discovered the error in the infusion rate by checking on

Patient A when you knew this was not true;

(iii) You had reported the incident when you handed over at the end of the

shift, when you knew you had not done so.

6. Your conduct in respect of one or more of your actions as described in charge 5

above was dishonest.

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

misconduct.

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Application of no case to answer in relation to charge 5(iii)

Mr Geering submitted that the application was made under both limbs of the

Galbraith test that there was insufficient evidence relating to charge 5(iii).

The panel reminded itself of the test specified in R v Galbraith [1981] 1 W.L.R. 1039:

(1) If there is no evidence that the crime alleged has been committed by the

defendant, there is no difficulty. The judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character,

for example because of inherent weakness or vagueness or because it is

inconsistent with other evidence.

(a) Where the judge comes to the conclusion that the prosecution evidence, taken at

its highest, is such that a jury properly directed could not properly convict upon it, it is

his duty, upon a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness

depends on the view to be taken of a witness's reliability, or other matters which are

generally speaking within the province of the jury and where on one possible view of

the facts there is evidence upon which a jury could properly come to the conclusion

that the defendant is guilty, then the judge should allow the matter to be tried by the

jury. It follows that we think the second of the two schools of thought is to be

preferred. There will of course, as always in this branch of the law, be borderline

cases. They can safely be left to the discretion of the judge.

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Mr Geering stated that the evidence was not clear as to who was the nurse in charge

and consequently to whom you should have handed over to at the end of your shift.

Ms 2 denied being the nurse in charge of the shift and Ms 3 who came on duty at the

start of the night shift could not remember who was the nurse in charge. Mr Geering

stated that the charge did not specify to whom you should hand over, but that there

was evidence from Ms 1 and Ms 2 that you informed both of them of the situation

before the end of your shift. He drew the panel’s attention to the investigatory

interview and in particular your response to the question about handover when you

stated that you “cannot remember what information you handed over at the end of

[your] shift to Ms 2 but is sure that [he]handed over”.

Mr Geering submitted that there was no evidence that you tried to mislead or

minimise the seriousness of your actions in relation to handover at the investigatory

meeting. He submitted that the charge should be dismissed, there being no case to

answer.

Mr Walters accepted that the evidence was unclear as to who was the nurse in

charge from 15.30 until the start of the night shift. He submitted, however, that there

was sufficient evidence for the charge to go forward. Both Ms 1 and Ms 2 told the

panel that they were aware of the situation and your evidence to the investigatory

meeting was that you did give a handover.

Mr Walters submitted that whether that handover was a full handover and whether

the information you provided at the investigatory meeting was misleading or sought

to minimise the situation was a matter for the panel to consider at a later stage.

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

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The panel considered all the evidence presented to it, both oral and documentary.

The panel concluded that there was evidence relating to handover from three of the

live witnesses and in the documentation before it.

The panel next considered whether that evidence was inherently weak, vague or

inconsistent with other evidence. The panel concluded that whilst the evidence was

equivocal as to who was the nurse in charge, it was not so weak or so vague that the

charge should be dismissed. In particular, the documentary evidence relating to the

investigatory meeting indicates that you considered you had given a handover.

The panel therefore concluded that there is sufficient evidence that it could find the

facts proved and that the case should proceed with this charge.

Background

On 10 March 2014 you were employed as a Band 6 charge nurse on ward F11 (the

ward) at Southampton General Hospital (the hospital), part of the University Hospital

Southampton NHS Foundation Trust (the Trust).

Ward F11 was a completely new ward, with new staff and new equipment, which

opened a few days earlier. It catered for elderly patients, including some suffering

from dementia and some requiring end of life palliative care. Amongst the staff there

were five or six nurses recently arrived from Portugal who had not been signed off as

competent in IV administration. The ward had ten single private rooms and two bays

housing three and four beds respectively.

