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Conduct and Competence Committee
Substantive Hearing
Thursday 28 April – Friday 29 April 2016
Monday 24 October – Wednesday 26 October 2016
Friday 4 November 2016
NMC, 2 Stratford Place, Greater London E20 1EJ Registrant: Annette Geraldine Roberts NMC PIN: 07F3243E Part(s) of the register: Registered Nurse (sub part 1) Mental
health Type of Case: Misconduct Area of Registered Address: England Panel Members: Alison Stone (chair, lay member)
Gi Cheesman (lay member) David Parry (registrant member)
Legal assessor: Paul Hester Panel Secretary: Sam Hughes Nursing and Midwifery Council: Leeann Mohamed, Terrance Wong and
Chris Scott NMC Regulatory Legal Team
Registrant: Present and not represented Facts proved by way of admission: 1, 2 and 6 Facts proved: 3, 4, 7 and 8 Facts not proved: 5 Fitness to practise: Impaired Sanction: Striking-off order Interim order: Interim suspension order -18 months
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Application to amend charge 8 Charge 8 currently reads: “Your conduct as alleged at charges 7 and/or 8 was dishonest
in that you knew you were under investigation by the NMC.”
Ms Mohamed applied for an amendment to charge 8. She applied for the charges
referred to, to be changed from “7 and/or 8” to “6 and/or 7”. She submitted that this was
a typographical error and that no unfairness would be caused to you in making the
amendment. You made no objection to the application.
The panel heard and accepted the advice of the legal assessor. He advised the panel
that at any stage before making findings of fact, it has the power to amend the charge
set out in the notice of hearing under Rule 28. He advised that the test is one of
fairness, having regards to the merits of the case.
The panel was of the view that the error was obvious and that no one, including you,
could have been misled. The panel concluded that the proposed amendment would not
cause injustice to you, and acceded to Ms Mohamed’s application.
Amended charges That you whilst employed as a Registered Nurse by Medbank Healthcare Solutions Ltd
and working at Bramley Court Care Home on 26 November 2013:
1. Administered 12.5mls of Oramorph solution to Resident A, when 2.5mls was the
prescribed dosage;
2. Failed to ensure that the administration of Oramorph, a controlled drug, to
Resident A was witnessed and/or countersigned in the controlled drugs book.
3. Failed to record the medication error alleged at charge 1 on Resident A’s care
plan.
4. Failed to correctly store medication prescribed to Resident A, following her
discharge from hospital.
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5. Signed MAR charts in respect of one or more residents of the Home stating that
medication had been administered, when it had not, or, in the alternative, failed
to inform the nurse in charge that medication had not been administered on a
previous shift.
Further that you, a registered nurse:
6. On 2 September 2014, indicated in an application form to Meridian Agency that
you had not had any complaints registered against you with the NMC, when you
were subject to an NMC investigation.
7. On 29 October 2014, indicated in interview for the Meridian Agency that you did
not have any outstanding referrals and were not subject to any NMC
investigation, when you were subject to an NMC investigation.
8. Your conduct as alleged at charges 6 and/or 7 was dishonest in that you knew
you were under investigation by the NMC.
And, in light of the above, your fitness to practise is impaired by reason of your
misconduct.
Admissions
At the outset, you admitted charges 1, 2 and 6. The panel therefore found these
charges proved by way of your admission.
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Decision and reasons on application to admit evidence by video link
The panel heard an application made by Ms Mohamed to allow Ms 1 to give evidence
via a video link. Ms Mohamed submitted that Ms 1 was not present at this hearing and,
whilst the NMC had made efforts to ensure that this witness was present, she was
unable to attend today due to childcare commitments. Ms Mohamed informed the panel
that Ms 1 was willing to participate via a video link.
You did not oppose Ms Mohamed’s application.
The panel heard and accepted the legal assessor’s advice on the issues it should take
into consideration in respect of this application. This included that, so far as it is “fair and
relevant,” a panel may accept evidence in a range of forms and circumstances, whether
or not it is admissible in civil proceedings.
The panel was satisfied that Ms 1’s evidence was relevant. She was the Home Manager
at the material time and she was involved in the investigation of the incidents that gave
rise to charges 1, 2, 3, 4 and 5. The panel next considered whether it would be fair to
allow Ms 1 to give evidence via a video link.
The panel considered whether you would be disadvantaged by Ms 1 giving evidence via
a video link instead of attending the hearing to give live evidence. The panel noted that
you did not object to the application. The panel considered that, as Ms 1 was willing to
give evidence via a video link, you would have the opportunity to cross-examine the
witness and the panel would be able to see Ms 1 and assess her evidence. The panel
therefore considered that there would be no unfairness to any of the parties in this
regard as both you and Ms Mohamed will have the opportunity to question Ms 1 and the
panel will be able to see Ms 1 and fully assess her evidence.
In these circumstances, the panel came to the view that it would be fair and relevant to
allow Ms 1 to give evidence via a video link.
Accordingly, the panel granted the application.
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Application to adjourn the hearing to call further witnesses
Ms Mohamed made an application for today’s hearing to be adjourned to allow further
NMC witnesses to attend. You did not contest the application for the adjournment. The
panel heard submissions from both parties and accepted the advice of the legal
assessor.
Ms Mohamed submitted that the next stage of the proceedings will involve hearing the
evidence of Mr 2, Ms 3 and Ms 4. However, none of these witnesses are available today
having previously been de-warned in light of your written response dated 5 April 2016
which appeared to admit all of the charges. Therefore, Ms Mohamed submitted that it is
necessary to adjourn until the remaining witnesses are available. She estimated that the
hearing will require four further days.
