Conduct and Competence Committee
Substantive Hearing
26-28 July 2016
Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ
Name of Registrant Nurse:
Michelle Cruz
NMC PIN:
82H0993E
Part(s) of the register:
Registered Nurse - Sub Part 1
Adult Nurse - November 1985
Registered Midwife - January 1988
Area of Registered Address:
England
Type of Case:
Misconduct
Panel Members:
Paul Morris (Chair Lay member)
Penny Tindle (Registrant member)
Nalini Chavda (Lay member)
Legal Assessor:
Oliver Wise
Panel Secretary:
Lucy Eames
Representation:
Mrs Cruz not present and not represented
Nursing and Midwifery Council:
Represented by Georgia Whiting, counsel,
instructed by NMC Regulatory Legal Team.
Facts proved:
1, 2, 3.1, 3.2, 3.5, 3.6, 4.1, 4.2, 4.3, 4.5, 4.6,
4.8, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 6.1, 6.2,
6.3, 6.4, 6.5, 6.6, 6.8
Facts not proved:
3.3, 3.4, 4.7, 5.8, 6.7
Fitness to practise:
Impaired
Sanction:
Striking off order
Interim Order:
Suspension order, 18 months
1
Details of charge:
That you, a registered midwife, whilst working on the Sherwood Birthing Unit at King’s
Mill Hospital:
1. In relation to Patient A, on the night shift of 6 – 7 March 2013, between approximately
20:00 and 5:30:
1.1 On one or more occasion left Patient A alone for excessive periods of time;
1.2 On one or more occasion did not conduct maternal and/or fetal observations
as required;
1.3 On one or more occasion, recorded on the partogram that you had assessed
the fetal heart rate and/ or maternal pulse, when you had not done so.
1.4 Your actions as described in charge 1.3 above were dishonest in that on one
or more occasion you recorded that you had undertaken and/or recorded the
fetal heart rate and/or maternal pulse, when you knew that you had not done so.
1.5 Recorded that you had undertaken observations for both Patient A and
Patient B at the following times:
1.5.1 21:00
1.5.2 01:00
1.6 Did not adequately discuss and / or record your discussions with Patient A
regarding Patient A’s birthing plan and/ or pain relief.
2. In relation to Patient C, on the night shift of 23 – 24 November 2013:
2.1 Incorrectly assessed Patient C as being 5cm dilated and/or in established
labour;
2.2 Did not complete and/or record the VTE assessment;
2.3 Did not repeat and/or put in place a plan to repeat Patient C’s blood pressure
and/or pulse after taking readings of 140/100 and 100 respectively;
2.4 Did not adequately assess and/or document in Patient C’s notes, the causes
of Patient C’s high blood pressure and/or pulse reading;
2.5. Did not put in place and/or record a plan of action for managing Patient C’s
high blood pressure;
2.6 Did not complete a handover of Patient C’s care.
2
3. In relation to Patient D, on the night shift of 23 – 24 22 – 23 November 2013:
3.1 Incorrectly assessed Patient D as being 4cm dilated and/or soft and effaced
and/or in established labour;
3.2 Incorrectly transferred Patient D to the birthing unit;
3.3 Did not sign Patient D’s triage form;
3.4 Did not sign an entry in Patient D’s free notes;
3.5 Did not record if Patient D consented to a vaginal examination;
3.6 Did not conduct a conversation with Patient D regarding the vaginal
examination and the associated risks and/or did not document any such
conversation.
4. In relation to Patient E, on the night shift of 23 – 24 22 – 23 November 2013:
4.1 Did not record the time of Patient E’s assessment;
4.2 Did not take and/or record Patient E’s respiration rate;
4.3 Having been made aware that Patient E had a raised pulse which was
outside of normal limits did not:
4.3.1 repeat or obtain a further pulse reading from Patient E and/or
handover that a repeated pulse reading was needed;
4.3.2 record that Patient E’s pulse rate was abnormal;
4.3.3 assess and/or document the causes of Patient E’s abnormal pulse
rate;
4.3.4 plan to review Patient E’s abnormal pulse rate;
4.5 Did not record if Patient E consented to a vaginal examination;
4.6 Did not discuss Patient E’s condition with her upon admission and/or failed to
document any such discussion;
4.7 Did not sign Patient E’s triage form;
4.8 Did not undertake and/ or document a handover of Patient E’s care.
3
5. In relation to Patient F, on the night shift of 23 – 24 November 2013:
5.1 Incorrectly assessed Patient F as being 6cm dilated and/or in established
labour;
5.2 Did not complete and/or record the VTE assessment;
5.3 Did not measure and/or record the fundal height;
5.4 Did not record if Patient F consented to a vaginal examination;
5.5 Did not record the time of Patient F’s vaginal examination;
5.6 Did not conduct a conversation with Patient F regarding the vaginal
examination and associated risks and/or did not document this conversation;
