Conduct and Competence Committee
Substantive Hearing
Monday 19 – Thursday 22 December 2016
Nursing & Midwifery Council, Temple Court, Cathedral Road, Cardiff, CF11 9HA
Name of Registrant Nurse:
Miss Sharman Davies
NMC PIN:
00I0503W
Part(s) of the register:
RNA: Registered Nurse (Sub part 1)
Adult Nursing (level 1) 22 September 2003
Area of Registered Address:
Wales
Type of Case:
Misconduct
Panel Members:
Ms Catherine Elliott (Chair, lay member)
Ms Judith Robbins (Registrant member)
Ms Penny Griffith, (L member)
Legal Assessor:
Mr John Bromley-Davenport
Panel Secretary:
Miss Bose Kayode
Nursing and Midwifery Council:
Represented by Mr Douglas Lloyd, counsel,
instructed by Nursing and Midwifery Council (NMC)
Regulatory Legal Team
Miss Davies:
Present and represented by Mr John Ballard of
Communication Workers Union (CWU).
Facts proved:
1.1, 1.2, 1.3, (2) and (3)
Facts not proved:
N/A
Fitness to practise:
Impaired
Sanction:
Conditions of practice order – six months
Interim order:
N/A
1
Decision and reasons on application to amend the charges:
Miss Davies,
The panel considered an application from Mr Lloyd, on behalf of the NMC, to amend the
charges. He informed the panel that he firstly sought to add an additional charge and secondly
to amend the wording of charge (3). Mr Lloyd referred the panel to the additional charge which
he sought to include as follows:
1.2
Shredded or destroyed the original evaluation sheet.
Mr Lloyd referred to the notice of hearing and the charges which had been sent to you. He
stated that unfortunately, due to an administrative error, charge 1.2 above did not form part of
the notice of hearing which was sent to you in November 2016. He referred to a telephone
conversation between your representative and the NMC in which an amendment of the
charges had been discussed and he stated that you were therefore aware of the NMC’s
intention to amend the charges.
Mr Lloyd submitted that the charge does not rely on new evidence but is based on the
evidence contained within the documentation which had been sent to you. Whilst he
recognised that the first time that you had been made aware of the additional charge was this
morning, and he stated that there is no injustice in making the amendment as the evidence is
featured within the documentation.
As to charge (3), Mr Lloyd submitted that this amendment is based on whether or not the panel
allow the inclusion of charge 1.2 above. He referred to charge (3) as it currently stands and
outlined the proposed amendment.
Charge (3) currently reads:
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(3) Your conduct in 2 was inappropriate in that you asked two registered nurses to collaborate
in your original dishonesty.
Following the amendment, charge (3) would read:
(3) Your conduct in 1.2 and/or 1.3 was inappropriate in that you asked one or more registered
nurses to collaborate in your original dishonesty.
Mr Lloyd stated that the amendment of this charge was being made to include the additional
charge 1.2, were that to be allowed, and otherwise to correct a typographical error in the
numbering of the charges.
Mr Ballard, on your behalf, opposed the application to add the additional charge, charge 1.2.
He stated that you received the charge sheet on or around 11 November 2016. That charge
sheet made no mention of the charge which the NMC now seeks to include. He stated that the
bundle of documents also served on you makes no reference to this additional charge.
Mr Ballard stated that the first time you became aware of this additional charge was on day
one of proceedings, five minutes before the hearing was due to begin. He stated that you have
prepared your case based on the documentation which had been sent to you. He stated that to
add an additional charge at this late stage would be unfair and he asked the panel to take
into consideration the impact that such injustice would cause.
As to the amendment of charge (3), Mr Ballard did not oppose the application and accepted
that the amendment was simply being made to correct a typographical error in the numbering
of the charges.
The panel heard and accepted the advice of the legal assessor. Rule 28 of The Nursing and
Midwifery Council (Fitness to Practise) Rules 2004 (as amended 2012) states:
28.—(1) At any stage before making its findings of fact…
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(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.
With regard to the addition of charge 1.2, the panel noted that the first time that you had seen
the wording of this additional charge was this morning. It noted that you had prepared your
case based on the charges which had been served on you in November 2016. Having regard
to the merits of the case and the fairness of the proceedings, the panel concluded that such
amendment could not be made without injustice to you. It therefore rejected the inclusion of
this charge.
As to the amendment of charge (3), the panel determined that the amendment was being
made to correct typographical errors in the numbering of the charges and that it does not alter
the nature of the allegation. The panel also noted that the amendment to charge (3) refers to
“one or more registered nurses” rather than “two registered nurses” and that Mr Ballard had
raised no objection to this. Having regard to the merits of the case and the fairness of the
proceedings, the panel concluded that such amendment could be made without injustice to
you.
