Download Conduct and Competence Committee

Conduct and Competence Committee
Substantive Hearing
18 - 21 March 2013
10 - 14 June 2013
17 June 2013
61 Aldwych, London, WC2B 4AE
Registrant No 1
Name of Registrant:
Theresia M J VAN DER KNAAP
NMC PIN:
03E0007C
Part of the Register:
Registered Nurse – Sub-Part 1
Adult Nursing (May 2003)
Area of registered address:
Staffordshire
Type of case:
Misconduct
Registrant No 2
Name of Registrant:
Evelyn Gwendolyn AGBEKO
NMC PIN:
07F3255E
Part of the Register:
Registered Nurse – Sub-Part 1
Adult (June 2008)
Area of registered address:
West Bromwich
Type of case:
Misconduct
Panel Members:
Martin Parker (Chair – Lay member)
Ruth Bailey (Registrant member)
Robert Lloyd-Richards (Lay member)
Legal Assessor:
18-21 March 2013: George Alliot
10-14 June 2013: George Alliott
17 June 2013:
John Donnelly
Panel Secretary:
18-21 March 2013: Ian Dennehey
10-17 June 2013: Natalie Carolan
The Nursing and Midwifery Council: Ms Hannah Stephenson, Counsel, NMC
Regulatory Legal Team
Registrants:
18-21 March 2013: Ms Van Der Knaap was
neither present nor represented.
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10- 14 June 2013: Ms Van Der Knaap was
present but not represented.
17 June 2013:
Ms Van Der Knaap was
not present and not represented.
18-21 March 2013: Ms Agbeko was present
and was represented by Mr Daniel Onifade,
Solicitor.
10-14 June 2013: Ms Agbeko was present
and was represented by Mr Daniel Onifade,
Solicitor.
17 June 2013:
Ms Agbeko was not
present and not represented.
Registrant No 1: Theresia M J Van Der Knaap
Facts Found Proved by Admission:
1b, 2 in its entirety
Interim Order at Adjournment:
Interim Conditions of Practice 12 months
Facts Found Proved:
1(a)
Fitness to Practise:
Currently Impaired
Sanction:
Caution Order- 2 Years
Interim Order:
N/A
Registrant No 2: Evelyn Gwendolyn Agbeko
Facts found proved by admission:
3 in its entirety
Interim Order at Adjournment:
Interim Conditions of Practice 12 months
Facts Found Proved:
1(a), 1(b), 1(c), 2(a) and 2(b)
Fitness to Practise:
Currently Impaired
Sanction:
Conditions of Practice Order- 12 months
Interim Order:
Interim Conditions of Practice Order- 18
months
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Detail of Charges:
Theresia M J Van Der Knaap
That whilst employed as a Staff Nurse on Ward 11 at Stafford General Hospital (“the
Hospital”), Mid Staffordshire NHS Foundation Trust, you:
1.
On 16 and 17 April 2010, in relation to Patient A, failed to provide an appropriate
standard of nursing care in that you did not:
(a)
make adequate entries in Patient A’s medical notes, specifically in:
(i)
the Observation chart
(ii)
the Fluid Balance sheet
(b)
escalate Patient A to a MEWS chart
Admitted and Found Proved
2.
On 17 April 2010, on finding Patient A unresponsive failed to:
(a)
press the emergency alarm
Admitted and Found Proved
(b)
ensure that the resuscitation team were called
Admitted and Found Proved
(c)
commence basic life support
Admitted and Found Proved
AND, in light of the above, your fitness to practise is impaired by reason of your
misconduct
Evelyn Gwendolyn Agbeko
That you, whilst employed as a Staff Nurse on Ward 11 at Stafford General Hospital
(“the Hospital”), Mid Staffordshire NHS Foundation Trust:
1.
On the night shift between 16 and 17 April 2010, whilst responsible for Patient A,
failed to provide an appropriate standard of nursing care in that you did not:
a.
Carry out and/or ensure that your colleagues carried out adequate
observations in the following areas:
i.
respiratory rate,
ii.
pulse,
iii.
blood pressure,
iv.
oxygen saturations,
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v.
b.
c.
2.
fluid balance,
make adequate entries in Patient A’s medical notes, specifically in:
i.
the Observation chart
ii.
the Fluid Balance sheet
escalate Patient A to a MEWS chart;
On 17 April 2010, when Patient A was found unresponsive, you failed to:
a.
ensure that the resuscitation team were called,
b.
provide adequate basic life support;
3.
On 17 April 2010 at a time when you knew, or ought to have known, that
Patient A was deceased, marked in her medical notes that she was asleep at:
a.
04.00 hours,
Admitted and Found Proved
b.
06.00 hours.
Admitted and Found Proved
AND, in light of the above, your fitness to practise is impaired by reason of your
misconduct.
Decision on Service of Notice:
[18 March 2013]
Ms Agbeko
The notice of hearing stipulated that the hearing date would be 20 March 2013. Last
week, with the consent of Ms Abgeko, the hearing was brought forward to the 18 March.
The panel noted that Ms Agbeko confirmed, through her representative, that she had no
objection to the case starting today rather than on 20 March 2013 as originally
scheduled. On the advice of the Legal Assessor, the panel treated any theoretical
breach of Rule 11 (3) required the notice of hearing to stipulate the date as waived.
Ms Van Der Knaap
The panel noted that Ms Van Der Knaap was neither present nor represented.
Notice of a hearing was sent by recorded delivery to Ms Van Der Knaap’s registered
address on 18 February 2013. A copy of that notice letter was also sent to her at that
address on that same date by first class post. That Notice stated that the hearing was
due to commence on 20 March 2013.
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Royal Mail track and trace documentation shown to the panel indicated that the notice
letter was delivered to Ms Van Der Knaap’s registered address on 19 February 2013
and was signed for.
On 15 March 2013, a further letter was sent to Ms Van Der Knaap’s registered address.
That letter stated that the hearing would commence on 18 March 2013 instead of 20
March 2013. Royal Mail track and trace documentation shown to the panel indicated
that this further letter was sent by recorded delivery.
Ms Van Der Knaap has provided the NMC with a response to the notice of hearing. In a
form which she signed and which is dated 27 February 2013, Ms Van Der Knaap stated
that she did not intend coming to the hearing. In a telephone attendance note dated 14
March 2013 an NMC officer recorded that she had spoken with Ms Van Der Knaap by
telephone and that the registrant had confirmed that she was “fine” with the hearing
commencing on 18 March 2013 rather than as originally scheduled. She further stated
that she would not be attending the hearing. Ms Van Der Knaap confirmed this in an
email sent on 14 March 2013 stating that she understood that the hearing date had
changed to 18 March 2013 and that she would not be in attendance.
The panel accepted the advice of the Legal Assessor.
In the light of all of the information available, the panel was satisfied that Ms Van Der
Knaap has been served with notice in accordance with the requirements of Rules 11
and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as
amended. On the advice of the Legal Assessor, the panel treated any theoretical breach
of Rule 11 (3) required the notice of hearing to stipulate the date as waived.
Having decided this, the panel next considered whether to proceed in Ms Van Der
Knaap’s absence.
Decision on proceeding in the absence of Ms Van Der Knaap:
[18 March 2013]
Ms Stephenson invited the panel to proceed notwithstanding Ms Van Der Knaap’s
absence. She submitted that it would be proper to continue on the basis that:
 Ms Van Der Knapp has not sought an adjournment;
 Ms Van Der Knaap’s reasons for not attending are such that adjourning is
unlikely to result in her attendance;
 Ms Van Der Knaap has stated that she is content for the hearing to proceed;
 witnesses have attended to give evidence, and will be further inconvenienced if
the hearing were adjourned;
 adjourning and the consequent delay in relisting the case may have an adverse
effect on the ability of witnesses to recall their evidence;
 the allegations date back to 2010 and are serious. There is a strong public
interest in the case proceeding having regard to the nature and age of the facts
alleged.
 The case against Ms Van Der Knaap is linked to that of Ms Agbeko who is
present and represented, who might be inconvenienced and caused financial
hardship if the case did not proceed today.
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On behalf of Ms Agbeko, Mr Onifade confirmed that his client wished the hearing to
proceed. He submitted that adjourning would have financial implications for Ms Agbeko.
In deciding whether to proceed in the absence of Ms Van Der Knaap, the panel weighed
its responsibilities for public protection and the expeditious disposal of the case with her
right to a fair hearing. The panel accepted the advice of the Legal Assessor. It noted
that it has a discretionary power to proceed in the absence of a registrant under the
provisions of Rule 21. The Panel also had regard to the guidance of Lord Bingham of
Cornhill in the case of R v Jones (Anthony Williams). It therefore exercised the ‘utmost
care and caution’ in reaching a decision.
The panel noted that Ms Van Der Knaap has engaged with the NMC. She provided the
NMC with a response to the notice of hearing in which she stated that she did not intend
coming to the hearing and set out her reasons as follows:
“From the letter I received, 19 February 2013, I noticed the hearings run over 5
days period. I have contacted the NMC about this and I was explained [sic] they
cannot give me a more exact date for my personal attendance. Therefore the
cost of this will preclude me. I will however submit a written response and a
reference from my present employer prior to the hearings.”
The panel considered the risk of prejudice to Ms Van Der Knaap if it proceeded in her
absence and, in particular, to the risk of reaching an incorrect decision. However, it also
had regard to the public interest in the timely resolution of serious concerns relating to
her fitness to practise, notwithstanding her absence. Any possible prejudice to her is
significantly outweighed by the public interest in proceeding today. Ms Van Der Knaap
has provided detailed written representations. The panel is well placed to assess the
information that will be placed before it and to make such allowance as it considers is
appropriate in light of the fact that evidence as it relates to Ms Van Der Knaap will not
be tested by cross examination.
In the panel’s judgement, Ms Van Der Knaap has voluntarily absented herself from the
hearing and is not represented. She has not sought an adjournment, and given the
reasons for her absence, adjourning is unlikely to secure her attendance at some future
date. The allegations against her are serious. Further delay in resolving them would not
be in the public interest. The panel also noted there were a number of witnesses in
attendance and that there is another registrant who is present, represented, and ready
to commence the case.