5.7 Did not complete and/or document a plan of care;
5.8 Did not complete a handover of Patient F’s care.
6. In relation to Patient G, on the night shift of 23 – 24 22 – 23 November 2013:
6.1 Did not complete and/or record the VTE assessment;
6.2 Did not record the status of the membranes in the appropriate place;
6.3 Did not record Patient G’s identifying information, including her address
and/or unit number on her records;
6.4 Did not record if Patient G consented to a vaginal examination;
6.5 Did not record the time of Patient G’s vaginal examination;
6.6 Did not record Patient G’s birth plan;
6.7 Did not record the time and/or date of Patient G’s assessment;
6.8 Did not measure and/or record the fundal height.
And, in light of the above, your fitness to practise is impaired by reason of
your misconduct.
4
Decision on Service of Notice of Hearing:
The panel was informed at the start of this hearing that Mrs Cruz was not in attendance
and that written notice of this hearing had been sent to Mrs Cruz’s registered address
by recorded delivery and by first class post on 11 May 2016. Royal Mail “Track and
Trace” documentation confirmed that the notice of hearing was sent to Mrs Cruz’s
registered address by recorded delivery on that date.
The panel accepted the advice of the legal assessor.
In the light of all of the information available, the panel was satisfied that Mrs Cruz has
been served with notice of this hearing in accordance with the requirements of Rules 11
and 34.
Decision on proceeding in the absence of the Registrant:
The panel had regard to Rule 21 (2) (b) which states:
“Where the registrant fails to attend and is not represented at the hearing, the
Committee...may, where the Committee is satisfied that the notice of hearing has
been duly served, direct that the allegation should be heard and determined
notwithstanding the absence of the registrant...”
Ms Whiting invited the panel to continue in the absence of Mrs Cruz on the basis that
she had voluntarily absented herself. Ms Whiting submitted that there had been limited
engagement by Mrs Cruz in relation to these proceedings and, as a consequence, there
was no reason to believe that an adjournment would secure her attendance on some
future occasion.
The panel accepted the advice of the legal assessor. The panel’s discretionary power to
proceed in the absence of a registrant under the provisions of Rule 21 is one that
5
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 had sight of a telephone note about a phone call that occurred on 21 July
2016 between Mrs Cruz and her NMC case officer in which it states “she is entirely
happy for the hearing to proceed in her absence and that she would just like the matter
to be over with so that she can get on with life.”
The panel has decided to proceed in the absence of Mrs Cruz. 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 decision of
Jones. It has had regard to the overall interests of justice and fairness to all parties. It
concluded that:
•
no application for an adjournment has been made by Mrs Cruz;
•
there is no reason to suppose that adjourning would secure her attendance at
some future date;
•
4 witnesses have attended today to give live evidence;
•
not proceeding may inconvenience the witnesses, their employers and, for those
involved in clinical practice, the clients who need their professional services;
•
the charges relate to events that occurred in 2013 so there is a strong public
interest in the expeditious disposal of the case;
•
further delay may have an adverse effect on the ability of witnesses accurately to
recall events;
•
it could rely on a direct conversation with Mrs Cruz where she asked for the
hearing to go ahead in her absence.
There is some disadvantage to Mrs Cruz in proceeding in her absence. However, the
limited disadvantage is the consequence of Mrs Cruz’s decisions to absent herself from
the hearing, waive her rights to attend and be represented and not to provide evidence
or make submissions on her own behalf.
6
In these circumstances, the panel has decided that it is fair, appropriate and
proportionate to proceed in the absence of Mrs Cruz. The panel will draw no adverse
inference from Mrs Cruz’s absence in its findings of fact.
Decision and reasons on application to amend charge
The panel heard an application made by Ms Whiting, on behalf of the NMC, to amend
the wording of charges 3, 4 and 6.
The proposed amendment was to change the date from 23-24 November 2013 to 22-23
November 2013. It was submitted by Ms Whiting that the proposed amendment would
make no material change to the relevant charges and the original dates were drafted in
error by the NMC. The amended charges should read as follows:
3. In relation to Patient D, on the night shift of 22 – 23 November 2013:
4. In relation to Patient E, on the night shift of 22 – 23 November 2013:
6. In relation to Patient G, on the night shift of 22 – 23 November 2013:
The panel accepted the advice of the legal assessor. He referred to Rule 28 of the
Rules which provides:
28 (1) At any stage before making its findings of fact …
(i) … the Conduct and Competence Committee, may amend
(a) the charge set out in the notice of hearing …
unless, having regard to the merits of the case and the fairness of the
proceedings, the required amendment cannot be made without injustice.