4
Charges as read:
That you, a registered nurse, whilst employed by Four Seasons Health Care (“FSHC”) as
manager of Valley View Care Home:
(1) In respect of Resident A’s Care Plan Evaluation Sheet:
1.1. Asked Colleague A to falsify entries regarding the provision of pressure relief to
Resident A;
1.2. Asked Colleague B and/or Colleague C to “forget that the document was there and rip it
up” or words to that effect;
1.3. In respect of 1.2 above, asked Colleague B and/or Colleague C to “keep it between the
three of us” and/or “pretend they [Colleague B and Colleague C] had not seen it” or
words to that effect.
(2) Your conduct in 1.1 was dishonest in that you sought to create the false impression that the
document contained contemporaneous entries of care provided to Resident A
(3) Your conduct in 1.2 and/or 1.3 was inappropriate in that you asked one or more registered
nurses to collaborate in your original dishonesty.
And, in light of the above, your fitness to practise is impaired by reason of your misconduct.
5
Background:
Miss Davies,
Mr Lloyd, on behalf of the NMC submitted that the background to the case is as follows:
You were employed by Four Seasons Health Care (FSHC), as Manager of Valley View Care
Home between 5 December 2013 and 14 October 2014.
The Regional Manager, Colleague B, came to the Home on the morning of 19 September
2014 in order to accompany you to a safeguarding meeting concerning Resident A. This
resident had developed a pressure ulcer which was not improving despite Resident A having
been cared for in the preceding period at the local hospital.
Colleague B asked to see Resident A’s records in preparation for the safeguarding meeting.
She was provided with Resident A’s care plan evaluation sheet which is a document which
shows the care provided to Resident A.
Colleague B noted that the evaluation sheet appeared as if the entries were completed by the
same person (Colleague A, Senior Care Assistant), during the period 30 June 2014 to 18
August 2014.
Colleague B was suspicious that Colleague A appeared to be on every shift on each occasion.
In addition, Colleague B had completed an audit of the patient’s record on 22 August 2014 and
knew the document had not been there at the time. She was therefore suspicious that
retrospective entries had been made to the document, to make it look as though the care had
been provided and documented contemporaneously.
Colleague B asked you about the care plan evaluation. You admitted that you had asked
Colleague A to write the entries and stated that you had been with her when she signed the
document.
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Mr Lloyd submitted that it is the NMC’s case that this was a falsification of the document and
that it was dishonest, as it was intended to mislead and to cover an absence of relevant
documentation ahead of the safeguarding meeting.
It is not disputed that the document contains retrospective entries, although, you do state that
this was not dishonest. It is alleged that, after admitting that the document had been
retrospectively amended, you asked Colleague B to “destroy the document” and to “pretend
that she had not seen it.” It is further alleged that the request was repeated in front of a second
witness, Colleague C, who entered the room whilst you and Colleague B were in discussion.
An investigation was undertaken by Colleague D. You resigned before any disciplinary hearing
was held.
7
Decision on the findings on facts:
In reaching its decisions on the facts, the panel considered all the evidence adduced in this
case by the NMC, both oral and documentary. It also considered the submissions made by Mr
Lloyd, on behalf of the NMC and those made by Mr Ballard, on your behalf. The panel heard
and accepted the advice of the legal assessor.
The panel heard oral evidence from the following witnesses called on behalf of the NMC:
Colleague A, Senior Care Assistant
Colleague B, Regional Manager
Colleague C, Peripatetic Home Manager
Colleague D, Dementia Services Quality Manager
The panel first considered the credibility and reliability of these witnesses.
The panel found that Colleague A did her best to be helpful to the panel and that there was
nothing to suggest any adverse motivation or malice on her part. She clearly acknowledged
when there were matters which she did not know or recall. It concluded that she was an honest
witness.
The panel considered Colleague B to be a credible witness and highly professional in her
approach to her evidence. The panel found her to be measured in her responses and
considered that she gave balanced evidence.
The panel considered that Colleague C gave consistent and honest accounts of her
recollection of events.
The panel found Colleague D to be clear in her evidence. It noted that she was responsible for
conducting the investigation into the allegations and was not a direct witness to the matters
charged. Instead, her evidence was based on the patient documentation and interviews she
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had conducted with your colleagues. The panel considered her to be a credible witness, but
found that her evidence was of limited value in relation to the charges to be determined.
Whilst the panel has not heard oral evidence from you in respect of the allegations you face at
these proceedings, it has taken into account your written comments contained within the
‘Standard Direction Form’ dated 6 May 2016, your undated letter to the NMC received in
March 2015 and the comments that you made during the Investigation Meeting dated 7
October 2014.
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 incident occurred as
alleged.
9
The panel went on to consider the charges.
It first considered charge 1.1.
(1) In respect of Resident A’s Care Plan Evaluation Sheet:
1.1. Asked Colleague A to falsify entries regarding the provision of pressure relief to
Resident A;
This charge is found proved
Colleague A told the panel that on 19 September 2014, you had asked her to gather all of the
documentation relating to Resident A as you were due to attend a safeguarding meeting that
afternoon. She stated it was the responsibility of Care Assistants and Senior Care Assistants
to update the evaluation plans for residents. She referred to her recollection of Resident A’s
evaluation sheet and stated that whilst some entries had been recorded, there were some
gaps in the information and that some records had not been completed on a daily basis.