Having regard to all the circumstances, and the submissions made by Ms Stephenson
on behalf of the NMC, the panel has exercised its discretion to proceed with the utmost
care and caution. The Panel was satisfied that it was fair and reasonable, and in the
interests of all parties, including those of Ms Van Der Knaap, to proceed with the
hearing.
Application to adduce Evidence by Telephone [22 March 2013]:
Ms Stephenson,
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You applied on behalf of the NMC to adduce evidence from Dr 4 by telephone on Friday
22 March 2013, the earliest that she will be available. You told the panel that the
reasons for adducing evidence by telephone are that it would enable the case to
proceed and it fits Dr 4’s work commitments to her patients. You also submitted that
there would be no prejudice to Ms Van Der Knaap and Ms Agbeko and that it would be
in their interests to proceed.
On behalf of Ms Agbeko, Mr Onifade opposed your application on the basis that the
case is now very likely to adjourn part-heard in any event. He noted that even though an
adjournment will involve Ms Agbeko travelling again from Scotland and taking further
time off from her current job, Dr 4’s attendance in person is preferable to hearing her
evidence by telephone.
The panel accepted the advice of the Legal Assessor regarding its powers to receive
evidence. The panel was directed to Rule 22 (5) which states:
“The Committee may of its own motion require a person to attend the hearing to
give evidence, or to produce relevant documents.”
The panel was advised that this would be an exercise of its discretion made in the
interest of justice and fairness, taking into account all the relevant circumstances. The
Legal Assessor also referred the panel to the specific factors detailed in Rule 32 (4)
regarding adjournments. These are:
 the public interest in the expeditious disposal of the case;
 the potential inconvenience caused to a party or any witnesses to be called by
that party; and
 fairness to the registrant(s).
In addition, the panel had regard to the impact any delay may have on the ability of
witness to recall their evidence and on the fairness to the parties in being able to
present their cases properly and sufficiently.
In the panel’s judgment, Dr 4’s evidence is of importance in the fact finding stage of
these proceedings. The panel has no doubt that the best evidence is likely to be
adduced from a witness who is present in person. This allows the panel to judge more
readily a witness’s demeanour than is possible by telephone. The panel is likely to have
questions to put to Dr 4 which will involve reference to relevant documentation. In the
panel’s view this will be much more difficult if she is giving evidence by telephone than
would be the case if she were present. In the panel’s view, evidence adduced by
telephone can be accepted only as a last resort.
By adjourning these proceedings to secure Dr 4’s attendance to give evidence in person
there would be no inconvenience as an adjournment will be likely in any event. Even if
Dr 4 gave evidence by telephone, Ms Agbeko is still to give evidence. If the panel was
to start hearing her evidence on Friday 22 March 2013, it would run the real risk of
having to adjourn without completing it. This would be unsatisfactory, not least because
she would remain on oath for the duration of the adjournment and thus would be
prevented from discussing the case with her representative.
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Furthermore, regardless of whether the facts still to be determined are found proved or
not, the panel is already committed to consideration of misconduct and impairment in
respect of those facts which have been admitted.
It is in the public interest and in the interests of justice and fairness that the panel hear
the best possible evidence.
For the reasons set out above, the panel does not accede to your application to present
Dr 4’s evidence by telephone. The result of this decision is that the case will adjourn
part-heard to a date to be agreed. Dr 4 should then be available to attend in person.
This also means that Mr Onifade will have an opportunity, over the period of the
adjournment, to establish whether he wishes to call Dr 5 to give evidence and, if so, to
make the necessary arrangements to secure Dr 5’s attendance.
Having reached this conclusion, two further matters require addressing, namely the
dates for the hearing to resume and the issue of whether an interim order should be
imposed for the duration of the adjournment.
Determination on Imposition of Interim Order [21 March 2013]:
The panel noted that, given that there is insufficient time to conclude the case, it had a
duty to consider whether or not to impose an Interim Order. The panel may impose an
Interim Conditions of Practice Order or an Interim Suspension Order.
An Interim Order may be imposed for the protection of the public only if the panel
deems that such an Order is necessary. It is not sufficient for it to be merely desirable.
Additionally, or alternatively, an Interim Order may be imposed if it is otherwise in the
public interest or if it is in a registrant’s own interest. The case of R (on the application of
Sheikh) v General Dental Council [2007] EWHC 2972 (Admin) made clear that it was
likely to be a relatively rare case where an Interim Suspension Order would be made on
the grounds that it was in the public interest alone.
On behalf of the NMC, Ms Stephenson referred the Panel to recent case law namely
Houshian v General Medical Council [2012] EWHC 3458 (QB) and Patel v General
Medical Council [2012] EWHC 3688 (Admin). She submitted that those cases mean that
an Interim Order should only be imposed on public interest grounds when the panel
concludes that it is necessary. She provided the Panel with employment references and
documentation detailing Ms Van Der Knaap’s recent training. She did not invite the
panel to impose any Interim Order in respect of Ms Van Der Knaap or Ms Agbeko.
Mr Onifade told the panel that, since the incident which led to these charges occurred,
Ms Agbeko had worked continuously as a registered nurse without further complaint,
with the exception of a period of unemployment when she had been seeking work. He
invited the panel not to impose an Interim Order in respect of Ms Agbeko, submitting
that there was no risk to the public which would require such an Order. He provided the
panel with a reference from her current employer.
The panel accepted the advice of the Legal Assessor. He reminded the panel that in
addressing the issue of public protection, it should consider whether there is a real risk
of significant harm to the safety and well being of patients, visitors and colleagues.
Page 8
The panel noted that it is not involved in a fact finding exercise when considering an
Interim Order. It had regard to the provisions of the Nursing and Midwifery Order 2001
and to its powers to impose such an Order. It also took account of the NMC guidance
issued to panels regarding the imposition of Interim Orders.
The allegations in this case are serious and involve failure to provide adequate nursing
care. They include:
 not carrying out observations,
 not completing clinical records,
 not recognising a deterioration in a patient’s condition,
 not addressing that deterioration, and
 not following an established resuscitation protocol.
The panel has heard the majority but not all of the evidence the NMC intends to adduce
in respect of the fact finding stage. The panel has heard from three witnesses over the
course of two days. The panel has made some findings of fact, by way of the
admissions made by Ms Van Der Knaap and by Ms Agbeko. The panel carefully
considered all the evidence adduced together with the submissions. The panel looked
at the weight and scope of the evidence. In respect of the facts which are still in dispute
it has made no findings of fact as it has not heard all the evidence. At this stage the
panel must take such allegations at face value.
Ms Van Der Knaap is said to have failed to make adequate entries in Patient A’s
Observation chart and Fluid Balance sheet. She admitted failing to escalate Patient A to
a MEWS (Modified Early Warning System) chart, a system for patients whose condition
gives an increased level of concern. Ms Van Der Knaap also admitted failing to press an
emergency alarm on finding Patient A unresponsive, failing to ensure that the
resuscitation team was called and failing to commence basic life support.
Ms Agbeko admits recording that Patient A was asleep at times when she knew or
ought to have known that Patient A was deceased. She is said to have failed to carry
out or to ensure that adequate observations were carried out, to have failed to make
adequate entries in Patient A’s medical notes, to have failed to escalate Patient A to a
MEWS chart, to have failed to call the resuscitation team and to have failed to provide
adequate basic life support.
Taking the charges, and the evidence adduced so far at its highest, the panel is
satisfied that, pending the final conclusion of these proceedings, it is necessary to
impose Interim Orders in respect of Ms Van Der Knaap and Ms Agbeko in order to
protect the public. In the panel’s judgment there is a real risk of significant harm to
patients if either Ms Van Der Knaap or Ms Agbeko were to repeat the alleged conduct
which led to these charges.
The Panel is satisfied that public protection alone provides sufficient justification for an
Interim Order. However, the panel is also satisfied that such an order is necessary in
the public interest. In the panel’s judgment, the public could not have confidence in the
NMC as Regulator if, having regard to the serious nature of the charges, the admissions
made and the evidence adduced so far, Ms Van Der Knaap and Ms Agbeko were
permitted to continue to work as registered nurses without restriction pending the
resolution of serious allegations regarding their fitness to practise.
Page 9
The panel noted the references provided by Ms Van Der Knaap and details of recent
training which she has undertaken. It concluded that these did not address the clinical
concerns from which these allegations arise. The panel also took account of Ms
Agbeko’s reference from her current employer.
In reaching its conclusions, the panel noted that there are no Interim orders currently in
effect in respect of either of the two nurses. However, as stated above, the panel has
had the benefit of two days of evidence and has made some findings of fact.
Ms Van Der Knaap
The panel has decided to impose an Interim Conditions of Practice Order for a period of
12 months for the reasons set out above.
The panel has determined that such an Order will be sufficient to protect the public and
meet the wider public interest considerations. In forming this view, the panel balanced
Ms Van Der Knaap’s interests with the need to protect the public. The panel noted that
this Interim Order may cause Ms Van Der Knaap financial and professional hardship,
although it has heard no specific information on that question. However, in the panel’s
view, the issues of public protection and the public interest outweigh any such concerns
in this particular case.
The panel is satisfied that this Interim Conditions of Practice Order is appropriate,
necessary and proportionate in the circumstances of this case. The following conditions
will be imposed in respect of Ms Van Der Knaap’s registration:
1. She must notify the NMC within seven days of any nursing appointment (whether
paid or unpaid) she accepts within the UK or elsewhere and provide the NMC with
contact details of her employer.
2. She must not undertake any nursing practice which involves her taking charge of
a shift.
3. She must not undertake any nursing practice which involves her working as the
only registered nurse on duty.
4. She must inform the NMC of any criminal or professional investigation started
against her and of any criminal or professional disciplinary proceedings taken
against her within 7 days of her receiving notice of them.
5. She must immediately inform the following parties that she is subject to
conditions of practice under the NMC’s fitness to practice procedures and disclose
the conditions listed at (1) to (4) above to them:
a.
