nursing and midwifery council fitness to practise ... · and in light of the above, your fitness to...
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Nursing and Midwifery Council Fitness to Practise Committee
Substantive Hearing 27 January – 3 February 2020
Nursing and Midwifery Council 2 Stratford Place, Montfichet Road, London, E20 1EJ
Name of registrant: Craig Mavunga NMC PIN: 15C0604E Part(s) of the register: Registered Mental Health Nurse Sub Part 1 (2015) Area of registered address: England Type of case: Lack of competence/Misconduct Panel members: Nicola Jackson (Chair, Lay member)
Bernard Herdan (Lay member) Shane Moody (Registrant member)
Legal Assessor: Jane Rowley Panel Secretary: Melissa McLean Nursing and Midwifery Council: Represented by Rakesh Sharma, Case
Presenter Mr Mavunga: Present and unrepresented (27 January) Present via telephone and unrepresented (30
January – 3 February) Facts proved by admission: 2, 2.1, 2.2 Facts proved: 1, Schedule 1 a, b, c, d Facts not proved: 1, Schedule 1 e Fitness to practise: Impaired Sanction: Conditions of practice order (18 months) Interim order: Interim conditions of practice order (18 months)
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Details of charge
That you a registered nurse whilst employed by Leicestershire Partnership NHS Trust
as a Band 5 nurse failed to demonstrate the standards of knowledge skill and
judgement required to practice without supervision and/or as a Band 5 registered nurse
between 27 April 2015 and 16 January 2018 in that you:
1) Were not able to demonstrate your competencies as set out in Schedule 1.
2) On 24 May 2017
2.1 administered off-prescription dose of Procyclidine to an unknown patient
2.2 Failed to check the prescription chart for the patient in 2.1
AND in light of the above, your fitness to practice is impaired by reason of your lack of
competence in relation to Charge 1 and/or by reason of your misconduct in relation to
Charge 2.
Schedule 1:
a. The Registrant's verbal communication with patients and colleagues;
b. The Registrant's written communication, in particular there were concerns as to
the standard of record keeping, risk assessments and care plans;
c. The Registrant's clinical ability, in particular it was considered that he was unable
to operate effectively without a high level of supervision;
d. The Registrant's ability to practice autonomously;
e. The Registrant's lack of knowledge of mental health and practice;
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Background
You registered as a Mental Health Nurse on 13 March 2015. The NMC received a
referral on 5 February 2018 from Leicester Partnership NHS Foundation Trust ("the
Trust"). At the relevant time you were employed as a band 5 nurse between 27 April
2015 and 16 January 2018.
At the material time you were working as a staff Band 5 nurse at Stewart House which
is an in-patient mental health rehabilitation unit. You were working under a
preceptorship for two years and three months and you had five different preceptors. In
June 2016 an informal performance management process was instigated, this was
escalated to the formal performance process in July 2017. On 29 September 2017, at a
Stage 4 formal performance meeting, you were given an additional 3 months as a final
opportunity to improve your performance and complete your preceptorship.
Over the course of the performance management process following a stage 4
performance meeting which took place on 29 September 2017, you were transferred to
work at the Mett Centre which is an out-patient mental health recovery unit. You were
subject to performance management but it is alleged that you failed to meet the
objectives set by the Leicestershire Partnership Trust’s (LPT) Performance
Management Policy and Procedure. As a result of you failing to complete your
preceptorship you were dismissed from the Trust on 16 January 2018.
Over the course of your employment a number of concerns as to your practice
emerged. These concerns were related to:
• Your verbal communication with patients and colleagues;
• Your written communication, in particular there were concerns as to the standard
of record keeping, risk assessments and care plans;
• Your clinical ability, in particular it was considered that you were unable to
operate effectively without a high level of supervision;
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• Your ability to practice autonomously;
• Your lack of knowledge of mental health and practice.
Facts
During the course of the hearing, you informed the panel that you made an admission to
charge 2.1 and 2.2 on the basis that you acknowledged having failed to check the
prescription chart which showed that the dosage for the particular patient in question
had changed from four doses a day to three.
The panel therefore found Charge 2 proved by your own admission.
In reaching its decisions on the disputed facts, the panel took into account all the oral
and documentary evidence in this case together with the submissions made by Mr
Sharma on behalf of the NMC and by you.
The panel was aware that the burden of proof rests on the NMC, and that the standard
of proof is the civil standard, namely the balance of probabilities. This means that a fact
will be proved if a panel is satisfied that it is more likely than not that the incident
occurred as alleged.
Before making any findings on the facts, the panel heard and accepted the advice of the
legal assessor. It considered the oral evidence from witnesses and the documentary
evidence provided by both the NMC and you.
The panel heard live evidence from the following witnesses called on behalf of the
NMC:
Mr 1: Deputy Ward matron at Stewart House,
became your line manager in January 2016.
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Ms 2: Nurse at Stewart House.
Ms 3: Nurse at Stewart House.
Ms 4: Nurse at Stewart House.
Ms 5: Senior Nurse Practitioner at Mett Centre.
The panel also heard evidence from you under oath.
The panel considered the overall credibility and reliability of all witnesses who gave
evidence before it, including you. The panel was of the opinion that all witnesses have
tried to assist the hearing to the best of their knowledge and belief.
The panel found Mr 1 to be a less credible witness in view of his vagueness when giving
oral evidence. There were also inconsistencies between his oral and written accounts
and it was clear to the panel that his memory had been affected by the passage of time.
The panel found it hard to differentiate between his direct factual evidence and hearsay.
He was noted to have given hypothetical answers which the panel found not as helpful
as it had hoped for. The panel accepted that Mr 1 had attempted to be as helpful as
possible but concluded that a passage of time has impacted on his evidence and was
only able to place limited weight on it.