You told the panel that you did not contest the application for an adjournment because it
was necessary in the circumstances.
The panel determined that it was necessary in the circumstances to adjourn the hearing
to allow further NMC witnesses to attend. There could be no more progress made until it
is established whether the three remaining witnesses can become available to give oral
evidence. The panel considered that no injustice would be caused by an adjournment
and that it was in the interests of justice to hear the three remaining witnesses at the
first available opportunity.
For these reasons the panel accepted Ms Mohamed’s applications to adjourn the
hearing. The panel identified 24 – 27 October 2016 as a suitable period for the hearing
to resume. Whilst the panel identified 24 – 27 October 2016, it may not be able to sit on
27 October 2016 and therefore wishes to reserve 4 November 2016 as a fall-back day if
it is not able sit on 27 October 2016.
The panel having heard the evidence of Ms 1 and having read the documentary exhibits
direct that the following be obtained by the NMC for the resumed hearing:
• Resident A’s MAR charts;
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• In the absence of MAR charts, any further and better evidence relating to
Resident A’s Oramorph dosage as at 26 November 2013;
• Extract from the then current controlled drug book for the period which covered
26 November 2013. For the avoidance of doubt, this was referred to by Ms 1 as
the “new controlled drug book”;
• Full induction records relating to your engagement at the Home.
In making the above directions the panel noted that, whilst you admitted charge 1, there
appears to be uncertainty over the exact dosage which was prescribed to Resident A on
26 November 2013.
Decision and reasons on application to admit evidence by video link
The panel heard an application made by Mr Wong to allow Mr 2 to give evidence via a
video link. Mr Wong submitted that Mr 2 was not present at this hearing and, whilst the
NMC had made efforts to ensure that this witness was present, he was unable to attend
today [PRIVATE]. Mr Wong informed the panel that Mr 2 was willing to participate via a
video link.
The panel noted that in an email to the NMC dated 20 October 2016, you stated “I
object to [Mr 2] not attending the meeting if he is still in the Uk”. You told the panel that
your objection had been on the grounds that you had made the effort of attending your
hearing so you thought it was fair that Mr 2 should do so too. However, you conceded
that, upon reflection, you did not oppose Mr Wong’s application.
The panel heard and accepted the legal assessor’s advice on the issues it should take
into consideration in respect of this application. This included that, so far as it is “fair and
relevant,” a panel may accept evidence in a range of forms and circumstances, whether
or not it is admissible in civil proceedings.
The panel was satisfied that Mr 2’s evidence was relevant. He was the Branch Manager
of Meridian Agency (“the Agency”) at the material time and his evidence goes to
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charges 6, 7 and 8. The panel next considered whether it would be fair to allow Mr 2 to
give evidence via a video link.
The panel considered whether you would be disadvantaged by Mr 2 giving evidence via
a video link instead of attending the hearing to give live evidence. The panel considered
that, as Mr 2 was willing to give evidence via a video link, both you and Mr Wong would
have the opportunity to question him as would the panel who would be able to see him
and assess his evidence. The panel therefore considered that there would be no
unfairness to any of the parties in this regard.
In these circumstances, the panel came to the view that it would be fair and relevant to
allow Mr 2 to give evidence via a video link.
Accordingly, the panel granted the application.
Application to hear evidence by telephone
Mr Wong made an application, to receive the evidence of Ms 3, via a telephone
conference.
Mr Wong submitted that whilst the NMC would have wanted Ms 3 to attend in person,
unfortunately she is abroad on annual leave and is unable to attend the hearing. Mr
Wong submitted that Ms 3’s evidence was relevant to the case and related to charges
1-5 and that in the circumstances it would be fair to hear her evidence.
The panel noted that in an email to the NMC dated 20 October 2016, you stated “I will
accept [Ms 3] is abroad and is unable to attend the nmc meeting”. You told the panel
that you did not oppose Mr Wong’s application.
The panel considered the application carefully, and accepted the advice of the legal
assessor.
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The panel was satisfied that Ms 3’s evidence was relevant, and would assist it. She
conducted the local investigation and exhibits the relevant records, meeting notes,
policies, and disciplinary documentation.
The panel considered whether you would be disadvantaged by Ms 3 giving evidence by
telephone instead of attending the hearing to give live evidence. The panel considered
that, as Ms 3 was willing to give evidence by telephone, you would have the opportunity
to cross-examine her. The panel therefore considered that there would be no unfairness
to any of the parties in this regard as both you and Mr Wong would have the opportunity
to question Ms 3. The panel also noted that Ms 3 has provided a signed written
statement which contains the declaration of truth. Furthermore, Ms 3 is a witness who
acted primarily as an investigator and was not an eye witness to the disputed facts.
In these circumstances, the panel came to the view that it would be fair and relevant to
allow Ms 3 to give evidence by telephone.
Accordingly, the panel granted the application.
Having announced its decision, you told the panel that you actually had no questions for
Ms 3. Mr Wong confirmed that he did not have any questions for Ms 3 either. As the
panel had no questions for Ms 3, it concluded that there was no reason for her to give
oral evidence.
Determination on submissions of no case to answer
The panel heard that you were an agency nurse who was hired on 18 November 2013
by Medbank. On 26 November 2013, you were booked to work a nursing shift at
Bramley Court, a general nursing care home for 75 residents who are aged over 65 and
may suffer with dementia.
During the shift, you were required to administer 2.5ml of Oramorph (a controlled drug)
to Resident A. However, it is alleged that you administered 12.5ml instead of 2.5mls.
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Further, you are also alleged to have not ensured that a second nurse was present to
check and dispense the controlled drug with you as was the required protocol.
