Conduct and Competence Committee
Substantive Hearing
Hilton Hotel Belfast
19 – 26 March 2013
27 – 30 August 2013
Registrant:
Leopoldo J De Guzman
NMC PIN:
03F1050O
Part(s) of the register:
Registered Nurse – Sub-Part 1
Adult – June 2003
Area of Registered Address:
Northern Ireland
Type of Case:
Misconduct
Panel Members:
Pamela Mansell - Lay Chair
Ian Potter - Lay member
Amy Lovell - Registrant member
Witnesses:
Ms 1, Ms 2, Ms 3, Ms 4, Ms 5, Mr 6, Ms
7,
Legal Assessor:
Patricia Gordon
Panel Secretary:
John Barker
NURSING AND MIDWIFERY COUNCIL:
Represented by Elisabeth Acker & Rory
Mulchrone on behalf of the Nursing and
Midwifery Council Regulatory Legal
Team.
Nurse:
The registrant was present and
represented by Frances Mackey & Joe
McCusker, instructed by UNISON.
Facts proved:
1, 2, 3a, 4a, b, c, 5a, b, c, d, e, f, 7a, b,
c, d, e, f, 8a, b, 9a, b, d, 10, 11
Facts not proved:
3b, 5g, 6a, b, c, 9c
Fitness to practise:
currently impaired
Outcome:
12 month conditions of practice order
Interim Order:
practice
18
month
interim
conditions
of
Page 1 of 20
Amendment to Charge
Ms Acker, on behalf of the NMC, applied to amend charge 6. She submitted that
the date stated in charge 6 should read 22 August 2009 not 19 August 2009. Ms
Acker submitted this was a drafting error by the NMC. Ms Acker was made aware
by Mr Mackey on the morning of the first day of the hearing that you were not at
work on the 19 August 2009. Ms Acker submitted that no injustice would be
caused to you by the panel granting this amendment. She submitted that Mr
Mackey will have a chance to test witness 1 on her memory of the incident on this
date and that the particulars of the allegation on this day have not altered, only the
date. Mr Mackey submitted that now it had been established you did not attend
work on the 19th August, it would not be fair to assume that the incident originally
referred to on the 19th August occurred on a different day.
The panel accepted the advice of the legal assessor, who referred to Rule 28 of the
Nursing and Midwifery Rules 2004. Rule 28 reads (so far as relevant in this case):
28.—(1) At any stage before making its findings of fact, in accordance with
rule 24(1)(d)
(i), the Conduct and Competence Committee, may amend—
(a) the charge set out in the notice of hearing; or
(b) the facts set out in the charge, on which the allegation is based, unless,
having regard to the merits of the case and the fairness of the proceedings,
the required amendment cannot be made without injustice.
(2) Before making any amendment under paragraph (1), the Committee shall
consider any representations from the parties on this issue.
The panel noted that on your Case Management Form (CMF) dated 11 September
2012 you denied being at work on this day. On receipt of the CMF the NMC did
not put you on notice of any intention to amend the date of this charge. The panel
consider you properly prepared your defence to this charge based on the wording
as advised to you and the NMC had reasonable time in which to consider their
position in light of the information you had provided. The panel consider this
proposed amendment would have a major effect on this charge. Therefore the
panel concluded that there would be an injustice to you in granting the amendment
and the panel determined that the amendment should not be granted.
On the eighth and final day of the hearing, Ms Acker applied for another charge to
be amended. She submitted that the stem of charge 8 should be changed from,
‘On 2nd September you’ to ‘On an unknown date in August 2009 you’. Ms Acker
made her application in light of the written evidence adduced during the hearing,
namely the rota sheet for this period, which showed you were not at work on 2
September 2009, and also being advised of this by your representative.
Ms Acker reminded the panel that despite knowing you were on holiday on 2
September 2009 you did not raise any issue in the CMF with the date as set out in
charge 8. In fact your CMF indicated that you were aware of an incident where it
was alleged you failed to take a patients blood sugar level reading. Furthermore,
the NMC witness, Ms 5, was very clear in her recollection of this incident.
Page 2 of 20
Ms Acker referred the panel to the case of R v John Vincent Gleason 2004 Crim
appeal R29, in which it was held that it was not acceptable for the defence to take
advantage of a prosecution error and deliberately delay an issue at the last
possible moment. Ms Acker submitted that in this instance there is no suggestion
that you or Mr Mackey were attempting to delay proceedings. However, Ms Acker
stated that once the NMC was made aware of the error they have done everything
in their power to produce evidence to show when this event did occur and have
also given Mr Mackey an opportunity to cross examine any relevant witnesses.
Mr Mackey confirmed to the panel that whilst you do remember an incident as
alleged in stanza (a) and (b) of charge 8, he has concerns that the NMC was
attempting to match an admission (you acknowledged that an incident regarding
your failure to take a patient blood sugar level reading occurred in the CMF) to a
general period of time, without any factual evidence of the date it occurred.
The panel heard and accepted the advice of the legal assessor who referred the
panel to Rule 28 as set out above.
The panel determined that this amendment would not be unfair to you or create
any injustice. The panel noted that you did not take issue with the date of this
charge in your CMF response and that you recall there being an issue with this
patient’s blood sugar level.