Specifically, there were no entries recorded between 6 and 13 August 2014.
Colleague A told the panel that you had asked her to “write a new one out.” During the
investigation interview of 7 October 2014, Colleague A is recorded as stating that “[you] told
me word for word what to write for all the entries except the last entry.” Colleague A stated that
she knew that she should not have made additional entries in the evaluation sheet but that she
did not want to question you as you were her line manager. In addition, Colleague A stated
that she was of the view that you were “panicking” or as if you were “afraid” or “concerned
about something.”
In your written documentation to the NMC, you gave your account of the incident and stated,
“…I did not tell her what to write and retrospectively it should have had the date it was written
which was 19th September and not been written as it was…”
10
In reaching its decision, the panel had regard to the minutes of the Investigation Meeting dated
7 October 2014. During that meeting, when questioned as to why you had instructed
Colleague A to enter retrospective entries on Resident A’s evaluation sheet, you are recorded
as saying, “I was having a discussion with a Senior Carer leading up to the man who had the
pressure sore, asking about this man, and asked the Senior Carer what did you when you
discovered this, did you do pressure relief, she said yes, he was stood up, I said you have
none of this documented, I just suggested that you/we added this into a care document to
show what she had done.” Additionally, when asked whether you asked her to record and
date the entries retrospectively, you stated, “I know I did it wrong, but I have since learned that
it can be done retrospectively as long as the date of recording same [sic] on it… I know I
should have put the date of the day on it.”
In addition, the panel took into account Resident A’s care plan evaluation sheet and the
‘Roster/Work/Pay Hours’ sheet. It noted that four of the entries made by Colleague A related to
dates and times when she was not rostered to work. On 6 and 13 August 2014, Colleague A
was not working and on 11 and 12 August 2014, she had finished her shift some hours before
the recorded time of the entry. Further, there is no indication on the care plan evaluation sheet
indicating that Colleague A had made those entries retrospectively.
When questioned by the panel, Colleague A recalled sitting across the table from you whilst
you dictated the information to be recorded. This was also confirmed by Mr Ballard, on your
behalf, during his closing submissions.
Whilst the panel did not have any evidence before it to indicate that the content of the entries
in Resident A’s care plan evaluation sheet was false, it noted that the additional entries gave
the impression that the care given by Colleague A occurred on the specific dates and times
recorded when this could not have been true.
The panel is satisfied that some of the entries on Resident A’s care evaluation plan were false.
It is also satisfied that you had asked Colleague A to make those entries and indeed sat
11
opposite Colleague A as she did so. The document as a whole is misleading as it suggests
that all the events took place at the times and on the dates recorded.
It therefore finds charge 1.1 proved.
12
The panel next considered charge 1.2.
(1) In respect of Resident A’s Care Plan Evaluation Sheet:
1.2. Asked Colleague B and/or Colleague C to “forget that the document was there and rip it
up” or words to that effect;
This charge is found proved
Colleague B told the panel that a strategy meeting had been called for 19 September 2014 as
Resident A had developed a pressure ulcer which had deteriorated. She stated that she spoke
to you on the telephone in the morning to advise that she would accompany you to the strategy
meeting.
Colleague B stated that when she arrived at the Home, she asked to have a look through the
documentation relating to Resident A. When she flicked through the documentation, she saw
the care plan evaluation sheet and noted that, with one exception, all entries contained
Colleague A’s signature.
Colleague B recalled having completed an audit of Resident A’s care file on 22 August 2014
and was therefore aware that this document had not previously been within the file. Colleague
B stated that she asked you about the document and the signatures which appeared on the
evaluation sheet.
Colleague B stated that you both moved to a separate room to continue the conversation and
that you confirmed that the signature was Colleague A’s. Colleague B stated that she
expressed her concerns with you and considered it to be a serious matter as it looked as
though Colleague A had falsified information, which could have led to Colleague A being
suspended. Colleague B stated that you said this would be unfair to Colleague A and asked if
“we could forget that it was there and rip it up.”
13
Colleague B stated that Colleague C entered the room and you repeated your request, asking
that it be kept “between the three of us.”
When asked during the investigation meeting about the request made to Colleague B and
Colleague C to disregard the document’s existence, you stated, “it was a pure suggestion that
if we don’t need it or can’t use it – we can just discard it if you want – it wasn’t in my remit to
cover it up.”
The panel considered Colleague B to be a credible witness. It noted her recollection as to her
shock at being asked to forget that the document was there, so much so, that she asked you to
repeat the request in the presence of Colleague C. Whilst colleague C in her evidence was
unable to recollect the exact words you used at the time, she recalled you asking that the
documentation should be ‘destroyed.’
