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Conduct and Competence Committee Substantive Hearing 24 to 28 April 2017

Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of Registrant Nurse: Christine Fernandez Panganiban NMC PIN: 04C1006O

Part(s) of the register: Registered Nurse- sub part 1

Adult- 31 March 2004

Area of Registered Address: England

Type of Case: Misconduct

Panel Members: Maurice Cohen (Chair Lay member)

Diane Rawstorne (Registrant member)

Nalini Varma (Lay member)

Legal Assessor: Susan Monaghan

Panel Secretary: Sazna Begum Miss Panganiban: Present and not represented

Nursing and Midwifery Council: Represented by Katherine Higgins instructed

by NMC Regulatory Legal Team

Facts proved: All charges

Facts not proved: N/A Fitness to practise: Impaired

Sanction: Caution order- 5 years

Interim Order: N/A

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Details of charge:

That you, a registered nurse:

1. On 22 August 2015, did not carry out hourly neurological observations on Patient

A;

2. On 22 August 2015, recorded that you had carried out neurological observations,

on a neurological observation chart for Patient A, at the following times, when

you had not:

2.1. 10:40;

2.2. 11:15;

2.3. 12:15;

2.4. 13:15;

3. Your actions in charge 2 were dishonest in that you sought to give the impression

that:

3.1. You had carried out these observations;

3.2. The observations were accurate;

3.3. You had made contemporaneous recordings of such observations.

4. On 23 August 2015 you indicated, in an email, that Colleague B had carried out

the neurological observations in charge 2 above and asked you to document

them, when this was not the case.

5. Your actions in charge 4 were dishonest in that you were seeking to conceal your

actions at charge 2 and your dishonesty as set out at charge 3.

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

misconduct.

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Ms Panganiban, Background

You were employed by Chelsea and Westminster Hospital since May 2009. You worked

in the Accident and Emergency Department from March 2013. The alleged incident

occurred on 22 August 2015. The Accident and Emergency Department has several

different areas. One of these areas is called “Majors”. At the time of the allegations, a

single nurse would be in charge of four cubicles within Majors. On 22 August 2015 you

had been allocated to be the nurse for patients in cubicles one to four. Staffing levels

that day were high and there were additional nursing staff that would help out where

needed, who were referred to as “floaters”.

Patient A was admitted to the Accident and Emergency Department at approximately

10:00am on 22 August with a head injury having had a possible seizure. He was seen

by a member of the public to have stumbled across a road, falling, hitting his heading

and seizing for about one minute. He was uncooperative with the ambulance crew. On

arrival, there was an obvious head injury; there was swelling to one eye and blood at

the back of one ear. Patient A required neurological observations. Neurological

observations were required in addition to normal observations where there had been a

head injury. Neurological observations include a Glasgow Coma Score (GCS) which

provides a key indicator as to any deterioration relevant to head injury. Given that

Patient A had a head injury having had a fit, he should have been closely watched with

neurological observations done at least hourly.

Patient A was admitted to your care, however you were closely involved with another

patient at the time in cubicle three and the initial care of Patient A was undertaken by

Colleague B. Colleague B and a Healthcare Assistant undertook initial care and

management of the patient which involved showering the patient.

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Colleague B, it is alleged, handed the care of Patient A back to you when Patient A was

returned to the cubicle at approximately 11:20am.

At approximately 12:15pm, you were asked to go on your lunch break by Ms 2.

At approximately 12:30pm Ms 2 heard a noise coming from cubicle four. She entered

and found Patient A unresponsive. Emergency procedures were carried out on Patient

A and he was transferred to the resuscitation area (resus). Patient A had another

seizure, was intubated and prepared for transfer to another hospital with specialist

neurological care. Ms 2 who was looking after Patient A went to look for a set of

neurological observations. She could not find the neurological observations chart and

she therefore started a new one. Ms 2 took the patient’s neurological observations at

13:05pm.

It is alleged that later in the day, Ms 2 saw you writing in Patient A’s casualty card (CAS

card) and a neurological observations chart. She was concerned that she had not found

any neurological observations and spoke to those more senior.

Senior Charge Nurse, Mr 3 who was also caring for Patient A in resus could not find the

neurological observations chart that he would have expected to have been completed.

Mr 3 accompanied Patient A to St Mary’s Hospital. Upon his return, he began to look

into the care given to Patient A. At that point, he found a full set of neurological

observations completed by you. It is alleged that they purport to show observations

undertaken at 10:40am, 11:15am, 12:15pm and 13:15pm, all giving the same GCS of 4

for eye opening, 4 for verbal and 6 for motor response.

There was an immediate concern that these observations had not been done at all. In

particular, it was noted that observations had allegedly been undertaken at 13:15pm

when Mr 3 was aware that at 13:05pm Patient A had been transferred to resus. By

13:15pm Patient A was already intubated and unconscious.

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Ms 1 investigated the incident. She asked you to confirm that you had done the

observations. It is alleged that you said that you had undertaken them. It was put to you

that the observations did not match the actual neurological condition of the patient. You

stated that you did not do the observations but that Colleague B had asked you to

record them. It is alleged that Colleague B stated that he did not ask you to record any

observations.

You subsequently wrote an email in which you stated that the 10:40am and 11:15am

neurological observations were written retrospectively and that those observations had

been done by Colleague B and that the 12:15pm and 13:15pm you had recorded

accidentally.

In summary, it is alleged that your actions were dishonest.

