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Decision and reasons on impairment
The panel then considered whether, as a result of Nurse A’s misconduct, his fitness to practise was currently impaired. The NMC has defined fitness to practise as a registrant’s suitability to remain on the register without restriction.
In reaching its decision on impairment the panel had regard to the need to safeguard the public interest in this case, which includes the maintenance of public confidence in the profession, and the upholding of proper standards of conduct and behaviour. Nurses occupy a position of privilege and trust in society and are expected at all times to be professional. Patients and their families must be able to trust nurses with their care and the care of their loved ones. Nurses must make sure that their conduct at all times justifies both their patients’ and the wider public’s trust in the profession.
The panel heard and accepted the advice of the legal assessor.
In determining whether Nurse A’s fitness to practise was currently impaired the panel considered the judgment 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 paragraph 74 she said; 74.
“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”.
The panel first considered the issue of past impairment. It had careful regard to its findings of fact and the matters set out above and concluded that Nurse A had:
- Put a patient at unwarranted risk of harm;
- Breached a fundamental tenet of the nursing profession.
For these reasons, the panel concluded that at the time these events occurred Nurse A’s fitness to practise was impaired by reason of his misconduct.
The panel next considered whether Nurse A’s fitness to practise was currently impaired, and whether Nurse A was liable to repeat his misconduct.
The panel noted that Nurse A had admitted the charges and fully engaged with the NMC. He was open and transparent and made no excuses to minimise his behaviour. The panel was satisfied that Nurse A understood and appreciated the severity of his actions and the consequential damage that it caused.
The panel took into account Nurse A’s oral evidence and the various positive testimonials and references that were provided from his colleagues who highlighted his good character, knowledge and professional practice in an otherwise long and unblemished career.
The panel was particularly impressed by Nurse A’s candid disclosure that he failed to properly address the risks associated with smoking and the tragic circumstances that led to the death of Resident A. However, the panel was assured that he has now fully addressed these matters and shown considerable remorse. Nurse A provided evidence of the changes that he implemented within the home prior to and after the incident on 6 February 2016 which included ensuring that the nursing home is now a non-smoking home; ensuring that the staff undertake record keeping and risk assessment training; undertaking mental capacity assessments and fire evacuation and use of fire extinguisher training.
The panel was of the view that Nurse A had demonstrated full insight in that he accepted his failings and acknowledged the implications of his actions and omissions. The panel considered that Nurse A has fully reflected upon his actions and the impact this may have had on the profession, its standards and the wider public interest. The panel acknowledged that he had practised without incident since 6 February 2016 and that no other concerns were raised regarding his clinical and professional performance prior to this date. The panel is confident that this misconduct is highly unlikely to be repeated.
The panel considered that this was a tragic but unintended accident. The panel noted the use of a paraffin-based emollient by Resident A as noted by the coroner as being a contributory factor. The panel considered that Nurse A demonstrated genuine passion and commitment to nursing and accepts that Nurse A is a competent and able nurse.
The panel carefully considered the public interest in this case given the consequences of the misconduct. It concluded that it would not be appropriate in this particular case to find impairment solely on a public interest basis. Public confidence in the profession would not be undermined by a finding of no impairment given the specific circumstances of this case.
It bore in mind that the public would benefit from and wish to see a good, competent and dedicated nurse who has shown significant levels of insight and remediation to be allowed to continue to practise without restriction where he does not pose a risk to those in his care.
The panel therefore found Nurse A’s fitness to practise was not currently impaired.
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