The panel is satisfied, based on the evidence before it that you asked Colleague B to “forget
that the document was there and rip it up” or words to that effect.
It therefore finds charge 1.2 proved.
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The panel next considered charge 1.3.
(1) In respect of Resident A’s Care Plan Evaluation Sheet:
1.3. In respect of 1.2 above, asked Colleague B and/or Colleague C to “keep it between the
three of us” and/or “pretend they [Colleague B and Colleague C] had not seen it” or
words to that effect.
This charge is found proved
Colleague B stated that she was having a discussion with you about Resident A’s evaluation
sheet and whether or not the information contained within that sheet had been falsified by
Colleague A. You confirmed that you had asked Colleague A to write in Resident A’s
evaluation sheet and that you were present when she did.
Colleague B stated that you then asked that the document should be forgotten and for it to be
kept “between the three of us.”
Colleague C told the panel that, when she arrived back in the room, she heard Colleague B
asking you to confirm whether you had just asked her to “pretend that she had not come
across the falsified document”, to which you replied “yes.”
Colleague C stated that you then “asked us twice if we could not keep the matter between the
three of us and pretend we had not seen it.”
The panel had regard to the minutes of Colleague C’s Investigation Meeting dated 7 October
2014, in which she stated that Colleague B asked you whether you were asking her to pretend
that she had not seen the documentation. Colleague C further stated that you “asked twice if
we could keep this between the three of us and destroy the paperwork and pretend we hadn’t
seen it – I said to SD that I thought it was very unfair that she was putting us in this position.”
15
The panel is satisfied, based on the evidence before it, that in relation to Resident A’s care
plan evaluation sheet you asked both Colleague B and Colleague C to “keep it between the
three of us” and/or “pretend they had not seen it” or words to that effect.
It therefore finds charge 1.3 proved.
16
The panel next considered charge (2)
(2) Your conduct in 1.1 was dishonest in that you sought to create the false impression that the
document contained contemporaneous entries of care provided to Resident A
This charge is found proved
The panel considered whether you had deliberately sought to create the false impression that
Resident A’s care evaluation plan contained contemporaneous entries of care provided or
whether you had made an honest mistake.
The panel has not had sight of the original, incomplete document. It took into account the
evidence of Colleague A and is satisfied that you dictated the information which you wanted
her to record on the care evaluation plan. There is no note to indicate that the record was
made retrospectively and there is no accompanying note attached to the evaluation plan to
indicate that the records were not made on the dates and times recorded, nor that Colleague A
was not present on some of the occasions recorded.
In finding charge 1.1 proved and, in applying the test set out in the case of R v Ghosh [1982]
Q.B. 1053, as refined, the panel found that, according to the standards of reasonable and
honest nurses, your actions in asking Colleague A to falsify entries in the care evaluation plan
would be regarded as dishonest. Further, you must have known that it would be regarded as
dishonest.
The panel has seen no evidence, and nor has the NMC argued, that you were dishonestly
creating a false picture of the actual care given to Resident A. It is the false recording of the
dates and the times of the entries which is found to be dishonest.
It therefore finds charge (2) proved.
17
The panel then considered charge (3)
(3) Your conduct in 1.2 and/or 1.3 was inappropriate in that you asked one or more registered
nurses to collaborate in your original dishonesty.
This charge is found proved.
The panel considered whether your conduct in charges 1.2 and/or 1.3 was inappropriate in that
you asked one or more registered nurses to collaborate in your original dishonesty.
The panel has already found charges 1.2 and 1.3 proved. It notes that you asked both
Colleague B and Colleague C, on more than one occasion, to “forget that the document was
there and rip it up” and to keep your actions “between the three of us.”
Whilst the panel has seen no evidence to indicate that you asked Colleague B and Colleague
C to be party to your original dishonest act, the panel has accepted their evidence that you
asked them to cover up your actions. By making the request, you were asking them to
collaborate in covering up the dishonesty in the creation of the record and the panel
determines that this was inappropriate.
It therefore finds charge (3) proved.
18
Determination on misconduct and impairment:
Miss Davies,
Having announced its findings on the facts, the panel considered whether the facts found
proved amounted to misconduct and, if so, whether your fitness to practise is currently
impaired. The NMC has defined fitness to practise as a registrant’s suitability to remain on the
register without restriction.
The panel has considered all of the evidence, together with the submissions made by Mr
Lloyd, on behalf of the NMC and those made by Mr Ballard, on your behalf. It had the
opportunity to hear evidence from you under oath. The panel was also provided by you with
four character references from fellow professionals.
You outlined your current position as a nurse in a ward caring for patients with complex care
needs and the responsibilities you have. You also outlined for the panel the pre discharge and
best interests meetings that you attend and your responsibilities at those meetings.
