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Nursing and Midwifery Council

Fitness to Practise Committee

Substantive Hearing

4 July 2019

Nursing and Midwifery Council 2 Stratford Place, Montfichet Road, London, E20 1EJ

Name of registrant: Marlynn Joy Tubana NMC PIN: 17G3160E

Part(s) of the register: Registered Nurse – Sub part 1 Children’s Nursing (5 October 2017)

Area of registered address: England Type of case: Lack of competence Panel members: Anthony Mole (Chair, lay member)

Deborah Tymms (Registrant member) Bernard Herdan (Lay member)

Legal Assessor: Lachlan Wilson Panel Secretary: Catherine Acevedo Miss Tubana: Not present and not represented Nursing and Midwifery Council: Represented by Assad Badruddin, Case

Presenter Consensual Panel Determination: Accepted with agreed amendment

Facts proved: All

Fitness to practise: Impaired

Sanction: Conditions of practice order (36 months)

Interim order: Interim conditions of practice order (18 months)

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Decision on service of Notice of Hearing

The panel was informed at the start of this hearing that Miss Tubana was not in

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

registered address by recorded delivery and by first class post on 9 May 2019. The

panel noted that notice of this hearing was also sent to Miss Tubana’s representative at

the Royal College of Nursing (RCN) on 9 May 2019.

The panel took into account that the Notice of Hearing letter provided details of the

allegation, the time, dates and venue of the hearing and, amongst other things,

information about Miss Tubana’s right to attend, be represented and call evidence, as

well as the panel’s power to proceed in her absence.

Mr Badruddin submitted the NMC had complied with the requirements of Rules 11 and

34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended

(“the Rules”).

The panel accepted the advice of the legal assessor.

In the light of all of the information available, the panel was satisfied that Miss Tubana

has been served with notice of this hearing in accordance with the requirements of

Rules 11 and 34. It noted that the Rules do not require delivery and that it is the

responsibility of any registrant to maintain an effective and up-to-date registered

address.

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Decision on proceeding in the absence of Miss Tubana:

The panel next considered whether it should proceed in the absence of Miss Tubana.

The panel had regard to Rule 21 (2) states:

(2) Where the registrant fails to attend and is not represented at the hearing, the

Committee

(a) shall require the presenter to adduce evidence that all reasonable

efforts have been made, in accordance with these Rules, to serve the

notice of hearing on the registrant;

(b) may, where the Committee is satisfied that the notice of hearing has

been duly served, direct that the allegation should be heard and

determined notwithstanding the absence of the registrant; or

(c) may adjourn the hearing and issue directions.

Mr Badruddin invited the panel to continue in the absence of Miss Tubana.

The panel accepted the advice of the legal assessor.

The panel noted that its discretionary power to proceed in the absence of a registrant

under the provisions of Rule 21 is not absolute and is one that should be exercised “with

the utmost care and caution” as referred to in the case of R. v Jones (Anthony William),

(No.2) [2002] UKHL 5.

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

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

advice of the legal assessor. It has had particular regard to the factors set out in the

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decision of Jones. It has had regard to the overall interests of justice and fairness to all

parties.

It noted that a Consensual Panel Determination agreement has been made between the

NMC and Miss Tubana. Miss Tubana has stated that she is content for the hearing to

proceed in her absence and the RCN have stated that they will be available, on Miss

Tubana’s behalf, by telephone if necessary.

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

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

adverse inference from Miss Tubana’s absence.

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Consensual panel determination (CPD)

At the outset of this hearing, Mr Badruddin, on behalf of the NMC, informed the panel

that prior to this hearing a provisional agreement of a consensual panel determination

had been reached with regard to this case between the NMC and Miss Tubana.

The agreement, which was put before the panel, sets out Miss Tubana’s full admission

to the facts alleged in the charges, that Miss Tubana’s actions amounted to lack of

competence, and that Miss Tubana’s fitness to practise is currently impaired by reason

of that lack of competence. It is further stated in the agreement that an appropriate

sanction in this case would be a conditions of practice order for 36 months.

The panel has considered the provisional agreement reached by the parties.