The panel considered the error in the date of the charge, which came to light
during the hearing, to have been addressed by the NMC through the oral evidence
of the various witnesses and the documentary evidence adduced. The panel
decided that you and Mr Mackey had been given sufficient opportunity to examine
the evidence and properly prepare your defence to this charge. The panel note
your admission that you can remember the particulars of this incident although you
dispute the charge and that Ms 5 recalled these events and gave a full account of
her memory of the incident. The panel determined that amending the specific date
of the charge would have minor effect on the nature and substance of this charge
and therefore would not cause injustice to you. Accordingly the panel accepted Ms
Acker’s application to change the stem of charge 8.
Admissions
Mr Mackey, on your behalf, stated that you admit charge 4 in its entirety, charge 5 (b),
(c) and (e), charge 7 in its entirety and charge 11. Accordingly the panel found these
charges proved by way of admission.
Charges
That you, while employed by the Northern Health and Social Care Trust (‘the Trust’) at
Whiteabbey Hospital as a Band 5 staff nurse between 3rd April 2009 and 27th November
2009, failed to demonstrate the standards of knowledge, skill and judgment required to
practice as a Band 5 nurse without supervision in that:
1. On 3rd April 2009 you failed to demonstrate adequate knowledge of the treatment
plan for an unknown patient who suffered from diarrhoea.
2. On 25th April 2009 you failed to communicate effectively when performing a hand
over to the Night Staff.
3. On 30th April 2009 you:
Page 3 of 20
4.
5.
6.
7.
8.
9.
a. Failed to demonstrate sufficient staff management skills in that you failed
to delegate and/or failed to plan other members of staff’s breaks;
b. Failed to provide personal care to an unknown patient which met the
requisite standard.
On 5th May 2009 during a ward round you failed to demonstrate sufficient
knowledge of patient care and/or communication skills in that you:
a. Failed to give staff sufficient information about patients in your care –
proved by way of admission
b. Failed to respond adequately to questions from other members of the
multi-disciplinary team - proved by way of admission
c. When asked what a patient’s mood was you responded to the effect that
the patient’s bowels had moved - proved by way of admission
th
On 18 August 2009 you:
a. Failed adequately to delegate patient care to other members of staff;
b. Failed to communicate effectively with the multi-disciplinary team - proved
by way of admission
c. When asked what a patient’s mood was, you responded with information
concerning the patient’s continence - proved by way of admission
d. Failed to communicate in a comprehensible way over the telephone with a
relative of an unknown patient;
e. Failed to mention on handover to Ms 8 that an unknown patient would
require a wound to be redressed - proved by way of admission
f. Failed to arrange a bed allocation for the admission of a patient;
g. Failed to move a bed as directed by staff nurse Ms 8.
On 19th August 2009 you:
a. Failed to allocate staff to specific bays;
b. Failed to obtain information concerning the health of the seven patients in
your care from other members of staff;
c. Having taken six patients’ Physiological Early Warning Score (‘PEWS’),
you failed to record the time at which the next assessment was to be
undertaken in respect of each patient.
On 20th August 2009 you:
a. Failed to take appropriate action when an unknown patient started to
vomit blood – proved by way of admission
b. Failed to obtain blood forms upon first request from Ms 4 – proved by
way of admission
c. Only dispensed medication for two patients during medication round –
proved by way of admission
d. Commenced IV infusions at an incorrect rate of 12mls per hour rather than
125mls per hour – proved by way of admission
e. Failed to ensure a second nurse checked the rate of IV infusion – proved
by way of admission
f. Failed to ensure that the doctor’s instructions for administration of this IV
medication were recorded – proved by way of admission
On an unknown date in August 2009 you:
a. Failed to take a blood sugar level reading from an unknown patient when
directed to do so;
b. Failed to communicate or document why you had failed to take the blood
sugar level reading.
On 12th September 2009 you:
Page 4 of 20
a. Shouted words to the effect of ‘calm down, calm down’ to an unknown
patient who was choking;
b. Failed to organise an X-ray for an unknown patient;
c. Failed to make appropriate arrangements to convey the patient from Ward
9 to the X-ray ward;
d. Shouted words to the effect of ‘I’m too busy’ to two patients who requested
your attention.
10. On 26th November 2009 you failed to document patient care notes legibly.
11. On 27th November 2009, having taken patients’ Physiological Early Warning
Score (‘PEWS’), you failed to record the time at which the next assessment was
to be undertaken in respect of each patient – proved by way of admission
And, in light of the above, your fitness to practice is impaired by reason of your lack of
competence.
Witnesses
The following is a list of NMC witnesses who gave oral evidence during this hearing and
provided written statements:
Ms 1, the Ward Manager (Ward 9) at the Trust.
Ms 2, the General Manager at the Trust and Mr 6’s Line Manager.
Ms 3, Staff Nurse at the Trust.
Ms 4, Staff Nurse at the Trust.
Ms 5, Staff Nurse at the Trust.
The following is a list of witnesses who provided written statements:
Mr 6, Lead Nurse at the Trust and Ms 1’s Line Manager.
Ms 7, Human Resources Manager at the Trust.
The panel considered the evidence of the witnesses to be credible and reliable,
particularly taking into account the passage of time since the charges took place. The
panel found the NMC witnesses evidence to generally corroborate the documentary
evidence before it.
The panel noted the evidence of Ms 3 that Ms 1 set very high standards in the
management of the ward and she had high expectations of all her staff, and that this
may have had an impact on your behaviour. However, having heard the evidence of Ms
1, the panel consider her to be a generally balanced and fair witness.