This alleged error was noticed by you after the administration and you contacted your
colleagues for help and advice. During this however, you allegedly asked another
registered nurse to countersign the controlled drugs book despite the fact that this
colleague had not witnessed the dispensing or administration of the medication.
It is also alleged that you failed to administer medication to a number of residents but
signed the Medication Administration Record (“MAR”) charts to indicate that you had.
Bramley Court’s manager found that the MAR charts had been signed suggesting that
medication had been administered. Yet when the blister packets were examined, they
were intact.
During the course of the investigation, it was found that you had confirmed to a new
potential employer, Meridian Agency, that you were not under investigation by the NMC
The panel heard oral evidence from three witnesses. They were:
• Ms 1, Home Manager and registered nurse at the material time;
• Ms 4, Unit Manager at the Home;
• Mr 2, Branch Manager at Meridian at the material time.
The panel also had before it the written statements from two other witnesses. They
were:
• Ms 3, Operations Manager at the Home;
• Mr 5, an NMC Case Investigations Manager.
The panel considered Rule 24(7) of the Rules which states:
Except where all the facts have been admitted and found proved under
paragraph (5),
at the close of the Council’s case, and—
(i) either upon the application of the registrant…
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the Committee may hear submissions from the parties as to whether sufficient
evidence has been presented to find the facts proved and shall make a
determination as to whether the registrant has a case to answer.
Having heard the evidence the panel decided of its own volition to hear submissions
from the NMC and you as to whether sufficient evidence has been presented to find the
facts proved in relation to the outstanding charges, and in particular charges 3 and 5.
The panel accepted the advice of the legal assessor. He advised that the NMC has
brought these proceedings and it is for the NMC to prove its case. You are not required
to disprove the allegations and no useful purpose would be served in continuing any
particular allegations if the panel is satisfied that, on the basis of the case which has
been put before it, there is no real prospect of the NMC discharging that burden of
proof. The legal assessor referred the panel to the test laid down by Lord Lane CJ in the
case of R. v Galbraith [1981] 73 Cr App R 124, as follows:
“(1) If there is no evidence that the crime alleged has been committed by the
defendant, there is no difficulty. The judge will of course stop the case.
(2) The difficulty arises where there is some evidence but it is of a tenuous
character, for example because of inherent weakness or vagueness or because it is
inconsistent with other evidence. (a) Where the judge comes to the conclusion that the
prosecution evidence, taken at its highest, is such that a jury properly directed could not
properly convict upon it, it is his duty, upon a submission being made, to stop the case.
(b) Where however the prosecution evidence is such that its strength or weakness
depends on the view to be taken of a witnesses’ reliability or other matters which are
generally speaking within the province of the jury and where on one possible view of the
facts there is evidence upon which a jury could properly come to the conclusion that the
defendant is guilty, then the judge should allow the matter to be tried by the
jury….There will of course as always in this branch of the law be borderline cases.
They can safely be left to the discretion of the judge.”
The panel first considered charges 4, 7 and 8 in relation to the Galbraith test. The panel
noted that you are not legally represented and that you did not make any submissions
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of no case to answer in respect of these charges. Nevertheless, the panel carefully
reviewed the evidence in relation to these charges and determined that there was
sufficient evidence presented for there to be a case to answer in respect of charges 4, 7
and 8.
Charge 3 – panel determined that there was a case to answer Failed to record the medication error alleged at charge 1 on Resident A’s care plan
You submitted that, in relation to charge 3, the evidence presented by the NMC was not
sufficient for the panel to find this charge proved. You submitted that in your nurse
training and during your subsequent practice you had not been told of any requirement
to update a care plan following a medication error.
In relation to charge 3, Mr Wong submitted that there is sufficient evidence for the panel
to find this charge proved. He reminded the panel that you that you admitted that you
made the medication error referred to in charge 1 and that you accept that you did not
record it in Resident A’s care plan. Mr Wong drew the panel’s attention to the evidence
of Ms 1, who stated that she would have expected you to be aware of the policy that
you should have recorded the error on the care plan. He also submitted that such a duty
is not just set out in local policies, but is common knowledge for registered nurses. He
submitted that the evidence before the panel indicates that you did fail in your duty to
record the medication error on Resident A’s care plan.
The panel noted that there were inconsistencies between the evidence of Ms 1 and Ms
4 in respect of what was expected of you after the medication error. The panel also
noted Ms 1’s evidence that you were not afforded as good an induction into the Home
or support as you might have had. Further, the NMC has not produced a copy of the
Home’s policy with regards to how a registered nurse should act in the event of a
medication error.
However, the panel had specific regard to the clear and consistent evidence of Ms 1
and Ms 4 on the issue that you had a duty to record the medication error and the panel
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was of the view that there is sufficient evidence which is capable of suggesting that you,
as a registered nurse, should update a resident’s care plan in the event of a drug error.
The panel therefore concluded that there was sufficient evidence capable of finding this
charge proved. Accordingly, the panel found that there was a case for you to answer in
relation to charge 3.
Charge 5 – panel determined that there was no case to answer Signed MAR charts in respect of one or more residents of the Home stating that medication had been administered, when it had not, or, in the alternative, failed to inform the nurse in charge that medication had not been administered on a previous shift In respect of charge 5, Mr Wong submitted that there is evidence before the panel to
suggest you had accepted that you signed the MAR charts. He also submitted that there
is evidence to suggest that the nurse on the previous shift had not administered the
medication that you recorded had been administered.
You made no submissions regarding this charge.
The panel noted the NMC’s failure to provide evidence in the form of copies of the
relevant MAR charts which were ordered to be produced at the adjournment of this
hearing on 29 April 2016.