The panel found Ms 2 to be a clear and credible witness when giving her oral evidence.
Ms 2 was consistent in both her oral and written accounts. She acted as one of your
preceptors and gave an extremely fair and balanced account and which reflected on the
positive qualities of your practice and character as well as any shortcomings. Ms 2
made it clear that there was a poor working environment at Stewart House and that staff
were not sufficiently supported. Ms 2 informed the panel that she did have a good
working relationship with you, however she did acknowledge your shortcomings and
areas that you could have improved. The panel noted that Ms 2 was articulate and
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provided clear insight into the working environment. It found Ms 2 to have been an
honest, fair and balanced witness.
The panel found Ms 3 to be a less credible witness when giving her oral evidence. It
found her to be inconsistent between her written statement and oral evidence. Ms 3 did
not participate in the preceptorship long enough to give a clear and sufficient account in
relation to the background concerns relevant to the charges. In view of this limited
evidence the panel’s reliance upon it was minimal. However, she was able to articulate
what she wrote in her statement with reflection, and explained fairly when she was
unable to recall something. The panel noted Ms 3 was nervous during her oral evidence
but was able to give sufficient detail in respect of the judgements she had formed. It
found Ms 3 to have been a fair and balanced witness, but noted that the value of her
evidence was limited due to the short length of time she worked with you.
The panel found Ms 4 to be a less credible witness when giving her oral evidence. The
panel was of the view that she did her best during her oral evidence to assist. However,
she was unable to recall the events in any detail due to the passage of time. The panel
did however find Ms 4 to appear accurate and was clear when she could not remember
details. It noted that Ms 4’s evidence was limited due to her being your preceptor for a
short period. The panel decided that Ms 4 was fair and balanced.
The panel found Ms 5 to be a highly credible witness when giving her oral evidence. It
found Ms 5 to be clear, consistent and confident when answering questions. She was
the last of your five preceptors. The panel noted that she was an experienced
practitioner and that she gave a fair and balanced account and was able to articulate
herself very well. She was able to clearly recall what happened and helpfully provide the
panel with additional context to the events. The panel decided that Ms 5 was an
extremely helpful witness upon whom it could rely.
You gave oral evidence in which you told the panel that you have reflected upon your
time at Stewart House and believe that you are not a poor practitioner. You said that
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Stewart House was understaffed and there were times when you were the only qualified
member of staff on shift. You told the panel that there were many tasks which needed
completing including shift coordination, administering medication, responding to
incidents and preparing handovers. You said that this meant you were constantly under
pressure and some tasks were either rushed or incomplete.
You told the panel that you did not feel that there was adequate support provided from
the supervisors and managers at Stewart House, and you said that occasionally
supervision meetings were cancelled at the last minute. You told the panel that you did
not want to make excuses but that you were unable to complete your preceptorship
tasks due to lack of time. You told the panel that there were times when you were
working night shifts and covering bank shifts during the day and this led you to feel
exhausted, but you were determined to complete your preceptorship.
You told the panel that you had multiple preceptors and this had an effect on you not
completing your preceptorship. You also told the panel that prior to you being put under
a performance management plan, no concerns about your practice had been raised. In
relation to the medication error, you told the panel that you acknowledge your mistake
and since then, whilst at the Mett Centre you have undertaken a medication
administration assessment which you passed.
You told the panel that the concerns around charge 1 were not communicated to you
and that if you had been made aware of the issues raised, you would have done your
best to fix these at the beginning of your employment. You told the panel that many of
the issues raised were a surprise to you in that you thought you were performing
adequately.
The panel found you to be truthful and credible. It noted that when questioned on your
reasoning for some of your actions, you deflected onto your colleagues and seemed to
minimise your own responsibilities. At times your answers were lengthy without being
direct, despite being asked direct questions. The panel also noted that at times your
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answers were hypothetical and frequently stated that you were unable to remember
specific detail. The panel took into account your previous good character and your
cooperation and engagement throughout these proceedings when assessing your
credibility and explanations provided. However, the panel came to the conclusion that in
your evidence as a whole, you failed to acknowledge responsibility and/or accountability
for the concerns raised regarding your competence and clinical skills. The panel bore in
mind that in giving your evidence you overcame initial nervousness and were prepared
to deal with the difficult issues that arose during your time at Stewart House and the
Mett Centre.
The panel heard clear evidence about the busy and challenging environment at Stewart
House during your employment there. It accepted that there were times when Stewart
House was not fully staffed. The panel took note of the issues highlighted in the CQC
report which was reported in 2018. It also took note of your oral evidence in which you
stated “Stewart House during my time was understaffed and often staffed by bank nurse
and bank care assistants, with some instances me being the only one qualified member
of staff on duty”. The panel took into account the matters you raised in your written
response to the charges, concerning management issues at Stewart House, at an early
stage of these proceedings.
The panel heard evidence that the role of a nurse partaking in a preceptorship includes
the ability to manage your own learning and to proactively self-manage. The panel
accepted that you had five different preceptors during your time at Stewart House and
the Mett Centre. The panel heard from numerous witnesses that the length of a
preceptorship would normally last between six to twelve months, but yours extended
beyond two years.
All NMC witnesses described you as likeable, polite and good-natured. However, they
also acknowledged that they encountered difficulties in their relationship with you due to
your inability to prioritise actions, and your lack of motivation and initiative in areas of
your work. Having heard direct evidence from you, the panel gained valuable insight
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into your demeanour as described by colleagues, in particular your tendency to deflect
accountability onto colleagues.
The panel then considered each of the disputed charges and made the following
findings.
Charge 1
1) Were not able to demonstrate your competencies as set out in Schedule 1.