You did not give evidence to the panel and the panel drew no adverse inference from
this. Your representative, Mr Mackey, drew the panel’s attention to your responses to
the charges as provided by you in the Case Management Form (CMF).
Background
You worked as a Band 5 Registered Nurse at Whiteabbey Hospital, Newtownabbey,
between September 2007 and 28 April 2010. You were for the period to which these
charges relate employed on Ward 9, a ward accommodating rehabilitation patients and
elderly patients.
Page 5 of 20
Your role involved managing care for a group of patients, organising staff breaks,
clinical decision making, identifying risk and taking action, arranging transport for
patients and delegating duties.
Witness 1 was your ward manager at the time of the alleged charges and was
responsible for managing and supporting ward staff. In November 2007 Ms 1 met with
you to discuss performance issues and as a result an Action Plan was drawn up to
cover a period of 12 months. This plan dealt with areas of your practice and
competence which required attention and improvement. These included: making clinical
decisions, managing a group of patients, development of your skills in delegation and
prioritisation, and following NMC guidelines as regard to record keeping. The plan also
dealt with the development of effective communication with nursing staff, the multiple
disciplinary team, patients and carers, and also whilst carrying out verbal handovers.
The plan allocated two mentors who would provide you with support and also act as role
models. The panel heard evidence from Ms 5 who was one of these mentors. Following
a meeting in July 2008 with Ms 1, the Action Plan was reviewed and a number of areas
were identified which required further improvement. These included; organisation skills,
communication skills, delegation, prioritising workloads, decision making and managing
care for a group of patients.
A review of the plan took place in November 2008 when Ms 1 noted that you were not
functioning without a trained member of staff present to oversee patient care. In
November 2008 the Trust instigated its capability procedure. As a result an Action Plan
was drawn up detailing an observation checklist of practices for you to undertake and
for you to be observed and supervised. In August 2009 a further review took place when
the Trust indicated that you were not meeting the competencies of a Band 5 nurse in
relation to delegation, communication and management skills, despite being given
support. A further Action Plan was drawn up addressing these competencies. You were
advised that if you had continuing capability concerns and failure to reach the agreed
objectives further action could be taken which might include downgrading or termination
of employment. During the capability procedure, you expressed the view that you felt
nervous when your practice was being observed.
In April 2010, due to continuing capability concerns, you were downgraded to a Band 3.
Determination on findings of fact
In reaching its decisions on the facts, the panel has taken into account the oral and
written evidence and the exhibits that were presented to it during the hearing. The panel
has also taken into account the submissions made by Ms Acker on behalf of the NMC
and Mr Mackey on your behalf.
The panel has heard and accepted the advice of the legal assessor.
The panel is aware that the burden of proof rests on the NMC, and that the standard is
the civil standard, namely the balance of probabilities. This means that the facts will be
proved if the panel is satisfied that it is more likely than not to have occurred.
1. On 3rd April 2009 you failed to demonstrate adequate knowledge of the treatment
plan for an unknown patient who suffered from diarrhoea – proved
The panel noted the evidence of Ms 1, who stated:
Page 6 of 20
‘On 3 April 2009 I observed Leo in order to assess his skills regarding
managing the team, delegating and providing care for 10 patients. When asked
to give a report to medical staff during a ward round, Leo had poor knowledge
of the patients. I highlighted a particular issue to Leo regarding a patient who
had diarrhoea. The fact that the patient had diarrhoea was stated in the
handover report at 7.30 that morning and at 5pm [17:00] Leo said he did not
know how the patient was to be managed’. I explained to Leo that this would
have been a priority’.
The panel heard evidence from Ms 3 as to the procedure a nurse should follow when
looking after a patient with diarrhoea.
In your Case Management Form (CMF), in response to this charge, you stated that you
know how to deal with a patient with diarrhoea, but this is contrary to what you told Ms 1
on 3 April 2009. The panel determined that nurses at the Trust were aware of how
patients with diarrhoea should be treated, as confirmed by Ms 3, and that you did not
demonstrate this knowledge when being observed by Ms 1. Accordingly the panel found
charge 1 proved.
2. On 25th April 2009 you failed to communicate effectively when performing a hand
over to the Night Staff – proved
The panel noted the evidence of Ms 5 who stated:
‘On Saturday 25 April 2009, following other members of staff complaining about
his [Mr De Guzman] poor handovers and/or not handovers, I observed a
handover…He did not properly cover the basics of what happened on the last 24
hours and what will happen in the next 24 hours’.
Ms 5 went on to say:
‘His [Mr De Guzman] communication was not clear, it was hard to understand
what he said, and the content was limited. My conclusions were that he lacked
confidence, communication skills and direction. The main difficulty was that he
found it difficult to express exactly what he meant’.
In Ms 5’s report of this incident (exhibit MG 15), written on 25 April 2009, she states
that:
‘The Staff Nurse receiving the report, through questioning and prompting did
understand the handover report but it took a long time, I therefore supported the
report with further explanation that may have been missed’.
In your CMF you stated that:
‘By questioning and prompting they [the staff] did understand and satisfied with
the report and information that I shared with them’.
The panel accepted the evidence of Ms 5, namely that your communication was not
effective during the handover on 25 April 2009. Staff should not be required to question
the information in your handover to establish the relevant circumstances for each
Page 7 of 20
patient. You should be able to communicate all the relevant information in a coherent
fashion without being prompted. Accordingly the panel found charge 2 proved.
