Lead counsel and NMC Defence Barrister, Stephen McCaffrey looks at a recent NMC case and provides legal comment. 

A nurse who took notes containing identifiable information pertaining to a patient and took these off the trust’s premises faced fitness to practise proceedings.

The case against Nurse A

Nurse A is reported to have recorded identifiable details about a patient in a notebook they took into the community for meetings between August and December. Subsequent to adding these notes to the patient’s electronic record, they crossed the identifiable details out but they remained legible. In October, Nurse A was interviewed for an unrelated internal investigation.

The charge

It was alleged that Nurse A:

1. Recorded identifiable data relating to a patient over several months in a personal notebook which they took out into the community; and
2. On one occasion took notes with PID off of trust premises.

Fitness to practise impaired?

It is reported that Nurse A admitted the charges.  It was for the NMC panel therefore to consider if the charges amounted to misconduct and if Nurse A’s fitness to practise was impaired.

Case reporting noted that the case presenter told the NMC panel the facts were sufficiently serious to amount to misconduct due to the fact that Nurse A used their note book after being warned about it.  The case presented continued by stating that professional standards require nurses to comply with confidentiality policies and Nurse A was experienced enough to know their actions put patients at risk. Finally, the panel heard that if a finding of impairment was not made, public confidence in nursing would be undermined.

Mitigation

The NMC panel considered the evidence of the case including the following mitigation, that:

• this was an isolated incident, which occurred during a very limited period of time, in the context of an otherwise unblemished nursing career;
• Nurse A was a new member of staff undertaking a new nursing role, with little perceived support and guidance from the trust;
• Nurse A admitted the charges, and has fully engaged with the Nursing and Midwifery Council;
• Nurse A had attempted to mitigate the risk of breaching confidentiality by taking steps to safeguard the information;
• Nurse A provided evidence of stress and lack of support they experienced at work, feeling they had to take notes to properly carry out his duties.

Sanction

As already mentioned, the case presenter reported the facts were serious enough to amount to misconduct and if a finding of impairment was not made, public confidence in nursing would be undermined.

The panel found that had Nurse A exposed patients to a risk of a breach of confidentiality and that they actions were liable to bring the profession into disrepute.

However, in considering the public interest, the NMC panel had regard to Nurse A’s long period of previous good practice determining that there was a public interest in retaining the services of a competent and committed nurse who can practise safely.

Having given consideration to this, the NMC panel concluded that public confidence in the profession and the regulatory process would not be undermined if a finding of impairment were not made.

The panel found therefore that Nurse A’s fitness to practise was not currently impaired.

Legal Comment

Last week I wrote about a High Court case that reaffirmed the legal principle that fitness to practise is in the present tense as has been demonstrated in this case.

This case also highlights two other important considerations for healthcare professionals facing fitness to practise proceedings:

1. Engagement is important – It was noted in this case that Nurse A “fully engaged with the Nursing and Midwifery Council”.  I have previously written about the value and significance of engagement with regulators, and this had proven significant in this case.
2. Context is key – I have also extensively written on the issue of contextual factors in NMC cases.  The context, or mitigating factors, was an important consideration in the proceedings and findings in this case.  Expert legal advice, strategy and representation is often key to drawing out mitigation and context in a way that matters.