That provisional agreement reads as follows:

“Fitness to Practise Committee

Consensual panel determination: provisional agreement Miss Tubana is aware of the CPD hearing. The Registrant does not intend to attend the

hearing, however she is represented by the RCN and is content for it to proceed in her

absence. The RCN will be available by telephone should any clarification on any point

be required.

The Nursing and Midwifery Council [“the NMC”] and the Registrant, [“the parties”] agree

as follows:

1. Charges

The Registrant admits the following charges:

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That you failed to demonstrate the standards of knowledge, skill, and judgement

required to practise without restriction as a band 5 nurse as follows:

1) On 14 December 2017, did not adequately monitor both of the patients in your care in

that you did not notice one of your patients was desaturating and required suction.

2) On 16 December 2017:

a) Did not escalate a patient’s poor blood gas results;

b) Did not adequately communicate with that patient’s family why you were

monitoring their blood gases;

c) Did not adequately communicate with that patient’s family the blood gas

results.

3) On 21 December 2017:

a) Did not notice that a patient under you care had a saturation reading of 35%;

b) Did not escalate that patient’s low saturation reading

4) At a performance improvement meeting on 3 January 2018, did not demonstrate that

you were meeting the following objectives fully:

a) Time management skills in relation to taking observations in a timely manner;

b) Communicating with patients and/or their families;

c) Escalating concerns to the Nurse in Charge, including:

i) Increasing PEWS,

ii) Clinical concerns,

iii) When uncertain how to complete a task;

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d) Asking at the beginning of shift for JAC and when medications are due;

e) Beginning preparation of medication so it can be checked in a timely manner;

f) Listening to ward rounds, communicating concerns to doctors, and ensuring

plan is understood;

g) Communicating concerns and asking for extra or specific support when

appropriate.

5) At a performance improvement meeting on 7 March 2018, did not demonstrate that

you were meeting the following objectives fully:

a) Time management skills in relation to taking observations in a timely manner;

b) Communicating with patients and/or their families;

c) Escalating concerns to the Nurse in Charge, including:

i) increasing PEWS,

ii) Clinical concerns,

iii) When uncertain how to complete a task;

d) Asking at the beginning of shift for JAC and when medications are due;

e) Beginning preparation of medication so it can be checked in a timely manner;

f) Listening to ward rounds, communicating concerns to doctors, and ensuring

plan is understood;

g) Communicating concerns and asking for extra or specific support when

appropriate.

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6) At a performance improvement meeting on 6 June 2018, did not demonstrate that

you were meeting the following objectives fully:

a) Time management skills in relation to taking observations in a timely manner;

b) Communicating with patients and/or their families;

c) Escalating deteriorating patients;

d) Correctly preparing medication;

e) Communicating concerns and ask for extra or specific support when

appropriate.

7) At a formal review meeting on 26 July 2018, did not demonstrate that you were

meeting the following objectives fully:

a) Time management skills in relation to:

i) Taking observations in a timely manner,

ii) Providing patient care in a timely manner,

iii) Administering medication when due;

b) Prioritising care whilst responsible for the care of two patients and taking new

admissions to the unit;

c) Communicating with patients and/or their families;

d) Communicating with colleagues;

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e) Escalating concerns, including:

i) Deterioration in condition of patients,

ii) Asking for help when struggling with time management,

iii) When uncertain how to complete a task.

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

competence.

2. Facts

2.1 The Registrant was employed by Southampton Children’s hospital in the Paediatric

High Dependency Unit [“PHDU”] between September 2017 and July 2018. This was a

unit where seriously ill children and babies were patients. They required a high level of

specialist care.

2.2 Her employer made the referral to the NMC as, despite support and assistance from

the Trust, the Registrant was unable to demonstrate sufficient competence to enable

her to practice safely throughout the course of her employment.

2.3 From the start of her employment the Registrant was unable to practise safely. In

her first two weeks of employment when working supernumerary she made basic

nursing errors. She was very shy and nervous. Taking this into account the Registrant

was offered support and assistance but was unable to improve her practice to the point

where she could practise unsupervised safely.