3. On 30th April 2009 you:
a. Failed to demonstrate sufficient staff management skills in that you failed
to delegate and/or failed to plan other members of staff’s breaks – proved
(with regards to delegation)
The panel noted the evidence of Ms 1 who stated:
‘On 30 April 2009 I observed Leo was on the Ward. Leo did not delegate and he
demonstrated very weak planning skills’.
Ms 1 went on to state:
‘I explained to Leo that he had not demonstrated the competencies of a Band 5
nurse in the following areas: Prioritising work loads, organising staff breaks,
planning and organising staff to undertake tasks, delegating duties, checking
those duties have been completed, managing the shift, decision making,
providing clear and concise reports and effective communication with relatives of
patients’.
The panel heard evidence from Ms 3 who stated that it was not always necessary to
plan breaks because the staff on the ward understood how the ward operated and when
they could take their breaks. You corroborated this understanding in your CMF when
you stated:
‘There are occasions that staff members does [sic] not required any delegation,
direction and allocation since they are working in the ward for long time [sic],
they are well trained and experienced…and familiar with the ward routines’.
The panel determined that you failed to delegate, but not that you failed to plan staff
breaks. Accordingly the panel found charge 3a, as regard to delegation, proved.
b. Failed to provide personal care to an unknown patient which met the
requisite standard – not proved
The panel noted the evidence of Ms 1 who stated:
‘On 30 April 2009 I observed Leo was on the Ward…Personal care provided to a
patient was not at the required standard and Leo did not lead the team’
The patient in question required shaving. You stated in your CMF that you delegated
the responsibility of shaving the patient to an auxiliary nurse as you were busy with
more pressing matters at the time.
The panel noted the evidence of Ms 1 who stated that although the patient appeared
clean he was ‘untidy and was not at the required standard’. The panel considered
whether a male patient is clean by looking at whether he needs a shave to be a
subjective matter. In this case, the panel does not consider there to be enough evidence
to suggest the patient was unclean or any evidence to suggest you did not delegate
Page 8 of 20
responsibility to an auxiliary nurse as stated in your CMF. Accordingly the panel found
charge 3b not proved.
5. On 18th August 2009 you:
a. Failed adequately to delegate patient care to other members of staff –
proved
The panel noted the hand written notes made by Ms 1 concerning this incident. She
recorded that:
‘After handover from Night Staff Leo did not communicate any aspect of patient
care except instructing an auxiliary to bath a patient. He knew observations
needed done – I did observations Leo did not check with me if patients were ok’.
The panel also noted the Action Plan record of this incident that states you did not
communicate with the team as to the required nursing tasks. This Action Plan and the
record of this incident was signed by both you and Ms 1 at the time of the incident.
In your CMF you stated that you delegated an auxiliary nurse to wash one of the
patients. The panel consider this to corroborate Ms 1’s version of events and the panel
prefer her more complete picture of the shift in question. Accordingly the panel found
charge 5 proved.
d. Failed to communicate in a comprehensible way over the telephone with a
relative of an unknown patient – proved
The panel noted the evidence of Ms 1 who states:
‘Leo would use incomprehensible language. An example of this was when on 18
August 2009 a patient’s daughter phoned for an update regarding her mother. I
overheard Leo on the telephone to her and observed his command of spoken
English was not good’.
Ms 1 gave evidence that the patient’s daughter had phoned back half an hour later and
told her that she had not understood what you had said.
The panel also had sight of the Action Plan report of this incident, although the Action
Plan is dated the 19th August 2009, it does mention the problems experienced with the
telephone call and is signed by both you and Ms 1.
In your CMF you stated that you remembered the telephone call and had asked the
relative to phone back in half an hour as you were busy. The panel noted that Ms 1 was
very clear in her evidence that the relative could not understand you. In these
circumstances the panel prefer the evidence of Ms 1. Accordingly the panel find charge
5d proved.
f. Failed to arrange a bed allocation for the admission of a patient – proved
The panel noted the evidence of Ms 1 who stated:
Page 9 of 20
‘I told Leo at the start of the shift on 18 August 2009 that we were expecting a
new patient and Leo would need to prepare for him. Around lunchtime, the bed
manager phoned to ask whether the bed was ready. I asked Leo if he was ready
to receive the patient. Leo looked puzzled and gave an incoherent response, for
example ‘I…um…I…’ and this went on for many moments. Leo did not make
any sense and did not complete a sentence and therefore was unable to give an
explanation that could be understood’.
In your CMF you stated you planned ahead by ‘moving beds to another room and vice
versa’. The panel preferred the clear evidence of Ms 1. Accordingly the panel found
charge 5f proved.
g. Failed to move a bed as directed by Ms 8 – not proved
The only evidence the panel heard in relation to this charge was that Ms 1 overheard
Ms 8 saying ‘that a bed would have to be moved’. The panel have not heard from Ms 8.
The panel determined therefore that there is insufficient evidence to prove that you
failed to move a bed in accordance with a direction from Ms 8. In addition the panel find
no evidence of a direction being given to you, as set out in the charge. This
corroborates what you state in your CMF. Accordingly the panel found charge 5g not
proved.
6. On 19th August 2009 you:
a. Failed to allocate staff to specific bays – not proved
b. Failed to obtain information concerning the health of the seven patients in
your care from other members of staff – not proved
c. Having taken six patients’ Physiological Early Warning Score (‘PEWS’),
you failed to record the time at which the next assessment was to be
undertaken in respect of each patient – not proved
The panel noted that you were on annual leave on 19 August 2009. Ms Acker on behalf
of the NMC had applied for an amendment to the date mentioned in the stem of the
charge, so that it read 22 August 2009. This application was rejected by the panel. For
the sake of completeness the panel noted that you were not at work on the 22 August
2009 either. Accordingly the panel found charge 6 not proved in its entirety.
