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Nursing and Midwifery Council

Fitness to Practise Committee

Substantive Hearing

29 July – 31 July 2019

5 - 7 August 2019

Nursing and Midwifery Council, 2 Stratford Place, Montfichet Road, London, E20 1EJ Name of registrant: Sharon Stevens NMC PIN: 95I4060E

Part(s) of the register: MW: Registered Midwife

Midwife – 19 September 1998 Area of Registered Address: England Type of Case: Misconduct/Lack of Competence Panel Members: Sara Nathan (Chair, Lay member)

Sophie Kane (Registrant member) Dale Simon (Lay member)

Legal Assessor: Ian Ashford-Thom Panel Secretary: Catherine Acevedo Mrs Stevens: Not present and not represented in absence Nursing and Midwifery Council: Represented by Aimee Stokes, Case

Presenter Facts proved: 1, 2 Fitness to practise: Impaired Sanction: Suspension order (12 months) Interim Order: Interim suspension order (18 months)

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Details of charge (as amended)

That you a registered midwife whilst employed by Brighton and Sussex University

Hospital Trust as a Band 6 Midwife failed to demonstrate the standards of knowledge

skill and judgement required to practice without supervision and as a Band 6 Midwife

between 6 December 2016 and 10 January 2018 in that you;

1. Were not able to demonstrate your competencies as set out in Schedule 1.

That you as a registered midwife;

2. On 21 February 2017 administered the following medication to Patient A

without supervision

2.1 Terbutaline

2.2 Anti-D

Your fitness to practice is impaired by reason of your lack of competence in relation to

Charge 1 and/or by reason of your misconduct in relation to Charge 2.

Schedule 1:

Vaginal examinations

Drugs calculations

Drug administration

Documentation and/or record keeping

IV Cannulation

Reacting in emergencies

Catheterisation

Intrapartum care

Fetal monitoring

Perineal repair

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Handovers

Reviewing CTGs

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Decision and reasons on application under Rule 19

At the outset of the hearing Ms Stokes made a request that the hearing of Mrs Stevens’

case be held in private on the basis that proper exploration of Mrs Stevens’ case

involves discussion of her health. The application was made pursuant to Rule 19 of the

Rules.

The legal assessor reminded the panel that while Rule 19 (1) provides, as a starting

point, that hearings shall be conducted in public, Rule 19 (3) states that the panel may

hold hearings partly or wholly in private if it is satisfied that this is justified by the

interests of any party or by the public interest.

Rule 19 states

19.(1) Subject to paragraphs (2) and (3) below, hearings shall be conducted in

public.

(2) Subject to paragraph (2A), a hearing before the Fitness to Practise

Committee which relates solely to an allegation concerning the registrant’s

physical or mental health must be conducted in private.

(2A) All or part of the hearing referred to in paragraph (2) may be held in public

where the Fitness to Practise Committee—

(a) having given the parties, and any third party whom the Committee

considers it appropriate to hear, an opportunity to make representations;

and

(b) having obtained the advice of the legal assessor, is satisfied that the

public interest or the interests of any third party outweigh the need to

protect the privacy or confidentiality of the registrant.

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(3) Hearings other than those referred to in paragraph (2) above may be held,

wholly or partly, in private if the Committee is satisfied

(a) having given the parties, and any third party from whom the Committee

considers it appropriate to hear, an opportunity to make representations;

and

(b) having obtained the advice of the legal assessor, that this is justified

(and outweighs any prejudice) by the interests of any party or of any

third party (including a complainant, witness or patient) or by the public

interest.

(4) In this rule, “in private” means conducted in the presence of every party and

any person representing a party, but otherwise excluding the public.

Having heard that there will be reference to your health, the panel decided to hold such

parts of the hearing in private but not to hold the whole hearing in private.

Decision on Service of Notice of Hearing

The panel was informed at the start of this hearing that Mrs Stevens was not in

attendance and that written notice of this hearing had been sent to Mrs Stevens

registered address by recorded delivery and by first class post on 28 June 2019. Notice

of this hearing was delivered to Mrs Stevens registered address on 29 June 2019.

The panel took into account that the notice letter provided details of the allegation, the

time, dates and venue of the hearing and, amongst other things, information about Mrs

Stevens’ right to attend, be represented and call evidence, as well as the panel’s power

to proceed in her absence.

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Ms Stokes submitted that the NMC had complied with the requirements of Rules 11 and

34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended

(“the Rules”).

The panel accepted the advice of the legal assessor.

In the light of all of the information available, the panel was satisfied that Mrs Stevens

had been served with notice of this hearing in accordance with the requirements of

Rules 11 and 34. It noted that the rules do not require delivery and that it is the

responsibility of any registrant to maintain an effective and up-to-date registered

address.

Decision on proceeding in the absence of the Mrs Stevens

The panel next considered whether it should proceed in the absence of Mrs Stevens.