2.4 The Trust supported the Registrant, ensuring staff supervised her practice and

provided guidance with how to correctly complete tasks.

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2.5 On 14 December 2017, the Registrant was unable to look after two patients

simultaneously. She did not adequately monitor both of the patients in her care, failing

to notice that one of the patients was desaturating and required suction. Ms A (the

Registrant’s preceptor) had to step in and deal with the situation.

2.6 On 16 December 2017 the Registrant did not escalate the poor blood gas readings

for a 17 day old baby. Again, Ms A had to step in and escalate the concerns to prevent

patient harm. A referral to intensive care was subsequently made. The Registrant also

failed to adequately communicate with the family why she was monitoring the blood

gases or communicate the results with them.

2.7 On 21 December 2017 the Registrant did not notice that a patient under her care

had a saturation reading of 35% and further did not escalate that patient’s low saturation

reading. The Registrant failed to notice physical symptoms (showing a blue tinge to the

skin) and failed to escalate this. She should have asked for help or escalated the low

reading immediately. No patient harm occurred as the Registrant’s preceptor was

supervising and prevented any further deterioration in the patient’s condition.

2.8 As a result of the concerns regarding the Registrant’s practise a performance

improvement meeting was held on 12 November 2017 and a performance improvement

plan was formulated and agreed. On 3 January 2018 this was reviewed. The Registrant

had not met the objectives fully. Those objectives are set out in Charge 4 (see page 2).

2.9 A further meeting was held on 7 March 2018. The Registrant had not shown

sufficient improvement and had not met any of her targets.

2.10 A further performance improvement meeting was held on 6 June 2018. By this time

the Registrant had met some of her targets but was still to achieve her targets in respect

of the following:

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a) Time management skills in relation to taking observations in a timely manner;

b) Communicating with patients and/or their families;

c) Escalating deteriorating patients;

d) Correctly preparing medication;

e) Communicating concerns and ask for extra or specific support when

appropriate.

2.11 At the last formal review meeting on 26 July 2018, the Registrant could not

demonstrate her competence in regard to the following:

a) Time management skills in relation to:

i) Taking observations in a timely manner,

ii) Providing patient care in a timely manner,

iii) Administering medication when due;

iv) Prioritising care whilst responsible for the care of two patients and

taking new admissions to the unit;

v) Communicating with patients and/or their families;

vi) Communicating with colleagues;

vii) Escalating concerns, including:

viii) Deterioration in condition of patients,

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ix) Asking for help when struggling with time management

x) When uncertain how to complete a task.

2.12 It is to be noted that some of the issues (highlighted above in bold) had been

present at the first performance meeting and still had not been fully remediated some 6

months after being identified as issues.

2.13The Registrant subsequently resigned from the Trust.

3. Impairment 3.1. The Registrant admits that her fitness to practice is impaired by reason of her lack

of competence. The parties have considered Calheam v General Medical Council

[2007] EWHC 2606 (Admin) and Holton v NMC [2006] EWHC 2960 (Admin). The

parties agree that the charges above represent a fair sample of this Registrant’s work

for the relevant period and that this Registrant’s standard of practise was unacceptably

low when compared to a competent practitioner in her circumstances.

3.2. The Registrant accepts that her lack of competence means she has breached NMC

code of Practice - The Code: Professional standards of practice and behaviour for

nurses and midwives (2015) which were in force at the applicable time of the events,

namely:

1.2 Make sure you deliver the fundamentals of care effectively hold the

reputation of your profession at all times

6.2 Maintain the knowledge and skills you need for safe and effective

practice

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8.4 Work with colleagues to evaluate the quality of your work and that of

the team

8.5 Work with colleagues to preserve the safety of those receiving care

13.1 Accurately identify, observe and assess signs of normal or worsening

physical and mental health in the person receiving care

13.2 Make a timely referral to another practitioner when any action, care or

treatment is required

13.3 Ask for help from a suitable qualified and experienced professional to

carry out any action or procedure that is beyond the limits of your

competence

3.3 From the outset of these proceedings this Registrant has admitted the regulatory

concerns against her and that her practice is currently impaired. She has provided two

reflective statements, evidence of relevant CPD in relation to administration of

medication and a number of testimonials. These are included at Appendix 1.