7
The panel was of the view that such an amendment, as applied for, was in the interests
of justice. The panel was satisfied that there would be no prejudice to Mrs Cruz and no
injustice would be caused to either party by the proposed amendment being allowed. It
was therefore appropriate to allow the amendment, as applied for, to correct the dates.
Decision on the findings on facts and reasons
In reaching its decisions on the facts, the panel considered all the evidence adduced in
this case together with the submissions made by Ms Whiting, on behalf of the NMC.
The panel accepted the advice of the legal assessor.
The panel was aware that the burden of proof rests on the NMC, and that the standard
of proof is the civil standard, namely the balance of probabilities. This means that the
facts will be proved if the panel was satisfied that it was more likely than not that the
incidents occurred as alleged. In relation to the charge of dishonesty, the panel
accepted the advice that it should not find dishonesty except if satisfied that there is
cogent evidence of dishonesty.
The panel has drawn no adverse inference from the non-attendance of Mrs Cruz.
Background
Mrs Cruz was referred to the NMC in October 2014 by the Local Supervising Authority
Midwifery Officers (LSAMO). The charges arose whilst Mrs Cruz was employed as a
Band 6 Midwife by Sherwood Forest Hospitals NHS Trust (the Trust), where Mrs Cruz
had worked for a number of years. She had qualified as a midwife in 1988 and was
considered an experienced midwife. It is alleged that Mrs Cruz provided inadequate
care to Patient A throughout her labour and that Patient A was left alone for long
periods of time. Mrs Cruz failed to adequately support, monitor and communicate with
8
Patient A and her husband. Patient A wrote a letter of complaint stating her concerns
and Mrs Cruz was suspended by the Trust in April 2014.
Further allegations were raised about Mrs Cruz’s failure to complete assessments and
her inadequate documentation of several other patients in November 2013. These
failures included wrongly sending patients to the labour unit and not discussing birthing
or pain management plans or documenting these. These matters were investigated by
Mrs 1.
In reaching its decisions on the facts, the panel took into account all the oral and
documentary evidence in this case. The panel heard oral evidence from 4 witnesses
called on behalf of the NMC:
•
Patient A;
•
Mr A, Patient A’s husband;
•
Mrs 1, Clinical Risk Coordinator and Supervisor of Midwives at the Trust;
•
Mrs 2, Senior Midwife at Kings Mill Hospital.
The panel found all the NMC witnesses to be credible and reliable. Patient A was
honest and admitted that she had some gaps in her memory due to the analgesia and
that these had been filled in by her husband. She felt she had let herself down by not
being more assertive at the time. The panel found Mr A to be clear and credible when
giving evidence. It noted that he had a reliable reference of time by watching TV
episodes on his iPad while accompanying Patient A. Mrs 1 was very clear with her
evidence and said when she couldn’t remember something. The panel took into account
that she had looked thoroughly into the incidents she was questioned about. The panel
found Mrs 2’s evidence to be clear and consistent.
The panel considered each charge and made the following findings:
Charge 1:
9
1. In relation to Patient A, on the night shift of 6 – 7 March 2013, between approximately
20:00 and 5:30:
1.1 On one or more occasion left Patient A alone for excessive periods of time;
This charge is found proved.
In reaching this decision, the panel took into account the NICE guidance, Patient A’s
complaint letter and Mr A’s evidence. The guidance clearly states that a patient in
labour should not be left alone for longer than 15 minutes. Mr A’s evidence was that Mrs
Cruz was sometimes absent for 45 minutes or more. It found these time periods to be
excessive and therefore found this charge proved.
1.2 On one or more occasion did not conduct maternal and/or fetal observations
as required;
This charge is found proved.
The panel took into account Patient A’s evidence where she stated that as a result of
minimal care by Mrs Cruz and her own concerns, she took her own fetal observations
on two occasions as Mrs Cruz was not there to do them. Mr A confirmed this in his
evidence. The periods of absence meant that Mrs Cruz could not have taken a
significant number of observations.
1.3 On one or more occasion, recorded on the partogram that you had assessed
the fetal heart rate and/ or maternal pulse, when you had not done so.
This charge is found proved.
According to the partogram document in the exhibit bundle, Mrs Cruz had completed all
the assessments. However, the panel noted the contradictory evidence from Patient A
and Mr A that for long periods Mrs Cruz was not present and could not have taken
these observations. She also didn’t perform observations while Patient A was on a
birthing ball or on all fours.
10
1.4 Your actions as described in charge 1.3 above were dishonest in that on one
or more occasion you recorded that you had undertaken and/or recorded the
fetal heart rate and/or maternal pulse, when you knew that you had not done so.
This charge is found proved.
The panel was aware of the relevant test for dishonesty which was affirmed in Kirschner
v General Dental Council [2015] EWHC 1377 (Admin).