Decision and Reasons on application under Rule 19

At the outset of the hearing Ms Higgins indicated that she intended to make an

application for the panel to permit one of the NMC’s witnesses to give evidence via

video link rather than to attend the hearing in person.

However Ms Higgins first requested that the panel grant permission for her application

to be heard in private rather than in public hearing, on the basis that proper exploration

of the application would involve reference to the witness’ health and personal

circumstances.

Ms Higgin’s application was made under Rule 19 of the Nursing and Midwifery Council

(Fitness to Practise) Rules 2004 (“the Rules”). The panel was mindful that Rule 19 (1)

provides, as a starting point, that hearings shall be conducted in public. However Rule

19 (3) states that the panel may hold hearings partly or wholly in private, provided that it

is satisfied that this is justified by the interests of any party or third party, or by the public

interest.

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The panel was mindful that the application in this case related to information about the

health and personal circumstances of a witness. Clearly those issues needed to be

canvassed at the hearing in order for the panel to make an informed decision about the

application to admit evidence by live video link. The panel considered that the witness

was a third party to these proceedings and that it was contrary to her interests for

sensitive details about her health and personal circumstances to be discussed in a

public hearing. There was no significant public interest in discussing those details in a

public hearing rather than a private one, and the panel was satisfied that the witness’s

interests outweighed the public interest. It therefore determined to hear the information

relating to the witness’s health and personal circumstances in private.

Decision on application to admit evidence by video link

Ms Higgins made an application for the panel to allow Ms 2 to give evidence in these

proceedings via WebEx (live video link).

Ms Higgins explained that Ms 2 was unable to attend the hearing in person. [PRIVATE].

Ms Higgins submitted that she is a willing witness and her evidence is relevant to one or

more of the charges and is likely to be challenged by you. Ms Higgins submitted that

you had been put on notice in relation to this application prior to the hearing and you

confirmed to the NMC in writing that you had no objections to this.

Ms Higgins submitted that it would be fair to admit her evidence by video link because

this would still permit examination and cross-examination to take place with the witness

visible by video link.

The panel accepted the advice of the Legal Assessor in relation to the provisions of

Rule 31 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 (“the

Rules”). This rule provides that the panel has a discretion to admit oral and

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documentary evidence, whether or not such evidence would be admissible in civil

proceedings, subject only to the requirements of relevance and fairness.

The panel was satisfied that the evidence of Ms 2 was relevant as she is a direct

witness to some or all of the charges.

In terms of fairness, the panel accepted that there was a genuine and appropriate

reason why Ms 2 was not able to attend the hearing in person. The panel bore in mind

that the best evidence is always that which can be heard in person from a witness so

that the panel has the opportunity to hear and observe the witness while their evidence

is tested by questioning, in order to assess the credibility of the witness and the

reliability of the evidence. However, the panel considered that as Ms 2 would be giving

evidence by live video-link, she would still be subject to examination, cross-examination

and questions from the panel. It would be possible for the panel to see her as well as

hear her during the process.

In those circumstances and given that you are content for Ms 2 to give her evidence via

video-link, the panel was satisfied that there would be no unfairness to you in

proceeding in this manner.

Decision on application to admit evidence by telephone You made an application for four character witnesses to give evidence via telephone.

You stated that these comprise of people you have known you over a number of years

one of whom previously worked with you at Chelsea and Westminster Hospital and

another who currently works with you in Ealing Hospital. You stated that you had

contacted these witnesses and they confirmed that they are willing to give evidence via

telephone in these proceedings.

Ms Higgins did not oppose the application.

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The panel accepted the advice of the Legal Assessor in relation to the provisions of

Rule 31 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 (“the

Rules”). This rule provides that the panel has a discretion to admit oral and

documentary evidence, whether or not such evidence would be admissible in civil

proceedings, subject only to the requirements of relevance and fairness.

In terms of fairness, the panel noted that you are not legally represented. You made

efforts to contact these references in order to assist your defence. The panel is mindful

that character references are relevant in your case as there are allegations of

dishonesty. The panel bore in mind that the best evidence is always that which can be

heard in person from a witness so that the panel has the opportunity to hear and

observe the witness while their evidence is tested by questioning, in order to assess the

credibility of the witness and the reliability of the evidence. However, the panel was

satisfied that it could greatly limit any potential unfairness to you by proceeding in this

manner as the witnesses would still be subject to questions from the panel. Moreover,

the panel can still assess the witnesses and attach such weight as it considers

appropriate to their evidence. In addition, the panel was mindful of the public interest in

the expeditious, fair disposal of the proceedings and of its overarching duty to protect

the public. It considered that any decision to refuse to hear the evidence altogether, or

to delay the hearing until these witnesses were available to attend in person, would not

be in the public interest. Accordingly, the panel acceded to the application.

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Decision on the findings on facts and reasons

In reaching its decisions on the facts, the panel considered all the evidence adduced in

this case together with the submissions made by Ms Higgins, on behalf of the NMC and

those made by you.

The panel heard and accepted the advice of the legal assessor.

The panel was aware that the burden of proof rests on the NMC, and that the standard

of proof is the civil standard, namely the balance of probabilities. This means that the

facts will be proved if the panel is satisfied that it was more likely than not that the

incidents occurred as alleged.

In reaching its decisions on the facts, the panel took into account all the oral and

documentary evidence in this case. The panel heard oral evidence from four witnesses

called on behalf of the NMC:

• Ms 1- Matron at the Trust

• Ms 2- Professional Development Nurse within the Accident and Emergency

Department at the Trust, who gave evidence via WebEx

• Colleague B- Staff Nurse at the Trust

• Mr 3- Senior Charge Nurse at the Trust

The panel heard evidence from you under oath.