Schedule 1:
a. The Registrant's verbal communication with patients and colleagues;
b. The Registrant's written communication, in particular there were concerns as to
the standard of record keeping, risk assessments and care plans;
c. The Registrant's clinical ability, in particular it was considered that he was unable
to operate effectively without a high level of supervision;
d. The Registrant's ability to practice autonomously;
e. The Registrant's lack of knowledge of mental health and practice;
This charge is found proved in respect of Schedule 1a, b, c, d.
In reaching this decision, the panel took into account the witness statements and oral
evidence.
a. The Registrant's verbal communication with patients and colleagues;
The panel noted that all the witnesses commented on your verbal communication in a
negative way. The panel heard your verbal communication with colleagues, specifically
during handovers, was too brief and often did not include vital information. With regards
to communication with patients, the panel accepted the evidence provided that you
were friendly, quiet and overall had a good rapport with patients. However, Ms 2
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observed that in your communications with patients you often “went round the houses”
and this could lead to frustration and even aggression with vulnerable mental health
patients. The panel noted that verbal communication is extremely important when
working as a Mental Health Nurse and that it is an extremely important part of that role.
Mr 1 stated in his written statement that “The Trust has a legal obligation, which is
delegated to the primary nurse, for every patient detained under the Mental Health Act
to be read their legal rights”. He then stated that “The Registrant did not read Patient A
his rights and then failed to read Patient B his rights shortly after”. The panel considered
your oral evidence and concluded that you failed in your responsibility to inform patients
of their rights once a month.
The panel then considered Ms 2’s evidence in that she stated in her written statement
that, “On occasions he was unable to give concise and accurate information to patients
and staff.” The panel noted that this could have a negative impact on patients. In Ms 4’s
oral evidence she stated that, “One concern I had whilst I was the Registrant’s
preceptor related to his verbal communication with both staff and patients. I often found
that he did not listen to what I was telling him to do and did not display the
independence required of him”. The panel accepted the documentary evidence which
stated “Management found that CM was unable to competently verbally communicate
with clients and colleagues”. Further documentary evidence which supported the
panel’s decision was a written statement from a performance meeting which stated,
“Very poor communication with Administrator on 22/10/17”,“Very poor handover – not
handling over relevant information from group or taking into consideration other
disciplines notes (community/outpatients) and “23/10/17 – poor communication with
Jazz”.
The panel bore in mind evidence from Ms 5 that your communication skills did improve
at the Mett Centre. However the panel concluded that your overall verbal
communications had been found to be lacking.
The panel therefore found this limb of Charge 1 proved.
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b. The Registrant's written communication, in particular there were concerns
as to the standard of record keeping, risk assessments and care plans;
The panel considered the documentary evidence before it. The panel accepted that vital
written documentation for which you were responsible, was either incomplete or not
completed to a satisfactory level. The panel reminded itself of the evidence of Ms 5, she
stated that she had to directly oversee your record keeping and that she had to validate
your notes on the RIO computer system. In her documentary evidence, Ms 5 stated “I
read the RIO notes daily and found the entries are usually basically written and not
structured”. The panel also bore in mind the written evidence of Ms 5 in which she
stated “At handover meetings, usually everyone gets their diaries out because notes
had been made the day before. The Registrant had never written anything down. I
therefore do not have any documentation from the Registrant’s handovers”. The panel
found that Ms 5 had to directly oversee your record keeping for it to be completed
competently.
The panel accepted the written evidence from Mr 1 that there were deficiencies in your
risk assessments in that “Care plans, risk assessments and core mental health
assessments were vague and missing vital information”. In support of its decision, the
panel also noted the evidence of Ms 2 who in her written statement stated, “For
example, at Care Programme Approach (“CPA”) meetings, the Registrant was asked to
complete some documentation in advance of the meetings. I noticed that the Registrant
was unsure how to prepare a document of how to gather the information needed for the
meetings”.
The panel accepted that there was some evidence that you were doing risk
assessments but it was contradicted by evidence which identified that they were not
completed or of an unsatisfactory standard. The panel noted that there were
improvements in your written communication, particularly while at the Mett Centre.
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However it concluded that your level of overall written communication proved to be
inadequate.
The panel therefore found this limb of Charge 1 proved.
c. The Registrant's clinical ability, in particular it was considered that he was
unable to operate effectively without a high level of supervision;
In reaching its decision in respect of this limb, the panel took into account the evidence
that you were able to perform some of your regular nursing duties without concern,
however, in balancing this evidence, the panel noted that you were under a significant
amount of supervision. Numerous witnesses including your preceptors confirmed how
eager they were to see you complete your preceptorship, but reflected that you only
completed tasks when you were supported in doing so. The panel accepted the
evidence from your preceptors that they could not sign you off as competent.
The panel accepted the documentary evidence from your Performance Report Bundle
dated January 2018 which stated, “Management found that a significant concern is
CM’s inability to independently complete the package of care which is the responsibility
of the lead worker/ qualified member of staff”.
The panel also noted evidence from the Ward Matron which stated “Steve and I also
spoke to Craig about the reported medication error that had happened on the night of
24/05/17 where he had given a fourth dose of medication when the patient is in fact only
prescribed the medication three times in 24hrs, Craig advised that when it was reported
to him he did check the next night with two other nurses and could not see the error ,
but he has since checked again and has seen where he when wrong”. The panel noted
that although you have made an admission to this charge and have now passed the
necessary test, this still reflects upon your clinical ability.
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The panel concluded that your clinical ability was inadequate in that you were unable to
operate efficiently without a heavy degree of supervision. In particular, the panel came
to the inevitable conclusion that the standard of care which you were capable of
providing to patients was only possible due to a high level of input, support and
supervision from your line manager, preceptors and colleagues.
