conduct and competence committee...2016/03/03 · page 1 of 44 conduct and competence committee...

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Conduct and Competence Committee Substantive Hearing

14 – 18 September 2015 14 – 15 December 2015

1 – 3 March 2016 Nursing and Midwifery Council, 114-116 George Street, Edinburgh, EH2 4LH

Name of Registrant: Anne Renwick Facchini NMC PIN: 81B0221S Part(s) of the register: Registered Nurse - Sub Part 1

Adult Nursing – April 1984 (lapsed) Registered Midwife Midwifery – August 1986

Area of Registered Address: Scotland Type of Case: Misconduct Panel Members: Robert Barnwell (Chair/Lay Member)

Ceri Channon (Lay Member) Sheena Payne (Registrant Member)

Legal Assessor: Michael Bell (14–18 September 2015) John Moir (14–15 December 2015) John Moir (1-3 March 2016) Panel Secretary: Sonia Gentile-Mills (14 September 2015) Helen Sarantopoulos (15–18 September 2015) Helen Sarantopoulos (14–15 December 2015) Sonia Gentile-Mills (1-3 March 2016) Representation:

Nursing and Midwifery Council: Represented by Alastair Kennedy, Nursing and Midwifery Council Regulatory Legal Team.

Mrs Facchini: Not present and not represented in absence

Facts proved: 2.1, 2.2, 3.1, 3.2, 3.4, 3.5, 4 Facts not proved: 1.1, 1.2, 1.3, 3.3 Fitness to practise: Impaired Sanction: Striking-Off Order Interim Order: Interim Suspension Order (18 months)

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Decision on service of notice of hearing

Mrs Facchini was not present or represented at the hearing today. The panel heard the

submissions made by Mr Kennedy on behalf of the Nursing and Midwifery Council

(NMC) that the notice of today’s hearing was sent to Mrs Facchini in accordance with

Rules 11 and 34 of The Nursing and Midwifery Council (Fitness to Practise) Rules

Order of Council 2004 (‘The Rules’) as amended.

‘11.(1) Where a hearing is to be held in accordance with rule 10(2), the Conduct and

Competence Committee or Health Committee shall send a notice of hearing to the

registrant.

(2) The notice of hearing shall be sent to the registrant

(b) in every case, no later than 28 days before the date fixed for the hearing.

34.(1) Any notice of hearing required to be served upon the registrant shall be delivered

by sending it by a postal service or other delivery service in which delivery or receipt is

recorded to, or by leaving it at—

(a) her address in the register’

Notice of this hearing was originally sent to Mrs Facchini’s address on the NMC register

on 11 August 2015 by recorded delivery and first class post, over 28 days in advance of

this hearing. The Royal Mail “Track and Trace” print off details that the notice was

delivered and signed for on 12 August 2015. The panel is satisfied that the NMC have

complied with the rules of service.

Decision on proceeding in the absence of Mrs Facchini

In deciding whether to proceed in the absence of Mrs Facchini the panel considered the

submissions of Mr Kennedy on behalf of the NMC to proceed. He referred the panel to

an email dated 8 September 2015 from Mrs Facchini to the NMC confirming that she

would not be attending the hearing today and would like the hearing to proceed without

her in attendance. Mr Kennedy submitted that there is no indication that Mrs Facchini

would attend at a future hearing should there be an adjournment today.

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The panel heard and accepted the advice of the legal assessor. He advised that the

discretion to proceed in the absence of Mrs Facchini must be handled with the utmost

care and caution. The panel must consider the nature and circumstances of Mrs

Facchini absenting herself, in particular whether the decision was voluntary and if so,

whether she had waived her right to be present and represented; whether an

adjournment might result in her attendance; and the general public interest that a

hearing should take place within a reasonable time of the events to which it relates. The

panel had regard to Rule 21(2) that the panel may direct that the allegation should be

heard and determined notwithstanding the absence of the registrant; or may adjourn the

hearing.

In deciding whether to proceed in the absence of Mrs Facchini, the panel has weighed

its responsibilities for public protection and the expeditious disposal of the case with Mrs

Facchini’s right to a fair hearing.

The panel noted the content of the email dated 8 September 2015 from Mrs Facchini

requesting that the hearing proceed and further noted that no application for an

adjournment was made.

The panel was satisfied that Mrs Facchini had voluntarily absented herself from the

hearing and it was unlikely that an adjournment would result in her attendance at a later

date. The panel was mindful that the allegations against Mrs Facchini date back to a

period between 2011 and 2013. Six witnesses are available to give evidence and the

panel considered that should the hearing be adjourned it may have an adverse impact

on the quality of evidence provided by them. The panel concluded that Mrs Facchini had

waived her right to attend the proceedings and it drew no adverse inference from her

non attendance. It determined that there would be no injustice to Mrs Facchini with

proceeding in her absence. In weighing Mrs Facchini’s own interest with the public

interest in the expeditious disposal of this case the panel decided to proceed in Mrs

Facchini’s absence. The panel was mindful that it may adjourn the proceedings at any

time and that any hearing should be as fair as the circumstances permit.

The charges were then read into the record and the NMC opened its case.

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Charges: That you, whilst employed as a registered midwife at NHS Ayrshire and Arran:

1. In relation to Patient A, between 2-3 March 2013, did not respond to the patient’s

care needs and/or treatment preferences in that you:

1.1 Ruptured membranes without consent, causing the patient pain and

discomfort; NOT PROVED

1.2 Failed to discuss appropriate pain relief; NOT PROVED

1.3 Administered morphine to the patient without consent; NOT PROVED

2. In relation to Patient B, between 9-10 May 2011, did not respond to the patient’s


2.1 Ruptured membranes without consent and/or before full dilation, causing the

patient pain and discomfort; PROVED

2.2 Did not adjust the temperature of the patient’s birthing pool; PROVED

3. In relation to Patient C, between 6-7October 2012, you did not respond to the

patient’s care needs and/or treatment preferences in that you:

3.1 Failed to discuss the birth plan; PROVED

3.2 Did not keep the patient informed; PROVED

3.3 Did not discuss pain relief options; NOT PROVED


patient pain and discomfort; PROVED

3.5 Spoke to the patient in an inappropriate and uncaring manner in that you

called her “stupid” or words to that effect; PROVED

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4. Between 3 December 2012 and 2 March 2013, you failed to ensure satisfactory

provision of care and/or keep clinical records accurately and/or appropriately for

1 or more of 14 patient’s as set out in Schedule 1 below:

PROVED

Schedule 1 1. Did not complete and/or update labour birth plans upon patient admission;

2. Did not use cardiotocography (CTG) interpretation stickers at appropriate times

and/or fully complete them;

3. Did not plan midwifery care;

4. Did not record whether a patient had requested analgesia but recorded that it

was administered to the patient;

5. Recorded frequent vaginal examinations on patients to assess progress;

6. Recorded patients requesting artificial and/or spontaneous rupture of

membranes, during vaginal examinations;

7. Did not sign or print your signature on records;

8. Recorded incorrect dates in a record on two occasions;

9. Did not fully complete a Modified Early Warning Score (MEWS) chart for post

natal observations;

10. Recorded a fetal heart rate during the second stage of labour and not the first

stage;

11. Did not match script and partogram documentation;

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

misconduct.

Application to hear evidence by telephone under Rule 31 (1) Mr Kennedy applied for the evidence of Patient A to be heard by telephone. Mr

Kennedy informed the panel that the NMC had made attempts for Patient A to be

present today including instructing Sheriff Officers to cite Patient A to attend. Patient A

informed the NMC that childcare issues meant that she would not be in attendance

today. The NMC offered to pay for a friend / colleague to attend in order to provide

childcare however Patient A informed the NMC that this would not be suitable. Mr

Kennedy submitted that Patient A’s evidence was essential in relation to the facts

narrated in charge 1.

The legal assessor advised the panel of its powers under Rule 31 (1) which states,

‘Upon receiving the advice of the legal assessor, and subject only to the requirements of

relevance and fairness, a Practice Committee considering an allegation may admit oral,

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

civil proceedings (in the appropriate Court in that part of the United Kingdom in which

the hearing takes place).’