3.4 The Registrant admits that her fitness to practise is impaired by reason of her lack of

competence because she has been unable to raise her practice to a level where she

could practise safely unsupervised. It is accepted that a number of basic failures were

made over a period of time that had the potential to seriously harm vulnerable paediatric

patients. Harm was prevented largely due to the intervention of the supervising

preceptor and other nursing colleagues who stepped in to assist with/resolve issues as

they arose.

3.5 The parties have considered the factors outlined by Dame Janet Smith in the Fifth

Shipman Report, and approved by Cox J in the case of CHRE v Grant & NMC [2011]

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EWHC 927 (Admin) (‘Grant’). The Registrant accepts that as a result of her lack of

competence she:

1.1. Has in the past acted and/or is liable in the future to act so as to put a patient

or patients at unwarranted risk of harm; and/or

1.2. Has in the past brought and/or is liable in the future to bring the professions

into disrepute; and/or

1.3. Has in the past breached and/or is liable in the future to breach one of the

fundamental tenets of the professions

3.6 The Registrant accepts that she still lacks competence and as such, there is a

substantial risk of repetition at the present time.

3.7 The NMC has also considered the comments of Cox J in Grant at paragraph 101:

“The Committee should therefore have asked themselves not only whether the

Registrant continued to present a risk to members of the public, but whether the

need to uphold proper professional standards and public confidence in the

regulator and in the profession would be undermined if a finding of impairment of

fitness to practise were not made in the circumstances of this case.”

3.8 The parties agree that a finding of impairment is necessary on the grounds of public

protection and to declare and uphold proper professional standards. The parties further

agree that public confidence in the nursing profession and in the NMC as regulator

would be undermined if a finding of impairment were not made in this case. Allowing the

Registrant to practise unrestricted when she has repeatedly made wide ranging basic

errors, would be a cause of serious concern to members of the public.

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4. Sanction

4.1 The parties agree that the appropriate sanction in this case is a 36 month

conditions of practice order. In determining the appropriate sanction the principle of

proportionality has been taken into account. That is, the Registrant’s interests have

been balanced against the risk to public protection and the public interest to impose the

least restrictive sanction that is necessary. The parties are mindful that the purpose of a

sanction is not to punish the Registrant for her actions/omissions. Sanction has been

considered in ascending order and in light of the NMC’s Sanctions Guidance [“the SG”]

4.2 The parties took into account the following aggravating factors in this case (non-

exhaustive):

a) There were wide ranging failures to carry out basic nursing tasks over a 6

month period.

b) Assistance and support from the Trust did not rectify the issues.

4.3 In terms of mitigation the parties agree the following factors are relevant in this case

(non-exhaustive):

a) The Registrant fully admitted all charges, lack of competence and current

impairment at the earliest opportunity and has engaged with the NMC

investigation. She has provided a reflective piece which demonstrates her insight

and her commitment to upholding standards within the profession (see Appendix

1).

b) The Registrant has undertaken relevant training in an effort to remediate her

practice (see Appendix 1).

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c) The Registrant has engaged fully with the regulatory process.

d) The Registrant is in the early stages of her career.

4.4 In considering what, if any, sanction to impose, the parties considered the range of

sanctions available to them in ascending order of seriousness. Given that the Registrant

has yet to remedy the deficiencies in her practice and that these deficiencies are liable

to put patients at unwarranted risk of harm, the parties agree that it would not be

appropriate to take no further action.

4.5 Similarly, as a caution order would not restrict the Registrant’s practice, it would

not provide any protection to the public against the risks that arise from the Registrant’s

lack of competence. A caution order would therefore be fundamentally incompatible with

the NMC’s overarching objective, which includes the need to protect the public, declare

and uphold proper professional standards and maintain public confidence in the nursing

profession.

4.6 The parties agree that a conditions of practice order is the appropriate order in

this case.