You stated that since the incident of 2014, you have reflected on your actions. In addition, you
stated that you have undertaken mandatory training as well as training in Dementia care,
Intravenous and Medical equipment training and Intermediate Life Support (ILS) training.
You outlined for the panel how you would react differently in the future particularly with regard
to making retrospective documentation. In addition, you acknowledged the dangers of
safeguarding panels being presented with incorrect or inaccurate information.
You told the panel that you enjoy being a nurse. You accepted the views of the panel in its
earlier determination on facts and stated that you understood the panel’s concerns. You stated
that you would not return to being a nursing Home Manager as you recognised that you had
not been suited to the managerial role and that your strengths lay in caring for patients. You
reassured the panel that you would never behave in the same manner again.
19
In his submissions Mr Lloyd invited the panel to conclude that your actions constituted
breaches of The code: Standards of conduct, performance and ethics for nurses and midwives
2008 (“the code”). He then directed the panel to the preamble of the Code and paragraphs 42
and 43, which, he submitted you had breached.
In considering the question of misconduct, Mr Lloyd invited the panel to have regard to the
decision of Roylance v GMC (No. 2) [2000] 1 AC 311 from which he quoted Lord Clyde’s
observations concerning misconduct:
“Misconduct is a word of general effect, involving some act or omission which falls short of
what would be proper in the circumstances. The standard of propriety may often be found by
reference to the rules and standards ordinarily required to be followed by a medical practitioner
in the particular circumstances.”
Mr Lloyd submitted that the allegations relate to one resident and one set of records. However,
multiple entries were made in that record and you involved a junior colleague in your deceit.
Further, you then sought other registrant colleagues to assist you in covering up your actions
by asking them to ignore or to forget about the falsified document.
He stated that your actions represented a serious departure from the standards expected of a
registered nurse and the panel can be satisfied that the facts found proved amount to
misconduct.
Moving on to the issue of impairment, Mr Lloyd referred to the case of Council for Healthcare
Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927
(Admin). Mr Lloyd submitted that it is not suggested that you caused or sought to cause harm
to Resident A or any other resident. However, he stated that the falsification of patient records
creates a potential risk of harm.
Mr Lloyd submitted that the purpose of care evaluation sheets and safeguarding meetings is to
protect patients by ensuring that they receive the appropriate care. If records are falsified, such
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vital safeguards can be undermined. He submitted that, whilst on the particular facts of this
case no harm was caused, he invited the panel to consider whether such actions are liable to
create a potential risk of harm.
Mr Lloyd submitted that keeping clear and accurate records, and acting with honesty and
integrity at all times is a fundamental tenet of the profession. Tampering with records at any
time, particularly ahead of a safeguarding meeting runs the risk of bringing the profession into
disrepute by undermining confidence in the profession.
Any dishonest should be treated seriously. This, he submitted is particularly true when the
dishonesty concerned clinical practice. Mr Lloyd submitted that irrespective of the risk of
repetition, a finding of impairment is required in this case.
As to the risk of repetition, Mr Lloyd submitted that you have attended these proceedings and
have worked subsequently without incident. There is evidence of successful practice at
present. He invited the panel to determine whether you have demonstrated insight into why
you acted as you did, why you would do so again and, if and how, you would do things
differently were you to be in the similar situation in future. Mr Lloyd submitted that at this stage,
the panel cannot be satisfied that you have yet demonstrated sufficient insight or remediation.
Mr Lloyd reminded the panel to keep in mind that its primary function is both to protect patients
and to have regard to the wider public interest which includes maintaining confidence in the
nursing profession and upholding proper standards of conduct and behaviour. He invited the
panel to conclude that your fitness to practise is currently impaired.
Mr Ballard submitted that since the incident of 2014 you have remained in employment
working on a medical and complex discharge ward dealing with a number of areas of extensive
recording and complex paperwork. In addition, he informed the panel that in the past two
years, you have completed relevant training.
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He informed the panel that there have been no current problems or issues of misconduct since
you have moved to a clinical nursing position. Mr Ballard submitted that your focus has been
improved and that you have demonstrated that you are fully aware of your strengths and
weaknesses.
Mr Ballard submitted that you have learnt from this incident and that the risk of repetition is
low. He stated that at the time of the misconduct, you were working as a manager in a Home
which was acknowledged by all witnesses to have been in difficult circumstances at the time
and which would have been stressful for any manager. Whilst it is accepted that there was a
potential risk of harm to Resident A, the safeguarding meeting subsequently identified that
there was no actual risk.
Mr Ballard submitted that you have fully reflected and understood the impact of your actions on
the profession. He stated that you want to continue nursing without any restriction and invited
the panel to take that into consideration.
The panel heard and accepted the advice of the legal assessor who referred the panel to the
relevant principles set out in the legal authorities, including, Council for Healthcare Regulatory
Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin).
The panel adopted a two stage process in its consideration of the question of impairment. The
panel first considered whether the facts found proved amounted to misconduct and, only if
misconduct is established, would the panel then consider whether your fitness to practise is
currently impaired as a result of that misconduct.