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Patient A was terminally ill, suffering from seizures and had been admitted for end of

life palliative care. She was unconscious. At about 12.30 on 10 March 2014 you

administered a prescribed dose of Midazolam to Patient A to reduce the incidence of

seizures. The drug was to be administered via a subcutaneous route via an infusion

pump. The prescription was for 30mg of the drug to be infused over the period of 24

hours. The infusion was being undertaken with a syringe operated by a pump. You

were assisted in this process by a relatively inexperienced band 5 nurse, Ms 1. For

example, Ms 1had not undertaken the Trust training in the administration of

medication via this route. It is alleged that you commenced the infusion at an

incorrect infusion rate which resulted in Patient A receiving a 24-hour dose of

Midazolam in around a one-hour period.

During the course of the afternoon between 13.30 and 15.00 you replaced the initial

infusion syringe with another syringe of Midazolam. Two of your colleagues, Ms 1

who had assisted you earlier, and Ms 2, a senior band 5 nurse, also working on the

ward that afternoon, were aware of this.

It is alleged that when you replaced the initial infusion you did so in the knowledge

that Patient A had already received an overdose of Midazolam and that you had no

prescription or medical authorisation for your actions. It is alleged that you did not

complete an incident report in relation to your actions, until after you were prompted

to do so, until on or around 8 April 2014. It is further alleged that you did not make

an accurate record of the doses of Midazolam given to Patient A; you did not

escalate either or both of the incidents to a more senior nurse and/or a doctor; and

you did not conduct observations on Patient A following either or both of the

incidents. Finally it is alleged that you sought to conceal your errors.

You finished your shift at 15.30 and left the ward.

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Ms 2, who was working a long day shift finishing at 20.00, was sufficiently concerned

about the seriousness of the drug error in relation to Patient A that she reported the

matter to the night sister, Ms 3, when she came on duty at 19.30. Ms 3 reported the

matter to the hospital night team who sent a doctor to attend Patient A. She also

reviewed Patient A and recorded this in Patient A’s notes at 23.30.

Ms 3 escalated the matter to Ms 4, a band 7 senior sister on the ward, on 13 March

2014.

Ms 4 spoke to you about the matter on 18 March 2014 which was the first shift you

had worked together since the incident. She asked you to complete an incident

report, and made a record of her discussion with you. She reminded you that the

incident report was still outstanding on 27 March 2014. You replied that you were

awaiting the patient notes to help jog your memory. Ms 4 made a further request for

the incident report on 3 April 2014 and you stated that you were waiting to receive

advice from your union representative. You submitted an incident log on 8 April

2014.

Ms 4 met with you again on 9 April 2014 and made a note of that meeting. Ms 4 was

concerned that you had not completed a full statement about the incident. She

escalated the matter to a matron. You produced a reflective statement on 16 April

2014.

The matter was investigated by Ms 5, a matron at the hospital. The matter was

referred to an investigation hearing. It is alleged that during the investigatory

meeting you sought to mislead the Trust and/or minimise the seriousness of your

actions in that you stated that only 5-6 mg of the midazolam had been administered,

when you knew this was not the case. It is further alleged that during the same

meeting you sought to mislead the Trust and/or minimise the seriousness of your

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actions by stating that that you had discovered the error in the infusion rate by

checking on Patient A when you knew this was not true and that you had reported

the incident when you handed over at the end of the shift, when you knew you had

not done so. It is also alleged that your actions in this respect were dishonest.

You were dismissed and you appealed the dismissal. At an appeal hearing on 21

November 2014 you were reinstated as a band 5 nurse working elsewhere in the

hospital.

Determination on facts At the start of the hearing you admitted charges 2)i, 2)ii, 3)i, 3)ii, 3)iii, 3)iv. The panel therefore found charges 2)i, 2)ii, 3)i, 3)ii, 3)iii, 3)iv proved by

admission.

The outstanding charges

The panel heard evidence from, and read the exhibits of the following witness:

• Ms 1, junior band 5 nurse on F11 who assisted you in the first infusion of

Midazolam

• Ms 2, senior band 5 nurse also working on the afternoon of 10 March 2014

• Ms 3, night sister working on 10 March 2014

• Ms 4, band 7 senior sister on F11

• Ms 5, matron at the hospital who conducted an investigation into the incident

The NMC exhibits bundle before the panel contained statements made to the Trust

by the witnesses and notes of the investigation meetings held with them, notes of

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discussions between yourself and Ms 4, email exchanges, a completed incident log,

two reflective pieces written by you and notes of your investigation interview, clinical

documents relating to Patient A and the work roster for the ward for the week

beginning 10 March 2014.