4.7 With regard to the SG it is noted that there are only concerns with the Registrant’s

clinical practice. Given that this case involves specific identifiable areas of clinical

practice, proportionate and workable conditions can be formulated which provide

adequate protection for the public. In addition, conditions would allow the Registrant the

opportunity to try and remedy the deficiencies in her practice.

4.8 The following factors from the SG are present in this case:

a) no evidence of harmful deep-seated personality or attitudinal problems;

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b) identifiable areas of the nurse or midwife’s practice in need of assessment

and/or retraining;

c) potential and willingness to respond positively to retraining;

d) patients will not be put in danger either directly or indirectly as a result of the

conditions;

e) the conditions will protect patients during the period they are in force;

f) conditions can be created that can be monitored and assessed.

4.9 The parties considered if a suspension order would be appropriate in this case, but

agree that it would not. The parties agree that the errors in practice are not seriousness

enough to warrant temporary removal from the register as the risks in this case can be

effectively managed by conditions. The parties consider that a suspension order would

make it more difficult for the Registrant to remedy the deficiencies in her practice. It

would also go beyond what is needed to protect the public and would therefore be

disproportionate and unduly punitive in effect.

4.10 A striking-off order is not available at this point in time given that the charges

admitted relate to lack of competence.

4.11 In light of the above, the parties agree the following conditions of practice are

appropriate:

1. You must only work for one substantive employer and must not undertake

agency work as a registered nurse.

2. At any time that you are employed or otherwise providing nursing services, you

must place yourself and remain under the supervision of a workplace line manager,

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mentor or supervisor nominated by your employer, such supervision to consists of

working at all times on the same shift as, but not necessarily under the direct

observation of, a registered nurse or above who is physically present in or on the

same ward, unit, floor or home that you are working in or on.

3. You must not administer medication unless directly supervised until you are

signed off as competent to do so by another registered nurse.

4. You must work with your line manager, mentor or supervisor (or their nominated

deputy) to create a personal development plan designed to address the concerns

about the following areas of your practice:

4.1.1. Time management;

4.1.2. Escalation of a deteriorating patient;

4.1.3. Communication with patients, families and colleagues; and

4.1.4. Prioritisation of care skills.

5. You must meet with your line manager, mentor or supervisor (or their nominated

deputy) at least every two weeks to discuss the standard of your performance and

your progress towards achieving the aims set out in your personal development

plan.

6. You must send a report from your line manager, mentor or supervisor (or their

nominated deputy) setting out the standard of your performance and your progress

towards achieving the aims set out in your personal development plan to the NMC

prior to any NMC review hearing or meeting.

7. You must tell the NMC within 7 days of any nursing appointment (whether paid or

unpaid) you accept within the UK or elsewhere, and provide the NMC with contact

details of your employer.

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8. You must tell the NMC about any professional investigation started against you

and/or any professional disciplinary proceedings taken against you within 7 days of

you receiving notice of them;

9. You must within 7 days of accepting any post or employment requiring registration

with the NMC, or any course of study connected with nursing or midwifery, provide

the NMC with the name/contact details of the individual or organisation offering the

post, employment or course of study;

10. You must within 7 days of entering into any arrangements required by these

conditions of practice provide the NMC with the name and contact details of the

individual/organisation with whom you have entered into the arrangement.

11. You must immediately tell the following parties that you are subject to a

conditions of practice order under the NMC’s fitness to practise procedures, and

disclose the conditions listed at (1) to (10) above, to them:

11.1. Any organisation or person employing, contracting with, or using you to

undertake nursing work;

11.2. Any prospective employer (at the time of application) where you are

applying for any nursing appointment; and

11.3. Any educational establishment at which you are undertaking a course of

study connected with nursing or midwifery, or any such establishment to

which you apply to take such a course (at the time of application).

4.11 The parties agree that the conditions of practice order should be for a period of

36 months. The Registrant is not currently employed as a registered nurse, rather she

is in the process of completing a 20 month Nursery Nursing Apprenticeship.