The panel should first determine whether on the balance of probabilities, Mrs Cruz
acted dishonestly by the standards of ordinary and honest members of the midwifery
profession; and, if it finds that she did so, must go on to determine whether it is more
likely than not that Mrs Cruz realised that what she was doing at the material time was
by those standards, dishonest. The panel concluded that ordinary and honest midwives
would know that it was dishonest to record an observation on a mother in labour which
had not been made. It is clear that Mrs Cruz as an experienced midwife would know
this. There was no evidence of the ward being very busy. The panel took into account
the evidence that the partogram was too clean and pristine, compared with how a
normal working document would appear. Moreover, there were recordings made during
a period of time that Mrs Cruz had said she was on her break and during her long
periods of absence. The panel was left in no doubt that Mrs Cruz was dishonestly
seeking to give the impression of having made observations when she had not done
them.
1.5 Recorded that you had undertaken observations for both Patient A and
Patient B at the following times:
1.5.1 21:00
1.5.2 01:00
This charge is found proved.
11
The panel examined Patient A’s and Patient B’s notes in the exhibit bundle. Those
patients had recordings taken at the same times as set out above. The panel
determined that she could not have been with two patients at the same time.
1.6 Did not adequately discuss and / or record your discussions with Patient A
regarding Patient A’s birthing plan and/ or pain relief.
This charge is found proved.
The panel took into account Mr A’s statement that no significant discussions about
either pain relief or a birthing plan took place between Mrs Cruz and Patient A or
himself. Moreover, there was no evidence in the documents of any such discussions
being recorded.
Charge 2:
2. In relation to Patient C, on the night shift of 23 – 24 November 2013:
2.1 Incorrectly assessed Patient C as being 5cm dilated and/or in established
labour;
This charge is found proved.
In Patient C’s notes Mrs Cruz records Patient C as being 5cm dilated. Patient C was
transferred to the birthing unit and reviewed later as being only 2cm dilated. Patient C
was sent home and it was 5 days before she was readmitted in established labour.
2.2 Did not complete and/or record the VTE assessment;
This charge is found proved.
12
The VTE assessment is a mandatory requirement on admission. Patient C’s notes had
not been completed, showing that either the assessment had not been completed or
recorded.
2.3 Did not repeat and/or put in place a plan to repeat Patient C’s blood pressure
and/or pulse after taking readings of 140/100 and 100 respectively;
This charge is found proved.
In Patient C’s notes the panel found no evidence of repeat readings or a plan to repeat
these readings. Mrs 2 gave evidence that these checks should have been repeated as
the readings were abnormal. No plan to do this was documented.
2.4 Did not adequately assess and/or document in Patient C’s notes, the causes
of Patient C’s high blood pressure and/or pulse reading;
This charge is found proved.
The panel found this charge proved. There is a lack of information regarding Patient C’s
blood pressure and pulse in her notes. Mrs 2 again stated the need to investigate the
cause of Patient C’s raised blood pressure and pulse so the appropriate care could be
given.
2.5. Did not put in place and/or record a plan of action for managing Patient C’s
high blood pressure;
This charge is found proved.
The panel found this proved for the same reasons as set out in charge 2.4.
2.6 Did not complete a handover of Patient C’s care.
This charge is found proved.
13
There was no written evidence of Mrs Cruz completing a handover of Patient C in her
notes. This was confirmed by Mrs 2 who had checked all the relevant documents.
Charge 3:
3. In relation to Patient D, on the night shift of 22 – 23 November 2013:
3.1 Incorrectly assessed Patient D as being 4cm dilated and/or soft and effaced
and/or in established labour;
This charge is found proved.
Mrs Cruz assessed Patient D as being 4cm dilated and in established labour so she
was transferred to the birthing unit. Patient D remained at 3-4cm dilated for 10 hours
and therefore was not in established labour and should not have been transferred there.
3.2 Incorrectly transferred Patient D to the birthing unit;
This charge is found proved.
The panel found this charge proved for the same reasons as charge 3.1.
3.3 Did not sign Patient D’s triage form;
This charge is found NOT proved.
Close examination of the triage form shows that Mrs Cruz had signed the form in the
notes section at 22.40. Therefore this charge is not proved.
3.4 Did not sign an entry in Patient D’s free notes;
This charge is found NOT proved.
14
Mrs Cruz’s signature appears in Patient D’s free notes. This charge is not proved.
3.5 Did not record if Patient D consented to a vaginal examination;
This charge is found proved.
Patient D’s notes in the exhibit bundle are set out on a standard form. Against “vaginal
examination” there is a box marked “No”, which should be completed if a patient refuses
a vaginal examination; and a box marked “Agreed”, if the patient consents to the
examination. In Patient D’s case neither box is completed. Accordingly, Mrs Cruz did
not record if Patient D consented to the vaginal examination.