The panel therefore found this limb of Charge 1 proved.
d. The Registrant's ability to practice autonomously;
The panel took into consideration your oral evidence. The panel noted, when in cross-
examination, you failed to answer questions directly around why you failed to complete
tasks. The panel accepted the documentary evidence of the CQC report which you
provided during your oral evidence which outlined areas of concern across the Trust
including at Stewart House. However the panel determined that these areas of concern
did not excuse your failure to complete your tasks and responsibilities. The panel also
considered that all the witnesses gave evidence that you failed to work autonomously.
The panel noted Ms 2’s written evidence in that she stated “He was unable to be
proactive despite support given”. The panel heard of several occasions where you failed
to complete tasks without constant prompting and that you lacked the initiative to
perform essential responsibilities. The panel accepted the evidence of Ms 5 in that she
stated in her statement “If he was working with another qualified member of staff than
he would be ok, but why pay for him to be supervised when he should be practising
autonomously”. The panel concluded that your ability to practise autonomously was
inadequate.
The panel therefore found this limb of Charge 1 proved.
e. The Registrant's lack of knowledge of mental health and practice;
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In reaching its decision in respect of this limb, the panel accepted that it had not been
provided with direct evidence in relation to any deficiencies in your knowledge of mental
health issues and practice. The panel took into account that there was direct evidence
to show that on balance your knowledge of mental health and practice was sufficient
and there were no direct examples of any patient harm, or concerns relating to your lack
of knowledge. In her oral evidence Ms 2 stated that there had been no occasions where
your areas of knowledge were found to be lacking. Ms 4 when asked about your
knowledge of Mental Health, stated that you were very knowledgeable, and that there
was “no problem at all” with your knowledge concerning processes, different conditions
and their treatment, and your knowledge of the Mental Health Act.
The panel concluded that your level of knowledge was satisfactory in accordance with
the stage of your career and therefore consider that your knowledge of mental health
and practice was satisfactory. However, the panel noted that you were not always able
to effectively put this knowledge into practice.
The panel therefore found this limb of Charge 1 not proved.
The panel took into account the finding of not proved in relation to Charge 1e when
coming to its decision in respect of the head of Charge 1. However, the panel
considered that its findings in respect of Schedule 1 a-d inclusive provide sufficient
justification to conclude that you failed to demonstrate the standards of knowledge, skill
and judgement required to practice without supervision and/or as a Band 5 registered
nurse between 27 April 2015 and 16 January 2018.
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Fitness to practise
Having reached its determination on the facts of this case, the panel then moved on to
consider whether charge 1 amounted to lack of competence and whether charge 2
amounted to misconduct, and if so, whether your fitness to practise is currently
impaired. There is no statutory definition of fitness to practise. However, the NMC has
defined fitness to practise as a registrant’s suitability to remain on the register
unrestricted.
The panel, in reaching its decision, has recognised its statutory duty to protect the
public and maintain public confidence in the profession. Further, it bore in mind that
there is no burden or standard of proof at this stage and it has therefore exercised its
own professional judgement.
The panel adopted a two-stage process in its consideration. First, the panel must
determine whether the facts found proved amount to lack of competence and/or
misconduct. Secondly, only if the facts found proved amount to lack of competence
and/or misconduct, the panel must decide whether, in all the circumstances, your fitness
to practise is currently impaired as a result of that lack of competence and/or
misconduct.
Submissions on misconduct and lack of competence
In coming to its decision, the panel had regard to the case of Roylance v General
Medical Council (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’.
Mr Sharma, on behalf of the NMC, provided the panel with written submissions in
relation to misconduct, lack of competence and impairment. Mr Sharma invited the
panel to take the view that the facts found proved amount to misconduct. He submitted
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that the misconduct in your case concerns your failure to check the medication
administration chart for a patient and consequently administering an additional dose of
medication. He said that it was fortunate that no patient harm resulted, he submitted
that the simple act of taking care to check medication records is a fundamental part of
everyday nursing practice. Mr Sharma submitted that nurses are solely responsible for
the administration of the full range of drugs and medication prescribed to patients. He
stated that if such fundamental errors are made, the potential consequences are
obvious for serious patient harm.
He referred the panel to the case of Roylance v General Medical Council (No 2) [2000]
1 A.C. 311 which defines misconduct. Mr Sharma submitted that your actions fell far
short of what was expected in the circumstances and can be readily classed as
misconduct.
The NMC has defined a lack of competence as:
‘A lack of knowledge, skill or judgment of such a nature that the registrant
is unfit to practise safely and effectively in any field in which the registrant
claims to be qualified or seeks to practice.’
Mr Sharma referred the panel to the test of The Queen on the application of Vali v
General Optical Council [2011] EWHC 310 (Admin) when determining whether the facts
found proved in charge 1 amount to lack of competence, in which he stated;
‘It is important that “deficient professional performance” should not be contorted so that
it is a mere synonym for “misconduct” in practice, and that the essence of “deficient
professional performance” is more in contrast to than coterminous with misconduct. It is
intended at least to be different in that one would often, if not normally, expect to find a
pattern of conduct underlying the allegation of deficient professional performance.’
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Mr Sharma submitted that the professional standard of a band 5 nurse working in the
same position as you should be taken as the appropriate standard. He referred the
panel to the case of Holton v GMC [2006] EWHC 2960 (Admin), which states;
‘It would clearly be unfair and inappropriate to judge the performance of a registrar by
reference to that of a consultant: a registrar's work will not be deficient because his
standard is not that of a consultant. Conversely, it would be inappropriate, and
inconsistent with the object of public protection, for the professional standard of a
consultant to be assessed by reference to that of a registrar…”
Mr Sharma invited the panel to take the view that the facts found proved amount to a
lack of competence and misconduct. He identified the specific, relevant standards
where your actions amounted to a lack of competence. Mr Sharma directed the panel to
sections 6.2, 7, 8, 10 and 17 of ‘The Code: Professional standards of practice and
behaviour for nurses and midwives (2015’ (“the Code”) which he submitted were
engaged in this case.