In relation to relevance the panel noted that as Patient A is the complainant, it would be

preferable for her to speak to the facts narrated in charge 1. In relation to fairness the

panel noted that the NMC has made all reasonable attempts to secure the attendance

of Patient A. Whilst it would be preferable for Patient A herself to attend in person, her

availability by telephone meant that the panel would be able to test the evidence that

she gave. The panel determined that to allow the application would be relevant and fair

to both the NMC and Mrs Facchini.

For these reasons the panel has determined that the application to admit Mrs Facchini’s

evidence by telephone is allowed.

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Interim Order Mr Kennedy, on behalf of the NMC, informed the panel that the public was adequately

protected at this stage.

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

The panel was satisfied that it did not need to consider an Interim Order at this stage.

This case will resume on Monday, 14 December, 2015 for two days.

RESUMED HEARING – 14 and 15 December 2015 Decision on service of notice of hearing


submissions made by Mr Kennedy, on behalf of the NMC, that the notice of today’s

hearing was sent to Mrs Facchini in accordance with Rules 11 and 34 of the Rules.

‘11.(1) Where a hearing is to be held in accordance with rule 10(2), the Conduct and

Competence Committee or Health Committee shall send a notice of hearing to the

registrant.

(2) The notice of hearing shall be sent to the registrant

(b) in every case, no later than 28 days before the date fixed for the hearing.







on 24 September 2015 by recorded delivery and first class post, over 28 days in

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advance of this hearing. The Royal Mail ‘Track and Trace’ print off details that the notice

was delivered and signed for on 1 October 2015.

The panel is satisfied that the NMC have complied with the rules of service.


In deciding whether to proceed in the absence of Mrs Facchini, the panel considered

the submissions of Mr Kennedy, on behalf of the NMC.

Mr Kennedy reminded the panel of its discretion to proceed in the absence of Mrs

Facchini but that this discretion must be exercised with the utmost care and caution.

Mr Kennedy submitted that Mrs Facchini has not engaged with these proceedings and

did not attend the substantive hearing held in September 2015. Mr Kennedy informed

the panel that Mrs Facchini has in the past expressed that she has retired from nursing

and that there was nothing to suggest that an adjournment would ensure her

attendance.

Mr Kennedy invited the panel to exercise its discretion and proceed in the absence of

Mrs Facchini.





The panel noted that Mrs Facchini has indicated that she has retired from nursing and

midwifery and that she did not attend the previous substantive hearing held in

September 2015.

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date. The panel was mindful that Mrs Facchini has not engaged with these proceedings.

The panel concluded that Mrs Facchini had waived her right to attend the proceedings

and it drew no adverse inference from her non-attendance. It determined that there

would be no injustice to Mrs Facchini with proceeding in her absence. In weighing Mrs

Facchini’s own interest with the public interest in the expeditious disposal of this case,

the panel decided to proceed in Mrs Facchini’s absence. The panel was mindful that it

may adjourn the proceedings at any time and that any hearing should be as fair as the

circumstances permit.

Interim Order Mr Kennedy, on behalf of the NMC, informed the panel that the public was adequately

protected at this stage.


The panel was satisfied that it did not need to make an Interim Order at this stage.

This case will resume on Tuesday, 1 March, 2016 for three days.

RESUMED HEARING – Tuesday 1 March 2016 to Thursday 3 March 2016 Decision on service of notice of hearing


submissions made by Mr Kennedy, on behalf of the NMC, that the notice of today’s

hearing was sent to Mrs Facchini in accordance with Rules 32 and 34 of the Rules.

‘32.(3) Where the proceedings have been adjourned, the Practice Committee shall, as

soon as practicable, notify the parties of the date, time and venue of the resumed

hearing.

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on 23 December 2015 by recorded delivery and first class post. The Royal Mail ‘Track

and Trace’ print off details that the notice was delivered and signed for on 30 December

2015.

The panel is satisfied that the NMC have complied with the rules of service.


In deciding whether to proceed in the absence of Mrs Facchini, the panel considered

the submissions of Mr Kennedy, on behalf of the NMC.

Mr Kennedy reminded the panel of its discretion to proceed in the absence of Mrs

Facchini but that this discretion must be exercised with the utmost care and caution.

Mr Kennedy submitted that Mrs Facchini has not engaged with these proceedings and

did not attend the substantive hearings held in September and December 2015. Mr

Kennedy informed the panel that Mrs Facchini has in the past expressed that she has

retired from nursing and that there was nothing to suggest that an adjournment would

ensure her attendance.

Mr Kennedy invited the panel to exercise its discretion and proceed in the absence of

Mrs Facchini.


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The panel noted that Mrs Facchini has indicated that she has retired from nursing and

midwifery and that she did not attend the previous substantive hearings held in

September and December 2015.



date. The panel was mindful that Mrs Facchini has not engaged with these proceedings.

The panel concluded that Mrs Facchini had waived her right to attend the proceedings

and it drew no adverse inference from her non-attendance. It determined that there

would be no injustice to Mrs Facchini with proceeding in her absence. In weighing Mrs

Facchini’s own interest with the public interest in the expeditious disposal of this case,

the panel decided to proceed in Mrs Facchini’s absence. The panel was mindful that it

may adjourn the proceedings at any time and that any hearing should be as fair as the

circumstances permit.

Determination on the findings of facts Background

Mrs Facchini was employed by NHS Ayrshire and Arran as a Staff Midwife from

February 1981 until her voluntary retirement on 31 August 2013. Complaints made by

patients were received by the Ayrshire Maternity Unit (‘the Unit’) at Crosshouse Hospital

(the Hospital) in 2012, concerning Mrs Facchini’s practice in the care of three mothers

during their labour. The incidents first came to light following a complaint from Patient C

regarding the care delivered to her. This was received by NHS Ayrshire and Arran (the

Board) on 26 November 2012.

Within two weeks, a second complaint was received. This was from Patient B which

raised concerns about the Unit and the care provided by Mrs Facchini in May 2011.

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On 4 March 2013, further concerns were brought to NHS Ayrshire and Arran. A verbal

complaint was received from Patient A, a patient who had laboured overnight from the 2

to 3 March 2013. Patient A requested to have Mrs Facchini removed from caring for her.

Midwifery staff also raised their concerns with the Board.

Following this, the Head of Midwifery at the Hospital requested Ms 3, Supervisor of

Midwives, to conduct a three month retrospective case note audit (from 3 December

2012 to 2 March 2013) of care given by Mrs Facchini to patients. The audit looked at

157 case notes in total, of which 20 were identified for further review and, from this

sample, 14 were discovered to raise concerns about Mrs Facchini’s practice as a

midwife in relation to care and documentation while six were unproblematic. The

concerns raised in the audit covered a wide range of midwifery practice including care

planning, consent, documentation and labour birth plans not being completed on

admission in labour.

The incident was subsequently referred to the Local Supervising Authority Midwifery

Officer (LSAMO). Mrs Facchini retired from practice and the case was referred to the

NMC.

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

written evidence adduced and the submissions made by Mr Kennedy, on behalf of the

NMC. The panel has also taken into account the bundle of documentation provided by

the NMC and the email from Mrs Facchini to the NMC dated 8 September 2015.

Mr Kennedy informed the panel that Mrs Facchini denied all the charges and also

denied that her fitness to practise is impaired. The panel proceeded on this basis.

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

reminded the panel that the burden of proof rests on the NMC, and that the standard is

the civil standard, namely the balance of probabilities. This means that the facts would

be proved if the panel was satisfied that it was more likely than not that the incidents

occurred as alleged. He advised that the panel must assess the credibility and the

reliability of the evidence presented to it. He further advised the panel to place

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appropriate weight to any documentary evidence placed before it, which has not been

tested.

Mr Kennedy told the panel that the complaint was investigated by the NMC and advised

that the panel would hear from Patients A, B and C and three midwives who were

involved in the care of the patients or the review of records referred to in the audit.