3.6 Did not conduct a conversation with Patient D regarding the vaginal
examination and the associated risks and/or did not document any such
conversation.
This charge is found proved.
It is inconceivable that a vaginal examination would take place without any conversation
about it between the midwife and the patient. This conversation was not documented.
Accordingly, the panel found this charge proved; on the basis that there was the
requisite conversation, but it was not documented.
4. In relation to Patient E, on the night shift of 22 – 23 November 2013:
4.1 Did not record the time of Patient E’s assessment;
This charge is found proved.
The panel had sight of Patient E’s notes and determined that the date had been
recorded but no time had been.
4.2 Did not take and/or record Patient E’s respiration rate;
15
This charge is found proved.
The box to record her respiration rate on Patient E’s notes was empty and therefore no
respiration rate had been recorded.
4.3 Having been made aware that Patient E had a raised pulse which was
outside of normal limits did not:
4.3.1 repeat or obtain a further pulse reading from Patient E and/or
handover that a repeated pulse reading was needed;
4.3.2 record that Patient E’s pulse rate was abnormal;
4.3.3 assess and/or document the causes of Patient E’s abnormal pulse
rate;
4.3.4 plan to review Patient E’s abnormal pulse rate.
This charge is found proved in its entirety.
Mrs 2 confirmed her statement in which she says, regarding Patient E, ‘she (Mrs Cruz)
had not taken a repeated pulse rate, despite [Patient] E having a raised pulse which
was outside of normal limits’. Mrs 2’s statement goes on to say Mrs Cruz failed to
handover to another midwife and failed to record that the pulse rate was abnormal and
no plan was seen. The panel therefore found this charge proved.
There is no charge 4.4.
4.5 Did not record if Patient E consented to a vaginal examination;
This charge is found proved.
Patient E’s notes in the exhibit bundle are set out on a standard form. Against “vaginal
examination” there is a box marked “No”, which should be completed if a patient refuses
a vaginal examination; and a box marked “Agreed”, if the patient consents to the
16
examination. In Patient E’s case neither box is completed. Accordingly, Mrs Cruz did not
record if Patient E consented to the vaginal examination.
4.6 Did not discuss Patient E’s condition with her upon admission and/or failed to
document any such discussion;
This charge is found proved.
The panel took into account the fact that there was no evidence that anything had been
documented regarding any such discussions so therefore found this charge proved on
the basis that any discussions were not documented.
4.7 Did not sign Patient E’s triage form;
This charge is found NOT proved.
Mrs Cruz’s signature can be seen in the signature box. Accordingly, the panel was
satisfied that the triage form had been signed.
4.8 Did not undertake and/ or document a handover of Patient E’s care.
This charge is found proved.
Mrs 2 stated that she had examined all the relevant documentation and Mrs Cruz had
failed to complete a handover of Patient E. There was no documentary or other
evidence of one having taken place. The panel therefore found this charge proved.
5. In relation to Patient F, on the night shift of 23 – 24 November 2013:
5.1 Incorrectly assessed Patient F as being 6cm dilated and/or in established
labour;
17
This charge is found proved.
Mrs Cruz assessed Patient F as 6cm dilated at about 22.45. This measurement was
borne out by a student midwife recording 7-8cm 3-4 hours later. However, in her
statement, Mrs 2 says that the student midwife was concerned that the patient was not
showing the signs of established labour. 4 hours later Patient F had another vaginal
examination and was found to be only 4-5 cm dilated; and the panel found this
measurement to be reliable and consistent with the other evidence. Mrs 2 concluded
that Mrs Cruz’s original measurement was an exaggeration, and that the student must
have been influenced by Mrs Cruz’s incorrect earlier record.
5.2 Did not complete and/or record the VTE assessment;
This charge is found proved.
The VTE assessment is a mandatory requirement on admission. Patient F’s notes had
not been completed, showing that either the assessment had not been completed or
recorded.
5.3 Did not measure and/or record the fundal height;
This charge is found proved.
No fundal height was recorded in the observations box on Patient F’s notes.
5.4 Did not record if Patient F consented to a vaginal examination;
This charge is found proved.
Patient F’s notes in the exhibit bundle are set out on a standard form. Against “vaginal
examination” there is a box marked “No”, which should be completed if a patient refuses
18
a vaginal examination; and a box marked “Agreed”, if the patient consents to the
examination. In Patient F’s case neither box is completed. Accordingly, Mrs Cruz did not
record if Patient F consented to the vaginal examination.
5.5 Did not record the time of Patient F’s vaginal examination;
This charge is found proved.
No time was recorded, next to the date, on the vaginal examination sticker in Patient F’s
notes.
5.6 Did not conduct a conversation with Patient F regarding the vaginal
examination and associated risks and/or did not document this conversation;
This charge is found proved.