Any organisation or person employing, contracting with, or using her to
undertake nursing work.
b.
Any agency she is registered with, or applies to be registered with (at the
time of application).
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c.
Any prospective employer (at the time of application).
d.
Any educational establishment at which she is undertaking a course of
study connected with nursing or midwifery, or any such establishment to which
she applies to take such a course (at the time of application).
The period of this Interim Order shall be for 12 months, which in the Panel’s view will be
sufficient to provide for the resumption and conclusion of this hearing.
Ms Agbeko
The panel has decided to impose an Interim Conditions of Practice Order for a period of
12 months for the reasons set out above.
The panel has determined that such an Order will be sufficient to protect the public and
meet the wider public interest considerations. In forming this view, the panel balanced
your interests with the need to protect the public. The panel noted that this Interim Order
may cause you financial and professional hardship, although it has heard no specific
information on that question. However, in the panel’s view, the issues of public
protection and the public interest outweigh any such concerns in this particular case.
The panel is satisfied that this Interim Conditions of Practice Order is appropriate,
necessary and proportionate in the circumstances of this case. The following conditions
will be imposed in respect of your registration:
1. You must notify the NMC within seven days of any nursing appointment (whether
paid or unpaid) you accept within the UK or elsewhere and provide the NMC with
contact details of your employer.
2. You must not undertake any nursing practice which involves you taking charge of
a shift.
3. You must not undertake any nursing practice which involves you working as the
only registered nurse on duty.
4. You must inform the NMC of any criminal or professional investigation started
against you and of any criminal or professional disciplinary proceedings taken
against you within 7 days of receiving notice of them.
5. You must immediately inform the following parties that you are subject to
conditions of practice under the NMC’s fitness to practice procedures and disclose
the conditions listed at (1) to (4) above to them:
a.
Any organisation or person employing, contracting with, or using you to
undertake nursing work
b.
Any agency you are registered with, or apply to be registered with (at the
time of application)
c.
Any prospective employer (at the time of application)
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d.
Any educational establishment at which you are undertaking a course of
study connected with nursing or midwifery, or any such establishment to which
you apply to take such a course (at the time of application).
The period of this Interim Order shall be for 12 months, which in the Panel’s view will be
sufficient to provide for the resumption and conclusion of this hearing.
[The Panel adjourned until 09:30 on 10 June 2013]
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Decision and reasons on application to amend charge 1(a) in respect of Ms Van Der
Knaap:
The panel heard an application made by Ms Stephenson on behalf of the NMC, to amend the
wording of charge number 1(a) in respect of the NMC’s charges against Ms Van Der Knaap.
The proposed amendment was to delete reference to the 16 April 2010 so the charge would
read as follows“1.
On the 17 April 2010, in relation to Patient A, failed to provide an appropriate standard of
nursing care in that you did not:
(a)
make adequate entries in Patient A’s medical notes, specifically in:
i.
the Observation chart
ii.
the Fluid Balance sheet”
It was submitted by Ms Stephenson that the proposed amendment would provide clarity and
more accurately reflect the NMC’s evidence. She further submitted that such an amendment
would be fair and not cause Ms Van Der Knaap any injustice in these proceedings.
Ms Van Der Knaap agreed that she had no dealings with Patient A prior to the 17 April 2010
and as such, did not object to the amendment.
Mr Onifade, on Ms Agbeko’s behalf, did not object to the proposed amendment.
The panel accepted the advice of the legal assessor that Rule 28 of The Nursing and Midwifery
Council (Fitness to Practise) Rules Order of Council 2004 (as amended 2012) (The Rules)
states:
28.—(1) At any stage before making its findings of fact…
(i)… the Conduct and Competence Committee, may amend—
(a) the charge set out in the notice of hearing…
unless, having regard to the merits of the case and the fairness of the proceedings, the required
amendment cannot be made without injustice.
The panel concluded that such an amendment as applied for was in the interest of justice. The
panel was satisfied that there would be no prejudice or injustice caused to Ms Van Der Knaap
or to any of the parties by the proposed amendment. It was therefore appropriate to allow the
amendment as applied for to ensure clarity and accuracy.
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Background
The uncontested background is as follows- Theresia Van Der Knaap and Evelyn Agbeko were
employed as Staff Nurses on Ward 11 (“the Ward”) at Stafford General Hospital (“the Hospital”)
at the relevant time to which the charges relate. The Ward is a gastroenterology medical ward.
On 16 April 2010, Ms Van Der Knaap and Ms Agbeko worked together on the nightshift with
Health Care Support Worker Ms 1. The shift began at 21:00 hours. Ms Agbeko was the nurse in
charge of the Ward. Patient A was an 81 year old female patient with a history of chronic renal
failure who was admitted to the Ward with increased shortness of breath. Patient A had been
allocated to M-Bay and as such to the care of Ms Agbeko. However, Ms Van Der Knaap also
provided nursing care to Patient A during the shift.
During the night shift, Patient A became acutely unwell and required medical intervention and
support. On 16 April 2010 at approximately 23:30 hours, Ms Agbeko called Ms 2 (Clinical Site
Manager) and advised her that Patient A had become short of breath but was stable. Ms 2
asked Dr 8 (the House Officer) to attend to Patient A to prescribe a nebuliser. Patient A’s
condition subsequently worsened. At approximately 02:30 hours on the 17 April 2010, Ms Van
Der Knaap called Ms 2 and informed her that Patient A’s condition had deteriorated. Ms 2
concluded that Patient A might be in peri-arrest and at Ms 2’s instruction, Dr 5 (Senior House
Officer) then attended to Patient A.
Dr 5 (The Senior House Officer) contacted Dr 4 (The Medical Registrar), who reviewed Patient
A’s test results and x-rays remotely. A treatment plan of intravenous antibiotics, intravenous
frusemide and oxygen was agreed in order to maximise Patient A’s care. Dr 5 advised Dr 4 that
Patient A was elderly and frail with a number of co-morbidities including renal failure and left
ventricular failure. They discussed resuscitation for Patient A and agreed that in the event she
went into cardiac arrest she would be unlikely to survive. Both Dr 4 and Dr 5 felt that the
Intensive Treatment Unit would not accept Patient A for ventilation on the grounds that she
would be unlikely to come off ventilation or survive an episode of sepsis and heart failure. Dr 4
and Dr 5 agreed that Patient A was therefore not for escalation. Dr 4 took the decision to review
Patient A in person before putting a written Do Not Attempt Resuscitation (“DNAR”) order in
place. However, Dr 4 did not have the opportunity to attend to Patient A prior to her death. At
the time of her death, no written DNAR order had been put in place.
At approximately 04.15 hours, Ms Van Der Knaap found Patient A unresponsive and concluded
she was deceased. Ms Van Der Knaap and Ms Agbeko did not dial 2222 to call for the crash
team to attend to Patient A.
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In order to put out a crash call, a member of staff on the Ward would ordinarily go to the nearest
telephone and dial ‘2222’. A ‘2222’ call would immediately be connected to the Hospital
switchboard. It would be usual for the member of staff making the call to state “cardiac arrest”
and the location. A fast bleep would then be sent out to the resuscitation team, who would
attend to deal with the patient.
Ms Agbeko contacted Ms 2 and advised that Patient A had died. Ms 2 queried whether Patient
A was expected to die, and was informed that Patient A was for resuscitation. Ms 2 told Ms
Agbeko that she should have called a crash team immediately. Ms Agbeko disputed this, and
stated that Patient A had been dead for approximately five - seven minutes.
Ms 2 then advised Dr 4 of the situation. Dr 4 informed Ms 2 that following Dr 5’s attendance
upon Patient A, the decision had been taken that Patient A was not for escalation. However, a
written DNAR was not in place for Patient A at the time of her death. Trust policy requires that, if
a written DNAR is not in place, resuscitation must be commenced.
Following Patient A’s death the Trust held an internal investigation. The decision was taken to
refer both registrants to the NMC.
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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 adduced in this
case together with the submissions made by Ms Stephenson on behalf of the NMC, those made
by Mr Onifade on behalf of Ms Agbeko and those made by Ms Van Der Knaap.
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.
In reaching its decisions on the facts the panel took into account all the oral and documentary
evidence in this case. The panel heard oral evidence from four witnesses called on behalf of the
NMC: Ms 1, Healthcare Assistant who worked the nightshift on 16/17 April 2010 on the Ward at
the Hospital; Ms 2, Clinical Site Manager at the Hospital; Ms 3, Resuscitation Officer at the
Hospital and Internal Investigation Officer and Dr 4, former Medical Registrar in General
Medicine and Gastro-Enterology at the Hospital.
The panel also heard evidence from Ms Agbeko and Ms Van Der Knaap under oath.
The panel found that Ms Van Der Knaap’s evidence was credible. She was generally consistent
in her evidence and responses, although there was some confusion over timings. She gave
thoughtful, considered and comprehensive answers to questions and acknowledged where, with
hindsight, she should have acted differently.
In contrast Ms Agbeko’s responses were inconsistent and she was unable to answer questions
directly at times. Although the panel accepts that the incidents took place three years ago, Ms
Agbeko’s changes to her recall of events meant that the panel found her evidence less credible.
Ms Agbeko
At the start of this hearing you admitted charge 3. Charge 3 was announced proved by way of
your admission.
The panel went on to consider the remaining charges in disputeThat you, whilst employed as a Staff Nurse on Ward 11 at Stafford General Hospital (“the
Page 16
Hospital”), Mid Staffordshire NHS Foundation Trust:
1.
On the nightshift between 16 and 17 April 2010, whilst responsible for Patient A,
failed to provide an appropriate standard of nursing care in that you did not:
a.