In the absence of the MAR charts the panel concluded that the evidence is so inherently
weak that taking the NMC’s evidence at its highest it could not properly find the first limb
of charge 5 to be proved on the balance of probabilities. In relation to the second limb of
charge 5, the panel has heard no direct evidence that you failed to inform the nurse in
charge that medication had not been administered. Accordingly, the panel found that
there was no case for you to answer in relation to charge 5.
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Determination on facts
The panel considered all the evidence adduced together with the submissions of Mr
Wong on behalf of the NMC and your own. It heard and accepted the advice of the legal
assessor. The panel is aware that the burden of proof rests on the NMC to prove the
facts alleged in relation to each of the charges on the balance of probabilities, meaning
that the facts in the charges will be proved if the evidence establishes that the
allegations are more likely than not to be true. The panel considered each charge and
any alternatives separately.
The panel found that Ms 1 gave a consistent and clear account of the events. She had a
good recollection and when challenged she remained consistent throughout her
evidence. She was willing to concede that the induction and support you received might
have been better. For these reasons the panel found her to be credible and reliable.
The panel found that Ms 4 was somewhat guarded in her evidence. She appeared
cautious and careful in her recollection. At times during her evidence, she presented as
somewhat unforthcoming for a witness who was directly connected to the events on 26
November 2013. It was clear that she viewed her responsibility as your manager for
your induction to the Home and your support after the medication error occurred to have
been more limited than was expected by Ms 1.
The panel found Mr 2 gave an honest, consistent and credible account. He sought to
assist the panel by recalling the details of the events, even though they took place some
time ago and his colleagues at Meridian were more involved than he was in the events
which gave rise to the allegations. He recognised the limits of his recollection.
The panel found that you gave an honest, consistent and credible account. You offered
honest and frank explanations to all questions asked of you. You were open and candid
in that you readily accepted your wrongdoing.
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Charge 3 – proved
Failed to record the medication error alleged at charge 1 on Resident A’s care plan Ms 1 told the panel that there was no MAR chart present for Resident A when she
returned to the Home on 27 November 2013 the day after the incident. She said that
when Resident A returned to the Home the day before from Hospital the chart should
have been returned. However, she said that it appeared that you failed to identify that it
was missing. She said that as you were the receiving nurse you should have checked
that all the documentation was present. If you had noticed that the MAR chart had not
been provided, you should have informed the hospital staff who returned Resident A
that the document was missing and that it was required. In addition to this she said that
you could have sought advice from Ms 4 and a temporary MAR chart could have been
used in the interim.
You told the panel that you accepted that a resident who has received an overdose of
Oramorph, such as Resident A, would be required to have their vital signs recorded for
a 24 hour period and that the next dose of Oramorph may need to be omitted. Further,
you accepted that such observation should have been recorded in the resident’s care
plan and it would have been insufficient to assume that staff would have been aware of
the medication error solely from the incident form. Furthermore, you accepted that the
incident form was a document which did not form part of the day to day clinical records
of a patient and that it was therefore imperative that the incidents of an overdose be
recorded on the patient’s records.
In light of the evidence of Ms 1 and your own oral testimony which fully admitted charge
3, the panel is of the view that it is more likely than not that you failed to record the
medication error alleged at charge 1 on Resident A’s care plan. The panel therefore
finds charge 3 proved.
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Charge 4 – proved
Failed to correctly store medication prescribed to Resident A, following her discharge from hospital Ms 1 told the panel the actions which she had requested that you should complete as a
result of the medication error. This included completing comprehensive notes in the
resident’s care plan outlining exactly what had occurred, how it had occurred and what
action was taken. However, it is evident from the care plan that you had not made an
entry either detailing the facts of what had occurred nor the subsequent actions which
you had taken.
The panel had before it a copy of Resident A’s care plan in which it is clear that there
had been no entries made by you.
Ms 1 stated that as you were the nurse who accepted Resident A upon the resident’s
return from hospital, it was your responsibility to ensure that the medication which had
been provided by the hospital was correctly identified and processed. This included
ensuring that the controlled drugs were stored correctly and in accordance with both the
Home’s policies and the NMC Code.
Ms 1 said that she had returned to work the day after the incident to find that the
package of medication which had been prescribed and provided by the Hospital had not
been correctly stored away, in accordance with the Home’s Controlled Drugs Policy. In
fact it had been left on the side unit. Two of these medications were controlled drugs
namely Oramorph and MST (morphine slow release tablets). In evidence, you told the
panel that you were the receiving nurse and therefore responsible for Resident A. This
responsibility included checking all of her medications. You told the panel that you
accepted that you did not correctly store the medication prescribed to Resident A
following her discharge from hospital. Further, you accepted that it was your duty to
check and store all of Resident A’s prescribed medication. You told the panel that you
should have opened Resident A’s bag and checked its contents, but did not do so.
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In light of the evidence and your own oral testimony, the panel is of the view that it is
more likely than not that you failed to correctly store medication prescribed to Resident
A, following her discharge from hospital. The panel therefore finds charge 4 proved.
Charge 7 – proved
On 29 October 2014, indicated in interview for the Meridian Agency that you did not have any outstanding referrals and were not subject to any NMC investigation, when you were subject to an NMC investigation
Mr 2 told the panel that, having successfully passed the pre-application stage, you were
asked to undertake a practical assessment at the Agency. You were also provided with
a date to attend the Agency to complete an interview. He said that you attended the
Agency on 29 October 2014 and had a telephone interview with Ms 6, a registered
nurse. The interview notes were completed, then sent over to the Agency, where you
were asked to complete a declaration in which it stated the following, “I confirm that I do
not have any outstanding referrals, restrictions on my practice and am not subject to
any investigation under Safeguarding, the NMC, NHS protect, Police or any other
regulatory body. I also confirm that I am not subject to any unresolved disciplinary or
grievance procedures regarding my practice. I understand that if this changes I must
inform Meridian immediately”. This declaration was signed and dated by you in the
presence of Mr 2, a copy of which was before the panel.