It is inconceivable that a vaginal examination would take place without any conversation
about it between the midwife and the patient. This conversation was not documented.
Accordingly, the panel found this charge proved; on the basis that there was the
requisite conversation, but it was not documented.
5.7 Did not complete and/or document a plan of care;
This charge is found proved.
The panel took into account that there were no documents outlining that Mrs Cruz
completed a plan of care with Patient F. It also noted that Mrs 2 checked all the relevant
documentation and that there had been no plan of care completed.
5.8 Did not complete a handover of Patient F’s care.
19
This charge is found NOT proved.
In Patient F’s notes there is evidence of a handover given to another midwife at 23.45
on 23 November 2013. The panel therefore found this charge not proved.
6. In relation to Patient G, on the night shift of 23 – 24 November 2013:
6.1 Did not complete and/or record the VTE assessment;
This charge is found proved.
The VTE assessment is a mandatory requirement on admission. Patient G’s notes had
not been completed, showing that either the assessment had not been completed or
recorded.
6.2 Did not record the status of the membranes in the appropriate place;
This charge is found proved.
The box in the membranes section in Patient F’s notes was left blank. Accordingly, Mrs
Cruz did not record the status of the membranes.
6.3 Did not record Patient G’s identifying information, including her address
and/or unit number on her records;
This charge is found proved.
The panel noted that Patient G’s form was not fully filled out by Mrs Cruz. Patient G’s
address, postcode and unit number were missing from her notes.
6.4 Did not record if Patient G consented to a vaginal examination;
This charge is found proved.
20
Patient G’s notes in the exhibit bundle are set out on a standard form. Against “vaginal
examination” there is a box marked “No”, which should be completed if a patient refuses
a vaginal examination; and a box marked “Agreed”, if the patient consents to the
examination. In Patient G’s case neither box is completed. Accordingly, Mrs Cruz did
not record if Patient G consented to the vaginal examination.
6.5 Did not record the time of Patient G’s vaginal examination;
This charge is found proved.
The date, but not the time, was recorded on Patient G’s vaginal examination notes.
6.6 Did not record Patient G’s birth plan;
This charge is found proved.
There was no evidence of a birthing plan for Patient G, recorded by Mrs Cruz.
6.7 Did not record the time and/or date of Patient G’s assessment;
This charge is found NOT proved.
The date and time of Patient G’s assessment had been recorded in an appropriate
place and therefore this charge was not proved.
6.8 Did not measure and/or record the fundal height.
This charge is found proved.
The space to record the fundal height in Patient G’s notes had been left blank by Mrs
Cruz.
21
Submission on misconduct and impairment:
Having announced its finding on all the facts, the panel then moved on to consider,
whether the facts found proved amount to misconduct and, if so, whether Mrs Cruz’s
fitness to practise is currently impaired. The NMC has defined fitness to practise as a
registrant’s suitability to remain on the register unrestricted.
In her submissions Ms Whiting invited the panel to take the view that Mrs Cruz’s actions
amount to a breach of The Code: Standards of conduct, performance and ethics for
nurses and midwives 2008 (“the Code”). She then directed the panel to specific
paragraphs and identified where, in the NMC’s view, Mrs Cruz’s actions amounted to
misconduct.
She then moved on to the issue of impairment, and addressed the panel on the need to
have regard to protecting the public and the wider public interest. This included the
need to declare and maintain proper standards and maintain public confidence in the
profession and in the NMC as a regulatory body.
The panel has accepted the advice of the legal assessor which included reference to:
Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2)
Grant [2011] EWHC 927 (Admin) and Cohen v General Medical Council [2008] EWHC
581 (Admin).
The panel adopted a two-stage process in its consideration, as advised. First, the panel
must determine whether the facts found proved amount to misconduct. Secondly, only if
the facts found proved amount to misconduct, the panel must decide whether, in all the
circumstances, Mrs Cruz’s fitness to practise is currently impaired as a result of that
misconduct.
22
Decision on misconduct
When determining whether the facts found proved amount to misconduct the panel had
regard to the terms of The code: Standards of conduct, performance and ethics for
nurses and midwives 2008 (the Code).
The panel, in reaching its decision, had regard to the public interest and accepted that
there was no burden or standard of proof at this stage and exercised its own
professional judgement.
The panel was of the view that Mrs Cruz’s actions did fall significantly short of the
standards expected of a registered midwife and nurse, and that her actions amounted to
a breach of the Code. Specifically, from the preamble:
• provide a high standard of practice and care at all times
• be open and honest, act with integrity and uphold the reputation of your
profession.
And also the following specific paragraphs;
8 You must listen to the people in your care and respond to their concerns and
preferences.
42 You must keep clear and accurate records of the discussions you have, the
assessments you make, the treatment and medicines you give, and how effective
these have been.