Carry out and/or ensure that your colleagues carried out adequate
observations in the following areas:
i.
respiratory rate,
ii.
pulse,
iii.
blood pressure,
iv.
oxygen saturations,
v.
fluid balance,
The panel firstly considered whether Ms Agbeko was under a duty to provide an appropriate
standard of nursing care by carrying out and/or ensuring that her colleagues carried out
observations on Patient A in respect of her respiratory rate, pulse, blood pressure, oxygen
saturations and fluid balance. The panel determined that Ms Agbeko was under a duty, which
commenced when she took over the Ward at 21:00 hours as the nurse in charge. Ms Agbeko
was also responsible specifically for Patient A’s care because Ms Agbeko had been allocated to
M-Bay, which included Patient A.
The panel then moved on to consider whether Ms Agbeko had breached this duty.
The panel heard that Ms Agbeko was told during the shift handover at 21:00 hours that Patient
A was short of breath and was on two litres of oxygen per minute. Ms 3 told the panel that in
light of such information, Ms Agbeko should have conducted an initial review of Patient A which
would include a review of her observation chart. The panel had sight of Patient A’s observation
chart and noted that an entry on the 15 April 2010 at 16:00 hours states that observations of
Patient A should take place every 6 hours. The last set of observations had been timed at 17:00
hours. Therefore, observations needed to be taken by 23:00 hours. However, in light of Patient
A’s condition which Ms Agbeko was made aware of during the handover, the panel would have
expected Ms Agbeko to review the frequency of observations and update the chart accordingly.
No such action is recorded in Patient A’s observation chart. The panel concluded that
observations should have been taken shortly after the handover concluded at approximately
21:45 hours. They were not.
The panel had regard to Ms Agbeko’s evidence. Ms Agbeko told the panel that she carried out
observations on Patient A with the aid of a “big machine”. It later emerged that she was making
reference to a dynamap. Ms Agbeko told the panel that the she programmed the machine to
take observations every 30 minutes. She initially told the panel that the machine was able to
Page 17
obtain observations in respect of Patient A’s respiratory rate, blood pressure and oxygen
saturation levels. The machine does not in fact measure respiratory rate. This indicated to the
panel that she had some confusion as to how to carry out observations in order to ascertain
Patient A’s respiratory rate. She later told the panel that she carried out visual observations in
order to ascertain Patient A’s respiratory rate. The panel was concerned by the inconsistency in
Ms Agbeko’s testimony. Ms Agbeko also told the panel that she attached the machine to Patient
A continuously so that it would record observations automatically at 30 minute intervals
throughout the night.
In contrast, Ms Van Der Knaap told the panel that the dynamap was placed beside Patient A’s
bedside and was only in use when Ms Van Der Knaap carried out observations at 00:45 hours
and thereafter. Ms Van Der Knaap told the panel that she carried out the observations of Patient
A on her own accord. Further, that she did not see Ms Agbeko take Patient A’s observations at
any point during the nightshift.
The panel considered that it would be unusual for a patient to be left on a dynamap
continuously as it would be uncomfortable for the patient. The panel preferred Ms Van Der
Knaap’s evidence in this respect.
Ms Agbeko gave evidence that she took a set of observations at 23:30 hours and as a result
initiated a Modified Early Warning System (“MEWS”) chart, where she entered the observations.
Ms 3 gave evidence that she had conducted a search for the medical records and was satisfied
that all the medical records that existed in respect of Patient A, had been produced in evidence.
Therefore, either the MEWS chart was misplaced or it never existed.
The panel has concluded that no observations were taken and no MEWS chart had been
commenced. The panel rejected Ms Agbeko’s evidence. The reason for this conclusion are as
follows- the correct procedure would have been to enter the observations on the normal
observation chart and tick the box indicating that a MEWS chart had been initiated. This did not
happen. The medical notes which record Dr 8’s examination have a set of observations that are
identical to the observations recorded at 17:00 hours on Patient A’s observation chart, save that
one blood pressure reading has been changed from 151 to 157. It was suggested by Ms
Agbeko that the observations recorded in the medical notes were a new set of observations
taken by her at 23:30 hours. The panel rejected this evidence and has concluded that Dr 8 took
the last set of observations from the 17:00 hours entry on the observation chart. Dr 8 would not
have needed to do this if Ms Agbeko had more recent observations recorded on a MEWS chart.
The panel concluded that no observations were taken at 23:30 hours and it was the observed
Page 18
breathlessness of Patient A that prompted Ms Agbeko to call Ms 2.
Lastly, the uncontested evidence was that when Ms Van Der Knaap called Ms 2 at 02:30 hours
on the 17 April 2010, Ms Agbeko was in the process of taking observations. If observations
were being taken frequently after 23:30 hours on 16 April 2010, then they could have been read
off any observation or MEWS chart during that call. The fact that observations had to be taken
suggests that no such observations had been made prior to the call.
The panel had sight of Patient A’s fluid balance chart and noted the last entries occurred at
17:00 hours on the 16 April 2010. Patient A had a history of chronic renal failure and was due to
undergo haemodialysis the next day. The panel heard evidence from Ms 3 that the fluid input
and output of Patient A should have been assessed.
In light of the above, the panel determined that Ms Agbeko did not carry out and/or ensure that
her colleagues carried out adequate observations in respect of Patient A’s respiratory rate,
pulse, blood pressure, oxygen saturations and fluid balance.
Accordingly, the panel found charge 1(a) proved.
The panel next considered charge 1(b)That you, whilst employed as a Staff Nurse on Ward 11 at Stafford General Hospital (“the
Hospital”), Mid Staffordshire NHS Foundation Trust:
On the nightshift between 16 and 17 April 2010, whilst responsible for Patient A, failed to
provide an appropriate standard of nursing care in that you did not:
b.
make adequate entries in Patient A’s medical notes, specifically in:
i.
the Observation chart
ii.
the Fluid Balance sheet
The panel firstly considered whether Ms Agbeko’s was under a duty to provide an appropriate
standard of nursing care by making adequate entries in Patient A’s observation chart and fluid
balance sheet. The panel determined that Ms Agbeko was under such a duty. The panel had
regard to the evidence of Ms 3 who told the panel “A basic requirement for every nurse is to
ensure good record keeping and maintain adequate patient records.” The panel concluded that
it was of the upmost importance for adequate entries to be made in Patient A’s medical notes as
without such information it would be impossible to ascertain any improvement or deterioration in
her condition and therefore provide appropriate care.
The panel moved on to consider whether Ms Agbeko had breached this duty.
Page 19
The panel had sight of Patient A’s observation chart and noted that the first entry pertained to
the 15 April 2010 (when Patient A was admitted) and the last entry pertained to 16 April 2010 at
17:00 hours.
Ms Agbeko told the panel that she had escalated Patient A to a MEWS chart, where she
recorded observations she had taken.
The panel had regard to Patient A’s notes. As already noted, an entry by Dr 8 on the 16 April
2010 at 23:40 hours makes reference to Patient A’s observations. Those observations are the
same as those recorded in Patient A’s observation chart at 17:00 hours on the 16 April 2010
save for one difference. This indicated to the panel that the observations recorded at 17:00
hours were the last set of observations taken and recorded. This would support the finding that
no MEWS chart was in place and Ms Agbeko had not taken any observations. The panel further
noted that Patient A’s observation chart did not indicate that Patient A had been escalated to
MEWS. There was no reference to a MEWS chart in Dr 8’s notes and Ms 1 was also unaware of
any MEWS chart in respect of Patient A. The evidence of Ms Van Der Knaap was that she saw
Ms Agbeko record some observations on a census form (patient list). The panel has not seen
this census form and determined that the observations recorded were not transcribed onto the
observation chart. This is inadequate record keeping.
In the absence of any supporting evidence to the contrary, the panel concluded that it was more
likely than not on the balance of probabilities that Ms Agbeko had failed to make adequate
entries in Patient A’s observation chart, because she had not carried out adequate
observations.
Accordingly, the panel found charge 1(b)(i) proved.
The panel had regard to Patient A’s fluid balance sheet. Each fluid balance sheet covers a day
from 00:00 hours- 24:00 hours. The panel noted that the last entry pertained to 16 April 2010 at
17:00 hours. The panel has already determined that no such observations of Patient A’s fluid
balance had been carried out, accordingly the panel determined that Ms Agbeko did not make
adequate entries pertaining to such observations on the fluid balance sheet.
Had observations been carried out, the panel would expect to see an entry in the fluid balance
sheet. Even if there had been no fluid input or output, the panel would expect to see an entry of
“nil”. No such observations had been documented on the fluid balance sheet after the shift
Page 20
began at 21:00 hours. Further, no fluid balance sheet was commenced for the 17 April 2010.
The panel notes the confusing and conflicting evidence given by Ms Agbeko relating to whether
or not Patient A had a catheter. First she told the panel that she wasn’t sure if Patient A had a
catheter and then she told the panel that she must have catheterised Patient A because
catheters go hand in hand with MEWS. She told the panel that she had recorded the fluids on
the MEWS chart which she had commenced. However, there is no documentary evidence to
support this and the panel prefers the evidence of Ms Van Der Knaap who told the panel that
Patient A was not catheterised.
On the balance of probabilities the panel determined that it was more likely than not that Ms
Agbeko did not make adequate entries on the fluid balance sheet.
Accordingly, the panel found charge 1(b)(ii) proved.
The panel moved on to consider charge 1(c)That you, whilst employed as a Staff Nurse on Ward 11 at Stafford General Hospital (“the
Hospital”), Mid Staffordshire NHS Foundation Trust:
On the nightshift between 16 and 17 April 2010, whilst responsible for Patient A, failed to
provide an appropriate standard of nursing care in that you did not:
c.
escalate Patient A to a MEWS chart;
The panel firstly considered whether Ms Agbeko was under a duty to escalate Patient A to a
MEWS chart. The panel determined that Ms Agbeko had accepted in her testimony that she
was under such a duty. Further, she asserted that she had complied with this duty.
The panel went on to consider whether Ms Agbeko had breached this duty.
The panel noted that no MEWS chart had been adduced in respect of Patient A. The panel had
regard to the evidence of Ms Van Der Knaap that to her knowledge no MEWS chart had been
put in place in respect of Patient A. The panel preferred Ms Van Der Knaap’s evidence.