You told the panel that you did attend an interview at the Agency on 29 October 2014
during which you answered a series of questions put to you over the telephone by Ms 6.
You accepted in your evidence that a document entitled “RGN face to face interview
questions” completed by Ms 6 was sent to you whilst you were at the office of Meridian.
You stated in evidence that you read this document and duly signed dated the
declaration at page 1. Furthermore, the panel noted at page 4 of the document that you
again signed and dated the questionnaire under a confirmation which reads, “I confirm
that the above information is true and accurate”.
In light of the evidence and your own oral testimony, the panel is of the view that it is
more likely than not that you indicated in interview for the Agency that you did not have
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any outstanding referrals and were not subject to any NMC investigation, when you
were subject to an NMC investigation. The panel therefore finds charge 7 proved.
Charge 8 – proved
Your conduct as alleged at charges 6 and/or 7 was dishonest in that you knew you were under investigation by the NMC The panel considered the case of Kirschner v General Dental Council [2015] EWHC
1377 (Admin). The panel first determined whether on the balance of probabilities you
acted dishonestly by the standards of ordinary and honest registered nurses; and, if you
did so, went on to determine whether it is more likely than not that you realised that
what you were doing was by those standards, dishonest. The onus of proof rests
throughout on the NMC and the applicable standard of proof is the civil standard,
namely on the balance of probabilities.
The panel first considered whether your actions as described in charges 6 would be
regarded as dishonest according to the standards of ordinary and honest nurses. The
panel noted that you were asked a question on the application form which required you
to disclose whether you were subject to an NMC investigation. However, you answered
in the negative when asked the question “Have you any complaints registered against
you with the NMC?” when you were clearly subject to an investigation. The panel was of
the view that a reasonable and honest nurse would consider you to be dishonest when
you withheld material information regarding the fact that you were subject to an NMC
investigation when you were asked in the application form.
In your evidence you told the panel that you accept that your action as described in
charge 6 was dishonest. You stated that you were trying to conceal your NMC referral
from the Agency because you wanted them to employ you and you knew that other
previous prospective employers had looked upon your applications unfavourably when
they were made aware of the referral. The panel is therefore satisfied that you would
have been aware that your actions in charge 6 at the time were dishonest.
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The panel next considered whether your actions as described in charge 7 would be
regarded as dishonest according to the standards of ordinary and honest nurses. The
panel noted that you signed and dated a declaration within the interview questionnaire
that confirmed that you were not subject to any unresolved disciplinary or grievance
procedure regarding your practice. The panel was of the view that a reasonable and
honest nurse would consider you to be dishonest when you signed the declaration
indicating that you were not subject to an NMC investigation.
In your evidence you told the panel that you accept that your actions as described in
charge 7 were dishonest. Again, you accepted that you were trying to conceal your
NMC referral from the Agency because you wanted them to employ you and you knew
that other prospective employers had looked upon the referral unfavourably. The panel
is therefore satisfied that you would have been aware that your actions at the time were
dishonest.
For all the reasons set out above the panel finds proved that your conduct as alleged at
charges 6 and 7 was dishonest in that you knew you were under investigation by the
NMC. The panel therefore finds charge 8 proved.
Determination on misconduct and impairment
The panel took into account the submissions of Mr Wong on behalf of the NMC and
your evidence and submissions. It accepted the advice of the legal assessor, who
referred it to the cases of Roylance v General Medical Council (No 2) [2000] 1 A.C.
311, GMC v Meadow [2007] QB 462, Nandi v GMC [2004] EWHC 2317 (Admin) and
Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2)
Grant [2011] EWHC 927 (Admin) and the Fifth Shipman Report.
In coming to its determination the panel exercised its own independent judgement. It
had regard to all the evidence presented and to The code: Standards of conduct,
performance and ethics for nurses and midwives (May 2008) (“the Code”).
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Mr Wong invited the panel to find that your actions in administering the incorrect dosage
of Oramorph, failing to record it and failing to correctly store the medication, amounted
to misconduct. He also said your actions in dishonestly concealing your referral to the
NMC amounted to misconduct. He referred the panel to the Code, the NMC’s Record
Keeping Guidance for Nurses and Midwives (“the Guidance”) and the NMC’s Standards
for Medicines Management (“the Standards”). He submitted that your fitness to practise
is impaired by reason of your misconduct.
You told the panel that you accept that you had made mistakes in terms of the care of
Resident A and that in future you would ensure that any medication errors would be
recorded in the care plan. You provided the panel with references from your last
employer as well as evidence that you have successfully undertaken online courses in
preparing and administering medication and dosage calculation. You submitted that you
have reflected on your shortcomings and that they would not be repeated in the future.
The panel was mindful that not every instance of falling short of what would be proper in
the circumstances, and not every breach of the Code, would be sufficiently serious that
it could properly be described as misconduct. Accordingly, the panel had careful regard
to the context and circumstances of the matters found proved.
The panel determined that by virtue of the facts found proved, you have breached the
following provisions of the Code:
From the preamble:
The people in your care must be able to trust you with their health and
wellbeing. To justify that trust, you must:
• make the care of people your first concern, treating them as
individuals and respecting their dignity
• work with others to protect and promote the health and wellbeing of
those in your care, their families and carers, and the wider community
• provide a high standard of practice and care at all times
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• be open and honest, act with integrity and uphold the reputation of
your profession.