The panel also heard from three character references on your behalf via telephone:

• Ms 6, a Registered Nurse and former colleague from Chelsea and Westminster

Hospital

• Mr 7, a close friend of yours

• Mr 8, a Band 7 Nurse in Ealing Hospital where you are currently working as an

agency nurse

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The panel found Ms 1 to be a credible and reliable witness. She gave an honest

account which was supported by Ms 2 and Mr 3. She gave clear evidence and was

appeared knowledgeable.

The panel found Ms 2 to be a highly impressive witness. She gave credible and reliable

evidence. She was honest, helpful and had a clear recollection of the events.

The panel found Colleague B to be confused and inconsistent in his oral evidence. He

contradicted himself. He was unable to recall events clearly but was sure about certain

aspects such as being certain that he did not ask you to record observations on his

behalf.

The panel found Mr 3 to be a credible and reliable witness.

You also gave evidence to the panel. There were a number of inconsistencies in your

accounts which were set out in writing and in your oral evidence. In particular, the panel

noted your differing explanations as to how the neurological observations chart came to

be completed. The panel did not find you to be a wholly credible or reliable witness.

The panel considered your character witnesses who gave evidence as to how they

knew you. The panel had no reason to doubt their evidence.

The panel considered each charge and made the following findings:

Charge 1:

On 22 August 2015, did not carry out hourly neurological observations on Patient A The panel had regard to the evidence of Ms 2 who stated Patient A had been brought in

by the ambulance service. She said he had an obvious head injury. She said that Ms 5,

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a Senior Nurse, carried out the initial assessment of Patient A and would have

completed the “initial assessment” and “specific discriminators” sections of the CAS

card. Ms 5 allocated Patient A to cubicle four which was one of the four cubicles that

had been assigned to you at the start of your shift. You were responsible for the patients

in those cubicles.

Ms 2 stated that when Patient A was admitted to the Accident and Emergency

Department, you were dealing with an elderly patient in cubicle three. As you were

busy, Colleague B who was a floating nurse, had conducted the initial observations of

Patient A.

The panel had regard to paragraph 8 of Ms 2’s witness statement dated 6 July 2016

wherein she states that “it would have been expected that, having had a float nurse

begin Patient A’s assessment, Christine would have continued to undertake those

observations on a minimum of an hourly basis. I would probably expect the

observations to have been taken more often in this case…”. Ms 2 also stated that

Patient A had been taken to have a shower by Colleague B and a Healthcare Assistant.

Ms 2 confirmed this in oral evidence and further stated that between Patient A being

returned from the shower and you going for your lunch break, she saw Colleague B and

you talking but could not say what it was about. However, she was certain that she did

not see you providing active care for Patient A in cubicle four at any stage. When you

were on lunch break Ms 2 said that that she heard a “strange grunting noise coming

from Patient A’s cubicle”. She said that she found Patient A unconscious. A consultant

was then called for assistance. After Patient A had been transferred to resus, Ms 2

stated that she went to the Majors department to obtain Patient A’s documentation. In

Ms 2’s written statement at local level, her statement for the NMC and in her oral

evidence, she stated that there was not a sheet of neurological observations for Patient

A prior to his arrival at resus, nor were there any nursing notes in his CAS card. She

stated that neurological observations are recorded on a distinct blue sheet and this

could not be located. As a result, Ms 2 stated that she had to start a new sheet to

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complete and record the neurological observations, she said that she undertook this at

13:05pm. She also stated that there were no nursing notes on the CAS card as she

would have expected. She started her notes on a continuation sheet in case you wanted

to complete your notes in retrospect.

Ms 2 stated at paragraph 14 that her “big concern was that I had not been able to find

the neurological observation chart or any of Christine’s documentation”. She stated that

she spoke to a Senior Charge Nurse on that date and then subsequently spoke to Mr 3

about this. Ms 2 stated that at any time that you felt that you were not able to cope with

your workload on that date you could have sought assistance as staffing levels were

very good that day, but at no stage did you raise this.

Mr 3 stated at paragraph 6 of his witness statement for the NMC dated 2 June 2016 that

“My local statement states that there were no neurological observations documented to

allow for a comparison, this is correct…”. He stated that he would have expected to see

a coma scale assessment. The panel considered paragraph 7 of his statement “Given

Patient A’s history, I would have expected neurological observations to be taken half-

hourly…As a bare minimum the observation should have been taken hourly…”. He

stated that this was based on an assessment of Patient A at the time. He stated “I would

expect most people to know that a fit following a head injury is a sign of something

serious: I would therefore expect them to be monitoring that patient very closely”.

Mr 3 confirmed that Ms 2 made and recorded neurological observations on a fresh

neurological observation sheet. Mr 3 also stated at paragraph 9 of his statement that at

the time Patient A was transferred to St Mary’s Hospital there were no nursing notes for

Patient A. He stated that upon return from St Mary’s Hospital, on the same day, he

found a separate neurological observation chart and also entries had been made in the

nursing documentation section in the CAS card that had not previously been there. Mr 3

spoke to Ms 1 about his concerns on the following day.

Ms 1 stated on 23 August 2015 you confirmed that you had done all four sets of

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neurological observations and that you had documented and signed for them. Ms 1 also

stated that when it was brought to your attention that the neurological observations

recorded did not match the condition of Patient A, she said that you changed your

account and said that it was Colleague B who had undertaken the observations and had

asked you to record them.