The panel found Ms 1 to be a credible witness but her evidence was, at times,

confused and the panel concluded that at times it was unreliable. The record of

events of 24 March had not been written up until 24 April 2014. Due to the lapse of

time there were some details she could not remember.

The panel found Ms 2 to be reliable and confident. Although there were some

lapses in her memory, there were other things that she could recall clearly, but her

account conflicted with important aspects with that of Ms 1.

The panel found Ms 3 to give a reliable account of what had been told to her by Ms 2

when she reported the matter.

The panel found Ms 4 to be credible but at times she strayed into opinion rather than

facts when giving evidence. The panel considered her reliability as a witness was

diluted by some forthright opinions she expressed, in particular as regards the issue

of dishonesty.

The panel found Ms 5 to be credible. Her evidence was, however, somewhat distant

from the initial incident.

You also gave evidence to the panel. Until this incident you were an exemplary

nurse with a good record. This position was your first management role and this was

one of your first shifts in charge on ward F11. Your evidence was that you were

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overwhelmed by the pressures of that role on that particular day and you had an

incomplete memory of what happened. The panel found that you were nervous, but

credible and for the most part reliable.

The panel also had a number of professional references submitted by you in the

course of the hearing, the authors of whom were aware of these allegations. All

authors spoke of your excellent abilities as a nurse and your impeccable character

and honesty. The panel, however, at this stage disregarded the reference from your

personal friend.

There was also a character witness, Ms 6, who gave evidence at the hearing and

spoke with over 30 years experience in the NHS. She is your current line manager

with Nuffield Healthcare. She told the panel that you were an excellent nurse,

responsible for introducing a number of initiatives in your current employment. She

told the panel that management was an area of weakness for you. Together with

your current employer a number of relevant training course have been identified

which you will be attending. She spoke highly of your honesty and integrity.

When considering the charges, the panel took into account the submissions of Mr

Walker and of Mr Geering, all of the evidence before it, both documentary and oral,

including your evidence.

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

The burden of proof rests upon the NMC and you do not have to prove or disprove

anything. The standard of proof is the civil standard, namely the balance of

probabilities. This means that, for a fact to be found proved, the NMC must satisfy

the panel that what is alleged to have happened is more likely than not to have

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occurred. In determining the facts, the panel is entitled to draw common-sense

inferences but not to speculate.

The panel then considered the outstanding charges against you which were:

That you, whilst employed by the University Hospital Southampton NHS

Foundation Trust as a band 6 charge nurse, on 10 March 2014:

1. At approximately 12:40pm, commenced an infusion of Midazolam to

Patient A at an incorrect infusion rate, resulting in Patient A receiving a 24 hour dose of Midazolam within around an hour;

Ms 1 and you prepared the prescribed dose and administered a 24-hour Midazolam

infusion of 30mg at approximately 12.40. That is not disputed.

Ms 1’s evidence was that she heard the bleeper attached to the infusion pump bleep

about an hour later. She went into the room and saw that the pump screen said “end

of infusion” and the syringe was empty. She found you and told you the pump was

empty. She said your initial reaction was that it could not be empty but you would

have a look. Later you informed her that the syringe was empty and you had

administered another one and written it up in the notes.

Ms 2’s evidence was that she was working in one of the side rooms when she heard

a bleep from Patient A’s room. She checked the pump and saw that there was

nothing in the syringe. She told you that it was empty and you said it could not be.

She later spoke to you and you told her that you had sorted it out and that the pump

had been set at the wrong rate. Ms 2 told the panel that as the shift progressed she

was uneasy about this potential drug error and reported it to the night sister, Ms 3,

when she came on duty.

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Your evidence to the panel was that whilst you could not remember all the details of

the day you recollect you went back to check the pump after about 30 minutes, as

was your usual practice with IV administration, and you saw that the infusion rate

was set wrongly. You therefore disconnected the syringe. You decided that it would

be safer to disconnect the syringe and start with a new dose of medication set at the

correct rate rather than attempting to correct the existing syringe rate. You stated

that about 5-6mg of Midazolam had been infused at that time.