8. On an unknown date in August 2009 you:
a. Failed to take a blood sugar level reading from an unknown patient when
directed to do so – proved
The panel noted the oral evidence of Ms 5, and the record of this event, which was not
contemporaneous, but is corroborated by your response in your CMF. Ms 5 stated:
‘Leo was asked to do a repeat of the blood sugar. I then noted that it was not
recorded. I ask Leo if he took the b.m [blood monitoring] and he said no. He was
waiting…I was unable to understand why he did not check b.m [blood
monitoring] on a patient with blood sugar of 3.4. I find he has difficulty with
communication and gets “muddled” and “flustered” when trying to explain’.
Page 10 of 20
In your CMF you stated you were waiting for the blood sugar machine. The panel heard
evidence that this machine should not be difficult to locate. Therefore the panel
concluded that it would be unrealistic for you to claim you were waiting for this machine.
Ms 5 stated in her oral evidence that:
‘I was very disappointed, as the auxiliary nurses take patients’ blood sugar
levels. It is a very basic procedure which was shown to him many times’.
On the balance of probabilities the panel preferred the evidence of Ms 5 and concluded
that you did fail to take the blood sugar levels of the patient in question. Accordingly the
panel found charge 8a proved.
b. Failed to communicate or document why you had failed to take the blood
sugar level reading – proved
The panel noted all the documentary evidence regarding this incident and determined
that you documented no reason as to why you failed to take the blood sugar levels of
the patient. As this procedure is straightforward and does not take a large amount of
time, the panel would have expected you to document an explanation why you failed to
complete the task. Accordingly the panel found charge 8b proved.
9. On 12th September 2009 you:
a. Shouted words to the effect of ‘calm down, calm down’ to an
unknown patient who was choking – proved
The panel noted the evidence of Ms 1 who stated:
‘On 12 September 2009 a patient was suffering a choking episode. I witnessed
Leo run over to the patient shouting ‘calm down, calm down’ repeatedly. This
was wholly inappropriate and I had to intervene to ask Leo to stop shouting’.
In your CMF you stated that the patient had a hearing aid, however the panel heard
from Ms 1 who stated, ‘I cannot remember if the patient had a hearing aid, all I know is
that the gentle soft approach worked’. The panel preferred the evidence of Ms 1 and
determined that you had shouted the words ‘calm down, calm down’ to a patient whilst
they were choking. Accordingly the panel found charge 9a proved.
b. Failed to organise an X-ray for an unknown patient – proved
The panel noted the evidence of Ms 1 who stated:
‘I witnessed a doctor request an x ray for a patient. About 45 minutes later I
asked Leo how he was getting on. Leo had not arranged the x ray or booked
transport to take the patient across to the department. At this point Leo became
flustered’.
In your CMF you stated that not until Ms 1 intervened did you see fit to organise the x
ray. The panel preferred the evidence of Ms 1. Accordingly the panel found charge 9b
proved.
Page 11 of 20
c. Failed to make appropriate arrangements to convey the patient
from Ward 9 to the X-ray ward – not proved
The hand written notes of this incident, exhibited to Ms 1’s statement, show it was
unclear when you were asked to book the transport for this patient. The panel
considered there to be no failure in this instance as you could not be expected to book
the transport before you had booked the X-ray. Having found charge 9b proved the
panel could not find charge 9c proved.
d. Shouted words to the effect of ‘I’m too busy’ to two patients who
requested your attention – proved
The panel noted the evidence of Ms 1 who stated:
‘At around mid morning two patients buzzed and I heard Leo shout at them ‘I’m
too busy, too busy’. The patients became quite upset and one was almost
crying. I had to intervene and reassure the patient who was close to tears’.
Ms 1 was very clear in her memory of this incident. She described in detail how you
shouted from the ward door that you were too busy. In your CMF you dispute this
version of events. You stated that your actions were misinterpreted and that you were
busy looking after an unwell patient. The panel preferred the convincing evidence of Ms
1. Accordingly the panel found charge 9d proved.
10. On 26th November 2009 you failed to document patient care notes legibly –
proved
The panel was provided with a copy of the patient notes written by you on this date. The
panel could not read the majority of your writing. It determined that legible notes are
crucial for the continuity of patient care. Accordingly the panel found charge 10 proved.
Decision on Impairment
In considering whether your practice is currently impaired, the panel first determined
whether the facts found proved amount to a lack of competence and, if so, whether your
fitness to practise is impaired by reason of such lack of competence. In so doing, it had
regard to all the evidence presented to it, both oral and documentary. It took account of
the submissions made by the NMC case presenter Mr Mulchrone, together with Mr
McCusker’s submissions on your behalf. It accepted the legal assessor’s advice. In
deciding this issue, the panel noted that there is no standard or burden of proof and that
it must exercise its own independent professional judgement.
The panel noted that neither The Nursing and Midwifery Order (2001) nor the NMC
(Fitness to Practise Rules) (2004) define what is meant by impairment of fitness to
practise. The NMC has, however, defined fitness to practise as a registrant’s suitability
to remain on the register without restriction.