The panel had regard to Rule 21 (2) states:

(2) Where the registrant fails to attend and is not represented at the hearing, the

Committee

(a) shall require the presenter to adduce evidence that all reasonable

efforts have been made, in accordance with these Rules, to serve the

notice of hearing on the registrant;

(b) may, where the Committee is satisfied that the notice of hearing has

been duly served, direct that the allegation should be heard and

determined notwithstanding the absence of the registrant; or

(c) may adjourn the hearing and issue directions.

Ms Stokes invited the panel to continue in the absence of Mrs Stevens on the basis that

she had voluntarily absented herself. Ms Stokes submitted that there had been little

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engagement by Mrs Stevens with the NMC in relation to these proceedings and, as a

consequence, there was no reason to believe that an adjournment would secure her

attendance on some future occasion.

The panel accepted the advice of the legal assessor.

The panel noted that its discretionary power to proceed in the absence of a registrant

under the provisions of Rule 21 is not absolute and is one that should be exercised “with

the utmost care and caution”. The panel further noted the case of General Medical

Council v Adeogba.

The panel took into account the proceeding in absence summary which documented the

correspondence between Mrs Stevens and the NMC. It noted that Mrs Stevens had

been given ample opportunity by the NMC to decide whether she would be able to

attend the hearing either in person, by telephone or by videolink and had failed to take

any of these opportunities. The panel also noted that no written submissions had been

submitted to the NMC by Mrs Stevens and that she had also explored the opportunity to

be represented but had chosen not to be.

[PRIVATE]

The panel decided to proceed in the absence of Mrs Stevens. In reaching this decision,

the panel considered the submissions of the case presenter, and the advice of the legal

assessor. It has had regard to the overall interests of justice and fairness to all parties. It

noted that:

there is no reason to suppose that adjourning would secure her attendance at

some future date;

the efforts of the NMC to obtain medical evidence, statements and provide

alternative means of engagement;

seven witnesses will be attending to give live evidence;

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not proceeding may inconvenience the witnesses, their employer(s) and, for

those involved in clinical practice, the clients who need their professional

services;

the charges relate to events that occurred in 2016;

further delay may have an adverse effect on the ability of witnesses accurately to

recall events;

there is a strong public interest in the expeditious disposal of the case.

There is some disadvantage to Mrs Stevens in proceeding in her absence. Although the

evidence upon which the NMC relies has sent to her at her registered address, she has

made no formal response to the allegations. She will not be able to challenge the

evidence relied upon by the NMC and will not be able to give evidence on her own

behalf. However, in the panel’s judgment, this can be mitigated. The panel can make

allowance for the fact that the NMC’s evidence will not be tested by cross examination

and, of its own volition, can explore any inconsistencies in the evidence which it

identifies. Furthermore, the limited disadvantage is the consequence of Mrs Stevens’

decisions to absent herself from the hearing, waive her rights to attend and/or be

represented and to not provide evidence or make submissions on her own behalf.

In these circumstances, the panel has decided that it is fair, appropriate and

proportionate to proceed in the absence of Mrs Stevens. The panel will draw no adverse

inference from Mrs Stevens’ absence in its findings of fact.

After making the decision to continue, the panel asked the NMC to communicate this to

Mrs Stevens and invite her to participate by telephone or videolink. In spite of repeated

attempts to phone and email by the case officer, no response was obtained

Background

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The charges arose whilst Mrs Stevens was employed as a Band 6 midwife at Brighton

and Sussex University Hospital Trust (“the Trust”) where she worked form 4 April 2016

until 10 January 2018, Concerns were raised with the NMC about Mrs Stevens’ conduct

on 28th March 2018. It is alleged that Mrs Stevens had failed to meet the required

competencies of a Band 6 midwife. Mrs Stevens was placed on a capability programme

initially in December 2016, which was renewed, however this was allegedly never

completed. The programme included a performance improvement plan covering clinical

competencies which had been highlighted. These are set out in Schedule 1.

It is alleged that on 21 January 2017, Mrs Stevens was also involved in a drug

administration incident. It is alleged that Mrs Stevens administered two drugs

unsupervised, Terbutaline to Patient A requiring an ECV (external cephalic version

procedure to try and turn a baby in the breech position) and Anti-D to the same mother.

Mrs Stevens was aware that she was not allowed to administer drugs unsupervised

which resulted in a disciplinary hearing and final written warning on 9th October 2017.

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Decision and reasons on application to amend the charge

The panel considered whether to amend the wording of the preamble of charge 2 to

correct a typographical error and more accurately reflect the evidence.

The proposed amendment was to the preamble of charge 2 to amend “nurse” to

“midwife”.

Original preamble:

“That you as a registered nurse;”

Proposed amendment:

“That you as a registered midwife;”

The panel accepted the advice of the legal assessor that Rule 28 of the Rules states:

28. (1) At any stage before making its findings of fact, in accordance with rule

24(5) or (11), the Investigating Committee (where the allegation relates to a

fraudulent or incorrect entry in the register) or the Fitness to Practise Committee,

may amend

(a) the charge set out in the notice of hearing; or

(b) the facts set out in the charge, on which the allegation is based,

unless, having regard to the merits of the case and the fairness of the

proceedings, the required amendment cannot be made without injustice.