Accordingly, 36 months should give her sufficient time to both complete her

Apprenticeship, find suitable nursing employment and then demonstrate that he has

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remedied the deficiencies in her practice. Further, a period of 36 months also means

that the restriction on the Registrant’s practice will be reviewed by a Panel in a

reasonable period.

5. Interim order

5.1 Finally, given that the parties agree that there is a risk that patients would be placed

at an unwarranted risk of harm and the public interest would be engaged should the

Registrant be permitted to practise without any restrictions, the parties agree that an

interim order is necessary in this case.

5.2 For these reasons, the parties agree that an interim conditions of practice order in

the same terms as the substantive order for a period of 18 months is necessary on the

grounds of public protection and otherwise in the public interest. In the event no appeal

is made, the interim order will fall away once the 28-day appeal period has elapsed, and

the substantive order will take effect.

6. Review

6.1 The parties invite the Panel to direct a review of the conditions of practice before

expiry. The protection of the public and upholding the public interest demands that a

Panel assess the Registrant’s fitness to practise at that date.

6.2 The parties understand that this provisional agreement cannot bind a Panel and that

the final decision on findings of fact, impairment and sanction is a matter for the Panel.

The parties understand that, in the event that a Panel does not agree with this

provisional agreement, the admissions to the charges and the agreed statement of facts

(set out above) may be placed before a differently constituted Panel that is determining

the allegation.”

Here ends the provisional agreement between the NMC and Miss Tubana. The

provisional agreement was signed by Miss Tubana and the NMC on 28 June 2019.

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Decision and reasons on the consensual panel determination:

The panel decided to accept the CPD with agreed amendments to the conditions of

practice. The amendments were proposed by the panel in the course of their

deliberations and put to the parties via the NMC case presenter for their comments.

The panel reached its determination after agreement had been communicated on behalf

of the NMC and Miss Tubana.

Reference throughout the CPD has been made to an Appendix 1 (defence bundle)

while this appendix has not been reproduced in this decision, the panel have had full

sight of the contents therein.

The panel had regard to the NMC’s Sanctions Guidance (“SG”). The panel noted that it

could accept, amend, or outright reject the provisional agreement reached between the

NMC and Miss Tubana. Further, the panel was aware of the need to consider whether

the provisional agreement would be in the public interest. The outcome must ensure an

appropriate level of public protection, maintain public confidence in the professions and

the regulatory body, and declare and uphold proper standards of conduct and

behaviour.

The panel noted that Miss Tubana admitted the facts of the charges. Accordingly, the

panel was satisfied that the charges were found proved by way of Miss Tubana’s

admissions as set out in the signed provisional agreement before the panel.

The panel then went on to considered whether Miss Tubana’s fitness to practise is

currently impaired. Whilst acknowledging the agreement between the NMC and Miss

Tubana, the panel has exercised its own independent judgement in reaching its

decision on impairment.

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The panel noted that Miss Tubana’s failings related to fundamental nursing skills where

she had shown a lack of competence, in which her preceptor had found cause to

intervene on at least three occasions without which there was a risk of serious harm to

patients. There had been five episodes of review over a period of seven months where

she had been unable to make sufficient progress on a number of issues identified in her

assessments. The panel also noted that in the CPD agreement it states, “Harm was

prevented largely due to the intervention of the supervising preceptor and other nursing

colleagues who stepped in to assist with/resolve issues as they arose”.

The panel took into account the comprehensive reflective pieces provided by Miss

Tubana and noted that she has shown encouraging insight into the difficulties that she

was experiencing in her practice. Miss Tubana knows what she has to do and she is

making progress in achieving some of the areas of development. However, the panel

was of the view that she had not yet shown adequate remediation in respect of the

failings identified by the panel and therefore remains a risk to patients.