Colleague B gave evidence that Patient A had been allocated to the Majors department

at approximately 10:20am. He stated that at that time, he conducted the baseline

observations and recorded these on the CAS card and on the NEWS observations

chart. He stated that he asked Ms 2 if he could take Patient A to have a shower as he

was wet. Colleague B stated that Ms 2 confirmed that this was ok. He did this with the

assistance of a Healthcare Assistant. Colleague B stated that he returned Patient A to

cubicle four and another Healthcare Assistant took his observations, whilst he inserted

the cannula in Patient A at 11:15am.

In oral evidence Colleague B stated that he did not undertake neurological

observations. He stated that he undertook basic observations and recorded them on the

CAS card. He denied making the entries in relation to the GCS on the CAS card. He

stated in oral evidence that he probably should have done the neurological observations

but had not done so. He stated that he handed over to you but did not specifically

mention neurological observations, he said he only mentioned to the basic observations

and the cannula. He stated that he did not ask you to record any observations on his

behalf.

The panel considered that Ms 1, Ms 2 and Mr 3 all stated that you were the nurse with

overall responsibility for cubicle four where Patient A was allocated and that you should

have known as per guidance and policies that he required neurological observations

every hour. Each witness also stated that you had not done this. All of the witnesses

also stated that as staffing levels were good, you could have sought assistance in the

event that you were not able to manage your workload that day but you did not.

However, you were caring for a newly admitted elderly patient with a fractured femur

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who required catheterisation.

You accepted that you did not carry out hourly neurological observations on Patient A.

In fact you accepted that you did not carry out any observations in relation to Patient A’s

care at all. You stated this was because you were “busy” with the patient in cubicle

three. You stated that you thought that Colleague B was looking after Patient A,

although you accepted that cubicle four had been one of the cubicles allocated to you

and ultimately the responsibility for Patient A was yours.

Based on all the evidence before it, the panel is satisfied that Patient A was allocated to

you and you did not carry out any neurological observations. You accepted that cubicle

four was your responsibility and as such you would have been responsible for his care.

You also accepted that at some point you were given a handover of Patient A but could

not recollect from whom. The panel accepted Colleague B’s evidence that he handed

back Patient A to you at about 11:20am.

Accordingly, this charge is found proved.

Charge 2:

On 22 August 2015, recorded that you had carried out neurological observations, on a neurological observation chart for Patient A, at the following times, when you had not: 2.1. 10:40; 2.2. 11:15; 2.3. 12:15; 2.4. 13:15;

The panel had regard to Patient A’s neurological observation chart completed by you.

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It is clear from the neurological observation chart, that there are four sets of

neurological observations recorded. The time is recorded at the top of each set of

observations, and this corresponds with the times listed in the charge: there are

observations recorded at 10:40, 11:15; 12:15 and 13:15.

The panel had regard to the evidence of Ms 2. At paragraph 12 of Ms 2’s statement,

she stated that “My local statement states that I noticed that there was not a sheet of

neurological observations for Patient A prior to his arrival in resus, nor were there any

nursing notes in his casualty card…Neurological observations are recorded on a

blue sheet, which is very difficult to miss as it is the only piece of paper that colour.

I could not find this sheet, so I had to start a new one...”. Ms 2 stated that she

completed an entry for Patient A’s neurological observations at 13:05 after he had been

found unresponsive and taken to resus.

Ms 2 also stated that she specifically recalled that page 5 of Patient A’s nursing

documentation was completely blank at the time he was transferred to resus. She

stated that she had looked at this page when she was making an entry about what

happened. She stated that as this page had been left blank, she wrote her notes on a

continuation sheet.

Ms 2 also stated that she saw you writing notes later in the day on 22 August 2015 and

could not see what you were writing but could see that you had Patient A’s CAS card

with you and you were writing in that and completing a neurological observations chart.

Ms 1 provides evidence at paragraph 14 of her witness statement that you initially

confirmed the observations you had made at those four times but then changed your

account stating that you had not carried out the observations and said that it was

Colleague B who had told you to record the observations which he had conducted.

The panel had regard to your statement submitted at local level, which was submitted

by email to Ms 1, you admitted that the observations in question were recorded by you.

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Ms 1 stated at paragraph 15 of her witness statement that “Christine’s account of events

did not match that of other staff. I therefore viewed the hospital CCTV for each of the

times observations were recorded by Christine. I found that Christine was either not in

the area to do observations, or was in the cubicles with other patients. This applies to

the timing of all four observations recorded”.

Ms 1 recorded a timeline of events from the CCTV at paragraph 16 of her witness

statement. Between 10:00am and 12:30pm, there is nothing noted in relation to you

having any contact with or conducting any observations on Patient A.

In addition to your admission at local level, the following evidence also suggests that the

observations were not carried out by you but had been recorded by you:

• Both Ms 2 and Mr 3 provide evidence that they could not find the neurological

observations chart completed by you at the time Patient A was transferred to the

resuscitation room.

• Mr 3 confirms at paragraph 6 of his statement that no neurological observations

were available for Patient A when he arrived in the resuscitation room. He adds

at paragraph 8 that that this meant that it was not possible to determine whether

there had been any change in Patient A’s condition.

• The available evidence is that the 12:15 observation could not have been

conducted by you as Ms 2 confirmed that you were sent on your lunch break

from midday onwards and Patient A had been found unconscious by

approximately 12:30.