Submissions on impairment
Mr Sharma moved on to the issue of impairment and if you are currently impaired and
referred the panel to the case of Council for Healthcare Regulatory Excellence v (1)
General Medical Council (2) Biswas [2006] EWHC 464 (Admin). He then stated that a
departure from the Code is not of itself sufficient to establish impairment of fitness to
practice but that it is a matter for the panel’s professional judgment.
He referred the panel to the fact that Mrs Justice Cox in the case of Grant approved the
general approach as to what might lead to a finding of impairment as given by Dame
Janet Smith in her Fifth Shipman Report. Mr Sharma submitted that your conduct as
set out in the charges engages three of the limbs. He stated that in respect of;
unwarranted harm, failing to check prescription charts and consequently administering
off-prescription doses of medication, and having poor communication skills, both verbal
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and written give risk to risk of harm. He submitted that verbal and written
communication skills are imperative for the safe exchange of information between
practitioner and patient and between practitioners and others within the multi-
disciplinary teams.
He submitted that by your actions in Charge 2 you have brought the nursing profession
into disrepute in that it is a fundamental aspect of nursing to administer accurate
medication and that the public have a reasonable expectation of competence. He
submitted that trust in the profession could be seriously diminished if matters such as
this are not suitably marked. He submitted that the failure to safely administer
medication and the failure to communicate effectively are two such breaches of
fundamental tenets of the profession.
With regards to the risk of repetition, Mr Sharma submitted that you have not been
working as a registered nurse, however he stated that it is encouraging that you have
remained in a caring role, nevertheless the scope for showing remediation in the areas
of deficient practice will be limited.
Mr Sharma submitted that without seeing evidence of a period of time working as a
registered professional in order to remediate the concerns, this could raise a real risk of
repetition and/or continued lack of competence. He further submitted that towards the
end of cross-examination, you accepted that upon reflection you could have tried
harder. Mr Sharma submitted that given the wide ranging competencies which require
further remediation, you could be deemed to be performing inadequately and stated that
considerable further insight is required.
Mr Sharma submitted that your actions and lack of competence are serious in that
finding current impairment is required in order to provide a level of protection to the
public, maintain public confidence in the profession and NMC and to uphold proper
professional standards. Mr Sharma finally submitted that future impairment is highly
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likely and that public confidence would be undermined if that behaviour was allowed to
pass effectively unmarked.
You submitted that since being dismissed from the Trust you have had a difficult time.
You said that you have not been working in nursing but you have currently been
working as a support worker. You told the panel that you have taken the necessary
steps to reflect on what has happened and what you could have done better if you were
given the opportunity. You said that during your current employment you have been
able to get a better understanding of a standard of care for patients. You said that you
have gained experience since qualifying as nurse and that working as a support worker
in the caring sector has given you time to consider your future.
You told the panel that if you were given another chance you would not be in this
situation and that you are doing what you ‘love to do’ which is delivering care. You
acknowledged that your current role is not a nursing role, however you stated that you
are committed to the health care profession and that you would like to continue working
in it. You told the panel that you accept that your best was not good enough and that
you have learnt from your mistakes, you stated that you have been able to prioritise
your time better, and are able to achieve your objectives in a timely manner. You said
that you now understand what is required of you when practising as a nurse.
In response to the panel, you stated that you initially attempted to get a job as a health
care support worker, but this was difficult. Following your dismissal, you stated that you
began working for an agency in a warehouse to relieve your financial hardship whilst
continuing to look for work in the care sector. You stated that since May 2019 you have
been employed as a support worker working with patients with challenging behaviours
and learning difficulties.
Following the issues raised by the Trust, you stated that they offered you a role as a
Band 4 nurse, however once you were dismissed this offer was revoked. You told the
panel that you attempted to get a job at Coventry and Warwickshire Partnership NHS
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Trust but due to your circumstances they could not offer you a role. You told the panel
that you have not completed any training courses but that you have had discussions
with other members who worked within the profession.
The panel accepted the advice of the legal assessor which included reference to a
number of relevant judgments. These included: Roylance v General Medical Council
(No 2) [2000] 1 A.C. 311, R (on the application of Calhaem) v GMC [2007] EWHC 2606
(Admin) and Council for Healthcare Regulatory Excellence v (1) General Medical
Council (2) Biswas [2006] EWHC 464 (Admin).
Decision and reasons on lack of competence and misconduct
The panel first considered whether charge 1 amounts to lack of competence and
whether charge 2, amounts to misconduct. In reaching its decision the panel took into
account submissions from Mr Sharma and you and all of the evidence before it,
including new documentary evidence which you provided. This was a written reference
from your current line manager and a written testimonial from your sister. In doing so, it
had regard to the terms of the Code. The panel also had regard to the protection of the
public and the wider public interest and accepted that there was no burden or standard
of proof at this stage and exercised its own professional judgement.
The panel considered each charge separately.
The NMC has defined a lack of competence as:
‘A lack of knowledge, skill or judgment of such a nature that the registrant
is unfit to practise safely and effectively in any field in which the registrant
claims to be qualified or seeks to practice.’