(2) Before making any amendment under paragraph (1), the Committee shall

consider any representations from the parties on this issue.

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The panel decided that such an amendment was in the interest of justice. The panel

was satisfied that there would be no prejudice to Mrs Stevens and no injustice would be

caused to either party by the proposed amendment being allowed. It was therefore

appropriate to allow the amendment to ensure clarity and accuracy.

Decision and reasons on application pursuant to Rule 31

The panel heard an application made by Ms Stokes under Rule 31 of the Rules to allow

the written statement of Ms 8 into evidence. Ms 8 was not present at this hearing as the

NMC never sought to call this witness to give live evidence as it related wholly to

hearsay and it was thought it had been agreed between the parties.

Ms Stokes submitted that it was not the sole or decisive evidence in this case but

merely a supplementary statement. She submitted that there has been no challenge to

the nature of the content of this statement by Mrs Stevens.

In the preparation of this hearing, the NMC had indicated to Mrs Stevens in the case

management form that it was intended to use Ms 8’s file note as evidence to the panel.

Despite knowledge of the nature of the evidence to be given by this witness, Mrs

Stevens made the decision not to attend this hearing. On this basis Ms Stokes

advanced the argument that there was no lack of fairness to Mrs Stevens in allowing Ms

8’s file note into evidence.

The panel heard and accepted the legal assessor’s advice on the issues it should take

into consideration in respect of this application. This included that Rule 31 of the Rules

provides that, so far as it is ‘fair and relevant,’ a panel may accept evidence in a range

of forms and circumstances, whether or not it is admissible in civil proceedings.

The panel noted the email correspondence between the NMC and Mrs Stevens dated 8

April 2019. It noted that Mrs Stevens had been informed in the email of the NMC’s

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intention to have Ms 8’s written statement read into the record. The email read “please

note that the NMC intends to have the written of Ms 8 read into the record”.

The panel decided that, although Mrs Stevens had chosen not to attend this hearing

and had been informed that the NMC intended to use the written statement of Ms 8 in

evidence, it had not been made clear to her as an unrepresented registrant in the email

that she was able to object to this and how to do so.

In these circumstances the panel refused the application.

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Decision on the findings on facts and reasons

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

with the submissions made by Ms Stokes, on behalf of the NMC.

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

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

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

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

incidents occurred as alleged.

The panel has drawn no adverse inference from the non-attendance of Mrs Stevens.

The panel heard oral evidence from seven witnesses tendered on behalf of the NMC.

Witnesses called on behalf of the NMC were:

Ms 1 – Maternity Manager;

Ms 2 – Maternity Manager;

Ms 3 – Registered Midwife;

Ms 4 – Registered Midwife;

Ms 5 – Clinical Labour Ward Coordinator and Lead Midwife for the Trust’s Newborn

Infant Physical Examination Screening Programme;

Ms 6 – Registered Midwife and Delivery Suite Coordinator;

Ms 7 – Registered Midwife.

The panel first considered the overall credibility and reliability of all of the witnesses.

The panel considered Ms 1 to be a credible and reliable witness and provided

comprehensive live evidence that was consistent throughout. The panel thought that

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there was no reason for her to have been anything other than wholly truthful in her

evidence. The panel noted that she had done the best to support Mrs Stevens in difficult

circumstances. She expressed her sorrow that Mrs Stevens thought anyone had made

up these allegations and said that the Trust had gone “above and beyond” in supporting

Mrs Stevens.

The panel found Ms 2 to be a credible and consistent witness. She was honest and did

not dismiss Mrs Stevens’ suggestion that there had been bullying on the ward at the first

hospital, even though she said she did not believe that Mrs Stevens had been affected

by this. She nonetheless wanted to give Mrs Stevens a fresh start on a new ward. She

did not appear to harbour any ill-will, had treated Mrs Stevens fairly and had done what

she could to be supportive.

The panel found Ms 3 to be a credible and reliable witness. The panel noted that Ms 3

felt a sense of responsibility for having been involuntarily involved by not supervising

Mrs Stevens while she administered medication when not permitted to do so. The panel

noted that Ms 3 was clear that she would have expected Mrs Stevens to tell her that she

could not administer drugs unsupervised and that this happened all the time with new

members of staff. She said that Mrs Stevens would not have been judged adversely for

not being able to administer medication.

The panel considered Ms 4 to be a reliable, credible and straightforward witness. It

noted that her evidence contained thorough contemporaneous notes about her

experiences working alongside Mrs Stevens, adding to her credibility.

The panel found Ms 5 to be a credible and reliable witness. It noted that she was

nervous and anxious when she began giving her live evidence but settled to give

coherent and consistent evidence.