• Further, the 13:15 set of observations recorded by you could not possibly have

been taken. This is confirmed by Ms 2 who had conducted the neurological

observations at 13:05 and recorded this in a fresh neurological observation chart.

This is further confirmed by both Ms 1 and Mr 3 who stated that by 13:15 Patient

A had been moved to resus and was no longer under your care and as such you

could not have undertaken those observations.

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• Colleague B stated that he saw Patient A at around 10:20am and took initial

observations. He says he took Patient A for a shower and then returned him to

cubicle four and handed him over to you. He stated that he did not carry out

neurological observations and stated that he had not asked you to record any

observations on his behalf.

You stated that when you had returned from lunch break, you found Patient A was in

resus and you panicked. You stated that you approached Colleague B, who you say

was responsible for the care of Patient A and “begged him” to write notes and complete

the neurological chart. You said that Colleague B ignored you. You stated that you then

went on to complete the nursing notes and neurological chart. You stated then that you

asked Colleague B to countersign what you had recorded but he refused to do so. You

accepted that you ticked and signed the neurological chart entries at 10:40am and

11:15am. In relation to you ticking the entries on the chart at 12:15pm and 13:15pm you

stated that this was done by you accidentally and you had written “fitted” at the bottom

of the chart and not signed those two entries with your initials but accepted that you had

made those recordings.

When you were asked where you obtained the information that you recorded on the

neurological observations chart and nursing documents, you told the panel, that there

had been two CAS cards. This was the first time in evidence that the panel heard any

suggestion that there was a second CAS card. You stated that the original CAS card

was recorded as “unknown unknown” and stated that this contained the GCS and

information in relation to Patient A’s pupils. You stated that you had recorded the

information on the neurological observations chart based on the information from this

initial CAS card, the NEWS chart and your own sightings of Patient A when he was

being wheeled back from the shower to cubicle four. You stated that when you saw

Patient A, at approximately 11:15am, he was smiling and combing his hair with his

hand. You stated that you used all of this information to complete the neurological chart.

You stated that at no stage had you carried out the neurological observations because

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you thought that he was under the care of Colleague B and that he would have carried

out such observations.

Based on all the evidence before it, the panel is satisfied that you did not carry out

neurological observations at the four times stated in the charge. You also accepted that

you did not carry out such observations. You also accept that you made the entries on

the neurological observations chart.

Accordingly, this charge is found proved.

Charge 3: Your actions in charge 2 were dishonest in that you sought to give the impression that: 3.1. You had carried out these observations; 3.2. The observations were accurate; 3.3. You had made contemporaneous recordings of such observations.

The panel considered the two-part test in the case of R v Ghosh [1982] Q.B. 1053.

First the panel considered the objective test namely, whether your conduct would be

regarded as dishonest by the standards of reasonable and honest people. The panel

considered that there is a reasonable expectation that nurses will only record the

observations made by them or if recorded on behalf of another would indicate that this

was the case. Similarly, if notes are recorded in retrospect, particularly in a document

such as a neurological observations chart, then this should also be indicated in the

chart. None of this was done by you. Given the absence of any notes saying that

observations were recorded in retrospect or done in error or done on behalf of someone

else, a reasonable and honest person would conclude that you sought to create an

impression that the observations had in fact been carried out by you and that the

observations were accurate and made contemporaneously.

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The panel then moved on to the subjective test, namely, whether you would have

known that your conduct was, by those standards, dishonest. When considering this

part of the test, the panel noted that you stated that you had done this out of panic given

a previous incident within the team with record keeping. You stated you noticed that

there were no notes for this patient. You said that you turned to Colleague B to write up

the notes but he refused to do so. You stated that you signed the first two columns and

in the latter two columns had ticked the boxes but not signed.

The panel finds that when you completed the latter two columns, namely for 12:15 and

13:15, you recorded the GCS even though you knew you were at lunch at 12:15 and

Patient A was in resus at 13:15. The panel considered that the chart was completed

with some thought given that all boxes that are required were completed. The panel

rejects your evidence that you simply panicked and that you were not intending to be

dishonest. There is no note or indication by you on the chart or the notes to suggest that

the recordings were done on behalf of another or that the observations were not carried

out by you.

Your evidence changed on a number of occasions. Initially, you had told Ms 1 that you

had carried out the observations. Then you suggested that you had recorded the

observations at the request of Colleague B. In your oral account you said that you wrote

the observations down having observed Patient A being wheeled past you in a

wheelchair smiling and combing his hair and also with the use of the CAS card.

The panel determined that it could not rely on your evidence. The panel finds that you

deliberately attempted to create a set of records intending to give the impression that

you had carried out those observations, that the observations were accurate and that

they were made contemporaneously.

Notwithstanding the fact that you can be described as person of good character, the

panel specifically rejected your explanations.

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Taking all the evidence into account, the panel is satisfied that at the relevant time you

knew that what you were doing was dishonest.

Accordingly, this charge is found proved.

Charge 4: On 23 August 2015 you indicated, in an email, that Colleague B had carried out the neurological observations in charge 2 above and asked you to document them, when this was not the case.

The panel had regard to the email from you to Ms 1 dated 23 August 2015 which was

your original statement given at local level. In that email, that panel considered that you

expressly indicated that it was Colleague B who had carried out the observations and

that you had recorded the observations on his behalf and at his request. Colleague B

denied this in his evidence. He stated that the only information he handed over to you

was in relation to the cannula and basic observations such as bloods. The panel noted

that you changed your account in oral evidence. You accepted that you had written the

email and had stated that it was Colleague B who had asked you to record on his

behalf. The panel noted that during oral evidence you also stated that in fact what you

said in your email was not correct and that you had asked Colleague B to make notes

after finding Patient A in resus, he refused, you made the recordings yourself and then

asked him to countersign them which he refused to do. You accepted in oral evidence

that it was you who made the entries in the neurological chart and this was not at

Colleague B’s request.

