Hindmarch v NMC [2016] EWHC 2233 (Admin)

Posted by Katharine Blackburn on
High Level Summary
An appeal brought against a decision made by the NMC's Conduct and Compliance Committee. The Committee were found to have erred in finding that the appellant's failure to ensure a controlled drug had been stored securely in a care home, resulting in a patient obtaining and ingesting the medication, was misconduct which impaired her fitness to practise. It was unfair to say that a moment's inattention automatically meant that a nurse was guilty of gross misconduct if a patient was placed at risk of serious harm as a consequence.

Facts

The appellant was employed by Care UK as a registered nurse at Stanley Park Centre Dementia Unit. On 9 July 2013 the Unit received patient medication from the pharmacy. On 14 July 2013, the appellant was checking the medication against the medicine administration records.

A treatment room was used for the storage of medication; however it was too small to be used for checking the medication. Therefore a second room, bedroom 61 was used for this purpose.

Having checked the medication in bedroom 61, the appellant had to transfer all the medication back to the treatment room for safe storage. Contained within the medication was Lorazepam (1 microgram) in tablet form. 14 tablets were received from the pharmacy on the 9 July 2013, which were then signed for by the appellant on the 14 July 2013.

On the 14 July 2013, at some stage during this process, Patient A, got hold of the Lorazepam and ingested 11 of the 14 tablets. The medication was not intended for this patient. Patient A was found unresponsive on a bed opposite bedroom 61 with Lorazepam nearby.

The appellant attempted to arouse Patient A but was unable to do so and the patient was taken to hospital. Patient A suffered no long term effects and was discharged back to the Unit the following day.

The CCC Hearing

The appellant faced a single allegation of failing to ensure that the Lorazepam was stored securely. The appellant did not attend the hearing due to a family bereavement. No application to adjourn the hearing was made.

Grounds of appeal

The grounds of appeal were as follows:

  1. The panel was misdirected as to the legal status of Lorazepam as a controlled drug;
  2. The panel gave too much weight to the findings of the post-incident investigation;
  3. The panel erroneously concluded that the drug was not stored safely;
  4. The decision on impairment was disproportionate;
  5. The sanction was disproportionate;
  6. The Panel should have adjourned the hearing to allow the appellant to attend.

HELD:

(1) It was accepted during the course of the hearing that Lorazepam was a controlled drug (see paras 8-16 of the judgment). In HHJ Gosnell's view the status of the drug could only be relevant to misconduct and impairment however, as the finding of fact was about whether the appellant had failed to ensure that the Lorazepam was stored securely, resulting in the Patient obtaining it and ingesting it. In his view the Panel at the original hearing were in possession of "accurate information" about the regulatory regime before they made their decision about misconduct and impairment. For this reason this ground of appeal failed.

(2) Although the Panel relied on evidence from the post-accident investigation, they were not relying on any findings of fact in the report. The witness who carried out the investigation gave evidence at the hearing of the discussion she had with the appellant shortly after the incident and the appellant's admission. These were independent of the contents of her report.

(3) The issue was not whether the appellant securely stored the Lorazepam, but whether it was transferred safely. This ground was misconceived. Transfer of the drugs from one room to another was a necessary part of the process of checking and storing the medication. Whilst that did not mean the Panel had asked itself the wrong question, it did provide some material which should have been taken into account when assessing whether the appellant was guilty of misconduct. This however was not a ground for granting an appeal in this case (paras 19-20).

(4) The appellant relied on the following matters when considering the issue of misconduct:

(i) This was a one off discrete incident

(ii) The appellant was working in particularly difficult circumstances

(iii) The checking arrangements were unsatisfactory

(iv) There was no policy for the safe transfer of medication

(v) The Unit had low levels of staffing

(vi) There was limited time to perform a task without interruption

(vii) There was no risk assessment for bedroom 61 and

(viii) There was a question as to whether bedroom 61 complied with the statutory requirement of safe custody of drugs

All these factors should have been considered. This was a discrete single act of negligence which had "not crossed the threshold of misconduct, such that a fellow practitioner would have thought her conduct deplorable". The Panel were entitled to take into account the 52 years of previously unblemished service, although that of itself does not mean that such a nurse cannot be guilty of gross misconduct.

The Panel decided that it was the appellant's responsibility to store the medicines securely; that she was responsible for her acts and omissions and that the consequences could have been serious. However this was not a case where the appellant gave an overdose to a patient; gave the incorrect medication or gave medication in breach of guidelines and/or instructions. The appellant lost control of the Lorazepam either while she was checking it in, transporting it to a treatment room or while she was securing it in the treatment room. The context in which that error was made was not given sufficient prominence in the Panel's consideration. "This could have been because the appellant chose not to attend or be represented at the hearing and those points were not emphasised on her behalf" (para 34).

The situation in this care home was less than ideal. The treatment room was too small to carry out the medicine check and another room had to be used. In accordance with the employer's policy there should have been two nurses to carry out the medicine checks. This deficiency cannot be placed at the appellant's door. HHJ Gosnell was concerned that although the Panel expressed the view that simple negligence was not sufficient to amount to misconduct, they decided that a simple negligent omission did amount to misconduct because "the consequences of the mistake were and could have been more serious". In his judgment the Panel were wrong to criticise this single omission in the long and unblemished career of this dedicated nurse as misconduct. It followed therefore that the appeal would succeed. In terms of impairment, if the panel had been right to categorise the appellant's behaviour as misconduct, it would have been entitled to find that her fitness to practise was impaired not because of her conduct but because there was no evidence of remorse, remediation or insight (paras 29 – 41).

(5) Had the Panel been right about misconduct, its decision on sanction would not have been overturned, even though it was on the "harsh side".

(6) The appellant never asked for an adjournment, in those circumstances the Panel cannot be criticised for not granting one.

The decision was replaced with a finding that the charge, although proved, did not amount to misconduct. 

About the Author

Katharine is a barrister with 17 years’ experience. She is a professional support lawyer at Blake Morgan.

Katharine Blackburn
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