The panel determined that Miss Tubana’s fitness to practise is currently impaired. In this

respect the panel endorsed paragraphs 3.8 of the provisional agreement. Further,

applying the test in the case of Grant, the panel agreed that as a result of Miss

Tubana’s failing in competence she:

1.1. Has in the past acted and/or is liable in the future to act so as to put a patient

or patients at unwarranted risk of harm; and/or

1.2. Has in the past brought and/or is liable in the future to bring the professions

into disrepute; and/or

1.3. Has in the past breached and/or is liable in the future to breach one of the

fundamental tenets of the professions,

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Having found that Miss Tubana’s fitness to practise is currently impaired, the panel went

on to consider what sanction, if any, it would impose in this case. In deliberating this

issue, the panel were mindful that a sanction had been agreed between the NMC and

Miss Tubana, but the panel did not feel constrained by that agreement and approached

the issue of sanction, as it is guided to do, by considering the least sanction available

which offers the level of public protection which the panel is constituted to achieve.

The panel has borne in mind that any sanction imposed must be appropriate and

proportionate. The purpose of any sanction is not intended to be punitive even though it

may have a punitive effect. The panel had careful regard to the NMC’s Sanctions

Guidance. Decision on sanction is a matter for the panel exercising its own independent

judgement.

The panel first considered whether to take no action but concluded that this would be

inappropriate in view of the seriousness of the case. The panel decided that it would be

neither proportionate nor in the public interest to take no further action.

Next, in considering whether a caution order would be appropriate in the circumstances,

the panel took into account the SG, which states that a caution order may be

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

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

not happen again.’ The panel decided that a caution order would not be sufficient to

protect the public nor to maintain public confidence in the profession.

The panel next considered whether placing conditions of practice on Miss Tubana’s

registration would be a sufficient and appropriate response. The panel is mindful that

any conditions imposed must be proportionate, measurable and workable. The panel

took into account the specific guidelines contained within the SG in respect of such an

order. The panel determined that it would be possible to formulate appropriate and

practical conditions, which would address the failings highlighted in this case which was

notably a case concerning fundamental competence. The panel accepted that Miss

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Tubana would be willing to comply with conditions of practice and, indeed, this much is

plain to acknowledge from the existence of a provisional agreement between Miss

Tubana and the NMC which envisages the imposition of conditions on her practice.

The panel considered the conditions which had been agreed to in the provisional

agreement placed before the panel. In the panel’s view, the originally agreed conditions

did not go far enough to protect members of the public against some of the fundamental

failings in competency which had been shown by Miss Tubana and which, in the panel’s

view, were likely to be repeated unless more fundamental remediative steps were

employed. In particular, the panel was of the view that for reasons of public protection,

Miss Tubanan should be subject to an enhanced degree of supervision compared to

that which had been agreed in the draft CPD.

Accordingly, the panel proposed amendments to the originally agreed conditions and

put these amendments to the parties, relying upon the NMC case presenter to

communicate those suggested amendments to Miss Tubana’s RCN representative.

The parties were invited, again through the case presenter, to make submissions on the

amendments proposed by the panel and, following a period to enable them to

communicate their thoughts, both the NMC, through the case presenter, and Miss

Tubana, through the RCN, communicated their agreement to the panel’s proposed

amendments.

The panel, therefore, imposed a conditions of practice order. The panel determined that

the appropriate period for this order was for 36 months. The panel was of the view that

this would give Miss Tubana sufficient time to allow her to finish her nursery nursing

apprenticeship, find suitable employment as a registered nurse, and then be able to

formulate and then implement a personal development plan with the aim of wholly

remediating her past failings.

The panel was of the view that it was in the public interest that, with appropriate

safeguards, Miss Tubana should be able to return to practise as a nurse.

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The effect of this order is that Miss Tubana’s name on the NMC register will show that

she is subject to a conditions of practice order and anyone who enquires about her

registration will be informed of this order.

The panel was of the view that to impose a suspension order would be wholly

disproportionate and would not be an appropriate response in the circumstances of

Miss Tubana’s case. The panel noted that the issues identified in Miss Tubana’s

practice were remediable.

Having regard to the matters it has identified, the panel has concluded that a conditions

of practice order will mark the importance of maintaining public confidence in the

profession, and will send to the public and the profession a clear message about the

standards of practice required of a registered nurse.

The panel determined that the following conditions are appropriate and proportionate in

this case:

1. You must only work for one substantive employer and must not undertake

agency or bank work as a registered nurse.