Accordingly, this charge is found proved.

Charge 5: Your actions in charge 4 were dishonest in that you were seeking to conceal your actions at charge 2 and your dishonesty as set out at charge 3.

22

The panel considered that the email was written deliberately by you to mislead your

employer and to conceal the fact that you had not undertaken the neurological

observations. Your email sought to implicate or blame another to cover up what had

happened and your own failings.

The panel noted your explanation for writing what you did in the email. You asserted

that you wrote the email in the way that you did as you were busy working in triage at

the time you were approached, you felt under pressure by Ms 1 to write the statement

promptly before Ms 1 left that afternoon. You stated you were not thinking clearly when

you wrote the email and you did not intend to be dishonest.

The panel finds that your email was deliberately written by you to cover-up that you had

not conducted the neurological observations. In the email you deliberately sought to

convey that it was Colleague B who had done the observations and that you were

simply recording on his behalf. When you wrote this email, you deliberately intended to

mislead the recipient and did this to conceal your actions. Your account in oral evidence

is in direct contradiction to the account in your email.

Taking all the evidence into account, the panel is satisfied that you knew at the time you

wrote that email that its contents were not accurate and that you wrote it to conceal the

fact that you had carried out neurological observations when you had not done so. The

panel concluded that your conduct was dishonest and you knew that to be the case at

the time you wrote the email.

Accordingly, this charge is found proved.

23

Determination on misconduct and impairment:

Having announced its finding on all the facts, the panel then moved on to consider,

whether the facts found proved amount to misconduct and, if so, whether your fitness to

practise is currently impaired. The NMC has defined fitness to practise as a registrant’s

suitability to remain on the register unrestricted.

In her submissions, Ms Higgins invited the panel to take the view that your actions

amount to a breach of The Code: Professional standards of practice and behaviour for

nurses and midwives (2015) (“the Code”). She then directed the panel to specific

sections and identified where, in the NMC’s view, your actions amounted to misconduct.

Ms Higgins referred the panel to the case of Roylance v GMC (No. 2) [2000] 1 AC 311

which defines misconduct as a word of general effect, involving some act or omission

which falls short of what would be proper in the circumstances. Ms Higgins stressed the

importance of neurological observations in the circumstances of Patient A where a head

injury was apparent. She submitted that deterioration can be rapid and needs to be

acted upon quickly. She also submitted that your case involved dishonesty, not just in

relation to record-keeping but also implicating a colleague. She submitted that your

actions fall short of the standards expected of a Registered Nurse and as such amount

to misconduct.

Ms Higgins then moved on to the issue of impairment, and addressed the panel on the

need to have regard to protecting the public and the wider public interest. This included

the need to declare and maintain proper standards and maintain public confidence in

the profession and in the NMC as a regulatory body. Ms Higgins referred the panel to

the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin).

You told the panel that since this incident you are always careful in what you do. You

stated that you know that if you had not undertaken observations then you should not

24

have recorded anything. You stated that if something is not written contemporaneously

then you must indicate that it was a retrospective entry. You stated that you have learnt

from these incidents and whenever you require assistance, you inform the nurse in

charge. You stated that since these incidents you have been working as an agency

nurse, allocated mainly to Ealing Hospital in the Accident and Emergency Department.

You apologised for your actions and stated that it is not something you would ever do

again. You accepted that the findings of the panel are serious.

The panel has accepted the advice of the legal assessor which included reference to a

number of judgments which are relevant, these included: Council for Healthcare

Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927

(Admin), GMC v Meadow [2007] QB 462 (Admin) and Ronald Jack Cohen v General

Medical Council [2008] EWHC 581 (Admin).

The panel adopted a two-stage process in its consideration, as advised. First, the panel

must determine whether the facts found proved amount to misconduct. Secondly, only if

the facts found proved amount to misconduct, the panel must decide whether, in all the

circumstances, your fitness to practise is currently impaired as a result of that

misconduct.

When determining whether the facts found proved amount to misconduct the panel had

regard to the terms of The Code: Professional standards of practice and behaviour for

nurses and midwives (2015) (the Code).

The panel, in reaching its decision, had regard to the public interest and accepted that

there is no burden or standard of proof at this stage and exercised its own professional

judgement.

The panel is of the view that your actions did fall significantly short of the standards

expected of a registered nurse, and that your actions amounted to a breach of the

Code. Specifically:

25

8.2 maintain effective communication with colleagues

8.6 share information to identify and reduce risk…

10.3 complete all records accurately and without any falsification, taking immediate and

appropriate action if you become aware that someone has not kept to these

requirements

20 Uphold the reputation of your profession at all times

20.2 act with honesty and integrity at all times…

The panel appreciated that breaches of the Code do not automatically result in a finding

of misconduct. However, the panel was of the view that this was not simply a case of a

record-keeping error but was a case where a patient had been admitted to the Accident

and Emergency Department, with an obvious head injury thereby requiring neurological

observations. The patient had been allocated to the cubicle for which you were

ultimately responsible. Although you were busy with another patient, you should have

informed a senior nurse so that another nurse could be allocated to the care of Patient

A. There was a real risk of harm to the patient as a result of not conducting such

observations. Further, falsifying documentation and dishonesty implicating another to

conceal your actions conveys that your actions did fall seriously short of the conduct

and standards expected of a nurse and amounted to misconduct.