The panel had regard to the terms of ‘The Code: Professional standards of practice and
behaviour for nurses and midwives (2015’ (“the Code”) in making its decision. The panel
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considered that your actions in relation to the charge 1 amounted to a breach of the
Code, and determined that the following sections were engaged in this case:
“6.2 maintain the knowledge and skills you need for safe and effective
practice
7 Communicate clearly
…
7.2 take reasonable steps to meet people’s language and communication needs,
providing, wherever possible, assistance to those who need help to communicate
their own or other people’s needs
7.3 use a range of verbal and non-verbal communication methods, and consider
cultural sensitivities, to better understand and respond to people’s personal and
health needs”
8 Work co-operatively
…
8.1 respect the skills, expertise and contributions of your colleagues, referring
matters to them when appropriate
8.2 maintain effective communication with colleagues
8.3 keep colleagues informed when you are sharing the care of individuals with
other health and care professionals and staff
8.4 work with colleagues to evaluate the quality of your work and that of the
team
8.5 work with colleagues to preserve the safety of those receiving care
22
8.6 share information to identify and reduce risk
10 Keep clear and accurate records relevant to your practice
…:
10.1 complete records at the time or as soon as possible after an event,
recording if the notes are written some time after the event
10.2 identify any risks or problems that have arisen and the steps taken to deal
with them, so that colleagues who use the records have all the information they
need
10.3 complete records accurately and without any falsification, taking immediate
and appropriate action if you become aware that someone has not kept to these
requirements
13 Recognise and work within the limits of your competence
…
13.2 make a timely referral to another practitioner when any action, care or
treatment is required
13.3 ask for help from a suitably qualified and experienced professional to carry
out any action or procedure that is beyond the limits of your competence
The panel appreciated that breaches in the Code do not always result in a finding of
lack of competence. The panel bore in mind, when reaching its decision, that you
should be judged by the standards of a reasonably competent band 5 registered nurse,
applicable to the post to which you were appointed. The panel noted that charge 1
represents a lack of skills in areas of nursing practice. The panel bore in mind all the
evidence before it and noted that although you did not put any patients at risk, the panel
determined that there was a potential risk of harm due to your inability to perform tasks
satisfactorily without a substantial level of supervision. The panel specifically noted your
23
failure to perform a podiatry referral, a chest x-ray request and to complete CPA reports
and risk assessments to a satisfactory standard. As found at the facts stage of these
proceedings, the panel did not find an issue with your knowledge of mental health and
practice.
Taking into account the reasons given by the panel for the findings of the facts, the
panel has concluded that your practice was below the standard that one would expect
of a registered nurse acting in your role, albeit newly qualified. In all the circumstances,
the panel determined that your performance demonstrated a lack of competence.
The panel considered whether charge 2 amounts to misconduct. It bore in mind the
case of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311. When
considering whether charge 2 amounted to misconduct, the panel took into account that
you accepted that you did not check the prescription chart. The panel accepted that it
had no evidence before it showing any further medication administration errors at
Stewart House or at the Mett Centre, it also accepted that you successfully undertook a
medication assessment to remediate your errors. The panel took note of Ms 5’s credible
evidence in which she stated there were no problems at the Mett Centre in relation to
your drug administration.
The panel determined that this was an isolated incident and that no actual harm took
place, however the panel did recognise the potential harm this error could have caused.
The panel determined that you admitted this error at the beginning of the hearing, you
have not attempted to cover it up and that you gave context into the mistake but did not
seek to make excuses. The panel therefore found that your actions did not fall seriously
short of the conduct and standards expected of a nurse and did not amount to
misconduct.
24
Decision and reasons on impairment
The panel next went on to decide if as a result of the lack of competence your fitness to
practise is currently impaired.
Nurses occupy a position of privilege and trust in society and are expected at all times
to be professional. Patients and their families must be able to trust nurses with their
lives and the lives of their loved ones. They must 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 judgment 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.’
In paragraph 76, Mrs Justice Cox referred to Dame Janet Smith's “test” which reads as
follows:
‘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:
25
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) has in the past acted dishonestly and/or is liable to act
dishonestly in the future.’
The panel determined that two out of the four limbs of Dame Janet Smith’s test as set
out in the Fifth Report from Shipman were engaged by your past actions, specifically a
and c.
The panel considered that the issues around your lack of competence did not put
patients in actual harm, however the panel found that there was potential risk of harm
and that not performing vital tasks and undertaking appropriate verbal and written
communications could have a negative impact on Mental Health patients. The panel
noted that you have not brought the profession into disrepute in that you are a relatively
newly qualified nurse and you have acknowledged your mistakes. The panel was
satisfied that confidence in the nursing profession would not be undermined if it did not
find that you brought the profession into disrepute. The panel considered the issues
around your communication and record keeping and noted that these breached the
fundamental tenets of the profession.
Having regard to the test for remediation set out in the case of Cohen v GMC, the panel
determined that your errors set out in Schedule 1 are capable of remediation. In
26
considering whether they have been remedied, the panel assessed your practice since
these errors arose as well as your level of insight.
The panel noted that at both Stewart House and the Mett Centre, you failed to meet the
objectives of your preceptorship. The panel determined that you have not been
practising as a nurse since you were dismissed from the Trust, however it recognised
that you are currently employed as a support worker within the care profession working
with vulnerable people. The panel also noted the positive reference from your current
line manager in which she stated “He is caring and compassionate and has created
great relationships with our residents, in a professional manner. Craig is honest and
trustworthy; he is also reliable and has great respect for management, his fellow
colleagues and the residents whom he supports”. She also stated “He has completed
probation and is well on his way to completing all mandatory training, to enable him to
do his job to the best of his abilities”. The panel accepted that you have spoken with
relatives in the nursing profession to keep yourself up to date, however it determined
that you have not demonstrated sufficient evidence of training or reading of a specific
nature relating to nursing. The panel concluded that you have not demonstrated
sufficient steps into remediating your practice.