You told the panel that you administered a new syringe of 30mg of Midazolam and

wrote this up in Patient A’s notes. The panel has seen the entry which reads

“Midazolam infusion changed at 14.30”.

While the evidence of Ms 1 and Ms 2 is conflicting in parts, both agree that the

syringe was empty. In consequence, the panel concluded on the balance of

probabilities that the syringe was empty when you replaced it and therefore Patient A

did receive a 24-hour dose over a shorter period than prescribed. Having listened to

your evidence with care, the panel noted your different account about whether the

syringe was empty but concluded that your memory and perception on this was

deficient, rather than that you were being untruthful.

While the panel note that there are some inconsistencies as regards timings, the

panel concluded that on the balance of probabilities Patient A received a 24-hour

dose of Midazolam “within around an hour”. The panel consider that the gravamen

of this charge relates to the patient receiving a significant dose of medication in a

much shorter time than was prescribed.

The panel therefore finds this charge proved.

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4. By some or all of the conduct described in charges 2 and/or 3 you sought to

conceal your errors.

Your evidence to the panel was that you were inexperienced in management, that

this post was your first management role and you were out of your depth. It was

your first day on the ward. Your previous work had been on cardiology wards where

you would work with only one or two patients whereas here whilst you had three of

your own patients you would also have to focus on ward management tasks. You

also had a number of very new nurses from Portugal, who had a range of training to

undertake meaning that that there were certain procedures that they could not

undertake. Against this background, you accept that you did not follow the

established procedures for dealing with a drug administration error. You denied,

however, that this was an attempt to conceal the error.

The panel took into account that you made an entry in the patient notes, albeit a

rather brief note, relating to your actions. The evidence of Ms 1 and Ms 2 is that you

spoke to both of them about what you did to rectify the incident in an open and

matter of fact manner.

Further, the panel accept that you were waiting for input from your Royal College of

Nursing representative.

The panel concluded that making an entry about the drug error in the patient’s notes,

and informing two other colleagues of what you had done, was not the behaviour of

a person trying to conceal his actions.

The panel therefore finds this charge not proved.

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5. During the investigatory meeting you sought to mislead the Trust and/or

minimise the seriousness of your actions in that you stated that:

(i) Only 5-6 mg of the midazolam had been administered, when you knew this was not the case;

The panel considered that the words “you sought to” in the head of the charge meant

that in order to prove any of the limbs of this charge it is necessary to show that

there was a deliberate intention on your part to mislead or minimise at the

investigatory meeting.

The panel has already found that the pump was empty and that a 24-hour dose was

administered to Patient A over a shorter period than prescribed. The evidence from

Ms 4 was that when she first spoke to you on 18 March 2014 you did not appear to

realise the significance of your error. She then gave further evidence, relating to the

time it took to get you to complete the incident report and to provide a statement,

which she considered was indicative of you not appreciating the seriousness of your

actions.

You told the panel that you were out of your depth on your first day as a manager

and found it very stressful. As a result you could not recall all the details of the day.

When questioned by Ms 4, you said that you could not recall much of the day and in

order to complete the incident report you required the patient’s notes. It took you

some time, with the aid of the patient notes, to piece together your actions on that

day which is why there had been a delay in submitting documentation. You still

believe that only 5-6mg of midazolam had been administered when you removed the

pump. Having seen and heard from you at length, and taking into account all the

evidence, the panel was not satisfied that you intended to mislead the Trust or

minimise your actions.

The panel note that in informal discussions with Ms 4 on 18 March 2014 it is

recorded “David is unable to say with clarity what the details of the incident were”. In

addition, at the investigatory interview on 20 August 2014 it is recorded that you

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stated that after you realised too much Midazolam had gone through your mind was

blank.

The evidence of Ms 6, your current line manager, supports your evidence that one

weak area in your practice is managing a team. She told the panel how this had

been recognised by you both and will be addressed by training in your present role.

The panel considered most carefully your motivation at the investigatory interview.