The panel had regard to the observations taken by Ms Van Der Knaap at 00:45 hours on 17
April 2010. Patient A’s saturation levels were 88% (which would give a MEWS score of 2) and
her respiratory rate was 32 per minute (which would give a MEWS score of 3). It is stated that
“MEWS total ≥4 or 3 in single parameter- inform Critical Care Outreach Team...” This indicated
to the panel that Patient A’s observations were in excess of two trigger mechanisms of the
Modified Early Warning System and therefore she should have been escalated to a MEWS
Page 21
chart.
Further, the observations recorded in the medical notes by Dr 5 timed at 02:00 hours on 17 April
2010 significantly cross the threshold for initiating a MEWS chart and Ms Agbeko should have
done so.
In the absence of a MEWS chart in respect of Patient A and as the panel has already
determined that there was no MEWS chart, the panel determined that Ms Agbeko had breached
her duty to escalate Patient A to a MEWS chart.
Accordingly, the panel found charge 1(c) proved.
The panel moved on to consider charge 2That you, whilst employed as a Staff Nurse on Ward 11 at Stafford General Hospital (“the
Hospital”), Mid Staffordshire NHS Foundation Trust:
2.
On 17 April 2010, when Patient A was found unresponsive, you failed to:
a.
ensure that the resuscitation team were called,
b.
provide adequate basic life support;
The panel firstly considered whether Ms Agbeko was under a duty to ensure that the
resuscitation team were called and to provide adequate basic life support to Patient A when she
was found unresponsive. The panel had regard to the Cardiopulmonary Resuscitation Policy
(“CPR Policy”) and the Do not Attempt Resuscitation Order Policy (“DNAR Policy”). The panel
determined that in light of these policies, Ms Agbeko was under a clear duty to ensure that the
resuscitation team were called and to provide basic life support.
The panel moved on to consider whether Ms Agbeko had breached this duty.
The panel had regard to the evidence of Ms 2, who told the panel “At approximately 04:00 hours
informed by one of the nurses… that Patient A had passed away… I asked the nurse if Patient
A was expected to die, and I was told that Patient A was for resuscitation. I therefore told the
nurse that she should not have called me, but should have dialled 2222 to call the crash team to
attend the patient.”
The panel had regard to the CPR Policy which states “When a cardiopulmonary arrest is
confirmed a member of staff will:

Dial 2222 initiating the alert procedure
Page 22

Take the resuscitation trolley, the defibrillator, oxygen and suction equipment (if
portable) to the patient and commence CPR…”
The panel did not accept Ms Agbeko’s evidence that her action of calling the clinical site
manager for advice discharged her duty to call for the resuscitation team. The panel notes the
clear evidence of Dr 4 that she had not given any instruction not to resuscitate Patient A. Any
assumptions or comments that speculated that after visiting and assessing Patient A such a
conclusion might be reached did not in any way absolve Ms Agbeko of her duty. The panel
considered that in failing to Dial 2222 for a crash team to attend, Ms Agbeko had not complied
with the CPR Policy and was in breach of her duty to ensure that a resuscitation team had been
called.
Accordingly, the panel found charge 2(a) proved.
The panel had regard to the DNAR Policy which states that “Where no advance decision has
been made regarding resuscitation attempt prior to a patient suffering a cardio-pulmonary arrest
and their wishes are unknown and cannot be ascertained, then there is a presumption that
healthcare professionals will attempt to revive the patient.”
Ms Agbeko told the panel that she commenced chest compressions for a period of 15 seconds.
Initially Ms Agbeko said that she removed the head rest from the bed, carried out checks in line
with the CPR policy and positioned Patient A flat on the bed. Ms Van Der Knaap’s account was
that the checks had not been carried out and that Ms Agbeko commenced “half hearted” chest
compressions whilst Patient A was sitting up. Ms Agbeko’s evidence was inconsistent with Ms
1’s evidence. Ms 1 told the panel that when she attended to Patient A to provide final care, she
was positioned upright in the bed. The panel are of the view that the 15 seconds of chest
compressions were inadequate and that basic life support had not been provided to Patient A.
Accordingly, the panel found charge 2(b) proved.
Ms Van Der Knapp
At the start of this hearing you admitted charges 1(b), 2(a), 2(b) and 2(c). These charges were
therefore announced proved by way of your admission.
The panel went on to consider the remaining charge in disputeThat you, whilst employed as a Staff Nurse on Ward 11 at Stafford General Hospital (“the
Hospital”), Mid Staffordshire NHS Foundation Trust:
Page 23
1.
On the 17 April 2010, in relation to Patient A, failed to provide an appropriate
standard of nursing care in that you did not:
(a)
make adequate entries in Patient A’s medical notes, specifically in:
(i)
the Observation chart
(ii)
the Fluid Balance sheet
The panel firstly considered whether Ms Van Der Knaap was under a duty to provide an
appropriate standard of nursing care by making adequate entries in Patient A’s observation
chart and fluid balance sheet. The panel had regard to the evidence of Ms 3 who told the panel
“I was appalled by the lack of observations recorded on 16/17 April 2010…Patient A was a very
poorly patient on the night of 16/17 April 2010. I would expect the nursing staff to be carrying
out regular observations and noting these in Patient A’s medical records. If a nurse fails to
record a patient’s observations in their medical record, it is very difficult to monitor the patient’s
progress and identify if the patient’s health is deteriorating.” The panel determined that Ms Van
Der Knaap was under such a duty, even though she had not been formally allocated to M-Bay.
The panel moved on to consider whether Ms Van Der Knaap was in breach of this duty.
The panel had regard to Ms Van Der Knaap’s evidence that she recorded the first set of
observations she had taken in Patient A’s observation chart and verbally handed subsequent
observations that she had taken to Ms Agbeko. Ms Van Der Knaap asserted that another
observation chart must have been in place in respect of Patient A as the observation chart
adduced does not support her assertion that she recorded the first set of observations. The
panel noted that the last entry was made at 17:00 hours on the 16 April 2010. Ms Van Der
Knaap commenced her shift at 21:00 hours. However, Ms Van Der Knaap’s evidence was also
that before entering her observations on the chart she reviewed the previous observations
recorded and that there was at least one previous set of observations already on the chart.
However, given that observations were to be taken 6 hourly, there would not have been any
observations after 17:00 hours. The panel has concluded already that Ms Agbeko did not take
observations at 23:30 hours on the 16 April 2010. The panel has determined that Ms Van Der
Knaap reviewed the observation chart that has been produced in evidence and that she is
mistaken that she recorded the observations taken at 00:45 hours on the 17 April 2010. Further,
the panel determined that it is the duty of the nurse taking the observations to enter them onto
the relevant chart. It is not sufficient to rely on verbal handover of patient observations.
The panel did not accept Ms Van Der Knaap’s evidence that she recorded her observations on
an observation chart. The first entry on the chart before the panel was made on 15 April 2010,
when Patient A was admitted. The entries continue until 17:00 hours on the 16 April 2010. On
Page 24
the balance of probabilities, the panel determined that the chart before it was the only
observation chart in place in respect of Patient A. In the absence of any evidence to the
contrary the panel determined that Ms Van Der Knaap did not make adequate entries in Patient
A’s observation chart.
Accordingly, the panel found charge 1(a)(i) proved.
Ms Van Der Knaap told the panel that Patient A did not leave her bed, did not have a drink and
did not have any fluid input or output during the night shift.
The panel had regard to the evidence of Ms 3 who told the panel that if a patient was not
passing urine, this should be recorded on the fluid balance sheet.
The panel had regard to Patient A’s fluid balance sheet and noted no entries had been made
subsequent to 17:00 hours on 16 April 2010. In evidence Ms Van Der Knaap accepted that she
should have recorded “no urine output”. The panel determined that in the absence of such
entries, it was more likely than not on the balance of probabilities that Ms Van Der Knaap had
failed to make adequate entries in Patient A’s fluid balance sheet.
Accordingly, the panel found charge 1(a)(ii) proved.
Page 25
Determination on misconduct and impairment regarding Ms Agbeko:
Having announced its finding on all the facts, the panel then moved on to consider firstly
whether the facts found proved amount to misconduct and, if so, secondly whether Ms Agbeko’s
fitness to practise is currently impaired.
The panel heard further evidence from Ms Agbeko under oath. Ms Agbeko told the panel that as
she was currently subject to an interim conditions of practice order, she was prevented from
working in a “lone worker” role. Therefore, she was currently out of work. In order to reassure
the panel of her competence, Ms Agbeko provided the panel with a recent certificate from
QUEST Training and Development pertaining to an online Basic Life Support Programme she
completed on 24 May 2013. Ms Agbeko told the panel that she had also previously attended
BUPA Mandatory Training which included a practical training element. She underwent such
training each year she was employed with BUPA, her first training session was in November
2010. Topics covered included health and safety training and basic record keeping although this
was not supported by documentary evidence. The panel was also given one testimonial from
BUPA which made no explicit reference to the issues in this case.
Ms Stephenson 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.
In her submissions Ms Stephenson invited the panel to take the view that Ms Agbeko’s actions
amount to a breach of The code: Standards of conduct, performance and ethics for nurses and
midwives 2008 (“the code”). She then directed the panel to specific paragraphs and identified
where, in the NMC’s view, Ms Agbeko’s actions amounted to misconduct.
She 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 Stephenson referred the panel to the case of Council for Healthcare
Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927
(Admin). She also referred the panel to the case of Ronald Jack Cohen v General Medical
Council [2008] EWHC 581 (Admin) in which it was held that a panel ought to bear in mind the
practitioner’s misconduct in the light of all the relevant factors and consider whether such
misconduct was ‘easily remediable’.
Page 26
Ms Stephenson’s final submission was that Ms Agbeko’s failings were not symptoms of
systemic failings within the Hospital. She further submitted that Ms Agbeko had shown little or
no insight, she accepted limited responsibility for her failings which pertained to basic nursing
care including record keeping, observations, basic life support, decision making in emergency
situations and management. Ms Stephenson suggested that Ms Agbeko presented underlying
attitudinal issues which might be difficult to remedy.