Mr Mulchrone referred the panel to the guidance relating to competency cases, the
NMC: Reporting lack of competence: A guide for employers and managers. From this
document he highlighted the following section:
Page 12 of 20
‘Recognising lack of competence
Characteristics of lack of competence include some, or all, of the following:
 over a prolonged period of time a registrant makes continuing errors or
demonstrates poor practice which involves, for example,
a) lack of skill or knowledge
b) poor judgement
c) inability to work as part of a team
d) difficulty in communicating with colleagues, patients or clients
 you identify a training need and set up a supervised support programme
for the registrant, but their work may show only a temporary improvement
which slips back when the programme is completed
 the registrant may show no insight into their lack of competence’.
Mr Mulchrone submitted that the most significant case law on lack of competence is
Holton v General Medical Council [2006] EWHC 2960. This case states that, when
judging competence, this should be measured against what is expected of a reasonably
competent registrant of the same grade, in the same job as the registrant was doing.
Mr Mulchrone reminded the panel that you have not given any evidence during this
hearing and it therefore remains hard to judge if you have any insight. Mr Mulchrone
further submitted that the allegations of bullying you made in your CMF, could be
interpreted as you seeking to minimise your lack of competence.
Mr Mulchrone referred the panel to the guidance set out in the judgment in CHRE v
NMC and Grant [2011] EWHC 97, including the relevant parts of the test formulated by
Dame Janet Smith in the Fifth Shipman report which states;
Do our findings of fact in respect of the [nurse’s] … deficient professional performance, show that
her 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 and/or is liable in the future to breach one of the fundamental tenets of
the [nursing] profession; …
Mr McCusker stated that of the thirty charges you face, twelve have been found proved,
twelve were found proved by way of admission and six were not found proved. He
submitted that your early admissions to some of the charges demonstrates insight.
Mr McCusker reminded the panel that no patients suffered injury or harm in relation to
the charges. The allegations mostly relate to delegation, prioritisation or communication.
Mr McCusker reminded the panel that the Trust instigated three Action Plans. He stated
that these Action Plans did not go far enough. The Trust had identified that you were
falling short in certain areas, but they did not direct or arrange for you to undergo
training in communication. Mr McCusker referred the panel to the following passage of
the NMC: Reporting lack of competence: A guide for employers and managers:
‘…where a registrant has accepted responsibility for aspects of practice which
are beyond their capability and which result in errors in practice. In these
circumstances, both the employer and the individual would be accountable: the
registrant for failing to acknowledge their limitations and the employer/manager
for failing to ensure that the registrant has the appropriate skills and knowledge’.
Page 13 of 20
Mr McCusker submitted that you were destined to fail because the Trust did not initiate
a training programme for you.
The panel heard and accepted the advice of the legal assessor who referred to the case
of Meadow v GMC [2007] QB 462. She reminded the panel that current impairment can
be founded on past matters and by reference to how a registrant is likely to behave in
the future.
The panel noted the definition of competence in NMC: Reporting lack of competence: A
guide for employers and managers:
‘A lack of knowledge, skill or judgement of such a nature that the registrant is
unfit to practise safely and effectively in any field in which the registrant claims to
be qualified, or seeks to practise’.
The panel considered the context surrounding your competence issues to have an
important bearing on this case. The panel noted that when you commenced
employment at the Trust you were given an extended preceptorship and you were
allocated two mentors during the currency of the Action Plans.
The panel determined that the three Action Plans you undertook were not well designed
to deal with your specific needs. They lacked rigour and there was inconsistency in the
manner of recording these observations and who was responsible for monitoring and
appraising your performance. The panel heard that when Ms 1 was on the ward your
practice was observed to be significantly worse than when she was not present. The
panel also heard that Ms 1 had high standards and expectations of her staff.
It is clear to the panel that you had a lot of pressure put on you by certain members of
staff and that when you were being scrutinised, you felt nervous and your competence
issues were exacerbated. The panel also noted that they had been given no evidence of
any formal training offered to you.
The panel reminded itself of the evidence of Ms 3 when being questioned by the panel.
Ms 3 said that Ms 1 was always questioning you and she considered Ms 1 was very
hard on you at times. She recalled Ms 1 running after you and shouting at you and this
resulted in a difficult environment on the ward.
Ms 3 went on to say that you worked better when Ms 1 was not on the ward. The panel
considered Ms 3’s comments to be corroborated by the Action Plans, that showed when
Ms 1 was not on the ward, your performance was observed to be better. However, the
panel notes that some of the charges found proved, and some that you admit,
happened at times when Ms 1 was not present.
The panel consider Band 5 qualified nurses to have a responsibility to identify areas of
their practice where they require assistance or more training and that in your
circumstances you had a responsibility to take action to address the difficulties you
encountered. In the particular circumstances of this case, your representative criticised
the Trust for not having offered you any training. However, there is no evidence that you
yourself identified your own deficiencies and approached any colleagues or
management to request training.
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The panel then went on to consider the charges found proved as against your job
description from the Trust as a Band 5 nurse (Exhibit 2 p.135).
The panel considered the charges found proved to relate to different areas of
competence. The panel considered the charges under the following five areas of
competence and identified which charges relate to which particular area:
Lack of knowledge: Charges 1, 7a, 7d, 7e & 9a.
Communication: Charges 1, 2, 4a, 4b, 4c, 5a, 5b, 5c, 5d, 5e, 5f, 7b, 7d & 9d.
Delegation: Charge 3 & 9d.
Prioritisation: Charges 5f, 7c, 8a, 9b & 9d.