The panel considered Ms 6’s evidence to be credible and reliable. The panel noted that

she had great concerns for the well-being of patients. She told the panel that Mrs

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Stevens did not have friends on the ward and she would set herself apart. She told the

panel that Mrs Stevens was fully supported throughout her employment at the Trust.

The panel noted that Ms 6’s evidence was supported by contemporaneous notes.

The panel found Ms 7 to be a credible and reliable witness. The panel noted that she

presented as competent and sensible whilst giving her evidence. It also noted that she

had only worked two shifts with Mrs Stevens. The panel considered that Ms 7 did not

have any reason to be misleading in her evidence.

The panel then went on to consider the charges.

Charge 1:

That you a registered midwife whilst employed by Brighton and Sussex University

Hospital Trust as a Band 6 Midwife failed to demonstrate the standards of knowledge

skill and judgement required to practice without supervision and as a Band 6 Midwife

between 6 December 2016 and 10 January 2018 in that you;

1. Were not able to demonstrate your competencies as set out in Schedule 1.

This charge is found proved.

In reaching this decision, the panel considered each of the competencies set out in

Schedule 1 individually.

Vaginal examinations - The panel noted the evidence of Ms 7. Her first shift working

with Mrs Stevens was on 10 September 2016 and she was asked to write a feedback

statement about the shifts she had worked with Mrs Stevens. Ms 7 wrote in her

feedback that “the registrant performed a vaginal examination but was unsure of her

findings (central 4cm dilated) I checked the vaginal examination and found the client to

have a posterior 2cm dilated cervix”. The panel noted that Mrs Stevens was not

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confident when asked to do vaginal examinations and when checked, her findings had

been incorrect.

Drugs calculations - The panel noted that Mrs Stevens had failed the drugs calculation

test three times and had, most unusually at this Trust, been given tutoring in order to

help her pass the test. Mrs Stevens was due to retake the test in February 2017 but did

not. She eventually passed the test in September 2017. The panel noted that, from the

time she had been employed at the Trust, she had been unable to do drugs calculations

and function as expected of a midwife. The panel also noted the evidence of Ms 5 in

relation to a lack of awareness of drug doses, administration and protocols. She said

“Sharon asked me to check some Tinzaparin with her. The dose prescribed was 4500

iu. Sharon informed me that there wasn’t any Tinzaparin 4,500iu in the cupboard yet

there were several boxes in front of us. Sharon insisted that all of the boxes contained

10,000iu/1ml which technically they did. I explained that the syringes are pre‐loaded

with the correct doses. That 4,500 iu was in 0.45ml and was in the blue box. She picked

up the box, read out the dose and again said that this wasn’t the correct dose, that it

was 10,000 iu in 1ml. I pointed to the writing ‘4,500iu in 0.45ml’and reiterated that this

was the correct dose as prescribed. After several more attempts, Sharon still couldn’t

accept it and repeated that it was 10,000 iu in 1ml. I asked her to go through it with RM

Rogers as I felt that another person might have more success”.

Drug administration – The panel noted within Mrs Stevens PIP that as she had not

completed the drug calculations test, she was therefore unable to demonstrate that she

could administer drugs safely and unsupervised.

Documentation and/or record keeping – the panel took into account the evidence of Ms

5 which stated “The expectation was that the registrant would be able to produce

records that are accurate, legible and continuous. At this point in the Practice

Improvement Programme, her documentation was significantly lacking, entries were

haphazard, often illegible and did not reflect a true picture of care given. CTG reviews

were hit and miss with 90 minutes between reviews, no explanation was written, nor

was a plan of care documented. Once prompted and a plan of care was written by me

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to provide an example of what is expected, the registrant focussed more closely on this

area for improvement but her entries remained significantly lacking in content”. The

panel also noted the evidence of Ms 4 where she stated that “I classified the CTG as

non-reassuring and suggested that we should ask for a senior r/v. When I later checked

the notes Sharon had classified the CTG as normal in the notes but stated that this had

been a mistake”. The panel was of the view that Mrs Stevens had been unable to

demonstrate her competency in documentation and/or record keeping.

IV Cannulation – The panel noted that there was little evidence of IV cannulation and

Mrs Stevens was unable to do cannulation without assistance and needed supervision

to feel confident. Ms 1 stated in her evidence that “Because Sharon has not passed her

drug test, it’s not been possible to get her on her IV course as well. It was very clear that

Sharon has little knowledge around IV management”. The panel concluded that,

because she had not yet passed her drug test, she could not progress to an IV course

in order to demonstrate that she was competent in IV cannulation.

Reacting in emergencies – The panel took into account the evidence of Ms 5. She gave

evidence that Mrs Stevens took a step back and did not take the lead when an

emergency situation arose. “The registrant appeared out of her depth when the situation

escalated to a category 1 caesarean, continued to be helpful, did not panic but did not

fulfil the role of the lead midwife. The registrant was unable to act appropriately in this

common emergency scenario.” The panel concluded that Mrs Stevens did not always

react appropriately in emergencies.