The evidence of Ms 5, who conducted the investigatory interview, was that you were

nervous. She described your demeanour and attitude as open and forthcoming,

within the extent of your recollection.

The panel also scrutinised your answers under cross-examination and your

demeanour when giving evidence. The panel took into account your previous good

character, which is supported by positive references from clinicians and line

managers, (Exhibit 7).

Further the panel accepts that, at that time, you felt overwhelmed and did not have

the skills/training to be an effective manager. The panel accepts that you felt out of

your depth on your first day in a managerial role in an unfamiliar setting, and that this

effected your recall of the event. The panel concluded that there was no deliberate

intention to mislead or minimise your actions during the investigatory interview, and

that you were recording events to the best of your recollection. In the panel’s opinion

this is supported by the conversation recounted by Ms 2 where she accepted that

you were not seeking to pressurise her but were endeavouring to piece together the

events in question and that “the conversation was professional and normal”.

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In addition, the panel accepted the evidence of Ms 4 that, at the time, you did not

appreciate the seriousness of the drug error. In consequence, the panel considered

that you lacked the intention to minimise.

The panel therefore finds this charge not proved.

(ii) You had discovered the error in the infusion rate by checking on

Patient A when you knew this was not true;

In relation to allegation 1 the panel has already found as a matter of fact that the

syringe was discovered by either Ms 1 or Ms 2 and that your memory and perception

in this regard was deficient. The panel was therefore satisfied that at the time of the

investigatory meeting you were recalling events to the best of your memory, even if,

as it turns out, your memory was inaccurate. Accordingly the panel was not satisfied

that, at the time of making that statement in the investigatory interview, you knew it

was not true. It follows therefore that this charge is not made out.

The panel therefore finds this charge not proved.

(iii) You had reported the incident when you handed over at the end of

the shift, when you knew you had not done so.

The evidence as to who you should have handed over is unclear. Ms 2 stated that

she was not the nurse in charge when you left at the end of your shift. She states it

was another nurse who came on duty at the time your shift finished. However, you

told the panel that Ms 2 was the nurse in charge and that you had informed her of

the situation. Further, you had also informed Ms 1, who would be taking care of the

patient for the rest of her shift, of the situation.

You also informed the panel that there are more formal and informal methods of

handing over ranging from group handover to a handover at the end of the bed. You

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maintained that the information you handed over to Ms 1 and Ms 2 was sufficient for

a handover.

The panel concluded that the evidence relating to exactly what you should have

handed over and to whom was inconclusive. In addition, the panel accept that the

ward had just opened and as a consequence working patterns had not been

established. In addition, the panel took into account that Ms 2 accepts that she did

have two conversations with you concerning this patient which could have been

considered by you as a handover.

Further, for the reasons given in the last paragraph of 5(i) the panel concluded that

there is no evidence of intention on your behalf to mislead or minimise your actions

in relation to reporting the incident during handover.

The panel therefore finds this charge not proved.

6. Your conduct in respect of one or more of your actions as described in charge 5 above was dishonest.

As this charge relates to charge 5 which has been found not proved, it follows that

this charge is also not proved.

The panel therefore finds this charge not proved.

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Determination on misconduct and impairment

The panel went on to consider, on the basis of the facts found proved, whether your

fitness to practise is impaired under Rule 24 (12) of the Nursing and Midwifery

Council Fitness to Practise Rules 2004.

The panel has taken account of all the evidence before it, and the submissions made

at this stage by Mr Walters and Mr Geering. Mr Geering indicated that you accepted

that you were currently impaired, but he acknowledged that this was a judgement for

the panel. You gave evidence again to the panel at this stage of the hearing. You

are currently employed as a senior cardiology nurse for a Nuffield hospital. You

gave some examples of stressful situations and adverse events which have arisen at

work since this incident in March 2014 and how you had coped with them. You told

the panel of your shame of your omissions on the day in question. You fully accepted

that your actions on that shift brought the nursing profession into disrepute and

would diminish the public’s trust and confidence in nurses generally.

It heard and accepted the advice of the legal assessor.

The panel approached its deliberations as a two stage process. It considered firstly

whether as a matter of judgement, there has been misconduct, and secondly, if so,

whether, in the light of all the material before it, your fitness to practise is currently

impaired.