Record keeping: Charges 7f, 8b, 10 & 11.
The panel concluded that collectively the charges found proved demonstrate your
competence falls well below the standards expected of a Band 5 registered nurse. The
panel determined that your lack of competence put patients at risk. The panel were
particularly concerned with charges 7a, 7d, 7e and 8a as the consequences of your
behaviour could have been serious, as confirmed by Ms 3 (another Band 5 nurse) in her
oral evidence. She stated that the patient referred to in charge 7d would not be
rehydrated by the amount you set on the IV drip. She further stated she had never seen
a prescription for 12mls per hour, and immediately knew this was wrong. In addition, in
the circumstances as proved in charge 7e you failed to carry out the basic and
important duty of having the IV infusion checked by another nurse, a system designed
to ensure patient safety. In relation to charge 8a you were aware that the patient’s blood
sugar level was low, at 3.4mmol/L, and in the circumstances it was essential that a
further blood sugar level reading should be taken, which you failed to do.
The panel concluded your actions, or inaction, breached the following paragraphs of the
NMC Code: Standards of Conduct, performance and ethics for nurses and midwives
(2008 edition):
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
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 main body of the Code:
21 You must keep your colleagues informed when you are sharing the care of others.
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30 You must confirm that the outcome of any delegated task meets required standards.
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.
The panel noted the submission that your admissions to some of the charges showed
insight on your behalf. However, the panel considers that they have no evidence of any
insight from you into the potential effect of your failures on patient care or how you could
remedy these failings.
Looking at the guidance in the judgment in CHRE v NMC and Grant [2011] EWHC 97,
including the relevant parts of the test formulated by Dame Janet Smith in the Fifth
Shipman report (set out above), the panel have no evidence that the risks are not still
present in your practice. The panel determined that you must be accountable for your
own performance and competence and in not doing so it finds your fitness to practice to
be currently impaired. Your lack of competence put patients at risk and undermined the
public confidence in the profession.
The panel considered the areas in which you lack competence to be remediable, but it
has seen no evidence that they have been remedied and therefore the risk of repetition
remains high and the panel finds your fitness to practice to be currently impaired.
Decision on Sanction and Reasons
The panel has considered very carefully the question of what sanction, if any, is to be
imposed in this case and has decided to make a conditions of practice order for 12
months.
In reaching this decision the panel has had regard to all the evidence that has been
adduced in this case and the submissions of Mr Mulchrone on behalf of the NMC and
Mr McCusker on your behalf. The panel has heard and accepted the advice of the legal
assessor.
Mr Mulchrone made no submissions as to which sanction was appropriate.
Mr McCusker stated that you fully accept the panel’s decision and accept that your
practice fell well short of the standard expected of a registered nurse. Mr McCusker
informed the panel that you currently work as a Band 3 Healthcare Assistant (HCA) in a
radiology department, but that you want the opportunity to return to nursing.
Mr McCusker reminded the panel that the purpose of any sanction is not to be punitive
and that it should approach the sanctions in ascending order of seriousness. He
suggested that a conditions of practice order could address the specific shortcomings
identified by the panel. This would give you the opportunity to bring your practice up to
the standards required by the NMC. Mr McCusker submitted that this sanction would be
proportionate in the circumstances.
Mr McCusker further stated that you recognise the need to improve your English
language skills to help improve your general communication. He suggested to the panel
several available courses close to where you live.
Page 16 of 20
The panel has borne in mind that any sanction imposed must be appropriate and
proportionate. The purpose of any sanction is not intended to be punitive even though it
may have a punitive effect. The panel had careful regard to the Indicative Sanctions
Guidance (2012) published by the NMC. It has recognised that the decision on sanction
is a matter for the panel exercising its own independent judgement.
In reaching its decision the panel has had regard to the public interest and your own
interest. The public interest includes the protection of the public, the maintenance of
public confidence in the profession and the NMC as a regulatory body, and the
declaring and upholding of proper standards and performance.
The panel noted that you were downgraded in April 2010 to Band 3 HCA and that
previous to working on the Ward you worked as a community nurse with the Trust. The
panel further noted that you have over 30 years nursing experience including work in
countries outside the United Kingdom.
The panel considered the aggravating and mitigating factors in this case. A mitigating
factor was that there was a clear clash of personality between you and Ms 1 which
adversely affected your performance. The panel considered your partial early
admissions to represent a mitigating factor and determined that the Action Plans, drawn
up to help you, lacked clarity and consistency. The panel also had sight of several
positive testimonials and satisfied themselves that although produced in 2010 the
referees were aware of the nature and outcome of the capability procedures. These
testimonials were from your fellow nurses and attested to your clinical ability and the
difficulties you encountered during the lengthy capability procedure. Although the panel
have found some issues with your clinical practice, they noted that generally your
clinical practice is good.
The panel noted the testimonial of Ms 8 who stated:
‘I have always found Leo to be conscientious in the administration of
medicines…His clinical skill in inserting a venflon were excellent…Leo was
competent in carrying out the asceptic technique and assessing wounds’.
The panel also noted the oral evidence of Ms 4 who stated:
‘I think the action plan did affect him negatively. He seemed nervous and
flustered at times. His delegation skills and observational skills were not very
good at all. He was good at taking blood samples, etc. There was nothing wrong
with his clinical practice. It was communication mainly that was at issue’.