Catheterisation – The panel noted the evidence of Ms 4 which stated “I signed her off

for the catheterisation. I did mention to her that though I signed her off she needed to

work on her organisation and preparations skills… Even though one of the clinical skills

facilitators had practised with her recently she seem unable to perform this task without

some guidance”. Ms 4 also stated that Mrs Stevens “took the initiative to consider the

bladder catheter… got consent for the procedure and made preparations. She set up

the sterile field appropriately but struggled with the actual task”. The panel also took

account the evidence of Ms 1 who stated “We then needed to catheterise our client.

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Sharon still needs work around this”. She added “If I was assessing a student midwife

on this skill, I would not sign her off and request that she practices and the skill repeated

at a later date”. The panel was satisfied that Mrs Stevens had not managed to

demonstrate that she was competent in catheterisation.

Intrapartum care - The panel noted the evidence of Ms 5 where she stated that Mrs

Stevens “did not work autonomously in her care provision and needed support,

prompting and assistance with tasks… the registrant made an incorrect interpretation of

the CTG, in that she overreacted when the patient started having brief decelerations.”

The panel also took into account all the contemporaneous evidence of Ms 4, obtained

over four shifts working with Mrs Stevens, which demonstrated several failings in

intrapartum care including “S. did not seem to be familiar with the risk assessment. I

suggested to check this in the AN notes which she also seemed to be unfamiliar with.

When I checked S. assessment I noticed that she had not taken the woman’s age as a

risk factor nor the fact that an Epidural poses a bleeding risk into account which we then

discussed”.

Fetal monitoring – The panel noted the evidence of Ms 5 that in relation to prioritising

care, Mrs Stevens had difficulty balancing care giving with documentation and seemed

unsure what took priority: “When a CTG review was needed, the registrant was more

focussed on giving ranitidine to a patient as she had noted that it was due, however the

CTG review was long overdue. The registrant was not able to work autonomously in her

care provision as she needed too much prompting on this occasion”.

Perineal repair – The panel took into account the evidence of Ms 6. She said that she

suggested that Mrs Stevens might like to suture which she was keen to do and another

midwife was happy to supervise. The supervising midwife later told her that she had

found it very difficult because of Mrs Stevens’ lack of sterility for the suturing. Mrs

Stevens was debriefed and appeared to have no insight into her inadequacies.

Handovers – The panel took into account he evidence of Ms 4 who stated that Mrs

Stevens had handed over care to the day midwife and that “this was disjointed and

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without clear instructions of what needed to be done” on another occasion Ms 4 stated

“S [Mrs Stevens] had handed over care to the night staff. Again it was disjointed of

which she was aware. We looked at how she could improve on this. I pointed out that

she had started with labour care without giving much detail about the pregnancy and

why this lady had been admitted to AN ward all of which are important to effective care”.

The panel noted that, even with guidance and support, Mrs Stevens was unable to

demonstrate that she was competent in handovers.

Reviewing CTGs – The panel noted that this has been addressed under fetal

monitoring.

In relation to charge 1 the panel took into account the evidence of the witnesses. It

noted that Mrs Stevens was placed on a capability programme due to significant gaps in

her knowledge. The plan was initially instigated by Mrs Stevens’ first manager Ms 2 on

6 December 2016. The first review took place on 27 January 2017 following Mrs

Stevens’ move to a new site at a different hospital in the Trust and a new PIP was put in

place as she had not reached the required level of competency. A second review of the

updated PIP took place on 3 August 2017. Then it was decided that Mrs Stevens would

continue on a PIP from 3 August 2017 following a period of sickness. The final PIP

review took place on 18 September 2017. It was concluded that there had been

progress in the Mrs Stevens’ performance however there was still improvement needed.

The plan was still in place (although amended) when she left the Trust.

The panel noted that despite this extensive support and training which was provided to

her, Mrs Stevens had been unable to demonstrate her competency in any of the areas

set out in Schedule 1. The panel noted that these gaps had been noted by both the

midwives and the clinical skills facilitators and involved basic midwifery care and

knowledge. The panel took into account that although Mrs Stevens had been on a PIP

for well over a year, she was never signed off on the areas of performance that needed

improvement and that she always required one to one supervision.

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The panel noted, particularly in the evidence of Ms 2, that everyone who worked with

Mrs Stevens at the Trust, from care assistants to senior managers, raised concerns

about her lack of competence. None of the witnesses, some of whom only met her on a

few shifts and who knew nothing about her background or experience, assessed her as

competent.

The panel was therefore satisfied that this charge is proved.

Charge 2:

That you as a registered midwife;

1. On 21 February 2017 administered the following medication to Patient A without

supervision

1.1 Terbutaline

1.2 Anti-D

This charge is found proved.