The panel had particular regard to the preamble and the provisions of the Code. The panel
concluded that, by reason of its findings of fact, your actions and behaviour breached the
preamble and specific paragraphs of the Code as follows:
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Preamble:
“The people in your care must be able to trust you with their health and wellbeing.
To justify that trust you must:
•
…
•
…
•
provide a high standard of practice … at all times
•
be open and honest, act with integrity and uphold the reputation of your profession.
As a professional, you are personally accountable for actions and omissions in your practice,
and must always be able to justify your decisions. “
Code:
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.
43
You must complete records as soon as possible after an event has occurred.
44
You must not tamper with original records in any way.
The panel appreciated that breaches of the Code do not automatically result in a finding of
misconduct. However, the panel considers that your actions in asking a senior healthcare
colleague to falsify the dates and the times of the entries in Resident A’s care evaluation sheet
and subsequently asking Colleagues B and C to collaborate in covering up your actions was
serious. With respect to the dishonesty found proved, the panel determined that accurate
records are fundamental to good nursing practice and your behaviour fell short of that
expected of a registered nurse. Further, the panel considers that your actions constituted a
breach of a fundamental tenet of the profession. Honesty, integrity and trustworthiness are
considered to be the bedrock of a nurse’s practice.
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The panel concluded that by your dishonest actions you failed to uphold the reputation of your
profession and that your behaviour fell seriously short of the standards reasonably expected of
a nurse and were in the panel’s view sufficiently serious to amount to misconduct.
The panel then went on to consider whether your fitness to practise is currently impaired by
reason of your misconduct. In so doing, the panel reminded itself of its duty to protect patients
and its wider duty to protect the public interest, which includes the declaring and upholding of
proper standards of conduct and behaviour, and the maintenance of public confidence in the
profession and in the regulatory process.
The panel had careful regard to the questions posed by Dame Janet Smith in her Fifth
Shipman Report and referred to by Cox J in Grant (above).
Paragraph 76 of Grant states:
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
c. has in the past breached and/or is liable in the future to breach one of the
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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 concluded that the criteria contained in all of these paragraphs in relation to your
actions in the past are satisfied. The panel noted that you are currently working and that since
this incident there has been nothing to suggest that there has been any further misconduct. It
took into consideration your oral evidence, the character references provided in your support.
These attest to your honesty, integrity and good clinical practice. It also acknowledged the
completion of a number of relevant courses.
You have now accepted the panel’s findings and have engaged fully with the NMC throughout
these proceedings and have attended this public hearing. You made immediate admissions to
your wrongdoing. In addition, you have been open with your current employer about the
allegations you face and have reflected on your actions. The panel has heard that you realise
your limitations in relation to working as a manager and that you are now aware of the
importance of keeping clear and accurate records. Further, you were able to demonstrate by
way of example how you have used this incident to adapt your current practice and to ensure
that were you to be in a similar position in the future, you would act differently.
Having observed you give oral evidence, the panel is satisfied that you have learned valuable
lessons and have demonstrated sufficient insight into your misconduct.
Having carefully considered all the submissions and the facts of this case it is the panel’s
judgment that there is a very low risk of repetition.
However, as clarified in the above mentioned case of Grant, the three issues identified in the
case of Cohen are not determinative of the issue of fitness to practise. Rather, they are some
of the factors which the panel must consider when deciding if fitness to practise is impaired.
Additionally the panel must have regard to the public interest considerations.
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The panel had regard to the nature and seriousness of the misconduct found in this case and
how it might impact on the wider public interest. Whilst the misconduct found in this case can
be categorised as an isolated lapse of judgment, immediately recognised and admitted, that
conduct involved dishonesty. Further, you acted inappropriately by asking two of your
colleagues to collaborate in covering up your dishonesty. The panel notes that your current
clinical competence has not been called into question and the character references provided
indicate that you are a safe practitioner, who is trustworthy and cares deeply about your
patients and their families. It considers that substantial weight must be given to the need to
declare and uphold proper standards of behaviour so as to maintain public confidence in the
profession and the NMC as its regulatory body.
Having regard to the principles set out in the case of Grant, the panel is in no doubt, that in all
the circumstances of this case, confidence in the profession would be undermined if the
serious nature of your misconduct was not marked by a finding of impairment.
The panel is therefore satisfied that your fitness to practise is currently impaired by reason of
your misconduct.
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Decision on sanction and reasons:
Miss Davies,
Having determined that your fitness to practise is impaired, the panel next considered what
sanction, if any, it should impose in respect of your registration. In reaching its decision on
sanction, the panel has considered all the information that has been placed before it. It has
considered the respective submissions of Mr Lloyd, on behalf of the NMC and Mr Ballard, on
your behalf. It heard and accepted the advice of the legal assessor and exercised its own
independent judgement.