61 You must uphold the reputation of your profession at all times.
The panel appreciated that breaches of the Code do not automatically result in a finding
of misconduct. However, the panel was of the view that Mrs Cruz’s failings were serious
and repeated. The variety of failings included fraudulent entries, minimal levels of care
and documentation errors which could affect a patient’s future care and therefore put
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them at a real risk of harm. The panel determined that Mrs Cruz was considered an
experienced midwife; however, her actions fell well short of what was expected from a
registered midwife.
The panel took into account the Midwives rules and standards and determined that Mrs
Cruz had breached the following:
4. A midwife…
b) must make sure the needs of the woman or baby are the primary focus of her
practice
c) should work in partnership with the woman and her family
d) should enable the woman to make decisions about her care based on her
individual needs, by discussing matters fully with her.
The panel concluded that Mrs Cruz’s actions amounted to misconduct.
Decision on impairment
The panel next went on to decide if, as a result of this misconduct, Mrs Cruz’s fitness to
practise is currently impaired.
Midwives occupy a position of privilege and trust in society and are expected at all times
to be professional and to maintain professional boundaries. Patients and their families
must be able to trust midwives with their lives and the lives of their loved ones. To justify
that trust, midwives must be honest and open and act with integrity. They must make
sure that their conduct at all times justifies both their patients’ and the public’s trust in
the profession. In this regard the panel considered the judgement of Mrs Justice Cox in
the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery
24
Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision. At paragraph 74
Mrs Justice Cox said:
In determining whether a practitioner’s fitness to practise is impaired by
reason of misconduct, the relevant panel should generally consider not
only whether the practitioner continues to present a risk to members of the
public in his or her current role, but also whether the need to uphold
proper professional standards and public confidence in the profession
would be undermined if a finding of impairment were not made in the
particular circumstances.
Mrs Justice Cox went on to say in Paragraph 76:
I would also add the following observations in this case having heard
submissions, principally from Ms McDonald, as to the helpful and
comprehensive approach to determining this issue formulated by
Dame Janet Smith in her Fifth Report from Shipman, referred to above.
At paragraph 25.67 she identified the following as an appropriate test for
panels considering impairment of a doctor’s fitness to practise, but in my
view the test would be equally applicable to other practitioners governed
by different regulatory schemes.
Do our findings of fact in respect of the doctor’s misconduct,
deficient professional performance, adverse health, conviction,
caution or determination show that his/her fitness to practise is
impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so as to
put a patient or patients at unwarranted risk of harm; and/or
b. has in the past brought and/or is liable in the future to bring the
medical profession into disrepute; and/or
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c. has in the past breached and/or is liable in the future to breach
one of the fundamental tenets of the medical profession; and/or
d. has in the past acted dishonestly and/or is liable to act
dishonestly in the future.
The panel finds that all four limbs are engaged both in terms of past behaviour and real
risk of repetition in the future.
Regarding insight, the panel considered that Mrs Cruz had shown no evidence of insight
into her failings nor was there any evidence that she had attempted to remedy her
failings or offer any explanations or apologies.
Accordingly, there is a risk of repetition based on the fact that there is no evidence to
show otherwise. The panel therefore decided that a finding of impairment is necessary
on the grounds of public protection.
The panel bore in mind that its primary function is to protect patients and the wider
public interest, which includes maintaining confidence in the nursing profession and
upholding the proper standards and behaviour. The panel determined that, in this case,
a finding of impairment on public interest grounds was required as Mrs Cruz’s actions
are not those expected of a registered midwife and therefore would bring the profession
into disrepute.
Having regard to all of the above, the panel was satisfied that Mrs Cruz’s fitness to
practise is currently impaired.
Determination on sanction:
The panel has had regard to all the evidence that has been adduced in this case. The
panel accepted the advice of the legal assessor. The panel has borne in mind that any
sanction imposed must be appropriate and proportionate and, although not intended to
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be punitive in its effect, may have such consequences. The panel had careful regard to
the Indicative Sanctions Guidance (“ISG”), published by the NMC. It recognised that the
decision on sanction is a matter for the panel, exercising its own independent
judgement.
The panel first considered whether to take no action, but concluded that this would be
inappropriate in view of the seriousness of the case. The panel decided that it would be
neither proportionate nor in the public interest to take no further action.
Next, in considering whether a caution order would be appropriate in the circumstances,
the panel took into account the ISG, which states that a caution order may be
appropriate where ‘the case is at the lower end of the spectrum of impaired fitness to
practise and the panel wishes to mark that the behaviour was unacceptable and must
not happen again.’ The panel considered that Mrs Cruz’s misconduct was not at the
lower end of the spectrum and that a caution order would be inappropriate in view of the
seriousness of the case. The panel decided that it would be neither proportionate nor in
the public interest to impose a caution order.