As a professional, you are personally accountable for actions and omissions
in your practice, and must always be able to justify your decisions.
From the numbered standards:
22 You must work with colleagues to monitor the quality of your work and
maintain the safety of those in your care.
26 You must consult and take advice from colleagues when appropriate.
35 You must deliver care based on the best available evidence or best
practice.
38 You must have the knowledge and skills for safe and effective practice
when working without direct supervision.
39 You must recognise and work within the limits of your competence.
40 You must keep your knowledge and skills up to date throughout your
working life.
43 You must complete records as soon as possible after an event has
occurred.
51 You must inform any employers you work for if your fitness to practise is
called into question.
54 You must act immediately to put matters right if someone in your care has
suffered harm for any reason.
61 You must uphold the reputation of your profession at all times.
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The panel determined that by virtue of the facts found proved, you breached the
following provisions of the Guidance:
7 You should record details of any assessments and reviews undertaken,
and provide clear evidence of the arrangements you have made for future
and ongoing care. This should also include details of information given about
care and treatment.
25 If you have any problems relating to access or record keeping, such as
missing records or problems accessing records, and you cannot sort out the
problem yourself, you should report the matter to someone in authority. You
should keep a record that you have done so.
32 You have a duty to keep up to date with, and adhere to, relevant
legislation, case law, and national and local policies relating to information
and record keeping.
33 You should be aware of, and develop, your ability to communicate
effectively within teams. The way you record information and communicate is
crucial. Other people will rely on your records at key communication points,
especially during handover, referral and in shared care.
The panel determined that by virtue of the facts found proved, you breached the
following provisions of the Standards, specifically standards 2, 6 and 8:
Standard 2: Checking
1. Registrants (1st and 2nd level) must check any direction to administer a
medicinal product.
2. As a registrant you are accountable for your actions and omissions. In
administering any medication, or assisting or overseeing any self-administration
of medication, you must exercise your professional judgement and apply your
knowledge and skill in the given situation. As a registrant, before you administer
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a medicinal product you must always check that the prescription or other
direction to administer is:
2.6 in the case of controlled drugs, specifies the dosage and the number of
dosage units or total course; and is signed and dated by the prescriber using
relevant documentation as introduced, for example, patient drug record cards.
Standard 6: Storage
1. Registrants must ensure all medicinal products are stored in accordance with the
patient information leaflet, summary of product characteristics document found in
dispensed UK-licensed medication, and in accordance with any instruction on the
label.
Standard 8: Administration
2. As a registrant, in exercising your professional accountability in the best interests
of your patients:
2.3 you must know the therapeutic uses of the medicine to be administered, its
normal dosage, side effects, precautions and contra-indications
2.4 you must be aware of the patient’s plan of care (care plan or pathway)
2.7 you must have considered the dosage, weight where appropriate, method of
administration, route and timing
In respect of controlled drugs:
5. These should be administered in line with relevant legislation and local standard
operating procedures.
6. It is recommended that for the administration of controlled drugs a secondary
signatory is required within secondary care and similar healthcare settings.
8. Although normally the second signatory should be another registered health care
professional (for example doctor, pharmacist, dentist) or student nurse or
midwife, in the interest of patient care, where this is not possible, a second
suitable person who has been assessed as competent may sign. It is good
practice that the second signatory witnesses the whole administration process…
9. In cases of direct patient administration of oral medication from stock in a
substance misuse clinic, it must be a registered nurse who administers, signed
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by a second signatory (assessed as competent), who is then supervised by the
registrant as the patient receives and consumes the medication.
Drug calculations
15. Some drug administrations can require complex calculations to ensure that the
correct volume or quantity of medication is administered. In these situations, it is
good practice for a second practitioner (a registered professional) to check the
calculation independently in order to minimise the risk of error. The use of
calculators to determine the volume or quantity of medication should not act as a
substitute for arithmetical knowledge and skill.
In the panel’s judgment, the charges found proved amounted, individually and
collectively, to conduct which fell significantly short of what would be expected and
required of a registered nurse in the circumstances.
The panel first considered the group of charges which related to the first incidents,
namely charges 1, 2, 3 and 4. The panel considered that these charges amounted to
incidents where you administered the incorrect dosage of a controlled drug to a
resident, without having the administration witnessed or countersigned. You then failed
to correctly document the maladministration in the resident’s care plan and failed to
correctly store her prescribed medication following her discharge from hospital to the
Home.
The panel considered that your actions did not put Resident A’s interests first and put
her at risk of significant harm. Your failure to record your error in the care plan deprived
your colleagues of the essential information they required to care for Resident A which
placed her at further risk of harm.
The panel then considered the group of charges which related to the second incident,
namely charges 6, 7 and 8. The panel noted these charges flowed from your
misconduct in charges 1, 2, 3 and 4. The panel considered that this amounted to you
dishonestly failing to disclose your NMC referral to the Agency when you were
attempting to obtain employment with them. By your own admission, you had done this
in order to gain an advantage in obtaining employment as a registered nurse through
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the Agency. This placed the safety of patients second to your own interests. The panel
considered that this showed a total disregard for the regulatory process and a failure to
disclose information which could impact on patient safety.
The panel was satisfied that your actions, whether viewed individually or collectively,
were serious. You put a resident at a real risk of serious harm and demonstrated a lack
of regard to the potential implications for her, as well as a lack of accountability and
poor judgment. Your actions also involved deliberate and dishonest concealment on two
occasions of your NMC referral to the Agency. The panel concluded that they amounted
to misconduct.