Mr Lloyd addressed the panel on the need to have regard to protecting the public and the
wider public interest. He referred the panel to the NMC’s Indicative Sanctions Guidance to
Panels (ISG) and asked the panel to consider various aggravating and mitigating features
which he submitted might be considered relevant in this case.
Aggravating:
•
The dishonest behaviour involved your nursing practice;
•
The documents were tampered with ahead of a safeguarding meeting which related to
the care given to a vulnerable adult;
•
Multiple entries were made on the care evaluation sheet;
•
You asked a junior care support worker to write the entries; and
•
You tried to involve two other registered nurse colleagues in your dishonest conduct.
Mitigating:
•
There is no evidence of any previous regulatory or disciplinary findings;
•
You have since undertaken successful practice, albeit in a different role; as borne out by
the positive references attesting to your current nursing practice and your honesty;
•
At the time of the misconduct you were working in a stressful environment;
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•
The misconduct took place on one day;
•
The misconduct related to a single falsified document; and
•
When confronted as to what had occurred, you made some admissions.
Mr Lloyd stated that taking no further action would not be appropriate in the circumstances of
this case given the nature of the misconduct and the panel’s earlier finding of impairment. He
submitted that the imposition of a caution order is suitable where the misconduct is at the lower
end of the spectrum. He further stated that the imposition of a conditions of practice order
would also not be suitable as there is no evidence of your clinical competence having been
called into question. In any event, he submitted that determining the appropriate sanction is a
matter for the panel’s professional judgment and reminded the panel of the need to apply the
principle of proportionality in reaching its decision.
Mr Ballard referred the panel to the ISG. He outlined the various sanctions available and asked
the panel to apply the principle of proportionality when considering sanction.
Mr Ballard submitted that the panel may consider the imposition of a caution order to be
appropriate in the circumstances of this case. He submitted that such an order would allow you
to continue practising as a nurse in your chosen profession. Alternatively, he stated that whilst
you are a fully competent nurse who has, over the last two years, attended relevant training,
you would be willing to comply with a conditions of practice order were the panel to deem such
a sanction to be appropriate. Mr Ballard submitted that a suspension order or striking off order
were not appropriate in this case and would be disproportionate.
Mr Ballard outlined for the panel the implications were you not to be allowed to practise as a
nurse. In addition, he asked the panel to consider your financial and personal situation when
making a decision on sanction. He submitted that any sanction that would cause you to lose
your employment would have a huge impact on your financial and personal situation.
Mr Ballard submitted that you are dedicated to the nursing profession and have been for the
last 13 years. In addition, over the last two years, you have continued to work as a nurse
without further incident. In addition, he stated that there was a public interest in allowing a
nurse who is a safe, skilled and valued practitioner to continue to practise.
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The panel exercised its own independent professional judgement on this issue and has heard
and accepted the advice of the legal assessor.
The panel has borne in mind the NMC’s ISG and has applied the principle of proportionality.
The panel has had regard to the public interest and your interest. The public interest includes
the protection of members of the public, the maintenance of public confidence in the
profession, and the declaring and upholding of proper standards of conduct and behaviour.
The panel was mindful that a sanction must amount to a considered and proportionate balance
between the interests of the public and your interests, taking into account the mitigating and
aggravating factors in this particular case. The panel further recognises that the purpose of a
sanction is to protect the public and not to be punitive, although it may of course have a
punitive effect.
The panel endorsed Mr Lloyd’s submissions on what the NMC considered to be aggravating
and mitigating factors. In addition, the panel notes your personal mitigation relating to the
stressful circumstances and the fact that external concerns had been raised about the Home
prior to your employment. In addition, morale amongst the staff at the Home had been low.
The panel has considered all of the sanctions available to it in ascending order of seriousness
when deciding what sanction, if any, would be appropriate and proportionate in this case.
The panel first considered whether to take no action but concluded that it would not be in the
public interest to do so. Your dishonest action in asking Colleague A to falsify the dates and
the times of the entries in Resident A’s care evaluation sheet and subsequently asking
Colleagues B and C to collaborate in covering up your actions was serious. The panel
considers that a member of the public would expect that to be marked by the imposition of an
appropriate sanction. In the panel’s judgment, a finding of impairment alone together with no
further action being taken would not be sufficient to satisfy the public interest. Accordingly, the
panel determined that misconduct of this nature requires an appropriate sanction in order to
uphold proper standards of conduct and behaviour and to maintain confidence in the
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profession and in the NMC as a regulator; to take no action would fail to send out a clear signal
to both the nursing profession and the public that your behaviour was unacceptable.
It then considered whether to make a caution order. The panel considered the nature of your
misconduct and was of the view that this case could not be categorised as falling within the
lowest end of the range of impairment of fitness to practise. Whilst the panel determined that
you do not present a risk to the public or to patients and notes that you have continued to work
as a nurse since the incident, it was, nevertheless concerned about your level of insight into
and understanding of the impact of your actions on your colleagues and on the reputation of
the profession. It therefore concluded that a caution order would not satisfy the wider public
interest.