Mr Onifade submitted that the charges found proved pertained to a single incident and as such,
the panel should not find misconduct. He submitted that Patient A was found unresponsive and
was in an end of life situation. He referred the panel to the evidence of Dr 4 who had told the
panel that “I was advised by Ms 2 (Clinical Site Manager) that Patient A had passed away and
an arrest call had not been put out…I believe that this is a case of two nurses using common
sense and experience and avoiding the inappropriate resuscitation of an elderly frail lady just
because their on call Registrar had been too busy to attend their ward…” Mr Onifade submitted
that there was a valid argument that Ms Agbeko had adhered to best practice by allowing
Patient A to die with dignity, inadvertently acting in the best interests of Patient A.
Mr Onifade further submitted that in the time since the incident to which the charges relate, Ms
Agbeko has worked in a nursing home with elderly patients without complaint. A positive
character reference had been obtained in respect of this period of employment. Further, Ms
Agbeko has undertaken an online learning module on her own accord so as to update her
knowledge and understanding. In light of this, he submitted that the risk of any repetition was
highly unlikely.
Mr Onifade’s final submission was to the effect that Ms Agbeko has been open and honest,
cooperating with the NMC proceedings throughout. He rebutted any suggestion that she has
demonstrated attitudinal problems.
Ms Agbeko also personally rebutted any suggestion of attitudinal problems, stating that her she
hoped her passionate nature and cultural background had not been misunderstood. She told
the panel that she had a passion for nursing and she had been deeply hurt by the submissions
of Ms Stephenson.
The panel accepted the advice of the legal assessor who advised that the NMC has defined
fitness to practise as a registrant’s suitability to remain on the register unrestricted. He also
referred the panel to the cases of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311,
Ronald Jack Cohen v General Medical Council [2008] EWHC 581 (Admin) and Dame Janet
Smith’s Fifth Shipman Report, quoted by Cox J in CHRE v NMC and Grant [2011] EWHC 927.
Page 27
The case of Grant indicates that Dame Janet Smith’s test would be an appropriate test for
panels considering a nurse’s fitness to practise. The test is as follows;
Do our findings of fact in respect of the [nurse’s] misconduct… 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(s)
at unwarranted risk of harm; and/or
b)
has in the past brought and / or is liable in the future to bring the 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 profession; and/or
d)
…
The panel adopted a two stage process in its consideration as advised. Firstly, the panel must
determine whether the facts found proved amount to misconduct. Secondly, only if the facts
found proved amount to misconduct, the panel must decide whether, in all the circumstances,
Ms Agbeko’s fitness to practise is currently impaired as a result of that misconduct.
Decision on whether the facts found proved amount to misconduct regarding Ms
Agbeko:
When determining whether the facts found proved amount to misconduct the panel had regard
to the terms of the code in force at that time, namely the May 2008 edition.
The panel in reaching its decision had regard to the public interest and accepted that there was
no burden or standard of proof at this stage. The panel exercised its own professional
judgement.
The panel concluded that Ms Agbeko’s actions did fall significantly short of the standards
expected of a registered nurse, and that her actions did amount to a breach of the code,
specifically the section of the preamble that reads“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
Page 28
• provide a high standard of practice and care at all times”
The panel also considered Ms Agbeko to be in breach of the following provisions“35. You must deliver care based on the best available evidence or best practice.
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.
43.
You must complete records as soon as possible after an event has occurred.”
The panel appreciated that breaches of the code do not automatically result in a finding of
misconduct. However, the panel determined that Ms Agbeko’s failings pertained to basic
nursing care which members of the public would rightly expect from a registered nurse. Ms
Agbeko had admitted inaccurately documenting that Patient A was asleep when in fact she was
deceased. Taking observations, recording them and acting on them appropriately is a basic
requirement of any nurse. Ms Agbeko had significantly departed from these fundamental
requirements.
The panel considered that Ms Agbeko’s misconduct was compounded by the fact that she was
in charge of the Ward on the night that these events occurred. As the nurse in charge, there
was an even greater expectation upon Ms Agbeko. Failing to adhere to such an expectation
constituted serious misconduct. This would be the case in any setting and the level of staffing
was not a mitigating factor in respect of her failure to adhere to such expectations.
Accordingly, the panel determined that Ms Agbeko’s actions did fall seriously short of the
conduct and standards expected of a nurse and amounted to misconduct.
Decision on Impairment regarding Ms Agbeko:
The panel next went on to decide if as a result of this misconduct, Ms Agbeko’s fitness to
practise is currently impaired.
Throughout its deliberations the panel has had regard to the guidance in Dame Janet Smith’s
Fifth Shipman Report, quoted by Cox J in CHRE v NMC and Grant [2011] EWHC 927.
Page 29
The panel considered whether Ms Agbeko’s fitness to practise was impaired at the time of the
incident to which the charges relate. The panel considered that in failing to provide adequate
basic nursing care; taking and recording observations, escalating concerns where appropriate,
through inaccurate documentation and failing to provide basic life support, Ms Agbeko had put
patients at an unwarranted risk of harm. This in turn breached fundamental tenets of the
profession and brought the profession into disrepute.
The panel acknowledged and accepted that Ms Agbeko has worked in a nursing setting since
the incident, without any complaint. The panel considered that her misconduct was remediable
but saw little evidence before it to demonstrate that it had been remedied. The panel considered
that there was a lack of detail in the one testimonial adduced which did not specifically address
her failings outlined in the charges. Further, although Ms Agbeko had undergone some training
in respect of basic life support, this was an online course with no practical element. The panel
was not satisfied that she has undergone training to address concerns with her documentation
and record keeping.
The panel was aware that Ms Agbeko received CPR training one month before the incident to
which the charges relate. As such, the panel determined that there was a high risk of repetition
that Ms Agbeko would fail to provide basic life support to a patient in a similar situation, even if
she did undergo further training. At the time of Patient A’s death, there is no doubt that the
recently CPR trained Ms Agbeko knew how to initiate Patient A’s resuscitation. The panel notes
that she did not do so.
The panel has concerns about the level of remorse and insight Ms Agbeko has shown as to her
failings.
Given the fundamental nature of the misconduct which included basic observations, record
keeping and decisions on basic life support in an emergency situation, the panel considered
that public confidence in the nursing profession and the regulatory process would be
undermined if the panel was not to make a finding of impairment in this case.
The panel has therefore concluded that on the grounds of public protection and in the public
interest to uphold proper professional standards and public confidence in the profession, Ms
Agbeko’s fitness to practise is currently impaired by reason of her misconduct.
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Determination on misconduct and impairment regarding Ms Van Der Knaap:
Having announced its finding on all the facts, the panel then considered firstly whether the facts
found proved amount to misconduct and, if so, secondly whether Ms Van Der Knaap’s fitness to
practise is currently impaired.
The panel heard further evidence from Ms Van Der Knaap under oath. Ms Van Der Knaap
referred the panel to over 25 training certificates and 6 supportive testimonials, including a
testimonial from her current Home Manager at Briar Hill Nursing Home. She also referred the
panel to training certificates in respect of successfully completed courses. These includedDying with Dignity in 2012, Running the Floor Training in 2012 and a Support Plan Update in
2011, which included training on documentation. She also completed an Emergency First Aid at
Work Course on 17 June 2011, valid for 3 years. She told the panel that this course contained a
practical element whereby she demonstrated basic life support on a dummy as part of an
assessment. Ms Van Der Knaap also told the panel that she had completed annual basic life
support training at Briar Hill Nursing Home. Although currently in employment, she told the
panel that she had concerns as to whether her current interim conditions of practice order would
hinder her on-going ability to remain in her current employment.
Ms Stephenson 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.
In her submissions Ms Stephenson invited the panel to take the view that Ms Van Der Knaap’s
actions amount to a breach of The code: Standards of conduct, performance and ethics for
nurses and midwives 2008 (“the code”). She then directed the panel to specific paragraphs and
identified where, in the NMC’s view, Ms Van Der Knaap’s actions amounted to misconduct.
She 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 Stephenson referred the panel to the case of Council for Healthcare
Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927
(Admin). She also referred the panel to the case of Ronald Jack Cohen v General Medical
Council [2008] EWHC 581 (Admin) in which it was held that a panel ought to bear in mind the
practitioner’s misconduct in the light of all the relevant factors and consider whether such
misconduct was ‘easily remediable’.
Page 31
Ms Stephenson’s final submission was to the effect that although Ms Van Der Knaap has shown
some evidence of insight and reflection, she has not taken full responsibility for her failings. She
submitted that Ms Van Der Knaap’s assertion, that she was unaware of her responsibility to
escalate Patient A to a MEWS chart, supported this submission. She further submitted that Ms
Van Der Knaap as an experienced practitioner and registered nurse should not have been so
reliant on Ms Agbeko for instructions.
Ms Van Der Knaap submitted that she provided care and comfort to Patient A in difficult
circumstances, at the same time as being responsible for the care of 10 other patients and
working on a ward where communication between the staff was poor.
Ms Van Der Knaap submitted that she was not afforded any support at the Hospital and was
made to feel intimidated when she did raise her concerns. She further submitted that there was
a culture of “paper people” and a lack of hands-on nursing care. She told the panel that the fact
that record keeping is prioritised over actual patient care was making her lose her lust for
nursing practice.
Ms Van Der Knaap told the panel that she wished she had been more familiar with the relevant
hospital policies and that they had been in the fore front of her mind. She made reference to the
fact that in her home country of Holland, it is not standard practice to resuscitate an
unresponsive patient and as such, she had disregarded the Hospital’s policies.
She reiterated that she has been in nursing practice for 35 years, during which time she has
adhered to good quality practice. Further, that this was supported by the numerous testimonials
and references before the panel.
Ms Van Der Knaap’s final submission was that she had in her heart of hearts been a caring
nurse to Patient A in her final hours of life.
