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Decision on impairment
The panel next went on to decide if as a result of this lack of competence her fitness to practise is currently impaired.
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  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 commended the following as the appropriate test for panels:
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 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 her lack of competence engaged questions a, b and c. as set out above both with regards to your past behaviour and your liability to act in a similar manner in the future. The panel considered the deficiencies in Registrant A’s practice to be easily remediable. However, it noted that although she had undertaken some further training it was not relevant to the practical elements of the assessments that she had failed. The panel also heard evidence of witnesses who considered Registrant A to be capable but not willing to comply with the best practices which also indicates attitudinal issues. The panel bore in mind that its primary function is to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding the proper standards and behaviour. The panel determined that, in this case, a finding of impairment was required on both public protection and public interest grounds.
Determination on sanction
The panel considered this case very carefully and decided to make a conditions of practice order. In reaching this decision, the panel had regard to all the evidence that was adduced in the case.
The panel considered the aggravating and mitigating factors in this case. It found the following to be aggravating factors:
- The charges found proved relate to failures of basic and essential standard competences that that you consistently could not demonstrate.
- During your oral evidence to the panel you were reluctant to accept personal accountability and sought to shift the blame for your failures to others.
- The panel considered that by not accepting that you failed to demonstrate the standards of knowledge, skills and judgment required to practise without supervision as a Grade D nurse you displayed a lack of insight.
- The panel had determined that you have attitudinal issues.
The panel found the following to be mitigating factors:
- There is no evidence of any patient harm a result of your lack of competence.
- There is no evidence of any NMC or other proceedings against you during your 17 years career.
- You have fully engaged with your regulator in these proceedings.
The panel was of the view that there were clearly identifiable areas in Nurse A’s practice that need to be addressed. The panel determined that it would be possible to formulate appropriate and practical conditions, as set out in paragraph 63 of the ISG, which would address the failings highlighted in this case and would be sufficient to protect the public and the public interest whilst facilitating to remediate her practice. The panel noted that the Registrant was willing to comply with conditions of practice.
Balancing all of these factors and after having taken into account both the aggravating and mitigating features of this case, the panel determined that the appropriate and proportionate sanction is that of a conditions of practice order.
Having regard to the matters it identified, the panel 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 practice required of a Registered Nurse. The period of this order is for 12 months.
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