The panel next considered whether placing conditions of practice on Mrs Cruz’s
registration would be a sufficient and appropriate response. The panel is mindful that
any conditions imposed must be proportionate, measurable and workable. The panel
took into account the ISG.
The panel is of the view that there are no practical or workable conditions that could be
formulated, given the nature of the facts found proved in this case and the fact that
dishonesty is involved.
Furthermore the panel concluded that the placing of conditions on Mrs Cruz’s
registration would not adequately address the seriousness of this case and would not
protect the public.
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The panel then went on to consider whether a suspension order would be an
appropriate sanction. Paragraph 71 indicates that a suspension order would be
appropriate where (but not limited to):
67 This sanction may be appropriate where the misconduct is not
fundamentally incompatible with continuing to be a registered nurse or
midwife in that the public interest can be satisfied by a less severe
outcome than permanent removal from the register. This is more likely
to be the case when some or all of the following factors are apparent
(this list is not exhaustive):
67.1 A single incident of misconduct but where a lesser sanction is not
sufficient;
67.4 The panel is satisfied that the nurse or midwife has insight and
does not pose a significant risk of repeating behaviour.
The panel has taken into account the following mitigating factors:
•
Mrs Cruz had gone through a difficult year around the time of the incidents;
•
She was the main carer to her brother;
•
There were difficulties she faced that might have affected her personal and
professional relationships;
•
She was an experienced midwife and there had been no previous referrals or
investigations against her.
The aggravating factors that the panel took into account, in particular, are:
•
Mrs Cruz’s failings were repeated;
•
The potential to cause serious patient harm;
•
Her actions amounted to serious misconduct;
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•
She displayed no insight into her actions;
•
Failing to conduct observations, then falsifying records so it appeared she had.
The conduct, as highlighted by the facts found proved, was a significant departure from
the standards expected of a registered midwife.
Accordingly, the panel determined that a suspension order would not be a sufficient,
appropriate or proportionate sanction.
Finally, in looking at a striking-off order, the panel took note of the following paragraphs
of the ISG:
70.1 Is striking-off the only sanction which will be sufficient to protect
the public interest?
70.2 Is the seriousness of the case incompatible with ongoing
registration?
70.3 Can public confidence in the professions and the NMC be
sustained if the nurse or midwife is not removed from the
register?
71
This sanction is likely to be appropriate when the behaviour is
fundamentally incompatible with being a registered professional,
which may involve any of the following …
71.1 Serious departure from the relevant professional standards
as set out in key standards, guidance and advice …
71.2 Doing harm to others or behaving in such a way that could
foreseeably result in harm to others, particularly patients or
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other people the nurse or midwife comes into contact with
in a professional capacity, either deliberately, recklessly,
negligently or through incompetence, particularly where
there is a continuing risk to patients. Harm may include
physical, emotional and financial harm. The panel will
need to consider the seriousness of the harm in coming to
its decision.
Mrs Cruz’s actions were significant departures from the standards expected of a
registered midwife, and are fundamentally incompatible with Mrs Cruz remaining on the
register. The panel was of the view that the findings in this particular case demonstrate
that Mrs Cruz’s actions were serious and to allow her to continue practising would
undermine public confidence in the profession and in the NMC as a regulatory body.
Mrs Cruz’s failings constituted a serious potential risk to patients. There has been no
evidence from her of how she might remedy her practice.
After taking into account all the evidence before it during this case, the panel
determined that the appropriate and proportionate sanction is that of a striking-off order.
Having regard to the matters it identified, in particular the effect of Mrs Cruz’s actions in
bringing the profession into disrepute by adversely affecting the public’s view of how a
registered midwife should conduct herself, the panel has concluded that nothing short of
this would be sufficient in this case.
The panel considered that this order was necessary to mark the importance of
maintaining public confidence in the profession, and to send to the public and the
profession a clear message about the standards of behaviour required of a registered
midwife. It directs the registrar to strike Mrs Cruz off the register. The effect of this order
is that the NMC register will show that Mrs Cruz has been struck off the register.
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Determination on Interim Order
The panel has considered the submissions made by Ms Whiting that an interim order
should be made on the grounds that it is necessary for the protection of the public and
is otherwise in the public interest.
The panel accepted the advice of the legal assessor.
The panel was satisfied that an interim suspension order is necessary for the protection
of the public and is otherwise in the public interest. The panel had regard to the
seriousness of the facts found proved and the reasons set out in its decision for the
substantive order in reaching the decision to impose an interim order. To do otherwise
would be incompatible with its earlier findings.
The period of this order is for 18 months to allow for the possibility of an appeal to be
made and determined.
If no appeal is made, then the interim order will be replaced by the striking off order 28
days after Mrs Cruz is sent the decision of this hearing in writing.
That concludes this determination.
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