The panel accepted the advice of the legal assessor who advised that the NMC has defined
fitness to practise as a registrant’s suitability to remain on the register unrestricted. He also
referred the panel to the cases of Roylance v General Medical Council (No 2) [2000] 1 A.C. 311,
Ronald Jack Cohen v General Medical Council [2008] EWHC 581 (Admin) and Dame Janet
Smith’s Fifth Shipman Report, quoted by Cox J in CHRE v NMC and Grant [2011] EWHC 927.
The case of Grant indicates that Dame Janet Smith’s test would be an appropriate test for
panels considering a nurse’s fitness to practise. The test is as follows;
Do our findings of fact in respect of the [nurse’s] misconduct… show that his/her fitness to
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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(s)
at unwarranted risk of harm; and/or
b)
has in the past brought and / or is liable in the future to bring the 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 profession; and/or
d)
…
The panel adopted a two stage process in its consideration as advised. First, the panel must
determine whether the facts found proved amount to misconduct. Secondly, only if the facts
found proved amount to misconduct, the panel must decide whether, in all the circumstances,
Ms Van Der Knaap’s fitness to practise is currently impaired as a result of that misconduct.
Decision on whether the facts found proved amount to misconduct regarding Ms Van Der
Knaap:
When determining whether the facts found proved amount to misconduct the panel had regard
to the terms of the code in force at that time, namely the May 2008 edition.
The panel in reaching its decision had regard to the public interest and accepted that there was
no burden or standard of proof at this stage. The panel exercised its own professional
judgement.
The panel concluded that Ms Van Der Knaap’s actions did fall significantly short of the
standards expected of a registered nurse, and that her actions did amount to a breach of the
code, specifically the section of the preamble that reads“The people in your care must be able to trust you with their health and wellbeing. To justify that
trust, you must:
• provide a high standard of practice and care at all times”
The panel also considered Ms Van Der Knaap to be in breach of the following provisions“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.
43.
You must complete records as soon as possible after an event has occurred.”
Page 33
The panel appreciated that breaches of the code do not automatically result in a finding of
misconduct. The panel recognise that Ms Van Der Knaap did provide support and comfort to
Patient A in her final hours of life. However, she did not record and escalate observations as
she was required to do and she did not provide basic life support. By failing to perform these
duties, Ms Van Der Knaap had failed to provide the high standard of practice and care expected
of a registered nurse. The panel had regard to Ms Van Der Knaap’s assertion that CPR protocol
is different in her home country of Holland, however the panel determined that as Ms Van Der
Knaap was practising as a registered nurse in this country, she had a duty to practice to the
required standards of a registered nurse in this country.
Accordingly, the panel determined that Ms Van Der Knaap’s actions did fall short of the conduct
and standards expected of a nurse and amounted to misconduct.
Decision on Impairment regarding Ms Van Der Knaap:
The panel next went on to decide if as a result of this misconduct, Ms Van Der Knaap’s fitness
to practise is currently impaired.
Throughout its deliberations the panel has had regard to the guidance in Dame Janet Smith’s
Fifth Shipman Report, quoted by Cox J in CHRE v NMC and Grant [2011] EWHC 927.
The panel considered that Ms Van Der Knaap’s fitness to practise was impaired at the time of
the incident to which the charges relate. The panel considered that Ms Van Der Knaap failed to
provide adequate basic nursing care in that she failed to record observations and to escalate
concerns where appropriate. Ms Van Der Knaap’s failure put Patient A at risk. Ms Van Der
Knaap also failed to initiate basic life support. This breached fundamental tenets of the
profession and brought the profession into disrepute.
The panel determined that there had been a serious departure from what would ordinarily be
expected of a registered nurse. The panel recognised Ms Van Der Knaap’s compassion and
commitment to nursing. The panel carefully considered whether the misconduct has been
remedied. The panel took into account the supportive testimonials and character references
which give excellent accounts of her current practice. Further, Ms Van Der Knaap has produced
over 25 training certificates which indicate her continual, thoughtful, professional development
and commitment to maintaining and improving her skills. Lastly, having had the opportunity of
seeing and hearing from Ms Van Der Knaap the panel was impressed with her thoughtful and
reflective insight into her misconduct. The panel considered that Ms Van Der Knaap has openly
and honestly accepted that with the benefit of hindsight, she would do things differently in the
Page 34
future. Taking everything into consideration the panel decided that the risk of repetition in the
future is minimal.
However, given the fundamental nature of the misconduct which included recording basic
observations, record keeping and decisions on basic life support in an emergency situation, the
panel considered that public confidence in the nursing profession and the regulatory process
would be undermined if the panel was not to make a finding of impairment in this case. The
panel recognised that a finding of no impairment effectively amounted to a complete acquittal
which would not be appropriate in the circumstances.
The panel has therefore concluded that on the ground of the wider public interest to uphold
proper professional standards and public confidence in the profession, Ms Van Der Knaap’s
fitness to practise is currently impaired by reason of her misconduct.
Page 35
Decision on sanction and reasons regarding Ms Agbeko:
In reaching its decision on sanction, the panel has considered all the documents that had been
placed before it together with submissions made by Ms Stephenson on behalf of the NMC and
those made by Mr Onifade on behalf of Ms Agbeko. The panel also had regard to a personal
statement read out by Ms Agbeko and an article adduced by her titled “Do not resuscitate:
reflections on an ethical dilemma” Jones J (2007), Nursing Standard. 21, 46, 35-39.
The panel received and accepted advice from the legal assessor.
The panel has taken account of the Council’s Indicative Sanctions Guidance and notes it is
guidance only. The panel considered the sanctions starting with the least restrictive. It has had
regard to public protection, the public interest and Ms Agbeko’s own interests. It has applied the
principle of proportionality, weighing the interests of the public with that of Ms Agbeko. It has
taken account of the aggravating and mitigating factors in the case. The panel has had in mind
that the principal aims of sanctions are to protect the public, to uphold the standards and
reputation of the nursing profession and to maintain public confidence in the nursing profession.
The panel considered that mitigating factors included Ms Agbeko’s engagement with the NMC
throughout these proceedings, the fact that she has practised as a registered nurse without any
concerns being raised in the three years since the incident to which the charges relate and the
fact that there have been no previously known disciplinary or regulatory proceedings in relation
to her practice. She told the panel of her commitment to rehabilitate and of the expectations she
now had upon herself. She had provided the panel with an article from the Nursing Standard
which addressed the area of the ethical dilemmas nurse’s face in resuscitation. This
demonstrated that she was beginning to consider the issues around this area of practice.
The panel considered that aggravating factors included the fact that Ms Agbeko was the nurse
in charge on the relevant nightshift, the charges related to failings in fundamental nursing care
and Ms Agbeko has demonstrated a limited amount of insight throughout the NMC proceedings.
The panel first considered taking no further action. The panel considered that this would be a
wholly disproportionate response in light of the fact that it has made a finding of current
impairment on both public protection and public interest grounds. The panel determined that to
take no further action would afford no protection to the public and would undermine the
reputation of the profession. As such, the imposition of a sanction is necessary.
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The panel next considered imposing a caution order. A caution order is the least restrictive
sanction that can be applied. It does not restrict the nurse’s ability to practice but is recorded on
the NMC Register and published on the NMC website for a period of between one and five
years as the panel determines is appropriate.
The panel considered that a caution order would not be proportionate in light of the identified
risk Ms Agbeko’s practise poses to the public and her failure to date to remedy its two
fundamental concerns namely her record keeping and basic life support skills.
The panel next went on to consider a conditions of practice order. The panel considered that Ms
Agbeko has engaged with the NMC process for a long period of time and showed a willingness
to address her failings. The panel considered that the imposition of a conditions of practice
order would give Ms Agbeko the opportunity to address identified failings with her nursing
practice in a supervised setting. The panel considered that Ms Agbeko had not demonstrated
evidence of deep-seated personality or attitudinal problems, there was no evidence of general
incompetence and there were identifiable areas of practice that required retraining. Therefore,
workable conditions could be formulated which would also address public protection concerns.
Ms Agbeko had demonstrated a willingness to undertake training and her last employer noted
that “she was a very competent nurse who has demonstrated a high level of professionalism”.
The panel determined that it would not be in the public interest to remove from practice a
registered nurse who has a contribution to make.
The panel considered whether it would be appropriate and proportionate to impose a more
restrictive sanction and considered imposing a suspension order. The panel determined that the
misconduct was such that Ms Agbeko’s actions were not incompatible with continuing to be a
registered nurse.
The panel recognised that this misconduct was a many facetted but single incident where a
lesser sanction would be sufficient not only to protect the public but also to ensure that public
confidence in the profession is maintained.
The panel considered that the public would be adequately protected by the implementation of
the following conditions of practice for a period of 12 months1.
You must notify the NMC within 7 days of any nursing appointment (whether paid or
unpaid) you accept within the UK or elsewhere, and provide the NMC with contact
details of your employer.
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2.
You must inform the NMC of any criminal or professional investigation started against
you and any criminal or professional disciplinary proceedings taken against you 7 days
of you receiving notice of them.
3.
a) You must within 7 days of accepting any post or employment requiring registration
with the NMC, or any course of study connected with nursing or midwifery, provide the
NMC with the name/contact details of the individual or organisation offering the post,
employment or course of study.
b) You must within 7 days of entering into any arrangements required by these
conditions of practice provide the NMC with the name and contact details of the
individual/organisation with whom you have entered into the arrangement.
4.
At any time that you are employed or otherwise providing nursing services, you must
place yourself and remain under the supervision of a workplace line manager, mentor or
supervisor nominated by your employer, such supervision to consist of working at all
times on the same shift as, but not necessarily under the direct observation of, a
registered nurse who is physically present in or on the same ward, unit, floor or home
that you are working in or on. You must not undertake any nursing practice which
involves you taking charge of a shift.
5.
You must work with your line manager, mentor or supervisor (or their nominated deputy)
to formulate a Personal Development Plan specifically designed to address the
deficiencies in the following areas of your practice:
6.
(a)
Accurate recording of patient observations
(b)
Accurate and appropriate escalation of patient observations
(c)
Accurate documentation
(d)
Management of emergency situations
You must meet with your line manager, mentor or supervisor (or their nominated deputy)
at least every month to discuss the standard of your performance and your progress
towards achieving the aims set out in your personal development plan.