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Determination on misconduct

The panel first considered whether the facts proved amount to misconduct. It bore in

mind the case of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311,

where misconduct was defined by Lord Clyde as;

…a word of general effect, involving some act or omission which falls short of

what would be proper in the circumstances. The standard of propriety may

often be found by reference to the rules and standards ordinarily required to

be followed by a [medical] practitioner in the particular circumstances.

The panel also had regard to the Nursing and Midwifery Council publication, The

Code: standards of conduct, performance and ethics for nurses and midwives, 2008

(the Code). It concluded that you had breached the following provisions of the Code:

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

To justify that trust, you must:

• 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.

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

others

26 You must consult and take advice from colleagues when appropriate

25

35 You must deliver care based on the best available evidence or best practice

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 considered that whilst the medication error in itself was serious, your

actions following the discovery of that error compounded the original error. You did

not recognise on that shift the seriousness of this situation. You did not take the

appropriate action of escalating the matter. Instead, you acted outside the scope of

your practice by administering a second unprescribed dose of medication to the

patient. Further, you did not undertake observations on the patient who had

received a significant amount of medication over a short period. Finally, you did not

give priority to the request to complete an incident form by your line manager.

For the reasons cited above, the panel concluded your actions in relation to Patient

A fell significantly below what would be expected of a registered nurse in the

circumstances and as such were sufficiently serious to amount to misconduct.

Determination on impairment

Having found that your behaviour amounted to misconduct, the panel went on to

consider whether your fitness to practise is currently impaired by reason of that

misconduct.

The panel was mindful that a registrant’s impairment should be judged by reference

to their suitability to remain on the register without restriction.

26

In deciding this matter the panel has exercised its independent professional

judgement.

The panel considered the case of CHRE v NMC and Grant [2011] EWHC 97 and

took into account the guidance provided by Dame Janet Smith and approved by Cox

J. When deciding whether fitness to practise is impaired, it should be aware of the

need to protect the public and the need to declare and uphold proper standards of

conduct and behaviour so as to maintain public confidence in the profession.

The panel reminded itself of the guidance formulated by Dame Janet Smith in her

Fifth Shipman Report, as cited in Grant, regarding the proper approach to be taken

when considering impairment:

a) Whether the registrant 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;

b) Whether the registrant has in the past brought and/or is liable in the future

to bring the profession into disrepute;

c) Whether the registrant has in the past breached and/or is liable in the

future to breach one of the fundamental tenets of the profession.

d) Whether the registrant has in the past acted dishonestly and/or is liable to act

dishonestly in the future.”

The panel concluded that in the past your behaviour had engaged all the limbs

specified in (a) to (c) above.

The panel concluded that you had, in the past, put Patient A at unwarranted risk of

harm, initially by administering the medication over a short period instead of 24

hours, and later by not escalating the matter, administering a second dose without

consultation or authorisation and failing to take observations of the patient.

27

The panel concluded that your behaviour by disregarding the correct protocols

following an error had brought the profession into disrepute. Further, you had

breached fundamental tenets of the profession in that you did not work with others to

protect and promote the health and wellbeing of those in your care and,

consequently, you did not provide a high standard of practice and care to Patient A

at all times.

The panel next considered your future behaviour. In doing so, it took into account

the guidance in the case of Cohen v General Medical Council [2008] EWHC 581

(Admin), quoted at paragraph 70 of Grant:

“… It must be highly relevant in determining if a doctor's fitness to practise is

impaired that first his or her conduct which led to the charge is easily

remediable, second that it has been remedied and third that it is highly

unlikely to be repeated.”

The panel considered the extent to which your misconduct was remediable, whether

it has been remedied and whether it is likely to be repeated and whether there was

evidence of any insight shown by you.

The panel concluded that the behaviour demonstrated by you was remediable.

There were several aspects which needed to be remedied, namely drug

administration, training in record keeping, escalation of incidents and your

management of stress in the workplace.

The panel noted that you have worked in a number of healthcare settings since this

incident without any repetition. Further, you supplied a number of professional

references, from colleagues both clinical and managerial who know the details of

28

these proceedings. They all speak highly of your honesty and integrity and your

nursing skills. Further, you had worked for almost ten years as a nurse before this

incident without any concerns.