The panel heard from the following witnesses on behalf of the NMC: Patient A, patient

on the Unit between 2-3 March 2013; Patient B, patient on the Unit between 9-10 May

2011; Patient C, patient on the Unit between 6-7 October 2012; Ms 1, Registered

Midwife and Clinical Labour Ward Suite Co-ordinator at the Unit; Ms 2, Registered

Midwife and Labour Ward Midwife at the Unit; and Ms 3, Band 7 Midwife, Shift

Coordinator at the Board and Supervisor of Midwives.

In relation to Patient A, the panel found her evidence to be clear and helpful to the

extent of her recollection. She conceded when she was unable to accurately recall the

timing of events and attributed this partly to the effects that the morphine had had on

her.

Otherwise, the panel found all the witnesses to be credible in their evidence. It found the

evidence of Ms 1, Ms 3 and Patient B to be particularly clear, reliable and helpful.

Decision and reasons on the findings on facts:

The panel then considered the charges, and made the following findings:

Charge 1

1. In relation to Patient A, between 2-3 March 2013, did not respond to the patient’s


1.1 Ruptured membranes without consent, causing the patient pain and

discomfort;

1.2 Failed to discuss appropriate pain relief;

1.3 Administered morphine to the patient without consent;

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Charge 1 was found NOT PROVED in its entirety; The panel considered the evidence of Ms 1, Ms 2, Ms 3 and Patient A.

In relation to charge 1.1, Ms 1 told the panel that she had entered the room after

Patient A’s membranes had broken at about 02:20 to relieve Mrs Facchini whilst she

had a tea break. Ms 1 spoke to Patient A who told her that Mrs Facchini had broken her

waters whilst she was performing a vaginal examination on her.

Ms 1 said that when she had spoken to Mrs Facchini prior to entering the room to

relieve her, she was told that Patient A’s membranes had just ruptured. Ms 1 said that

Mrs Facchini had told her that she had “lifted her [Patient A’s] leg to have a look” to look

for signs of the second stage of labour. Using her fingers, she parted Patient A’s labia to

see if the membranes were intact. Ms 1 told the panel that she had seen Mrs Facchini’s

index finger curved in a hook like fashion.

Ms 1 stated during the Board’s investigation meeting that:

‘I asked Ann [if] she had touched the patient, Ann said she parted patient A’s labia to

see if the membrane was intact. Ann stated that it was while she was doing this that the

patient’s waters broke.’

Ms 1 confirmed this in her oral evidence.

Ms 1 said that Patient A told her that Mrs Facchini had broken her waters and that she

had been “rooting” around with her fingers. Ms 1 said that Patient A was emphatic that

Mrs Facchini had broken her waters and that she had wanted to break them since she

had taken over her care.

Ms 2 told the panel that on the night in question she was asked to take over the care for

Patient A by Ms 1 at about 02:50. Ms 2 said that when she arrived in Patient A’s room,

Patient A was already in advanced labour. She said that Patient A told her that Mrs

Facchini had broken her waters without her consent and that she felt sore and scared.

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Ms 2 told the panel that, if a midwife intended to rupture the membranes of a patient,

she would insert two fingers inside a patient’s vagina in order to assess the dilation of

the patient’s cervix and to determine if a rupture was required. She said that, after she

(Ms 2) entered the room, a further vaginal examination had not been necessary as

Patient A gave birth within two hours of Ms 2 entering the room and these examinations

are normally four hourly.

Patient A told the panel that she arrived at the Hospital on the afternoon of 2 March

2013 when she was seen by an unknown midwife who examined her and with whom

Patient A discussed her birth plan.

Patient A said that Mrs Facchini took over from this midwife at about 20:00 that night.

Patient A said that Mrs Facchini asked to examine her and discussed breaking her

waters with her and her partner who was also in the room. Patient A said that she had

told Mrs Facchini that she did not want her waters broken.

Patient A said that Mrs Facchini asked to examine her again at about 22:00 but that she

did not want to be examined but allowed Mrs Facchini to examine her “just to get it over

and done with”.

Patient A said that Mrs Facchini examined her a third time, but that she was “really out

of it” at this stage as she had had morphine for her pain. Patient A said that she had

again stated she did not want to be examined however she allowed Mrs Facchini to “get

on with it”. Patient A said that Mrs Facchini put her hand into her (Patient A’s) vagina

and that she had felt her “rooting around”. Patient A said that Mrs Facchini put more

pressure by pushing into her until Mrs Facchini “busted” her waters.

In her oral evidence, Patient A said that Mrs Facchini had tried to “bust” her waters with

something that looked like a yellow “stick” during a vaginal examination around 22:00

but that her waters did not burst at that point. Patient A said that she told Mrs Facchini

at about 00:30 that she did not want an ‘artificial rupture of membranes’ (ARM). Patient

A repeated that Mrs Facchini manually burst her waters during the later examination.

She also stated that shortly after her waters burst, she was asked by Ms 1 if she was

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alright to which she replied that she was not alright and she did not want Mrs Facchini to

come back into the room.

The panel had regard to unsigned notes of an interview conducted by the Board with

Mrs Facchini on 3 May 2013 in relation to the night in question.

During this interview it was noted that Mrs Facchini stated that she had discussed the

possibility of Patient A having an ARM at about 00:30 because the patient asked her to

break her waters. Mrs Facchini stated that she had prepared a sterile amnihook which

she took from the trolley at the side of the patient’s bed, but that Patient A had changed

her mind so the hook was not used.

Mrs Facchini was noted to have stated during the interview that she did not touch

Patient A (when her waters broke) but that she had pushed Patient A’s pad out of the

way and, just after doing so, Patient A’s membranes spontaneously ruptured and

therefore she did not knowingly rupture them.

The panel concluded that the evidence from Patient A was insufficiently clear to be able

to rely on it to reach a conclusion that this charge was proved on the balance of

probabilities.

The panel concluded that, based on the evidence before it, Mrs Facchini did not

conduct a digital examination of Patient A at about 02:20 and that during a visual

examination and removal of the pad, Patient A’s membranes spontaneously ruptured.

Having considered all the evidence relating to charge 1.1, the panel determined that on

the balance of probabilities on 2-3 March 2013 Mrs Facchini was responding to Patient

A’s care needs and, in doing so, Patient A’s membranes spontaneously ruptured.

Accordingly, the panel found charge 1.1 not proved. In relation to charge 1.2, the panel has borne in mind the legal assessor’s advice

regarding the meaning of the word ‘failure’ in this context in that there needs to be a

requirement or duty to do something and for that requirement or duty to not have

happened for there to be a failure.

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Patient A in her evidence told the panel that she was in the birthing room with her

partner and her friend who were both her birthing partners. Patient A said that she had a

birth preference plan, and that in this plan she asked that she be able to use the birthing

pool and then have gas and air. She said that none of these methods of pain relief were

discussed with her by any of the midwives at the Hospital. Patient A said that while she

was in the pool (before Mrs Facchini started looking after her) another midwife had told

her she could have gas and air and had shown her how to use it.

Patient A told the panel that Mrs Facchini did not discuss pain relief with her but that

she did tell her that she needed morphine. Patient A said that she was given gas and air

from the time she was admitted on the labour ward. She said that when the second

midwife came in she was the one who discussed other pain relief options with her,

including an epidural, which Patient A said to this midwife she did not want.

Ms 3 in her evidence told the panel that in her experience pain relief is discussed with

patients. She said that escalation strategies are discussed depending on whether they

are green pathway or red pathway, depending on the patients’ risk factors as well as

their preferences.

Ms 3 explained to the panel the pain relief escalation scale starting with distraction

therapy, the use of aromatherapy and water. She said that they can be used

simultaneously at this point. After this, she said that Entonox gas can be inhaled, and

then morphine or remifentanil, which are both opiates, and can be administered

intramuscularly and / or intravenously.

Ms 3 said that these discussions usually take place at 34 or 36 weeks antenatally as

part of the birth plan with the community midwife. This way the patient can make

informed choices prior to admission to the labour ward.