In reaching this decision, the panel took into account the investigation report. The report

stated that on 22 February 2017 Mrs Stevens agreed that she had administered the

drugs unsupervised. Mrs Stevens stated that whilst she was aware of her

responsibilities, nobody was around. She further stated that she knew she should have

had someone with her but she was keen to get on. The panel also noted the evidence

of Ms 3 who was inadvertently implicated in this incident because Mrs Stevens did not

tell her that she could not administer drugs unsupervised. The panel noted that Ms 3

said it was Mrs Stevens’ duty to inform her that she could not administer drugs

unsupervised and if she had been aware she would not have allowed Mrs Stevens to

administer the drugs alone. The panel also took into account the summary of the

conclusions in the investigation report which stated that Mrs Stevens had “administered

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two drugs unsupervised when she was aware she was not allowed to do so. This was

confirmed by the conversation with [Ms 1] over the phone and in her statement at the

investigation meeting”.

The panel was therefore satisfied that this charge is proved.

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Submissions on misconduct and lack of competence

Ms Stokes submitted that the panel will be aware that in deciding whether Mrs Stevens’

fitness to practise is impaired by reason of misconduct and/or lack of competence the

correct course (per Cheatle v General Medical Council [2009] EWHC 645) is to embark

upon a two stage process.

First, the panel should consider whether the facts found proved amount to misconduct

and/or lack of competence. If the panel decides that the facts found proved amount to

one of the two heads, then it should next decide whether Mrs Stevens’ fitness to

practise is currently impaired.

In deciding these questions, there is no burden or standard of proof, it is entirely a

question for the panel’s professional judgement (per Council for the Regulation of

Health Care Professionals v (1) General Medical Council (2) Biswas [2006] EWHC 464

(Admin)).

Lack of competence

Ms Stokes submitted that the NMC defines lack of competence as a lack of knowledge,

skill or judgment of such a nature that the nurse or midwife is unfit to practise safely and

effectively in any field in which they claim to be qualified or seek to practise. She also

submitted that in reaching its decision, Mrs Stevens should be judged by the standards

of the reasonably competent registered midwife and not by any higher or more

demanding standard.

The panel took into account all the evidence before it. It also noted the submissions

made by Ms Stokes in relation to lack of competency (charge 1) and heard and

accepted the legal assessor’s advice.

Ms Stokes referred the panel to the case of Holton v GMC [2006] EWHC 2960 (Admin)

which says:

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“no one can sensibly expect, for example, a doctor working in Accident and

Emergency at a time of crisis (for example after a road or rail crash when many

serious casualties arrive at the same time) to be able to give the same time to

patients as he would if he were not under pressure. His performance should be

that which is to be expected of a competent practitioner in the circumstances.”

Ms Stokes submitted the pattern of conduct amounting to charge 1 equates to a lack of

competence as Mrs Stevens was not able to perform to the standard of that expected

by a competent Band 6 midwife in the circumstances, over the course of more than a

year.

Misconduct

The panel then moved on to consider, whether the facts found proved amount to

misconduct in charge 2 and, if so, whether Mrs Stevens’ fitness to practise is currently

impaired. There is no statutory definition of fitness to practise. However, the NMC has

defined fitness to practise as a registrant’s suitability to remain on the register

unrestricted.

In her submissions Ms Stokes invited the panel to take the view that Mrs Stevens’

actions amount to a breach of The Code: Standards of conduct, performance and ethics

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

paragraphs and identified where, in the NMC’s view, her actions amounted to

misconduct.

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

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

which falls short of what would be proper in the circumstances.’ Nandi v GMC [2004]

EWHC 2317 (Admin) where the court stated that, “the adjective ‘serious’ must be given

its proper weight, and in other contexts there has been reference to conduct which

would be regarded as deplorable by fellow practitioners.”

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Ms Stokes submitted that the facts found proven in relation to charge 2 amount to

misconduct. It is a serious failing to omit to communicate a practice restriction with

colleagues, hence failing to share information which can be used to identify and reduce

risk. It is a serious failing to not ask for help in seeking the supervision required.

Ms Stokes further submitted that, it is a serious failing to also administer medication

without having completed the necessary training. Finally, it is a serious failing to not

communicate such restriction as it goes against taking measures to ensure mistakes

are avoided and patients are therefore put at risk.

The NMC therefore submitted, in view of the serious breaches of the code, that the facts

found in relation to charge 2 do amount to serious misconduct in the circumstances.

Submissions on Impairment

Ms Stokes submitted that if the panel is satisfied that the matters found proved amount

to misconduct and/or lack of competence, the next matter the panel must consider is

whether Mrs Stevens’ fitness to practise is currently impaired by reason of that

misconduct and/or lack of competence.

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

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

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

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

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

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

Ms Stokes submitted that the lack of evidence of insight coupled with the lack of

remediation, meant that the need to uphold proper professional standards and public

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confidence in the profession would be undermined if a finding of current impairment

were not made in these particular circumstances.

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

number of judgments which are relevant. These included: Roylance, Nandi and Cohen v

GMC [2007] EWHC 581 (Admin).

Decision on misconduct and lack of competence

When deciding whether the facts found proved amount to misconduct and/or lack of

competence the panel had regard to the terms of The Code: Professional standards of

practice and behaviour for nurses and midwives (2015).