Your current line manager, who has over 30 years experience in the NHS, attended

the hearing to give evidence on your behalf. She told the panel that that you would

shortly be attending some courses on management skills to further develop your

practice. She also praised your nursing skills and indicated that you have played a

leading role in developing cardiology care at the Nuffield hospital. Since the time of

the incident you have attended a number of courses in intravenous drug

administration, specifically on drug calculations and safe practice, record keeping,

event reporting and managing stress provided by your employer at Nuffield. During

your evidence you provided the panel with examples of putting this training into

practice.

In your evidence to the panel you were candid and admitted to the stress you felt

under on that on that shift on F11. You had reflected on this and you were able to

give a number of examples of where you had been in a stressful situation at work

since March 2014 and had acted appropriately. You state you have used the RCN

document “Stress and you” (2015) to help you recognise stress in yourself and

access to professional support.

The panel next considered the issue of insight. Initially Ms 4 indicated that at the

time of the incident you did not appreciate how serious your error was. You have

provided a number of reflective pieces, written since the incident. The reflective

pieces you have written show recognition of your responsibility and learning from

this.

The panel concluded that the three reflective pieces and your oral evidence which

was thoroughly tested by both the case presenter and the panel at both stages

29

demonstrated full insight into the situation. You recognise the impact that your

behaviour as senior nurse on that day would have had on Patient A and her family,

your colleagues for whom you should be a role model, and on the profession as a

whole. The panel concluded that you have remedied your behaviour.

Given that you had remediated your behaviour and that your insight has fully

developed, the panel concluded that the risk of repetition of a similar incident is low.

The panel therefore concluded that your practice is not impaired on grounds of public

protection which includes the protection of patients.

The panel also considered the public interest in upholding standards in the

profession and in maintaining confidence in the NMC as regulator. The panel

concluded that members of the public would expect nurses to act in a professional

and caring manner and to provide a high standard of care at all times. As such, the

panel has concluded that your fitness to practise is currently impaired on public

interest grounds to ensure that proper standards of conduct and behaviour are

declared and maintained and to uphold public confidence in the nursing profession

and in the NMC as regulator.

Determination on Sanction

Having determined that your fitness to practise is impaired, the panel has now

considered what sanction, if any, it should impose on your registration. In reaching

its decision on sanction, the panel has considered all the evidence that has been

placed before it.

30

The panel took into account the submissions from Mr Walters and Mr Geering. Mr

Geering submitted, on your behalf, that a short caution order would be appropriate.

He drew the panel’s attention to the case of Kamberova v Nursing and Midwifery

Council [2016] EWHC 2955 (Admin) which stated that a panel must take account of

any interim order and its effect on the registrant in deciding whether any sanction

was proportionate and how similar principles can be applied to the present case in

which you were subject to a caution order for approximately six months which was

imposed by a previous panel.

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

Under Article 29 of the Nursing and Midwifery Council Order 2001, the panel can

take the following actions in ascending order: no further action; make a caution order

for one to five years; make a conditions of practice order for no more than three

years; make a suspension order for a maximum of one year; or make a striking off

order. The panel has borne in mind that the purpose of a sanction is not to be

punitive, though it may have a punitive effect.

The panel also noted that it should first consider the least restrictive sanction. If it

considers that that sanction is not appropriate then it should approach the issue of

sanction in ascending order of seriousness.

The panel has applied the principles of fairness, reasonableness and proportionality,

balancing the interests of patients and the public with your own interests and taking

into account any mitigating and aggravating factors in the case. The public interest

includes the protection of patients, the maintenance of public confidence in the

profession and declaring and upholding proper standards of conduct and behaviour.

The panel has also taken account of the NMC publication, The Indicative Sanctions

Guidance.

31

The panel concluded that the aggravating features in this case include the following:

• the initial medication error was serious and put patient A at risk

• your actions following the error, giving Patient A a second dose and not

escalating the matter, compounded the error

• you failed to undertake observations on Patient A and your record of the

events was poor

• you gave a low priority to completing an incident record

• you were in a leadership role at the time.