The panel reviewed Patient A’s labour record in which it was documented that pain

relief had been given to Patient A by other midwives prior to Mrs Facchini taking over

her care. The panel concluded that it would be normal practice for a midwife to continue

the escalation of pain relief offered as continuity of care.

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Accordingly, on the balance of probabilities, the panel found charge 1.2 not proved. In relation to charge 1.3, Patient A told the panel that she had an agreed birth plan

with her antenatal midwife and that she had wanted a water birth. She said that Mrs

Facchini started looking after her at about 20:00 on 2 March 2013. Patient A said that

sometime after 22:00 she became stressed out because she was in a lot of pain. She

said that Mrs Facchini kept on telling her that she needed to have morphine and that

she would not discuss any other pain relief option with Patient A. Patient A said that she

had asked Mrs Facchini if morphine would make her sick to which she had replied no.

Patient A said that she did not want to have morphine because she did not want to be

out of her “nut”. She said that another midwife came in and talked to her about

morphine. Patient A said that she had asked the other midwife to stay with her but this

midwife said that she could not because she was caring for another patient.

Patient A told the panel that Mrs Facchini administered morphine to her whilst she was

in the toilet and that there was another midwife in the room whilst this happened who

was trying to calm her down. Patient A said that she told Mrs Facchini words to the

effect of “I don’t want the morphine” but that Mrs Facchini came into the bathroom and

injected it into her right leg while she was sitting down. Patient A said that it was after

this that Mrs Facchini burst her waters.

Patient A said that Mrs Facchini could have spoken to her about the morphine and she

could have explained the side effects to her instead of telling her “You need morphine.

You’re too stressed.” She said that Mrs Facchini did not discuss anything with her but

just told her that she needed the morphine.

Ms 1 in her evidence told the panel that Mrs Facchini told her that Patient A had

requested morphine but then changed her mind at the point of administration. She said

Mrs Facchini told her that following further discussion, Patient A had changed her mind

and accepted the injection.

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Ms 1 said that at about 02:20 on 3 March 2013 she entered Patient A’s room to provide

a meal break relief for Mrs Facchini. She said that Patient A was retching and asked her

if morphine could make you sick. Ms 1 told her that it could. Ms 1 said that Patient A told

her that Mrs Facchini advised her that morphine did not make you sick. Ms 1 said that

Patient A told her that she did not want morphine but that Mrs Facchini insisted and

Patient A said that Mrs Facchini “came at” her with a syringe. Although Ms 1 said that

Patient A told her she gained some benefit from the morphine injection, she said that

she did not like the way it was done.

The panel had regard to the advice of the legal assessor who advised that the issue in

relation to this charge was related to consent only. The panel also had careful regard to

the evidence of Patient A. The panel was mindful that Patient A had conceded that her

recollection may well have been impacted by the morphine administered to her. There

was a second midwife present in the labour room whilst Mrs Facchini administered

morphine to Patient A in the en-suite bathroom. Both of Patient A’s birthing partners

were also in attendance. A midwife, other than Mrs Facchini, later explained the side

effects of morphine to Patient A.

The panel considered that, in the light of the evidence that Patient A was in pain and

that there were so many people in the room whilst morphine was being injected,

including a registered midwife who could have been expected to intervene, it was more

likely than not that morphine was administered to Patient A with consent and that Mrs

Facchini was responding to Patient A’s care needs.

Accordingly, on the balance of probabilities, the panel found charge 1.3 not proved.

Charge 2

2. In relation to Patient B, between 9-10 May 2011, did not respond to the patient’s



patient pain and discomfort;

2.2 Did not adjust the temperature of the patient’s birthing pool;

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Charge 2 was found PROVED in its entirety; In relation to charge 2.1, the panel heard evidence from Patient B.

Patient B told the panel that she arrived at the Hospital around 18:00 on the evening of

9 May 2011 at term in spontaneous labour. She said that when she arrived she was

taken to a cubicle, checked and told that she was about 4 to 5 centimetres dilated and

said that she was then transferred to the labour ward.

Patient B said that Mrs Facchini was allocated as her case midwife. She said that she

could not remember Mrs Facchini examining her but that she had probably examined

her two or three times during her labour.

Patient B told the panel that she was not comfortable in Mrs Facchini’s care as she

gave her no confidence or encouragement from the beginning in that she was unable to

provide definitive answers to questions posed by Patient B or her husband. Patient B

said that when Mrs Facchini went on her break another midwife came in and was

completely different and contrasting in her approach. Patient B said that she felt she

could trust this midwife more to do things correctly. She said that all she heard from Mrs

Facchini throughout was, “You’re doing great, [Patient B].” After a while Patient B said

that it was like empty words and it did not mean anything at all.

Patient B said that at about 00:30 Mrs Facchini asked her to get out of the birthing pool

and to go onto the bed. Patient B said that she was shivering excessively at that point.

Patient B said that Mrs Facchini examined her and said that her waters were just about

to burst. Patient B said that she saw Mrs Facchini use a tool with a tiny hook to burst

her waters. Patient B stated that she “absolutely felt that [tool]”. Patient B said that she

did not object and that she just assumed Mrs Facchini knew what was best and that that

was “normal”. Patient B said that Mrs Facchini broke her waters after telling her words

to the effect of “I’m just going to help it along.”

After Mrs Facchini burst her waters, Patient B said that she was on the bed at this point

and the pain had intensified.

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Patient B said that she had been in labour for a long time before Mrs Facchini had burst

her waters and that Mrs Facchini did not explain why she had burst them. Patient B said

that Mrs Facchini did not tell her about her progress in labour. Patient B said that she

also did not inform her of any unusual concerns with her progress or the baby.

The panel had regard to Patient B’s birthing records which stated the following at 00:30

on the night in question: ‘8 cm dilated, membranes bulging SRM at this time, clear liquor

draining.’ The panel was informed that the acronym ‘SRM’ stands for ‘spontaneous

rupture of membranes’ to indicate when a patient’s waters break naturally.

The panel also had regard to the evidence of Patient B when this record was explained

to her when asked by Mr Kennedy. Patient B told the panel that her waters did not

break spontaneously but that Mrs Facchini broke them. Patient B also told the panel

that she wanted pain relief but that none was offered by Mrs Facchini, nor could she

operate the gas and the air correctly and that she “begged” Mrs Facchini for morphine.

The panel further heard from Patient B that Mrs Facchini never explained anything to

her the whole time, and that was probably the biggest concern she had and there had

been no explanation that by rupturing the membranes the pain would intensify.

In the circumstances, the panel is therefore satisfied that, on the balance of

probabilities, Mrs Facchini did not respond to Patient B’s care needs, causing the

patient pain and discomfort by rupturing her membranes without consent and before her

cervix was fully dilated.

Accordingly the panel found charge 2.1 proved. In relation to charge 2.2, Patient B said that Mrs Facchini must have looked at her

birth plan because she knew that she wanted a water birth. Patient B said that she

remembered Mrs Facchini telling her that there was somebody already in the birthing

pool. Patient B said that she did subsequently use the birthing pool.

Patient B told the panel that the temperature of the water in the birthing pool was too

low. She said that the water had not been hot enough for her and that she had been

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shivering the whole time she was in the pool. Patient B said that she had told Mrs

Facchini that the water was not hot enough for her and that her husband kept asking

about the water temperature and whether it was normal that she was shivering.

Patient B said that Mrs Facchini did adjust the temperature of the pool on one occasion,

initially after she had entered the pool but subsequent requests to increase the

temperature were refused. Patient B explained that, although she had been in labour for

a long time, she was not tired but that she was just cold from the low temperature of the

water in the birthing pool. Patient B stated that at no time did Mrs Facchini take her

temperature.

Patient B told the panel that the midwife who took over from Mrs Facchini during her

break asked her if the water was too cold, saying words to the effect of “You’re

shivering. Are you cold? Do you want me to raise the temperature?” and that this

midwife then raised the pool temperature for her. Patient B said that she told this

midwife that she thought that she could not have the water any warmer and the midwife

kind of made a face at her as though as to say, “I don’t know who told you that”.