Regarding insight, the panel considered that you have developing insight. The panel
found your insight to be incomplete in that you failed to directly address the incidents
and sought to deflect responsibility onto others. The panel did however take into
account that during these proceedings you appear to have developed a better
understanding of your errors and made some admissions. The panel found that at the
time of the incidents you lacked sufficient understanding of your personal
responsibilities, nor did you comprehend the potential impact of your failings upon
patients and colleagues.
The panel took into account that you failed to complete your preceptorship and since
your employment with the Trust was terminated, have failed to take the necessary steps
to maintain your skills and knowledge. The panel therefore found that you have not
27
achieved the standard to be able to work independently. The panel concluded that you
have remedied your medication error in that you completed the medication assessment
and it considered that there was a low risk of it being repeated in the future.
The panel bore in mind that the overarching objectives of the NMC are to protect,
promote and maintain the health safety and well-being of the public and patients, and to
uphold/protect the wider public interest, which includes promoting and maintaining
public confidence in the nursing and midwifery professions and upholding the proper
professional standards for members of those professions.
The panel determined that, in this case, a finding of impairment on public interest
grounds was not required. Having regard to all of the above, the panel was satisfied that
your fitness to practise is currently impaired on grounds of public protection and
maintaining professional standards.
28
Sanction
The panel has considered this case very carefully and has decided to make a conditions
of practice order for a period of up to 18 months. The effect of this order is that your
name on the NMC register will show that you are subject to a conditions of practice
order and anyone who enquires about your registration will be informed of this order.
In reaching this decision, the panel had regard to all the evidence that has been
presented in this case, together with the submissions of Mr Sharma, on behalf of the
NMC and you.
Mr Sharma referred the panel to the case of Council for the Regulation of Health Care
Professionals v (1) General Medical Council and (2) Leeper [2004] EWHC 205 (Admin)
and to Bolton v The Law Society [1994] 1 WLR 512. In his submissions, Mr Sharma
outlined the relevant aggravating and mitigating factors in this case. He submitted that
you have not yet been deemed competent to practice independently. He further
submitted that the lack of competence in this case may be considered as remediable
given further time and suitable supervision. Mr Sharma referred the panel to the
evidence of Ms 5 who was your last preceptor, in which she stated that you had
improved in some areas of practice and if she were given more time, she could have
brought your standard to those of others.
Mr Sharma submitted that a 12 month conditions of practice order was the appropriate
and proportionate order in this case in order to require you to show competence in
areas to reflect those during your preceptorship. However, he recognised that a
sanction remained a matter for the panel’s own independent judgement, having regard
to the principles of fairness and proportionality.
You told the panel that a conditions of practice order would be fair to you and you stated
that you would like to bring your competency up to an adequate standard as soon as
29
possible. You told the panel that you would like to take the relevant steps to begin
practising again so that you know what direction you are heading in.
The panel accepted the advice of the legal assessor who referred it to the NMC’s
Sanctions Guidance (SG). The panel bore 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 SG published by the
NMC. It recognised that the decision on sanction is a matter for the panel, exercising its
own independent judgement.
Decision and reasons on sanction
Having found your fitness to practise currently impaired, the panel went on to consider
what sanction, if any, it should impose in this case. The panel had careful regard to the
SG. The decision on sanction is a matter for the panel independently exercising its own
judgement.
The panel took into account the following aggravating features:
Potential risk of patient harm;
Failure to complete preceptorship despite period of time and support given;
Incomplete insight into failings.
The panel also took into account the following mitigating features:
Full engagement and cooperation with NMC proceedings;
No previous NMC referrals;
No actual harm was caused to patients;
No deliberate attempt to mistakes;
Some admissions during the course of the hearing;
30
Evidence that you were working in a difficult environment including understaffing
at Stewart House on occasions;
Continued to work within the care profession;
Satisfactory level of knowledge of mental health and practice.
The panel is aware that it can impose any of the following sanctions; take no further
action, make a caution order for a period of one to five years, make a conditions of
practice order for no more than three years or make a suspension order for a maximum
of one year.
The panel first considered whether to take no action as there were no exceptional
features in this case which could justify. It concluded that this would be inappropriate in
view of the seriousness of the case. The panel decided that it would be neither
proportionate nor in the public interest to take no further action.
Next, in considering whether a caution order would be appropriate in the circumstances,
the panel took into account the SG which states that a caution order may be appropriate
where ‘the case is at the lower end of the spectrum of impaired fitness to practise and
the panel wishes to mark that the behaviour was unacceptable and must not happen
again’. The panel considered such an order would not restrict your practice and
therefore would be inappropriate due to the patient safety and other concerns raised in
this case. 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 your 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 SG, in particular:
No evidence of harmful deep-seated personality or attitudinal problems;
31
Identifiable areas of the nurse’s practice in need of assessment and/or
retraining;
Potential and willingness to respond positively to retraining;
Patients will not be put in danger either directly or indirectly as a result of
the conditions;
The conditions will protect patients during the period they are in force;
and
Conditions can be created that can be monitored and assessed.
The panel determined that it would be possible to formulate appropriate and practical
conditions which would address the failings highlighted in this case. The panel accepted
that you would be willing to comply with conditions of practice. The panel was of the
view that it was in the public interest that, with appropriate safeguards, you should be
able to practice as a nurse.
Balancing all of these factors, the panel determined that the appropriate and
proportionate sanction is that of a conditions of practice order.
The panel was of the view that to impose a suspension order would be wholly
disproportionate in that you have not deliberately tried to cover up your mistakes, and
you have been working within the care profession with an aim to provide good care to
patients. Furthermore, there is no evidence of deep seated attitudinal problems and
conditions of practice would be sufficient to protect patients. The panel was not of the
view that a suspension order was required to meet any public interest in this case.