The panel then went on to consider the question of impairment. In considering your
current fitness to practise the panel reminded itself of its duty to protect patients and its
wider duty to protect the public interest, which includes declaring and upholding proper
standards of conduct and behaviour, and maintaining public confidence in the
profession and the regulatory process.
The panel was mindful that “Impairment of fitness to practise” has no statutory
definition. However, the NMC has defined “fitness to practise” as a registrant’s suitability
to remain on the register without restriction.
The panel was assisted by the observations 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 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.”
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The panel further took into account the guidance formulated by Dame Janet Smith in
her fifth report of the Shipman inquiry, which was cited with approval in the case of
Grant, as follows:
“Do our findings of fact in respect of the [registrant’s] misconduct […] show that [she]
fitness to practise is impaired in the sense that [she]:
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 [nursing]
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 [nursing] profession; and/or
d. has in the past acted dishonestly and/or is liable to act dishonestly in the
future”
The panel concluded that your misconduct engaged all four limbs of this guidance. Your
actions fell into two broad categories: the inappropriate maladministration of controlled
medication and a failure to respond appropriately; and two matters of dishonesty
whereby you sought to conceal your NMC referral from prospective employers.
The panel considered that these actions had placed Resident A at unwarranted risk of
harm. They had also brought the profession into disrepute and breached the
fundamental tenets of the profession. You had acted dishonestly on more than one
occasion when concealing your NMC referral to a prospective employer. For all these
reasons, the panel had no doubt that at the time of the incidents in question your fitness
to practise was impaired by reason of your misconduct.
The panel next considered whether your fitness to practise remains impaired. To that
end, the panel had particular regard to the issues of remorse, insight, remediation and
the risk of repetition. It had close regard to your oral evidence.
The panel was particularly concerned that, beyond acknowledging that you have made
mistakes, you have demonstrated no remorse and very limited insight into your
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shortcomings. The panel was of the view that the limited insight you have shown is
superficial. The panel considered that you have not demonstrated insight into why your
actions in this regard were wrong. You have shown only limited recognition of the
potential harm at which you placed Resident A and the importance of keeping records
up to date. You showed no insight into your personal accountability or the potential
effect upon patients, their families and the public.
The panel considered whether your misconduct is remediable, whether it has been
remedied and whether it is likely to be repeated. The panel considered that the issues in
relation to the administration of medication and record keeping were capable of being
remedied. However, notwithstanding your further training and your practice without
incident since the allegations, the panel was of the view that you have not yet
demonstrated that they have been fully remedied. The panel bore in mind that
dishonesty is, by its nature, difficult to remedy, and if it is to be remedied a significant
degree of insight and reflection are required. The panel considered that you have not
yet demonstrated a sufficient degree of insight and have not demonstrated that you
have been able to remedy your dishonesty. The panel noted that you have acted
dishonestly on two separate occasions and you have demonstrated no insight as to the
impact of your dishonesty upon the nursing profession.
The panel concluded that there remains a risk of repetition of your misconduct, and
therefore that you remain liable in the future to act in such a way as to put patients at
unwarranted risk of harm, bring the nursing profession into disrepute, breach
fundamental tenets of the profession and to act dishonestly.
The panel further considered whether the need to uphold proper professional standards
and public confidence in the profession would be undermined if a finding of impairment
of fitness to practise were not made. The panel was satisfied that the seriousness of the
misconduct in this case, the risk it posed to patients and the fact that it involved
repeated dishonesty, meant that a finding of current impairment is required in the
circumstances of your case in order to declare and uphold proper professional
standards and maintain public confidence in the profession. The panel was satisfied that
public confidence in the profession would be undermined if no finding of impairment
were made.
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For all the reasons outlined above, the panel determined that your fitness to practise is
currently impaired by reason of your misconduct.
Determination on sanction In reaching its decision on sanction, the panel considered all the evidence that had
been placed before it throughout the hearing and had regard to its earlier findings at the
facts and impairment stages. It took into account the submissions of Mr Scott, on behalf
of the NMC, and your own submissions. It accepted the advice of the legal assessor
and took into account the NMC’s Indicative Sanctions Guidance (“ISG”).
Mr Scott referred the panel to the ISG and reminded the panel of some of the principles
set out in that guidance. He made no positive submission on behalf of the NMC as to
the appropriate sanction in this case, but submitted that the panel should consider the
section that addresses dishonesty within the ISG.
In your submissions you told the panel that you are very sorry for your dishonesty and
that you now accept that your actions in this regard were “shameful”. You said that,
while you should not have acted dishonestly, you concealed your NMC investigation
from the Agency because you did not want your application to be rejected. You
submitted that by doing so, you did not put the public at risk of harm because you had
completed a drug calculation course since making the initial drug error for which you
were referred to the NMC.
The panel approached the question of which sanction, if any, to impose, by considering
the least restrictive sanction first and moving upwards. The panel bore in mind that the
purpose of a sanction is not to be punitive, although it may have this effect, but is to
protect patients and the wider public interest. The wider public interest includes
maintaining public confidence in the profession and the regulatory process, and
declaring and upholding proper standards of conduct and behaviour.
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The panel had regard to the public interest, which includes the overarching objective of
protecting the public and also the maintenance of confidence in the profession and the
NMC as its regulator. It applied the principles of proportionality, weighing the interests of
the public with your interests, and took into account the mitigating and aggravating
factors in this case.