The panel had regard to Patient B’s partagram notes in which a record of the birthing

pool water temperature is recorded on the night in question. The panel noted that the

temperature of the birthing pool increased from 34.5 degrees centigrade to 35 degrees

centigrade after the midwife relieving Mrs Facchini during her break took over. The

panel noted Ms 3’s evidence that the normal temperature of the pool should be between

37 and 37.2 degrees centigrade.

In the circumstances, the panel is therefore satisfied that, on the balance of

probabilities, Mrs Facchini did not respond to Patient B’s care needs in that she did not

adjust the temperature of her birthing pool.

Accordingly the panel found charge 2.2 proved.

Charge 3

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3. In relation to Patient C, between 6-7 October 2012, you did not respond to the

patient’s care needs and/or treatment preferences in that you:

3.1 Failed to discuss the birth plan;

3.2 Did not keep the patient informed;

3.3 Did not discuss pain relief options;


patient pain and discomfort;

3.5 Spoke to the patient in an inappropriate and uncaring manner in that you

called her “stupid” or words to that effect;

Charges 3.1, 3.2, 3.4 and 3.5 were found PROVED; Charge 3.3 was found NOT PROVED; In relation to the background of this charge, the panel heard the evidence of Patient C.

Patient C told the panel that on the morning of 6 October 2012 she arrived at the

Hospital for an induction of labour, at her request, and that she was 39 weeks pregnant.

Just before midnight on 6 October 2012, Patient C said that Mrs Facchini came to get

her from the in-patient ward and transferred her to the labour suite.

Patient C said that Mrs Facchini asked her partner to set up the gas and air and fix up

the bed and insert a cannula into Patient C’s hand. Patient C said that Mrs Facchini was

unable to work the monitoring belt of the fetal monitoring machine and therefore could

not get an accurate trace of her baby’s heartbeat. Patient C said that Mrs Facchini

referred to her partner as “doctor” and wanted him to assist in everything she did.

Patient C said that her partner is a car salesman with no medical background.

In relation to charge 3.1, Patient C said that when she arrived on the labour suite, Mrs

Facchini did not look at or discuss her birth plan. Patient C said that Mrs Facchini did

not ask her what her wishes and expectations were for this birth. Patient C explained

that her birth plan was for her to try to have a natural birth without pain relief. Patient C

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said that she had carried her birth plan with her the whole time she was on the maternity

ward so Mrs Facchini could have looked at this at any time had she had wanted to.

Ms 3 informed the panel that a patient’s birth plan should have been completed with the

community midwife in the antenatal period. She said that a midwife is expected to revisit

the birth plan with the patient upon admission to labour suite and amend, if necessary

any changes in her care during labour.

The panel had regard to Patient C’s ‘Labour and Birth Record’, which is a separate

hospital document completed once labour has commenced. The panel considered that

there was no written record of this birth plan or evidence of communication between

Patient C and Mrs Facchini in relation to it.

The panel had regard to the evidence of Ms 3 who told the panel that on admission to a

labour suite the midwife is expected to revisit the birth plan with the patient and amend,

if necessary, any changes for her care in labour. The panel therefore found that there

was a duty to discuss the birth plan.

The panel found Patient C’s evidence to be clear, credible and reliable in relation to this

charge.

In the circumstances, the panel found it was more likely than not that Mrs Facchini did

not respond to Patient C’s treatment preferences, despite her duty to do so, as there

was no evidence that she discussed Patient C’s birth plan with her.

Accordingly, on the balance of probabilities, the panel found charge 3.1 proved.

In relation to charge 3.2, Patient C told the panel that when Mrs Facchini broke her

waters she did not have a discussion with her about this but she had said words to the

effect of “I’m going to break your waters”. Patient C said that Mrs Facchini did not inform

her that if she ruptured her membranes it would cause additional pain or that she had a

right to refuse the procedure.

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The panel found Patient C to be clear and credible in her evidence in relation to this

charge.


not respond to Patient C’s care needs in that she did not keep her informed.

Accordingly, on the balance of probabilities, the panel found charge 3.2 proved.

In relation to charge 3.3, Patient C said that she had asked for an epidural when she

went on to the antenatal ward to be induced before she was transferred to the labour

ward. When Mrs Facchini came to transfer her, she was in a lot of pain and she kept

asking for an epidural. Patient C said that Mrs Facchini kept on saying words to the

effect of that she was going to “write it on the board”. Further, Patient C stated that she

also asked her partner to set up the gas and air.

In questioning from the panel, Patient C said that she had asked Mrs Facchini about

having an epidural but she was told that the anaesthetist was busy. Patient C told the

panel that she was having gas and air from the time she first went into the labour suite

and was in too much pain to think about the hypnobirthing techniques she had learnt.

The panel had regard to Patient C’s ‘Labour and Birth Record’ from the Hospital in

which her patient notes, recorded at 00:30 by Mrs Facchini, state: ‘using Entonox as

instructed. May wish EPIDURAL analgesia’. It also had regard to her patient notes as

recorded by Mrs Facchini at 01:15 which state: ‘Prepared for epidural’. The panel further

noted the reasons for the delay in siting the epidural.

In the circumstances, the panel considered that Mrs Facchini had discussed pain relief

with Patient C and had also administered, by Patient C’s own evidence, pain relief

throughout her time on the labour ward.

Accordingly, on the balance of probabilities, the panel found charge 3.3 not proved. In relation to charge 3.4, Patient C said that Mrs Facchini told her to put on a hospital

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gown and said that she wanted to carry out a vaginal examination. After she examined

her, Patient C said that Mrs Facchini told her that she wanted to break her waters but

that Patient C had said “no”, as she wanted her waters to break naturally.

Patient C recalled hearing Mrs Facchini say that she was four centimetres dilated at that

point and she recalled seeing Mrs Facchini with a hook in her right hand. Patient C said

that she had told Mrs Facchini words to the effect of “I can see you are going to break

my waters” and that she said she had not wanted her to do so but that Mrs Facchini

broke her waters anyway.

Patient C said that she knew what it was like to have her waters broken as this had

happened during the birth of her first child. She said that she had wanted to experience

a natural birth with her second child. Patient C told the panel that when she had her first

baby the midwife at that birth ruptured the membranes so that she was familiar with the

process. She said that when her membranes were ruptured she could feel a “bit of a

tug”. She said that on this occasion she felt the same thing when her membranes were

broken by Mrs Facchini.

Patient C said that Mrs Facchini went on her break and another midwife came into the

room to cover. Patient C said that she told that midwife that she did not want Mrs

Facchini to look after her again however she returned before Patient C delivered the

baby and continued to look after her.

Patient C said that she had asked Mrs Facchini for an epidural after she had broken her

waters however the anaesthetist attended the labour suite about three or four hours

after Patient C’s initial request. Patient C said that the anaesthetist could not site the

epidural, therefore she was given gas and air and morphine instead.

The panel had regard to Patient C’s ‘Labour and Birth Record’ from the Hospital in

which her patient notes recorded at 00:45 on 7 October 2012 by Mrs Facchini state that

her cervix was: ‘5-6 cm dilated. SRM at this time – membranes were bulging ... clear

liquor draining.’ Patient C emphatically denied that her membranes were ruptured

‘spontaneously’ as indicated in her patient records by Mrs Facchini.

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charge. The panel preferred the evidence of Patient C to the account in the written

record.


not respond to Patient C’s treatment preferences in that she had ruptured Patient C’s

membranes without her consent and before her cervix was fully dilated and that this

caused her further pain and discomfort.

Accordingly, on the balance of probabilities, the panel found charge 3.4 proved. In relation to charge 3.5, Patient C told the panel that Mrs Facchini was “abusive”

throughout her labour. She said that Mrs Facchini kept calling her “stupid” and asking

her what was wrong, [PRIVATE].

Patient C said that when she was pushing she struggled to hold her legs in the position

Mrs Facchini was forcing her into so Patient C’s step-mother offered to help but Mrs

Facchini told her step-mother to sit down and not touch her. Patient C said that Mrs

Facchini kept making repeated, inappropriate comments to her step-mother about how

she had never given birth and would not know how to help Patient C.