The panel concluded that the mitigating features in this case include the following:

• this was an isolated one-off incident

• there have been no previous NMC findings against you and no repetition

since the incident took place some three years ago

• you cooperated throughout and have engaged with the prolonged NMC

proceedings, including giving evidence on a number of occasions

• you have insight, you have remediated and expressed remorse for your

actions

• you have produced a number of positive testimonials from clinical and

managerial colleagues.

The panel first considered taking no further action and decided that this would not be

appropriate. It bore in mind that the initial error was serious and your actions in

relation to it compounded the matter. In these circumstances, it would not be in the

public interest to take no further action. To do so would not maintain the standards

of, or confidence in, the profession or the regulator.

32

The panel then went on to consider whether a caution order would be appropriate.

The panel notes that the ISG states at paragraph 61 that “… a caution may be

appropriate where the case is at the lower end of the spectrum of impaired fitness to

practise and the panel wishes to mark that the behaviour was unacceptable and

must not happen again”.

The panel considered that, whilst the drug error and your reaction to it were serious

departures from appropriate standards, this case could be described as being at the

lower end of the spectrum of impairment given your insight and remediation, and,

importantly, that the panel has concluded that the risk of repetition is low.

The panel bore in mind, with this one exception, that your clinical practice has

always been, and remains, good. The panel concluded that this was an isolated

incident in an otherwise unblemished 12-year career. Indeed, your testimonials

speak highly of your nursing skills. Further, you have cooperated with the NMC

throughout these proceedings and have fully engaged with these regulatory

hearings. Further, you have attended this hearing and have on oath publicly

accounted for your actions.

For the reasons already given, the issue at this stage in this case relates solely to

the public interest in upholding and declaring standards and maintaining public

confidence in the profession. At paragraph 62 the ISG states in relation to a caution

order that “It might be appropriate where the nurse’s … history is such that the panel

is confident that there is no risk to the public or to patients which requires the nurse

or midwife’s practice rights to be restricted.” The panel considers that this is such a

case.

33

The panel considered that a reasonable, well-informed member of the public in full

possession of all the facts would consider that a caution order ensures that proper

standards are upheld within the profession and public confidence maintained. The

effect of such an order is that, although your practice is not restricted, the caution is

recorded against your registration and recorded on the NMC’s website. It forms an

alert about your past conduct, which is visible and disclosable to anyone enquiring

about you or your fitness to practise history. It has to be declared to anyone

considering employing you as a nurse. It may have a detrimental effect if you were to

be seeking new employment. It is therefore a significant sanction and proportionate

in the circumstances of this case. It will remind you that appropriate professional

standards should be maintained at all times.

The panel did not consider that conditions of practice would be appropriate in this

case, given that there is are no concerns about your clinical practice. The

testimonials provided speak highly of your clinical practice.

The panel considered that a suspension order would be disproportionate. It would be

punitive given your remediation and insight, and would therefore serve no purpose.

The panel concluded that a suspension order would not be in the public interest as

there would be no benefit to the public in the removal from the register of a

competent nurse. The panel considered that the circumstances of this case do not

require temporary removal from the register, as a caution order is sufficient to protect

the public interest.

Balancing all these factors the panel decided that a caution order was the

appropriate and proportionate sanction, and would serve to declare and uphold

standards and to maintain public confidence in the profession, and in the NMC as

regulator.

34

The panel has decided that the appropriate length of the order given the charges

found proved against you would , in the normal course of events, be two-and-a-half

years. It considered that this was a sufficient period to mark the severity of these

matters and send a message to the profession, and to the public, that your behaviour

was unacceptable and must not happen.

However, given the unusual circumstances of this case, the panel concluded taking

into account the principles set out in Kamberova, which are broadly applicable

although in a different context, that it should take into account that you have already

been subject to a two-year caution order which ran from the date of the conclusion of

your hearing on 7 January 2014 to the date of the High Court Appeal on 22 July

2014, a period of just over six months.

The panel therefore reduced the length of the period set out above and imposed a

caution order of two years on your registration.

This decision will be confirmed to you in writing.

That concludes this determination.