The panel went on to consider whether to make a conditions of practice order. It had regard to
the various factors set out in the ISG. The panel acknowledged that the allegations brought
before this panel, whilst serious, occurred in an otherwise unblemished career of nursing
practice. You have provided some mitigation for your actions, and the panel notes that in your
oral evidence, you have demonstrated some insight. Further, you have demonstrated a
willingness to respond positively to retraining.
Balancing all of these factors and after having taken into account both the aggravating and
mitigating features outlined above, the panel determined that the appropriate and proportionate
sanction is that of a conditions of practice order for six months. In the panel’s judgement the
finding of impairment and the imposition of a conditions of practice order would satisfy the
public interest and mark the behaviour as unacceptable. Further, the panel considers that
imposing conditions of practice would give you an opportunity to reflect and develop greater
insight into your misconduct.
The panel was of the view that to impose a suspension order would be wholly disproportionate
and would not be an appropriate response in the circumstances of your case. The panel
determined that a suspension order would be unduly punitive and was not necessary because
it was not the only sanction which would satisfy the public interest in this case. The panel also
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took into account the fact that the public interest can also include allowing nurses with valuable
skills to remain in practice.
Having regard to the matters it has identified, the panel has concluded that a conditions of
practice order will mark the importance of maintaining public confidence in the profession, and
will send to the public and the profession a clear message about the standard of behaviour
required of a registered nurse.
The panel determined that the following conditions are appropriate and proportionate in this
case;
(1) You must formulate a personal development plan specifically addressing:
•
the importance of honesty and integrity in the nursing profession, relating this to the
charges found proved; and
•
how your misconduct could damage the reputation of, and public confidence in, the
profession.
(2) You must tell the NMC within 7 days of any nursing appointment (whether paid or unpaid)
you accept within the UK or elsewhere, and provide the NMC with contact details of your
employer.
(3) You must tell the NMC about any professional investigation started against you and/or any
professional disciplinary proceedings taken against you within 7 days of you receiving
notice of them.
(4) a) You must within 7 days of accepting any post or employment requiring registration with
the NMC, or any course of study connected with nursing or midwifery, provide the NMC
with the name/contact details of the individual or organisation offering the post, employment
or course of study.
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b) You must within 7 days of entering into any arrangements required by these conditions
of practice provide the NMC with the name and contact details of the individual/organisation
with whom you have entered into the arrangement.
(5) You must immediately tell 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 (4) above, to them.
a. Any organisation or person employing, contracting with, or using you to undertake
nursing work.
b. Any agency you are registered with or apply to be registered with (at the time of
application) to provide nursing services.
c. Any prospective employer (at the time of application) where you are applying for any
nursing appointment.
d. Any educational establishment at which you are undertaking a course of study
connected with nursing or midwifery, or any such establishment to which you apply
to take such a course (at the time of application).
During this time your record on the NMC register will show that you are the subject of a
conditions of practice order and anyone who enquires about your registration will be told about
the order.
This conditions of practice order will be reviewed by a panel of the Conduct and Competence
Committee shortly before its expiry. At the review hearing the panel may revoke the order, it
may confirm the order, or it may replace the order with another order.
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Determination on Interim Order:
Miss Davies,
Pursuant to Article 29 (11) of the Nursing and Midwifery Order 2001, this panel’s decision will
not come into effect until after the 28 day appeal period, which commences from the date that
notice of the conditions of practice order has been served. Article 31 of the Nursing and
Midwifery Order 2001 outlines the criteria for the imposition of an interim order. The panel may
only make an interim order if it is satisfied that it is necessary for the protection of the public,
otherwise in the public interest or in the registrant’s own interest. The panel may make an
interim conditions of practice order or an interim suspension order for a maximum of 18
months.
Mr Lloyd, on behalf of the NMC stated that in the light of the panel’s findings regarding
sanction, an interim order should be made on the grounds that it is otherwise in the public
interest. He submitted that an interim conditions of practice order should be imposed for the
period of 18 months to cover the possibility of an appeal being made in the 28 day appeal
period.
Mr Ballard, on your behalf did not oppose the application.
The panel has accepted the advice of the legal assessor. It also had regard to the NMC’s
guidance to panels in considering whether to make an interim order. The panel has taken into
account the principle of proportionality, bearing in mind the interests of the public and your
interests.
The panel bore in mind that there is a high threshold for imposing an interim order on public
interest grounds alone. The panel did not consider that this was a case that met such a high
threshold. It was satisfied that an interim order was neither necessary for the protection of the
public nor in the public interest and would be disproportionate. The panel therefore decided not
to impose an interim order.
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If no appeal is made, the six month conditions of practice order will come into effect 28 days
after you are sent the decision of this hearing in writing.
That concludes this determination.
This decision will be confirmed to you in writing.
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