Patient C said that Mrs Facchini made her feel “absolutely terrified” and she said that

she thought midwives were supposed to be nice.

Patient C said that she wrote a letter of complaint to the Hospital about her experience

on 26 January 2013. She said that she still felt “absolutely awful” about her experience

and that it would “haunt” her forever. She said that this experience had been completely

different to the one she had had when her first child was born.

The panel heard from Patient C that she felt that her unborn child’s life was in danger

and that she is still having “nightmares” about what happened in the delivery room that

night.


charge.

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not respond to Patient C’s care needs in that she spoke to her in an inappropriate and

uncaring manner and had called her “stupid” or words to that effect.

Accordingly, on the balance of probabilities, the panel found charge 3.5 proved. Charge 4

4. Between 3 December 2012 and 2 March 2013, you failed to ensure satisfactory

provision of care and/or keep clinical records accurately and/or appropriately for

1 or more of 14 patient’s as set out in Schedule 1 below:

Schedule 1

1. Did not complete and/or update labour birth plans upon patient admission;

2. Did not use cardiotocography (CTG) interpretation stickers at appropriate

times and/or fully complete them;


4. Did not record whether a patient had requested analgesia but recorded

that it was administered to the patient;






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9. Did not fully complete a Modified Early Warning Score (MEWS) chart for

post natal observations;

10. Recorded a fetal heart rate during the second stage of labour and not the

first stage;


Charge 4 was found PROVED; In relation to this charge, the panel had regard to the advice of the legal assessor who

advised the following words, as set out in this charge, should be taken to mean as

follows:

- ‘failure’ is predicated on there being a requirement to do something;

- ‘satisfactory’ is the fulfilment of expectations or needs; and

- ‘appropriate’ is what is suitable or proper in the circumstances.

The panel heard the evidence of Ms 3.

Ms 3 in her evidence told the panel that the head of midwifery at the Hospital had asked

her to conduct a three month retrospective audit of 157 patient records from the period

of 3 December 2012 until 2 March 2013. Ms 3 said that she was asked to identify

where there was particular midwifery events of care carried out by Mrs Facchini during

this period and that she identified 20 case files.

Ms 3 said that she did not discuss her findings with Mrs Facchini. She stated that she

knew Ms Facchini on a professional basis having worked with her in the past.

Ms 3 explained to the panel that she used a case reference review template which she

applied to all 20 cases and that she found that six files had no concern with care and/or

documentation. Ms 3 said that, in the remaining 14 cases, she did identify concerns with

the care provided by Mrs Facchini and compiled a Maternity Case Records Report (‘the

Report’), which outlined the chronology of her findings.

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Ms 3 carefully went through this Report and the contemporaneous patient notes for all

14 patients identified as having concerns with Mrs Facchini’s care with the panel in

relation to each part of Schedule 1.

Ms 3 informed the panel that at the conclusion of her investigation, she recommended

to the Hospital that Mrs Facchini should be referred to the Local Supervising Authority

Midwifery Officer (LSAMO) for investigation.

The panel made the following findings:

1. Did not complete and/or update labour birth plans upon patient admission;

Ms 3 said during her audit she found patients with no labour birth plans completed upon

admission to the labour ward. Ms 3 informed the panel that a patient’s birth plan should

have been completed with the community midwife in the antenatal period and then the

plan is agreed with a midwife during the labour. This midwife is expected to revisit the

birth plan with the patient upon admission to labour suite and amend, if necessary, any

changes for her care in labour.

The panel found that in six out of the 14 cases identified by Ms 3, Mrs Facchini failed in

her duty to revisit the birth plan with patients in her care and, in failing to do this, she

failed to ensure the satisfactory provision of care and failed to keep accurate records for

these patients.

2. Did not use cardiotocography (CTG) interpretation stickers at appropriate

times and/or fully complete them;

Ms 3 explained that electronic fetal monitoring is undertaken by the use of a CTG and

should only be undertaken when there is a clinical indication to do so. However, there

was evidence of CTG stickers being used to interpret a trace where no CTG had been

performed and cases where the CTG was reviewed, but no CTG sticker was applied to

assist with interpretation as per local guidelines.

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Ms 3 explained that the mnemonic ‘Dr C Bravado’ is used to interpret a CTG and the

clinical guideline states that the sticker should be used hourly and applied to the

patient’s notes by the midwife. The aim is to provide a snapshot of the CTG tracing at

the appointed time which then highlights any future care planning.

Ms 3 informed the panel that the CTG interpretation stickers using the ‘Dr C Bravado’

method of interpretation was not used at appropriate times and not fully completed as

per the Board guidelines with four of the 14 identified patients.

The panel found that in four out of the 14 cases identified by Ms 3, Mrs Facchini failed

to use CTG interpretation stickers at appropriate times and/or did not fully complete

them, and in failing to do so, she failed to keep accurate records for these patients.


Ms 3 informed the panel that midwives are expected to make a plan of care for labour

antenatally and revisit this when a patient comes in during labour. This plan would

include, for example, what type of analgesia had been discussed and agreed

antenatally and confirmed when the patient is in labour. This would provide evidence of

discussion with the woman. Ms 3 told the panel that if there is no birth plan or no care

plan completed, the midwife should document this as well.

The panel found that in four out of 14 cases, Mrs Facchini did not plan midwifery care

for these patients and that she failed in her duty to provide a satisfactory provision of

care and failed to keep accurate records for these patients.

4. Did not record whether a patient had requested analgesia but recorded

that it was administered to the patient;

The panel had regard to Ms 3’s evidence in relation to part 3 of Schedule 1 and the

patient notes.

The panel found that on only one occasion had Mrs Facchini failed to record whether a

patient had requested analgesia but recorded that it was administered to the patient.

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The panel noted that, whilst Mrs Facchini may not have recorded this information in the

patient notes section, she had recorded it in the first part of the notes.

On the balance of probabilities, the panel found that Mrs Facchini had recorded whether

a patient had requested analgesia and recorded that it was administered to the patient

and that a satisfactory provision of care and record keeping was made for these

patients.


Ms 3 told the panel that, in a normal labour, a patient would have vaginal examinations

every four hours but that, if a vaginal examination was requested or if there was a

clinical need, then it could be done more frequently.

The panel had careful regard to the Report and the patient records and found that there

were five patient records which were alleged to be deficient, Mrs Facchini had

conducted an appropriate frequency of vaginal examinations and that, in accordance

with the Board guidelines, the rationale for conducting these examinations was quite

clear.

On the balance of probabilities, the panel found that Mrs Facchini had ensured a

satisfactory provision of care in relation to vaginal examinations.



Ms 3 informed the panel that the clinical guideline for induction of labour suggests that

membrane rupture is not necessary unless there is an indication of maternal and / or

fetal risk. She further informed the panel that there is a clinical guideline policy at the

Board updated in September 2011, which is a guideline for midwifery management of

normal labour. Ms 3 stated that this policy does not support the premature rupture of

membranes unless there is an indication of change of maternal and / or fetal risk, but

that it is possible to accidentally rupture the membranes if they are bulging when a

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midwife is conducting a vaginal examination. However, in the event of such an incident,

Ms 3 stated that it should be clearly recorded in the patient’s notes.

The panel had regard to three patient records which were said to be deficient and found

that there was no evidence to suggest that Mrs Facchini recorded patients requesting

an ARM during a vaginal examination.

On the balance of probabilities, the panel found that Mrs Facchini had ensured a

satisfactory provision of care and record keeping in relation to patients requesting an

ARM during a vaginal examination.

The panel noted that it is not possible to request a spontaneous rupture of membranes.


The panel had regard to the records of the 14 patients audited and found that Mrs

Facchini did not sign or print her signature in relation to two patients, and that, on the

balance of probabilities, she did not ensure a satisfactory provision of care and record

keeping in relation to these patients.