The panel, in reaching its decision, has had regard to the public interest and accepts

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

professional judgement.

The panel accepted the following breaches of the Code as put forward by Ms Stokes:

8.2 You must maintain effective communication with colleagues

8.6 You must share information to identify and reduce risk

13.3 You must ask for help from a suitably qualified and experienced

healthcare professional to carry out any action or procedure that is beyond

the limits of your competence

13.5 You must complete the necessary training before carrying out a new role

19.1 You must take measures as far as possible, the likelihood of mistakes,

near misses, harm and the effect of harm if it takes place

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Lack of competence

The NMC has defined a lack of competence as:

A lack of knowledge, skill or judgment of such a nature that the registrant

is unfit to practise safely and effectively in any field in which the registrant

claims to be qualified or seeks to practice.

Lack of competency needs to be assessed using a three stage process. Is there

evidence that Mrs Stevens was made aware of the issues around her competence? Is

there evidence that she was given the opportunity to improve? Is there evidence of

further assessment? The panel concluded that all these requirements for a finding of

lack of competency had been met.

The panel bore in mind, when reaching its decision, that Mrs Stevens should be judged

by the standards of the reasonable average registered midwife and not by any higher or

more demanding standard. Taking into account the reasons given by the panel for the

findings of the facts, the panel has concluded that Mrs Stevens’ practice was below the

standard that one would expect of the average registered midwife acting in the role that

Mrs Stevens was in. In all the circumstances, the panel decided that Mrs Stevens’

performance demonstrated a lack of competence over an extended period.

Misconduct

In considering whether the facts found proved amount to a misconduct, the panel

concluded that Mrs Stevens breached the aforementioned paragraphs of the Code,

which is the standard by which every registered midwife is measured.

The panel decided that Mrs Stevens’ actions did not fall significantly short of the

standards expected of a registered midwife.

The panel noted that charge 2 arose from an isolated incident on one day where Mrs

Stevens administered medication unsupervised when not permitted to do so. It

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considered that although the conduct gave rise to considerable concern it was not

sufficiently serious to amount to professional misconduct nor could it be categorised as

“deplorable”. The panel noted that there had not been any evidence of this behaviour

having been repeated. The panel concluded that this error appeared to arise from a

failure of communication on the part of Mrs Stevens. The panel also noted that no

patients came to any harm.

In the light of these considerations, the panel concluded that Mrs Stevens’ actions as

outlined in charge 2 did not amount to misconduct.

Decision on impairment regarding lack of competence only

The panel next went on to decide if, as a result of her lack of competence, Mrs Steven’s

fitness to practise is currently impaired.

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

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

must be able to trust midwives with their lives and the lives of their loved ones.

Midwives must make sure that their conduct at all times justifies both their patients’ and

the public’s trust in the profession. In this regard the panel considered the judgement of

Mrs Justice Cox in the case of Council for Healthcare Regulatory Excellence v (1)

Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin) in reaching its

decision, in paragraph 74 she said:

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

reason of misconduct, the relevant panel should generally consider not

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

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

proper professional standards and public confidence in the profession

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

particular circumstances.

Mrs Justice Cox went on to say in Paragraph 76:

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

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

comprehensive approach to determining this issue formulated by

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

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

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

view the test would be equally applicable to other practitioners governed

by different regulatory schemes.

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

deficient professional performance, adverse health, conviction,

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

impaired in the sense that s/he:

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 finds that limbs a, b and c are engaged in this case.

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Regarding insight, the panel considered that Mrs Stevens had not developed any insight

into her clinical failings. The panel noted that she had stated that “people are telling

stories about me”.

In its consideration of whether she had remedied her practice, the panel had seen no

evidence that Mrs Stevens had been working as a midwife since she left the Trust and

concluded she had been unable to demonstrate that she had remediated her practice.

The panel also concluded that it would have been extremely difficult for Mrs Stevens to

have remediated her practice recently when she had failed to do so under an extended

PIP which had lasted for over a year.

The panel considered that although Mrs Stevens’ actions have not been repeated as

she has not been working as a midwife, there is a high risk of repetition of her failings if

she were to return to unrestricted practice.

The panel bore in mind that the overarching objectives of the NMC are to protect,

promote and maintain the health, safety and well-being of the public and patients, and

to uphold/protect the wider public interest, which includes promoting and maintaining

public confidence in the nursing and midwifery professions and upholding the proper

professional standards for members of those professions. The panel decided that, in

this case, a finding of impairment on public interest grounds was required.

Having regard to all of the above, the panel was satisfied that Mrs Stevens’ fitness to

practise is currently impaired.

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Decision on sanction:

The panel has considered this case very carefully and has decided to make a

suspension order. The effect of this order is that the NMC register will show that Mrs

Stevens’ registration has been suspended.