The panel considered that the aggravating factors in this case are as follows:
• The drug error was a very serious one and could have had grave consequences
for a vulnerable resident;
• There was limited evidence of remorse or reflection;
• The panel was not satisfied that you have demonstrated any real insight into your
misconduct or the impact that it has had on residents, colleagues and the
reputation of the profession;
• You continue to attempt to justify your dishonesty and have no realisation of the
potential consequences on patients, the public and your profession;
• You showed disregard for safe procedure by administering medication
unsupervised;
• The panel is concerned that there remains a real risk of repetition;
• There was little evidence of your failings having been remedied. There is no
evidence of you having undertaken a course specifically addressing controlled
drugs;
• You appear to lack any recognition of your responsibilities as a registered nurse.
The panel was particularly concerned that you appear to view working as a bank
nurse as carrying with it less of a duty than working as a nurse in a substantive
post;
• The charges involved failures in carrying out the most basic of nursing duties;
• You breached a substantial number of sections of the Code, the Guidance and
the Standards;
• Your dishonesty was not isolated but repeated on two occasions and you
desisted from it only when told twice by NMC staff that you must disclose to your
employer that you are under investigation.
The panel considered that the mitigating features of this case could be summarised as
follows:
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• There was some evidence that the induction you received and support you were
given at the Home was more limited than it should have been;
• You have fully engaged in this hearing, travelling each day from your home in
Birmingham;
• You expressed remorse in your submissions today;
• There has been no evidence of repetition since the incidents which gave rise to
the charges;
• You completed an online course on drug calculation;
• You have provided two references from your current employer;
• At the time of your dishonesty you were experiencing some difficulties in your
personal life;
• You have since been working without concern, managing a team of healthcare
assistants;
• When giving evidence at the previous stages of this hearing you were open,
frank and did not seek to evade answering any questions.
The panel first considered taking no further action but concluded that, given the serious
nature of the misconduct and the risk of repetition, this would be wholly inappropriate.
To take no further action would impose no restriction on your practice and would
therefore not serve to protect patients from the risk of harm arising from any repetition of
your failings. In addition, the nature and seriousness of the misconduct in this case,
particularly the dishonesty, were such that to take no further action would not serve to
declare and uphold proper professional standards and maintain public confidence in the
profession. To take no further action would therefore not satisfy the public interest
considerations in this case.
For the same reasons, the panel concluded that a caution order would not be a
sufficient or appropriate sanction.
The panel then considered a conditions of practice order. While such an order might
address outstanding concerns about your ability to administer medication, your
misconduct included dishonesty. This is a matter which cannot readily be addressed by
a conditions of practice order and the panel concluded that workable conditions of
practice could not be formulated which would be sufficient to protect the public. The
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panel also considered that a conditions of practice order would be insufficient to satisfy
the public interest considerations in this case.
The panel next considered a suspension order. It bore in mind that you have engaged
with the NMC process, attended the hearing, made admissions and demonstrated
some, albeit very limited, remorse.
The panel had to set against this the fact that the failings in this case were very serious.
Honesty, integrity and trustworthiness are the bedrock of the nursing profession and
failings in this regard are a serious matter and undermine public confidence in the
profession. Your conduct amounted to a serious departure from the professional
standards set out in the Code and the Guidance and the Standards and a breach of
fundamental tenets of the profession.
The panel considered that the incident in November 2013 was a serious one and you
displayed poor judgment and a disregard for procedure by administering a controlled
drug to a vulnerable resident without it being witnessed or countersigned in the
controlled drugs book. You then displayed further poor judgment by not documenting
your error in accurately calculating the correct dosage. This was compounded by your
dishonesty in applying for a job and concealing your NMC referral.
The panel considered that your explanations for your actions were inadequate and you
had demonstrated only limited remorse. Furthermore, your evidence showed no
realisation that the conduct criticised is serious and has wide-ranging consequences.
The panel was mindful that it had found at the impairment stage that you were liable to
demonstrate dishonesty again in future.
The panel had particular regard to paragraphs 67 to 72 of the ISG. It considered that
this case involved dishonesty, and that this could be regarded as an attitudinal issue.
Although there was no evidence of subsequent repetition following the two instances of
dishonesty, there is insufficient evidence to demonstrate that the failings had been
remedied, and there is only limited evidence of remorse and no evidence of meaningful
insight. There is a significant risk of repetition of drug administration errors and further
acts of dishonesty. This has the potential to harm patients. In addition, the panel
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considered that members of the public would be significantly concerned about a
member of the nursing profession being permitted to continue to practise if they were
liable to act in this way in future.
In the circumstances the panel concluded that the nature and seriousness of your
misconduct were fundamentally incompatible with your continued registration as a
nurse. A period of suspension would be insufficient to satisfy the public interest
considerations in this case, and that public confidence in the profession and in the NMC
as a regulator could only be sustained by your removal from the register.
The panel concluded that, notwithstanding the personal and professional hardship
which such a sanction will inevitably cause you, a striking-off order is the only sufficient
and appropriate sanction. Such an order is necessary to satisfy the public interest in
declaring and upholding proper professional standards and maintaining public
confidence in the profession and the NMC.
Accordingly, the panel determined to direct the Registrar to strike your name from the
Register.
You may not apply for restoration until five years after the date that this decision takes
effect.
Decision on interim order and reasons
The panel invited you and Mr Scott to make submissions on the imposition of an interim
order.
Mr Scott invited the panel to impose an interim suspension order on the grounds of
public protection and being otherwise in the public interest. He submitted that an interim
order should be imposed for 18 months.
You submitted that you intended to appeal the striking-off order that has been imposed.
You did not oppose Mr Scott’s application.
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The panel has accepted the advice of the legal assessor.
The panel has decided to make an interim suspension order for the same reasons as
the striking-off order. It has decided that it is necessary to do so for the protection of the
public and is in the public interest.
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 lodged then the interim order will be replaced by the substantive order 28
days after you are sent the decision of this hearing in writing.