The panel next went on to decide if as a result of this misconduct your fitness to practise

is currently impaired.

Nurses occupy a position of privilege and trust in society and are expected at all times

to be professional and to maintain professional boundaries. Patients and their families

must be able to trust nurses with their lives and the lives of their loved ones. To justify

26

that trust, nurses must be honest and open and act with integrity. They must make sure

that their conduct at all times justifies both their patients’ and the public’s trust in the

profession. In this regard the panel considered the judgement of Mrs Justice Cox in the

case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery

Council (2) Grant [2011] EWHC 927 (Admin) in reaching its decision, in paragraph 74

she said:

In determining whether a practitioner’s fitness to practise is impaired by

reason of misconduct, the relevant panel should generally consider not

only whether the practitioner continues to present a risk to members of the

public in his or her current role, but also whether the need to uphold

proper professional standards and public confidence in the profession

would be undermined if a finding of impairment were not made in the

particular circumstances.

Mrs Justice Cox went on to say in Paragraph 76:

I would also add the following observations in this case having heard

submissions, principally from Ms McDonald, as to the helpful and

comprehensive approach to determining this issue formulated by

Dame Janet Smith in her Fifth Report from Shipman, referred to above.

At paragraph 25.67 she identified the following as an appropriate test for

panels considering impairment of a doctor’s fitness to practise, but in my

view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

Do our findings of fact in respect of the doctor’s misconduct,

deficient professional performance, adverse health, conviction,

caution or determination show that his/her fitness to practise is

impaired in the sense that s/he:

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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 fundamental tenets of the medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act

dishonestly in the future.

The panel finds that limbs a, b, c and d are engaged insofar as past behaviour.

The panel considered that you have shown significant but not full insight. You have

accepted the panel’s finding. In your submissions to the panel at this stage, it

considered that you have demonstrated an understanding of how your actions put the

patient at a risk of harm and have demonstrated an understanding of why what you did

was wrong. You apologised to this panel for your actions and expressed significant

remorse. When questioned during the course of this hearing about how you would

handle the situation differently in the future, you were able to provide sufficiently

detailed answers. You stated that you are now more vigilant when dealing with patients

with head injuries and ensure that neurological observations are taken when required.

You stated when you find it difficult to manage your workload, you seek the assistance

of other nurses or else inform those senior to you. Further you are careful with your

recording and documentation, only entering actions you have taken and when the

entries are made.

In its consideration of whether you have remedied your practice, the panel took into

account that dishonesty is difficult to remedy, but it is not impossible. The panel

considered that you have been working as an agency nurse for two years. There have

been no further incidents of dishonesty or other issues in relation to your practice. You

have told the panel that these incidents have always remained at the forefront of your

mind and as such you are extra cautious in your practice, you check your

28

documentation carefully and also seek help when required. You stated that you will

never repeat such behaviour again. The panel also heard from a number of character

references who attest to your good clinical practice, being a good team player and also

that you are someone whom they trust. Further, Mr 8 also stated that they specifically

requested you to provide cover from the agency wherever possible.

The panel is of the view that there is a risk, albeit small, of repetition based on the level

of your insight. The panel therefore decided that a finding of impairment is necessary on

the grounds of public protection.

The panel went on to consider whether a finding of impairment was also necessary in

the wider public interest. The panel bore in mind that the overarching objectives of the

NMC are to protect, promote and maintain the health, safety and well-being of the public

and patients, and to uphold and protect the wider public interest, which includes

promoting and maintaining public confidence in the nursing and midwifery professions

and upholding proper professional standards for members of those professions. Your

dishonest actions were serious in that you brought your profession into disrepute and

breached a fundamental tenet of the nursing profession. The panel considered that

honesty, trust and integrity are at the core of the nursing profession. The panel

determined that, in this case, a finding of impairment on public interest grounds is

required in order to uphold proper professional standards and maintain public

confidence in the profession. The panel finds that confidence in the profession and the

NMC as regulator would be undermined should a finding of impairment not be made.

Having regard to all of the above, the panel was satisfied that your fitness to practise is

currently impaired.

29

Determination on sanction: Having determined that your fitness to practise is currently impaired, the panel next

considered what sanction, if any, it should impose on your registration.

In reaching its decision, the panel had regard to all the evidence in this case and to its

earlier determinations at the facts and impairment stages. The panel accepted the

advice of the legal assessor who made reference to the judgments in the cases of

Parkinson v Nursing and Midwifery Council [2010] EWHC 1898 (Admin) and Atkinson v

GMC [2009] EWHC 3636 (Admin). The panel bore in mind that any sanction imposed

must be appropriate and proportionate and, although not intended to be punitive in its

effect, may have such consequences. The panel had careful regard to the Indicative

Sanctions Guidance (“ISG”) published by the NMC. It recognised that any decision on

sanction is a matter for the panel, exercising its own independent judgement.

Ms Higgins submitted that the issue of sanction was a matter for the panel’s

professional judgement. She highlighted to the panel the aggravating and mitigating

features of this case. She reminded the panel that when imposing sanctions, the panel

is under a duty to act proportionately.