Having regard to the matters it has identified, the panel has concluded that a conditions
of practice order will be sufficient to protect the public, mark the importance of
maintaining public confidence in the profession, and will send to the public and the
profession a clear message about the standards of practice required of a registered
nurse.
32
In making this decision, the panel carefully considered the submissions of Mr Sharma in
relation to the sanction that the NMC was seeking in this case which was a conditions of
practice order for 12 months. However, the panel considered that a conditions of
practice order for 18 months was more appropriate for you. In reaching this decision, it
bore in mind that you are not currently working in the nursing profession. It considered
that 18 months would give you sufficient time to find employment as a registered nurse,
demonstrate remediation of the areas of concern and to successfully complete your
preceptorship.
Having regard to the matters it has identified, the panel has concluded that a conditions
of practice order will mark the importance of maintaining public confidence in the
profession, and will send to the public and the profession a clear message about the
standards of practice required of a registered nurse.
The panel determined that the following conditions are appropriate and proportionate in
this case:
1. You must tell the NMC within seven days of any nursing appointment
(whether paid or unpaid) you accept within the UK or elsewhere, and
provide the NMC with contact details of your employer.
2. You must tell the NMC about any professional investigation started
against you and/or any professional disciplinary proceedings taken
against you within seven days of you receiving notice of them.
3. a) You must within seven days of accepting any post of
employment requiring registration with the NMC, or any
course of study connected with nursing, provide the NMC
with the name/contact details of the individual or organisation
offering the post, employment or course of study.
33
b) You must within seven days of entering into any
arrangements required by these conditions of practice
provide the NMC with the name and contact details of the
individual/organisation with whom you have entered into the
arrangement.
4. You must immediately tell the following parties that you are subject to a
conditions of practice order under the NMC’s fitness to practise
procedures and disclose the conditions listed at (1) to (8) above, to them
a) Any organisation or person employing, contracting with or
using you to undertake nursing work
b) Any agency you are registered with or apply to be registered
with (at the time of application) to provide nursing or
midwifery services
c) Any prospective employer (at the time of application) where
you are applying for any nursing or midwifery appointment
d) Any educational establishment at which you are undertaking
a course of study connected with nursing, or any such
establishment to which you apply to take a course (at the
time of application).
5. You must keep a reflective practice profile indicating your progress with verbal
and written communication and your ability to operate effectively without a high
level of supervision. The profile should:
a) Detail of every case where you undertake or assist with record keeping,
risk assessments and care plans
34
b) Set out the nature of the care given
c) Be signed by your supervisor/preceptor each time
d) Contain feedback from your supervisor/preceptor on how you
gave the care
You must send your case officer a copy of the profile every 6 months of your
employment as a registered nurse.
6. You must complete your preceptorship and create an associated personal
development plan in both documents, ensuring you address the issues
highlighted in Schedule 1.
7. You must ensure that you are supervised by a registered nurse during any time
you are working. Your supervision must consist of:
a) Working at all times on the same shift as, but not always directly observed
by, a registered nurse (Band 5 or above).
8. You must ensure that you are not placed in the position of nurse in charge on
any shift.
The period of this order is for up to 18 months.
Before the order expires, a panel will hold a review hearing to see how well you have
complied with the order. At the review hearing the panel may revoke the order or any
condition of it, it may confirm the order or vary any condition of it, or it may replace the
order for another order.
Any future panel reviewing this case would be assisted by:
35
Evidence of testimonials from your line manager or supervisor and other
relevant professional colleagues with specific comments on the issues
raised including written and verbal communication, completion of
documentation in a timely manner to a good standard and your ability to
work autonomously.
Evidence of relevant training courses.
A reflective report.
A completed preceptorship booklet and associated personal
development plan.
This will be confirmed to you in writing.
Interim order
As the conditions of practice order cannot take effect until the end of the 28-day appeal
period, the panel has considered whether an interim order is required in the specific
circumstances of this case. It may only make an interim order if it is satisfied that it is
necessary for the protection of the public, is otherwise in the public interest or in your
own interest until the conditions of practice sanction takes effect.
The panel considered the submissions made by Mr Sharma that an interim conditions of
practice order should be made to cover the 28 day appeal period. He submitted that
making an order without a corresponding interim order would seem contrary to the
panels’ findings. He submitted that an 18 months interim conditions of practice order
would be appropriate as the appeal process is lengthy and currently appeals are not
being concluded by the High Court for over 12 months.
You did not oppose this application.
36
The panel accepted the advice of the legal assessor and took account of the guidance
issued to panels by the NMC when considering interim orders and the appropriate test
as set out at Article 31 of The Nursing and Midwifery Order 2001. It may only make an
interim order if it is satisfied that it is necessary for the protection of members of the
public, is otherwise in the public interest or is in your own interests.
Decision and reasons on interim order
The panel was satisfied that an interim order is required for the protection of the public
and is otherwise in the public interest. The panel had regard to the reasons set out in its
decision for the substantive order. It concluded that to not make such an order would be
incompatible with the panel’s earlier findings and with the substantive sanction that it
has imposed. The panel decided to impose an interim conditions of practice order for
the same reasons as it imposed the substantive order and to do so for a period of 18
months in light of the likely length of time that an appeal would take to be determined if
one was lodged.
The conditions for the interim order will be the same as those detailed in the substantive
order. The effect of this order is that, if no appeal is lodged, the substantive conditions
of practice order will come into effect 28 days after notice of the decision has been
served on you and the interim order will lapse. If an appeal is lodged then the interim
conditions of practice order will continue until the appeal is determined.
The panel’s decisions will be sent to you in writing.
That concludes this determination.