The panel had regard to the records of the 14 patients audited and found that Mrs

Facchini recorded incorrect dates in the records in relation to two patients, and that, on

the balance of probabilities, she did not endure a satisfactory provision of care and

record keeping in relation to these patients.

9. Did not fully complete a Modified Early Warning Score (MEWS) chart for

post natal observations;

The panel found that there was insufficient documentation to support this allegation and

was not satisfied, on the balance of probabilities, that Mrs Facchini had not ensured a

satisfactory provision of care and record keeping in relation to these patients.

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10. Recorded a fetal heart rate during the second stage of labour and not the

first stage;

Ms 3 informed the panel that the fetal heart rate should be recorded at five minute

intervals in the second stage of labour and not in the first stage of labour. In relation to

one of the patients, Ms 3 said that the documents were completed by Mrs Facchini to

indicate that the patient was in the first stage of labour, but that the fetal heart was being

recorded every five minutes as would be appropriate in the second stage of labour (fully

dilated to delivery). Ms 3 said that, as this woman was in the first stage of labour, the

fetal heart should have been recorded every 15 minutes. Ms 3 said that Mrs Facchini

should have documented her reasons for the frequent monitoring at the first stage of

labour.

Having considered the documentation, the panel noted that the fetal heart rate was

recorded appropriately during labour. This patient was admitted at 01:00 hours with a

fetal heart rate (FH) of 128 bpm. Again, at 01:15 hours the FH was recorded as 122

bpm following a vaginal examination where the membranes had ruptured

spontaneously. Following this, the FH was recorded every five minutes culminating in

the birth of the baby at 01:44 hours. The panel found that it was more likely than not

that following the spontaneous rupture of membranes, this patient was in the second

stage of labour and therefore, it would have been appropriate to record the FH as was

done on this occasion. The panel therefore found this part of the schedule not proved.


Ms 3 told the panel that there was a discrepancy in the main record and the partogram

record in some of the cases she audited. Ms 3 said that what was written down in the

main record did not match the record on the partogram. Ms 3 said that Mrs Facchini

wrote ‘spontaneous rupture of membranes’ in the main record but the partogram

records stated ‘artificial rupture of membranes’. Ms 3 stated that both these records are

manually completed by the midwife.

The panel had regard to the patient records and partogram in relation to two of the

patients which were allegedly deficient and found that the records made by Mrs

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Facchini were not adequate for one of these patients. The panel was therefore satisfied

that, on the balance of probabilities, Mrs Facchini did not provide a satisfactory

provision of care and record keeping in relation to these patients.

Having had regard to all of the evidence before it and Schedule 1, the panel was

satisfied that Mrs Facchini had failed to ensure satisfactory provision of care and/or the

keeping of clinical records accurately and/or appropriately for one or more of the 14

patients audited.

Accordingly, on the balance of probabilities, the panel found charge 4 proved.

Determination on impaired fitness to practise: Having announced the facts the panel has now considered whether, on the basis of the

facts found proved, Mrs Facchini’s fitness to practise is currently impaired. This is a two

stage process. The panel first determines if Mrs Facchini’s actions amount to

misconduct. If, misconduct is found, the panel considers whether as a result of that

misconduct, Mrs Facchini’s fitness to practise is currently impaired.

When coming to its decision the panel has taken into account all of the facts found

proved. It has taken account of all the evidence before it and Mr Kennedy’s submissions

on behalf of the NMC. The panel has accepted the legal assessor’s advice.

Mr Kennedy submitted that the panel must exercise its own professional judgement as

there is no standard or burden of proof that is applied at this stage in the process. He

directed 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. 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 Kennedy referred the panel to numerous paragraphs of the code: Standards of

conduct, performance and ethics for nurses and midwives 2008 (the code) which were,

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in the NMC’s submission breached. He also referred to the NMC’s Record Keeping

Guidance for Nurses and Midwives.

Mr Kennedy submitted that Mrs Facchini’s behaviour was unacceptable and fell well

short of the standards to which a registrant would be expected to adhere to and

therefore amounted to misconduct.

Mr Kennedy submitted that Mrs Facchini’s fitness to practise was impaired at the time of

the incident. He referred the panel to the case of CHRE v The Nursing and Midwifery

Council and Grant, [2011] EWHC 927 (Admin) and the guidance identified by Dame

Janet Smith in the Fifth Shipman report. He submitted that the three limbs of the test

relating to unwarranted risk of harm, bringing the profession into disrepute and

breaching fundamental tenets had been engaged. He also referred to the case of

Cohen v GMC [2008] EWHC 581 (Admin), as echoed in Grant, and that whilst

remediation is a relevant factor, the public interest must still be considered to be

paramount and not to lose sight of the fundamental considerations, namely the need to

protect the public and declare and uphold proper standards of conduct and behaviour

so as to maintain public confidence in the profession.

Mr Kennedy submitted that there was no evidence of remediation, insight or remorse.

He reminded the panel that Mrs Facchini had stated that she had retired from midwifery

but had not provided any information as to her current employment status or whether

she is working in the health field. He reminded the panel that the only suggestion of

remorse was a comment in Ms 1’s internal interview. That had been preceded however

by a comment from Mrs Facchini regarding how angry and upset she was by the

patient’s suggestion that she had not been supportive. He further submitted that Mrs

Facchini’s denial of the allegations meant that the panel did not know if she had

reflected on what she did or whether she has full insight into the effect of her behaviour.

He also referred the panel to the high element of public interest in this case as it

involved women who are vulnerable and who need to have confidence in the midwife

who is caring for them. He submitted that Mrs Facchini clearly did not instil confidence

in the patients who provided evidence to the panel.

Mr Kennedy invited the panel to find that Mrs Facchini is currently impaired.

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The panel heard and accepted the advice of the legal assessor. He advised that the

panel must determine whether Mrs Facchini’s fitness to practise is currently impaired by

reason of misconduct. He advised the panel had to be satisfied that the misconduct was

serious. He also referred the panel to the case of Grant and paragraph 74 where Justice

Cox stated that “in determining whether a practitioner’s fitness to practise is impaired by

reason of misconduct, relevant panels 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”.

Decision on whether the facts found proved amount to misconduct:

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

satisfied that Mrs Facchini breached the following preamble and paragraphs of the

code:

“The people in your care must be able to trust you with their health and wellbeing

To justify that trust, you must:

• make the care of people your first concern, treating them as individuals and respecting

their dignity

• …

• provide a high standard of practice and care at all times

• ...”

“1. You must treat people as individuals and respect their dignity.”

“3. You must treat people kindly and considerately.”

“8. You must listen to the people in your care and respond to their concerns and

preferences.”

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“12. You must share with people in a way they can understand the information they

want or need to know about their health.”

“13. You must ensure that you gain consent before you begin any treatment or care.”

“14. You must respect and support people’s rights to accept or decline treatment or

care.”

“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.”

“61. You must uphold the reputation of your profession at all times.”

The panel also agreed that the following paragraphs from the NMC’s Record Keeping

Guidance was engaged:

“3. In line with local policy you should put a date and time on all records. This should be

in real time and chronological order and be as close to actual time as possible.”

7. You should record details of any assessments and reviews undertaken and provide

clear evidence of the arrangements you have made for future and ongoing care. This

should include details of information given about care and treatment.”

The panel accepted that breaches of the code and guidance do not automatically result

in a finding of misconduct. However, given the seriousness of facts found proved in

relation to misconduct, and the impact that Mrs Facchini’s behaviour had on vulnerable

patients, the panel considers that Mrs Facchini’s conduct was a serious departure from

the standards expected of a Registered Midwife and as such Mrs Facchini did not

uphold the reputation of the profession at the relevant time.

Therefore for all of the above reasons the panel determined that the facts found proved

do amount to misconduct.

Decision on impairment:

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Having found misconduct, the panel had to decide whether Mrs Facchini’s fitness to

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

suitability to remain on the register unrestricted, and in this regard the panel took into

account the following:

The panel had in mind the remarks in the case of Grant in relation to the appropriate

guidance identified by Dame Janet Smith in the Fifth Shipman report:

“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. …”

The panel was satisfied that the first three limbs of the test are engaged in this case.