You submitted that this has been a “huge learning experience” for you. You accept the

seriousness of the case. You stated that you have been working as an agency nurse for

two years. You stated that you follow the NMC Codes and guidelines on record-

keeping. You stated that you ensure that you protect patient safety, the public interest

and that you are trusted by your colleagues. You reiterated that you seek help

whenever required. You told the panel of your “love” for the nursing profession. You

stated you did not want to lose your job as a nurse. You explained your personal and

financial circumstances and the adverse impact any restriction placed upon your

practice would have. You stated that you have been in the nursing field for 17 years and

wish to continue to serve people. You sought the forgiveness of the panel and

30

apologised again for your actions. You submitted that you would adhere to any

recommendations from the panel.

The panel considered the aggravating and mitigating features in this case.

The panel identified the following aggravating features in this case:

• The seriousness of not ensuring Patient A was adequately cared for by another

nurse.

• The conduct involved the implication of a colleague.

• The dishonesty was repeated albeit in relation to one patient on one shift.

The panel identified the following mitigating features in this case:

• You have fully engaged with the NMC and these proceedings.

• You have expressed deep and genuine remorse and apologised for your actions.

• You have demonstrated significant insight.

• The charges relate to a single incident.

• You have been working as an agency nurse for the last two years with no further

incidents or concerns about either your conduct or your clinical practice.

• Your hitherto unblemished career.

• You were busy caring for a newly admitted elderly patient throughout the relevant

time who had a fractured femur and required catheterisation. Your presence,

attending to her, was recorded on CCTV and acknowledged by Ms 2.

• You have provided positive references and testimonials.

The panel had regard to paragraphs 37 and 38 of the ISG:

37 In Parkinson v NMC [2010] EWHC 1898 (Admin) Mr Justice Mitting said:

“A nurse found to have acted dishonestly is always going to be at severe risk of having

his or her name erased from the register. A nurse who has acted dishonestly, who does

not appear before the Panel either personally or by solicitors or counsel to demonstrate

remorse, a realisation that the conduct criticised was dishonest, and an undertaking that

31

there will be no repetition, effectively forfeits the small chance of persuading the Panel

to adopt a lenient or merciful outcome and to suspend for a period rather than direct

erasure.”

38 “We do not consider that this decision means that in cases of dishonesty panels are

left with an arbitrary choice between suspension and striking-off, or that in the absence

of special circumstances a striking-off order is to be seen as a ‘default’ outcome.

Rather, this decision makes clear that dishonesty is a highly serious matter and that a

striking-off order will almost always be a possible outcome”.

The panel acknowledges the guidance given in these paragraphs but is still conscious

that any outcome will always depend on the particular circumstances of a case.

The panel considered that whilst dishonesty is always serious, the dishonesty in your

case is not at the highest end of the scale of dishonesty. The dishonesty in your case, in

effect, stemmed from one isolated incident in relation to one patient during one shift.

The panel was mindful of the need to be proportionate but, at the same time, to mark

the seriousness of the misconduct so as to declare and uphold proper standards of

conduct and maintain public confidence in the profession and in the NMC as its

regulator.

The panel considered the available sanctions in ascending order of seriousness.

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

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

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

The panel then considered whether a caution order would be appropriate in the

circumstances. The panel took into account the Indicative Sanctions Guidance, which

states that a caution order may be appropriate where “the case is at the lower end of

the spectrum of impaired fitness to practise and the panel wishes to mark that the

32

behaviour was unacceptable and must not happen again.” The panel also noted that a

caution order “might be appropriate where the nurse or midwife’s history is such that the

panel is confident that there is no risk to the public or to patients which requires the

nurse or midwife’s practice rights to be restricted.”

The panel noted that you have shown significant insight into your misconduct. The

panel noted that you accepted the panel’s findings and apologised to this panel for your

misconduct during your evidence, showing genuine remorse. The panel has already

found that the risk of repetition is minimal. You have engaged with the NMC

proceedings. You have continued to practise as a nurse for two years through an

agency, working mainly for Ealing Hospital in the Accident and Emergency Department.

The panel considered that there have been no further issues in relation to your practice

or any further incidents of dishonesty since these incidents. The panel heard from

former and current colleagues who spoke highly of your practice and stated that they

trusted you.

The panel considered whether it would be proportionate to impose a more restrictive

sanction and looked at a conditions of practice order. The panel concluded that no

useful purpose would be served by a conditions of practice order as there are no

concerns as to your clinical practice.

The panel further considered that a suspension order would be disproportionate in your

particular case and that the lesser, but nonetheless effective, sanction of a five year

caution order is appropriate to sufficiently mark the seriousness of your misconduct and

maintain public confidence in the profession and the NMC as a regulator. The panel

determined that a suspension order would be unduly punitive given the considerable

mitigating factors in this case. In the panel’s judgment, and in the light of all the

circumstances of this case, a caution order would adequately address the public

interest. In coming to this conclusion, the panel is acutely conscious that it is also very

much in the public interest for a nurse of your abilities to be retained in practice.

33

Having considered the general principles above and looking at the totality of the findings

on the evidence, the panel has determined that to impose a caution order for the

maximum period of five years would be the appropriate and proportionate response. For

the next five years your employer or any prospective employer will be on notice that

your fitness to practise has been found to be impaired and that your practice is subject

to a caution. This will mark not only the importance of maintaining public confidence in

the profession, but also send the public and the profession a clear message about the

standards required of a registered nurse.

At the end of this period the note on your entry in the Register will be removed.

However, the NMC will keep a record of the panel’s finding that your fitness to practise

had been found impaired. If the NMC receives a further allegation that your fitness to

practise is impaired, the record of this panel’s finding and decision will be made

available to any practice committee that considers the further allegation.

This decision will be confirmed in writing.