2.1 At any time that you are employed or otherwise providing nursing services, you

must place yourself and remain under the direct observation of a registered

nurse of band 6 or above. This should continue until your line manager, mentor

or supervisor nominated by your employer has assessed you to be safe and

competent to progress to work under indirect supervision as defined in 2.2 below.

2.2 Once assessed as safe and competent in accordance with 2.1 above, at any time

that you are employed or otherwise providing nursing services, you must place

yourself and remain under the indirect supervision of a workplace line manager,

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mentor or supervisor nominated by your employer, such indirect supervision to

consist of working at all times on the same shift as, but not necessarily under the

direct observation of, a registered nurse of band 6 or above who is physically

present in or on the same ward, unit, floor or home that you are working in or on.

3. You must not administer medication unless directly supervised until you are

signed off as competent to do so by another registered nurse.

4. You must work with your line manager, mentor or supervisor (or their nominated

deputy) to create a personal development plan designed to address the concerns

about the following areas of your practice:

4.1.1. Time management;

4.1.2. Escalation of a deteriorating patient;

4.1.3. Communication with patients, families and colleagues; and

4.1.4. Prioritisation of care skills.

5. You must meet with your line manager, mentor or supervisor (or their nominated

deputy) at least every two weeks to discuss the standard of your performance and

your progress towards achieving the aims set out in your personal development

plan.

6. You must send a report from your line manager, mentor or supervisor (or their

nominated deputy) setting out the standard of your performance and your progress

towards achieving the aims set out in your personal development plan to the NMC

prior to any NMC review hearing or meeting.

7. You must tell the NMC within 7 days of any nursing appointment (whether paid or

unpaid) you accept within the UK or elsewhere, and provide the NMC with contact

details of your employer.

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8. You must tell the NMC about any professional investigation started against you

and/or any professional disciplinary proceedings taken against you within 7 days of

you receiving notice of them;

9. You must within 7 days of accepting any post or employment requiring registration

with the NMC, or any course of study connected with nursing or midwifery, provide

the NMC with the name/contact details of the individual or organisation offering the

post, employment or course of study;

10. You must within 7 days of entering into any arrangements required by these

conditions of practice provide the NMC with the name and contact details of the

individual/organisation with whom you have entered into the arrangement.

11. You must immediately tell the following parties that you are subject to a

conditions of practice order under the NMC’s fitness to practise procedures, and

disclose the conditions listed at (1) to (10) above, to them:

11.1. Any organisation or person employing, contracting with, or using you to

undertake nursing work;

11.2. Any prospective employer (at the time of application) where you are

applying for any nursing appointment; and

11.3. Any educational establishment at which you are undertaking a course of

study connected with nursing or midwifery, or any such establishment to

which you apply to take such a course (at the time of application).

Before the end of the period of the order, a panel will hold a review hearing to see how

well you have complied with the order. At the review hearing the panel may revoke the

order or any condition of it, it may confirm the order or vary any condition of it, or it may

replace the order for another order.

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Any future panel reviewing this case would be assisted by:

Evidence relating to conditions 4 and 6.

Evidence of continuing professional development.

Any documentary evidence of completion of any relevant courses.

Testimonials from supervisor, line manager or employer that detail your current

work practices.

Determination on Interim Order

The panel considered the submissions made by Mr Badruddin that an interim order

should be made on the grounds that it is necessary for the protection of the public and

is otherwise in the public interest.

The panel accepted the advice of the legal assessor.

The panel was satisfied that an interim conditions of practice order is necessary for the

protection of the public and is otherwise in the public interest. The panel had regard to

the seriousness of the facts found proved and the reasons set out in its decision for the

substantive order in reaching the decision to impose an interim order. To do otherwise

would be incompatible with its earlier findings.

The conditions for the interim order will be the same as those detailed in the substantive

order.

The period of this order is for 18 months to allow for the possibility of an appeal to be

made and determined.

If no appeal is made, then the interim order will be replaced by the conditions of practice

order 28 days after Miss Tubana is sent the decision of this hearing in writing.

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That concludes this determination.