When considering the aggravating factors in this case the panel noted that you failed to
recognise the failings in your practice and take the appropriate remedial action. In
addition the panel considered you to have limited insight into the effect your actions had
on patients and also noted the prolonged period of time covered by the charges.
The panel first considered whether to take no action but concluded that this would be
inappropriate in view of the findings regarding your current impairment. The panel
considered the lack of competence identified to pose a risk to patients. To impose no
Page 17 of 20
sanction would allow you to practise as a registered nurse without restriction. Further, it
would not be in your interest or in the public interest to take no further action.
The panel then considered whether it would be appropriate to impose a caution order.
The panel was not satisfied that such an order would provide adequate protection to the
public. The panel concluded that the imposition of a caution order would not protect the
public or demonstrate effective regulation by the NMC. The panel determined that
having identified areas for improvement it would be inappropriate to impose a caution
order.
The panel next considered whether placing conditions of practice on your registration
would be a sufficient and appropriate response. The panel is mindful that any conditions
imposed must be proportionate, measurable and workable. The panel noted that there
is no evidence of general incompetence insofar as it has identified a number of defined
areas of deficiency that the panel believe to be remediable. The panel find no evidence
of deep seated attitudinal problems. The panel also determined that conditions of
practice would protect patients for the time they are in force and that it is possible to
formulate conditions and make provision for the monitoring of those conditions.
The panel determined that a suspension order is unnecessary to protect the public or
the public interest and would be disproportionate in the circumstances as you have
expressed a willingness to retrain in the identified areas of deficiency.
The conditions of practice will read as follows:
1) Before you return to practice you must be enrolled in a course of English for
Speakers of Other Languages (ESOL). Such course to be successfully
completed within the 12 months of this order. This course to include; listening,
writing, reading and use of the spoken word. You must send a copy of your
results to the NMC within 14 days of you receiving them.
2) Before you return to practice you must successfully complete and pass an NMCapproved return to practice programme. You must send a copy of your results to
the NMC within 14 days of you receiving them.
3) You must notify the NMC within 14 days of any nursing appointment (whether
paid or unpaid) you accept within the UK or elsewhere, and provide the NMC
with contact details of your employer.
4) You must within 14 days of accepting any post or employment requiring
registration with the NMC, or any course of study connected with nursing, provide
the NMC with the name/contact details of the individual or organisation offering
the post, employment or course of study.
5) At any time that you are employed or otherwise providing nursing services, you
must place yourself and remain under the supervision of a workplace line
manager, mentor or supervisor nominated by your employer, such supervision to
consist of working at all times on the same shift as, but not necessarily under the
direct observation of, a registered nurse of band 6 or above who is physically
present in or on the same ward, unit, floor or home that you are working in or on.
Page 18 of 20
6) You must work with your line manager, mentor or supervisor (or their nominated
deputy) to formulate a Personal Development Plan specifically designed to
address the deficiencies in the following areas of your practice:
 medicines management
 record keeping
 communication, specifically when giving/receiving handovers
 prioritisation of workload
 safe and competent delegation of work to others in the team
 leading a shift
In addition you must produce a reflective piece on each of these areas which
identifies how you believe you have met the expectations placed on you, this
should be shard with, and reviewed by, your nominated supervisor.
7) You must meet with your line manager, mentor or supervisor (or their nominated
deputy) at least every two weeks for a period of three months from the start of
your employment, and monthly thereafter, to discuss the standard of your
performance and agree your progress towards achieving the aims set out in your
Personal Development Plan.
8) You must forward to the NMC a copy of your Personal Development Plan within
28 days of the date on which you take up an appointment.
9) You must send a report from your line manager, mentor or supervisor (or their
nominated deputy) setting out the standard of your performance and your
progress towards achieving the aims set out in your Personal Development Plan
to the NMC at least 14 days before any NMC review hearing or meeting.
Additionally you must send copies of your reflective pieces to the NMC within the
same time frame.
10) You must immediately inform the following parties that that you are subject to a
conditions of practice order under the NMC’s fitness to practise procedures, and
disclose the conditions listed at (1) to (9) above, to them:
1
2
3
4
Any organisation or person employing, contracting with, or using you
to undertake nursing work
Any agency you are registered with or apply to be registered with (at
the time of application)
Any prospective employer (at the time of application)
Any educational establishment at which you are undertaking a course
of study connected with nursing, or any such establishment to which
you apply to take such a course (at the time of application)
Decision on Interim Order and reasons
The panel went on to consider an interim order.
Mr Mulchrone submitted that an 18 month interim conditions of practice order, reflecting
the conditions set out above, to be necessary to protect the public, is in your interest
and is otherwise in the public interest, in order to cover the period of appeal should you
appeal the decision.
Page 19 of 20
Mr McCusker submitted that no interim order was necessary as you pose no risk to
patients as you have no direct contact with patients.
The panel has accepted the advice of the legal assessor.
The panel noted Mr McCusker’s submissions that you pose no risk to patients in your
current role. However, this does not preclude you from seeking nursing employment in
other areas. The panel has identified that your current lack of competence puts the care
of patients at risk and requires you to take remedial action before you return to
unsupervised practice. The panel has already determined that this risk is sufficiently
serious to justify the imposition of a substantive order. Therefore the panel was satisfied
that an interim conditions of practice order in the same terms as the substantive order
(as set out above) is necessary for the protection of the public, is in your own interest
and is otherwise 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 made then the interim order will be replaced by the substantive
conditions of practice order 28 days after you are sent the decision of this hearing in
writing.
That concludes this case.
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