Having decided that Mrs Stevens’ fitness to practise is currently impaired by reason of

her lack of competence, the panel considered what sanction, if any, should be imposed

on her registration. In so doing, the panel acknowledged its obligation to uphold the

public interest. This includes the protection of patients and members of the public, the

maintenance of public confidence in the profession and the NMC as a regulator, and the

need to declare and uphold proper standards of conduct and performance. The panel

had careful regard to the Sanctions Guidance (SG) published by the NMC. It recognised

that the decision on sanction is a matter for the panel, exercising its own independent

judgement.

The panel heard submissions from Ms Stokes, who outlined the aggravating and

mitigating factors for the panel. She invited the panel to make a suspension order for 6

months. A period of suspension would mark the misconduct in this case and uphold

proper professional standards and public confidence in the profession. Ms Stokes

submitted that a suspension order of 6 months will prevent any repetition of the conduct

found proved and allow time for Mrs Stevens to evidence insight, remediation and

remorse, which is not currently present.

The panel accepted the advice of the legal assessor.

The panel first considered the aggravating and mitigating factors in this case, as follows:

The panel identified the following aggravating factors:

a. Mrs Stevens’ lack of insight, remediation and remorse into her failings.

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b. Mrs Stevens’ conduct put patients at risk of harm by her lack of competence.

c. The length of time and wide ranging nature of the lack of competence.

d. Mrs Stevens never had the ability to work autonomously whilst employed by the

Trust.

The panel identified the following mitigating factors:

a. No actual harm was caused to patients under Mrs Stevens’ care.

The panel has borne in mind that any sanction imposed must be appropriate and

proportionate and, although not intended to be punitive in its effect, may have such

consequences. The panel considered the sanctions available to it starting with the least

restrictive.

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

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

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

Next, in considering whether a caution order would be appropriate in the circumstances,

the panel considered that a caution order would be inappropriate in view of the

seriousness of the case. The panel decided that it would be neither proportionate nor in

the public interest to impose a caution order.

The panel next considered whether placing conditions of practice on Mrs Stevens’

registration would be a sufficient and appropriate response. The panel is mindful that

any conditions imposed must be proportionate, measurable and workable. The panel

took into account that it has no evidence to suggest that Mrs Stevens is currently

working as a midwife. The panel noted that Mrs Stevens had already been offered

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extensive support under a PIP and has been given ample time to remedy her practice.

The panel considered that there are no practical or workable conditions that could be

formulated, given the nature of the facts in this case. The panel concluded that placing

conditions on Mrs Stevens’ registration was not a practical, workable or measurable

solution.

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

appropriate sanction. The SG indicates that a suspension order may be appropriate

where some of the following factors are apparent:

• a single instance of misconduct but where a lesser sanction is not sufficient

• no evidence of harmful deep-seated personality or attitudinal problems

• no evidence of repetition of behaviour since the incident

• in cases where the only issue relates to the nurse or midwife’s lack of

competence, there is a risk to patient safety if they were allowed to continue

to practise even with conditions

The panel decided that there had been a clear breach of a fundamental tenets of the

profession but that Mrs Stevens’ lack of competence was not fundamentally

incompatible with remaining on the register. Also the panel noted that the sanction of

striking-off is not available in these circumstances where the issue is one of

competence.

The panel decided that a period of suspension would allow Mrs Stevens sufficient time

to show that she has reflected on her actions and can demonstrate remorse and insight

to a reviewing panel. This period of suspension would also allow Mrs Stevens to

address any health issues and decide whether she wants to return to midwifery

practice. The panel had no evidence before it that Mrs Stevens had repeated her

conduct but noted that there was no suggestion that she had been working as a midwife

since she left the Trust.

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The panel noted the hardship such an order may cause Mrs Stevens were she minded

to return to midwifery. However this is outweighed by the public interest in this case.

The panel considered that this order is necessary to mark the importance of maintaining

public confidence in the profession, and to send to the public and the profession a clear

message about the standard of performance required of a registered midwife.

The panel decided that a suspension order for a period of 12 months was appropriate in

this case to mark the seriousness of the lack of competence.

At the end of the period of suspension, another panel will review the order. At the review

hearing that panel may revoke the order, or it may confirm the order, or it may replace

the order with another order.

Any future panel may be assisted by:

A reflective statement regarding Mrs Stevens’ lack of competence and how it

affected patients, colleagues and the midwifery profession.

References or testimonials from any work paid or unpaid, detailing how Mrs

Stevens has spent the last 12 months.

Evidence about health issues (if any).

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Determination on Interim Order

The panel has considered the submissions made by Ms Stokes that an interim order

should be made on the grounds that it is necessary for the protection of the public and

is otherwise in the public interest.

The panel accepted the advice of the legal assessor.

The panel was satisfied that an interim suspension order is necessary for the protection

of the public and is otherwise in the public interest. The panel had regard to the

seriousness of the facts found proved and the reasons set out in its decision for the

substantive order in reaching the decision to impose an interim order. To do otherwise

would be incompatible 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 order will be replaced by the suspension order 28

days after Mrs Stevens is sent the decision of this hearing in writing.

That concludes this determination.