7.
You must forward to the NMC a copy of your personal development plan within 28 days
of the date on which these conditions become effective or the date on which you take up
an appointment, whichever is sooner.
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8.
You must send a report from your line manager, mentor or supervisor (or their
nominated deputy) setting out the standard of your performance and your progress
towards achieving the aims set out in your Personal Development Plan to the NMC
every 3 months and at least 14 days before any NMC review hearing or meeting.
9.
At least 14 days before any NMC review hearing or meeting, you must provide a
reflective practice account about the incident on the 16/17 April 2010, setting out your
insight and learning, and demonstrating how it impacts on your current and/or future
practise.
10.
You must successfully undertake and complete courses on basic life support (which
must include a practical component) and record keeping in clinical practice. Both
courses must be completed within 6 months of the date on which these conditions
become effective. At least 14 days before any NMC review hearing or meeting, you must
provide evidence of successful completion of these courses.
11.
You must immediately inform the following parties that you are subject to a conditions of
practice order under the NMC’s fitness to practise procedures, and disclose the
conditions listed at (1) to (10) above, to them:
(a)
Any organisation or person employing, contracting with, or using you to
undertake nursing or midwifery work
(b)
Any agency you are registered with or apply to be registered with (at the time of
application)
(c)
Any prospective employer (at the time of application)
(d)
Any educational establishment at which you are undertaking a course of study
connected with nursing or midwifery, or any such establishment to which you
apply to take such a course (at the time of application)
The panel recognised that Ms Agbeko has not been working since the interim conditions of
practice order was imposed in March 2013. It took account of the potential hardship to Ms
Agbeko of further conditions, but determined that this was outweighed by the need for public
protection.
The panel determined to impose the conditions of practice order for a period of 12 months. This
is an appropriate period which should enable Ms Agbeko to remain focused on her career and
complete the necessary reflection and training.
Page 39
Decision on sanction and reasons regarding Ms Van Der Knaap:
In reaching its decision on sanction, the panel considered all the documents that had been
placed before it together with the submissions made by Ms Stephenson on behalf of the NMC
and those made by Ms Van Der Knaap.
The panel received and accepted advice from the legal assessor.
The panel took account of the Council’s Indicative Sanctions Guidance and noted it was
guidance only. The panel considered the sanctions starting with the least restrictive. It had
regard to the public interest. It applied the principal of proportionality whilst taking account the
aggravating and mitigating factors in the case. The panel bore in mind that the principle aims of
sanctions are to protect the public, to uphold the standards and reputation of the nursing
profession and to maintain public confidence in the nursing profession.
The panel considered mitigating factors included Ms Van Der Knaap’s long, previously
unblemished career as a registered nurse, which has not previously involved a known referral to
the NMC, nor any previous disciplinary proceedings. The panel also noted that Ms Van Der
Knaap has engaged in these proceedings. The panel noted that the Ward where the incident
occurred was a challenging environment, both in terms of patient needs, poor communication
and staff dynamics. The panel took into its consideration the fact that Patient A had not been
directly allocated to Ms Van Der Knaap on the nightshift. The panel also considered the great
deal of insight and reflection demonstrated by Ms Van Der Knaap to be a mitigating factor in this
case.
The panel considered that the charges related to fundamental nursing care which included
recording basic observations, record keeping and decisions on basic life support in an
emergency situation. The panel considered misconduct pertaining to such fundamental nursing
care constituted an aggravating factor.
The panel first considered taking no further action. The panel considered that to take no further
action would be inconsistent and disproportionate with its finding of current impairment. The
charges relate to serious breaches of fundamental nursing care. As such, to take no further
action would be a wholly disproportionate response and would have the effect of undermining
public confidence in the profession. The panel determined that the imposition of a sanction is
necessary.
The panel next considered imposing a caution order. A caution order is the least restrictive
sanction that can be applied. It does not restrict the nurse’s ability to practise but is recorded on
Page 40
the NMC Register and published on the NMC website for a period of between one and five
years as the panel determines is appropriate.
The panel considered that Ms Van Der Knaap did not provide a basic standard of nursing care
to Patient A when she should have done so. However, the panel was reassured that the risk of
repetition was highly unlikely in light of the level of insight demonstrated by Ms Van Der Knaap
throughout the NMC proceedings, her early admissions in respect of charges 1(b), 2(a), 2(b)
and 2(c), the subsequent training she underwent and the fact that she has been practising as a
registered nurse since the incident without any reported concerns. The panel considered that
Ms Van Der Knaap has demonstrated excellent commitment to the nursing profession in her
long 35 year career as a registered nurse. Further, that it would be in the public interest to retain
a dedicated and experienced clinical practitioner. The panel sought to mark Ms Van Der
Knaap’s conduct in relation to Patient A as unacceptable, but was reassured that she would
take on board its concerns. The panel considered that the imposition of a caution order would
serve as a reminder to Ms Van Der Knaap of her past actions and serve as a spur to ongoing
professional development.
The panel determined to impose a caution order for a period of two years. The panel considered
that a 12 months period was not sufficient to mark the nature of the misconduct. The effect of
this caution order is that Ms Van Der Knaap’s name on the NMC register will show that she is
subject to a caution order and anyone who enquires about her registration will be informed of
this order.
The panel considered whether it would be proportionate to impose a more restrictive sanction
and looked at a conditions of practice order. The panel considered that a conditions of practice
order would be a disproportionate response in the circumstances. Ms Van Der Knaap has
undergone extensive training since the incident to which the charges relate and as a result, the
panel was satisfied that her clinical practice did not pose a risk to patients or the public.
Page 41
Interim Order in respect of Ms Agbeko
At the conclusion of the sanction stage Ms Stephenson submitted that it would be appropriate to
impose an interim conditions of practice order in respect of Ms Agbeko for a period of 18
months, in order to cover any appeal period.
The panel took and accepted the advice from the Legal Assessor.
The panel had regard to the findings it has already made in relation to impairment and sanction.
The panel also had regard to Article 31(2) of the Nursing and Midwifery Order 2001. In light of
these the panel considered that an order was necessary on the grounds of public protection and
maintaining public confidence in the profession and in the NMC as its regulator. The panel
considered that the public would be adequately protected by the implementation of the following
interim conditions of practice1.
You must notify the NMC within 7 days of any nursing appointment (whether paid or
unpaid) you accept within the UK or elsewhere, and provide the NMC with contact
details of your employer.
2.
You must inform the NMC of any criminal or professional investigation started against
you and any criminal or professional disciplinary proceedings taken against you 7 days
of you receiving notice of them.
3.
a) You must within 7 days of accepting any post or employment requiring registration
with the NMC, or any course of study connected with nursing or midwifery, provide the
NMC with the name/contact details of the individual or organisation offering the post,
employment or course of study.
b) You must within 7 days of entering into any arrangements required by these
conditions of practice provide the NMC with the name and contact details of the
individual/organisation with whom you have entered into the arrangement.
4.
At any time that you are employed or otherwise providing nursing services, you must
place yourself and remain under the supervision of a workplace line manager, mentor or
supervisor nominated by your employer, such supervision to consist of working at all
times on the same shift as, but not necessarily under the direct observation of, a
registered nurse who is physically present in or on the same ward, unit, floor or home
Page 42
that you are working in or on. You must not undertake any nursing practice which
involves you taking charge of a shift.
5.
You must work with your line manager, mentor or supervisor (or their nominated deputy)
to formulate a Personal Development Plan specifically designed to address the
deficiencies in the following areas of your practice:
6.
(a)
Accurate recording of patient observations
(b)
Accurate and appropriate escalation of patient observations
(c)
Accurate documentation
(d)
Management of emergency situations
You must meet with your line manager, mentor or supervisor (or their nominated deputy)
at least every month to discuss the standard of your performance and your progress
towards achieving the aims set out in your personal development plan.
7.
You must forward to the NMC a copy of your personal development plan within 28 days
of the date on which these conditions become effective or the date on which you take up
an appointment, whichever is sooner.
8.
You must send a report from your line manager, mentor or supervisor (or their
nominated deputy) setting out the standard of your performance and your progress
towards achieving the aims set out in your Personal Development Plan to the NMC
every 3 months and at least 14 days before any NMC review hearing or meeting.
9.
At least 14 days before any NMC review hearing or meeting, you must provide a
reflective practice account about the incident on the 16/17 April 2010, setting out your
insight and learning, and demonstrating how it impacts on your current and/or future
practise.
10.
You must successfully undertake and complete courses on basic life support (which
must include a practical component) and record keeping in clinical practice. Both
courses must be completed within 6 months of the date on which these conditions
become effective. At least 14 days before any NMC review hearing or meeting, you must
provide evidence of successful completion of these courses.
Page 43
11.
You must immediately inform the following parties that you are subject to a conditions of
practice order under the NMC’s fitness to practise procedures, and disclose the
conditions listed at (1) to (10) above, to them:
(a)
Any organisation or person employing, contracting with, or using you to
undertake nursing or midwifery work
(b)
Any agency you are registered with or apply to be registered with (at the time of
application)
(c)
Any prospective employer (at the time of application)
(d)
Any educational establishment at which you are undertaking a course of study
connected with nursing or midwifery, or any such establishment to which you
apply to take such a course (at the time of application)
For the reasons already set out in relation to sanction, the panel determined that an interim
conditions of practice order was necessary and proportionate. The panel considered that the
duration of the interim order should be 18 months to allow time not only for any appeal to be
made but also for any such appeal to be heard.
The period of this order is 18 months but if, at the end of the appeal period of 28 days, should
Ms Agbeko have not lodged an appeal, the interim order will lapse and will be replaced by the
substantive order.
On the other hand if she does lodge an appeal, the interim order will
continue to run.
Ms Agbeko’s record in the NMC register will show that she is subject to an interim conditions of
practice order and anyone who enquires about her registration will be told about the order.
This order will be confirmed to Ms Agbeko in writing.
This concludes the determination.
Page 44