The panel noted that some of Mrs Facchini’s clinical failings could be remediated,

however, it also considered that there were aspects of her behaviour and attitude, such

as asking someone if they were stupid, that would be difficult to remediate.

The panel noted that it had no evidence from Mrs Facchini regarding remorse,

remediation or insight. The panel could not be satisfied that the apology referred to by

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Mr Kennedy demonstrated genuine remorse. Neither could the panel be satisfied that

Mrs Facchini’s decision to retire from midwifery was recognition of her failings.

The panel determined that the lack of evidence of remorse, remediation or insight

meant that it could not be satisfied that there was no risk of Mrs Facchini’s conduct

being repeated in the future. The panel also considered that public confidence in the

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

particular circumstances of this case.

For all the reasons above, the panel has determined that Mrs Facchini’s fitness to

practise is currently impaired by reason of her misconduct.

Determination on sanction: Having determined that Mrs Facchini’s fitness to practise is impaired, the panel has now

considered what sanction, if any, it should impose. The panel can dispose of the case

by taking no action, imposing a caution order for one to five years, a conditions of

practice order for no more than three years, a suspension order for a maximum of one

year or a striking-off order. In reaching its decision, the panel has considered all the

evidence before it. It has accepted the advice of the legal assessor.

Mr Kennedy submitted that the appropriate sanction was a matter for the panel. He

reminded the panel that the purpose of sanction is not to punish however any sanction

may be punitive in the circumstances. He referred the panel to the Indicative Sanctions

Guidance, Nursing and Midwifery Council 2012 (ISG) and reminded the panel that it

should consider all the sanctions available to it starting at the lowest sanction. Mr

Kennedy also suggested mitigating and aggravating factors in the case.

Throughout its deliberations, the panel has kept at the forefront of its mind the public

interest, which includes protection of the public, the maintenance of public confidence in

the profession and the regulatory process, and the declaring and upholding of proper

standards of conduct and behaviour. The panel has had regard to the ISG.

The panel has considered the least restrictive sanctions first, before moving on to

consider more restrictive sanctions. It has borne in mind that the purpose of a sanction

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is not to be punitive, though it may have a punitive effect. The panel was conscious of

its duty to act proportionately in balancing the public interest and Mrs Facchini’s own

interests. Any interference with Mrs Facchini’s practise must be no more than necessary

to satisfy the public interest. The panel has borne in mind that the public interest

includes the protection of patients, the maintenance of public confidence in the

profession and declaring and upholding proper standards of conduct and behaviour.

The panel has considered whether there are any mitigating and aggravating factors in

this case.

The panel determined that mitigating factors in this case are:

• Mrs Facchini’s long service as a midwife; and

• Apart from matters complained of in this case, no evidence of adverse regulatory

or disciplinary proceedings have been put before the panel.

The panel determined that the aggravating factors are that:

• Evidence of deep seated attitudinal problems;

• Potential long term adverse consequences of misconduct on patients;

• The number of breaches of code;

• The wide ranging nature of breaches;

• The damage to the profession; and

• Minimal engagement.

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

wholly inappropriate in view of the seriousness of the misconduct and the panel’s

finding of current impairment. The misconduct found was serious, put patients at risk of

and caused actual harm, brought the profession into disrepute and breached

fundamental tenets of the profession. The panel has therefore concluded that taking no

action would be insufficient to protect the public and satisfy the public interest as it

would seriously undermine public confidence in the profession and the regulatory

process.

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Next, the panel considered whether a caution order would be appropriate. The panel

was satisfied that Mrs Facchini’s misconduct involved particularly vulnerable patients

and was not at the lower end of the spectrum of impairment. The panel determined that

such a sanction would not address the failings that have been identified and for the

same reasons as given above this sanction is neither appropriate nor proportionate.

The panel next considered whether a conditions of practice order would be an

appropriate and proportionate sanction. The panel is mindful that any conditions

imposed must be relevant, proportionate, measurable and workable and they must

address the nature and extent of the misconduct. The panel considered that Mrs

Facchini’s clinical failings could potentially be addressed by conditions of practice.

However, it did not consider it possible to formulate workable and practicable conditions

which would address the attitudinal problems that it had identified and for which it had

seen no evidence of insight, remorse or a wish to remediate. Further, Mrs Facchini has

not fully engaged and has stated that she has retired from midwifery practice and

therefore does not appear to be receptive to further training. The panel therefore

determined that a conditions of practice order would not protect the public or uphold the

public interest in the profession.

The panel then went on to consider whether a suspension order would be an

appropriate and proportionate sanction. In reaching its decision, the panel had regard to

the seriousness of the charges found proved.

Mrs Facchini has not fully engaged with the NMC fitness to practise process. She has

provided no evidence of remorse, remediation or insight to the panel. This sanction may

be appropriate where the misconduct is not fundamentally incompatible with continuing

to be a registered nurse or midwife in that the public interest can be satisfied by a less

severe outcome than permanent removal from the register. However, the panel did not

consider the misconduct to be a single incident. The panel has seen evidence of deep-

seated attitudinal problems. Although the panel had no evidence of repetition of

behaviour since the incidents as Mrs Facchini is not practising, it did note the repetitive

nature of the misconduct over a number of years with different patients. Given the

above, the panel cannot be satisfied that Mrs Facchini does not pose a significant risk of

repeating her behaviour.

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Although a suspension order could potentially be sufficient to protect the public interest,

the panel determined that given the seriousness of this case, in particular the attitudinal

problems identified, Mrs Facchini’s behaviour is incompatible with ongoing registration

as a midwife. The panel has therefore concluded that the only appropriate and

proportionate sanction in this case would be to impose a striking-off order. The panel is

satisfied that a striking-off order is the only order that will be sufficient to protect the

public and to satisfy the wider public interest in maintaining public confidence in the

profession and the regulatory process and to declare and uphold proper standards of

conduct and behaviour.

The panel therefore directs the Registrar to strike Mrs Facchini’s name from the NMC

register. She may not apply for restoration until a period of five years after the date the

striking-off order takes effect.

Unless subject to an appeal, the striking-off order will take effect 28 days from the date

this decision is deemed to have been served upon Mrs Facchini.

Decision and reasons on interim order: The panel now has to consider whether an interim order should be imposed. The panel

has listened to the submissions of Mr Kennedy, on behalf of the NMC.

Mr Kennedy sought an interim suspension order for a period of 18 months on the

grounds of public protection and being otherwise in the public interest to cover the 28

day appeal period and to allow time for the possibility of any appeal to be lodged and

determined. He submitted that an interim suspension order would provide the same

measure of protection of the public as the substantive striking-off order imposed by the

panel.


The panel is aware that in accordance with Article 31(2) of the Nursing and Midwifery

Order 2001, it may make an interim order for a period of up to 18 months on any one of

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three grounds, namely, if it is satisfied that such an order is necessary for the protection

of the public, is otherwise in the public interest, or is in Mrs Facchini’s interests.

The panel took account of the guidance issued to panels by the NMC when considering

interim orders and the appropriate test as set out at Article 31(2) of the Nursing and

Midwifery Order 2001. The panel is satisfied that an interim order is necessary for the

protection of the public and being otherwise in the public interest to declare and uphold

proper professional standards of conduct and behaviour and to maintain public

confidence in the profession and the regulatory process.

The panel first considered an interim conditions of practice order, but concluded that

this would not accord with its decision to impose a striking-off order.

The panel has accordingly decided to make an interim suspension order. In reaching its

decision, the panel had regard to its previous findings and its decision to make a

striking-off order. To do otherwise would be inconsistent with its earlier findings. The

period of this order is for 18 months to allow for the possibility of an appeal to be made

and determined.

If no appeal is made then the interim suspension order will be replaced by the

substantive striking-off order 28 days from the date this decision is deemed to have

been served upon Mrs Facchini. If Mrs Facchini does lodge an appeal, the interim

suspension order will continue to run for the period imposed or until the appeal is

decided.

These decisions will be confirmed to Mrs Facchini in writing.

That concludes this determination.

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