Fitness to Practise Update Series: Mother and Daughter erased from Register of Nurses
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Mother and Daughter who showed ‘serious disregard’ to the residents of the nursing home that they ran are erased from Register of Nurses
On 15 November 2021, Ms. Justice Irvine, President of the High Court , confirmed the decisions of the Nursing and Midwifery Board of Ireland, (the "NMBI"), made on 13 August 2021, to erase the Respondent and Registrant B's names from the Register of Nurses in accordance with s39(1)(a) of the Nurses Act 1985 (the " 1985 Act").
Background
The Respondent (Ms MH) was the Director of Nursing (and Person in Charge and Registered Provider) at Avondale Nursing Home, Co. Kilkenny ("Avondale") and her daughter, Registrant B (Ms HH) was the Assistant Director of Nursing.
On 21 July 2011, pursuant to s59 and s60 of the Health Act 2007 as amended, Carlow District Court ordered the closure of Avondale due to a series of HIQA inspections which found serious shortcomings in its care practices. NMBI subsequently received complaints from a former staff nurse at Avondale and from HIQA in relation to the Respondent and Registrant B. In October 2011, the High Court made an order pursuant to s44 of the Act suspending the Respondent and Registrant B's registration as nurses.
Inquiry
Following confirmation in 2018 from An Garda Siochána that there should be no prosecution in relation to the Respondent and Registrant B, the Chief Executive Officer ("CEO") of NMBI proceeded to prepare the fitness to practise Inquiry. Up until this point, the Chief State Solicitor's Office had requested the CEO to pause her inquiry preparations pending the outcome of investigations being conducted by An Garda Síochána.
The Respondent and Registrant B instructed legal representatives to accept the service of documents on their behalf but confirmed that they had no authority to engage in the inquiry and as such, would not be present. This was in circumstances where the Respondent and Registrant B had been residing in Australia since July 2011.
Interestingly, the Inquiry fell under the 1985 Act due to the fact that the complaint arose before the commencement of the Nurses and Midwives Act 2011[1]. One inquiry was held in respect of the Respondent and Registrant B, albeit two separate notices of Inquiry were prepared. There was a large degree of overlap between the allegations against the Respondent and Registrant B (particularly in relation to resident care and the discharge of residents) but there were also some differences. For example, the Respondent in her capacity as the Person in Charge and/or the Registered Provider of Avondale was responsible for matters such as the safety of the premises, staffing levels and policy implementation, whilst Registrant B as the Assistant Director of Nursing was not. The below are some examples of the allegations which were considered at the Inquiry:
- Failing to ensure adequate care was afforded to the residents of Avondale, such as:
- directing residents to be woken up between 4.00am - 7:30am so that they would be medicated, washed and fed;
- failing to treat one patient’s pressure sores in an appropriate manner;
- failing to provide proper care for a patient suffering from malnutrition and to her continued weight loss;
- failing to take appropriate steps to ensure that patients at risk of falling were not placed unnecessarily at risk;
- failing to investigate medication errors made by staff members;
- failing to ensure staff were properly trained regarding the administration of medication;
- failing to treat one patient’s pressure sores in an appropriate manner;
- failing to provide proper care for a patient suffering from malnutrition and to her continued weight loss;
- failing to take appropriate steps to ensure that patients at risk of falling were not placed unnecessarily at risk;
- failing to investigate medication errors made by staff members;
- failing to ensure staff were properly trained regarding the administration of medication;
- Failing to ensure residents were discharged in a safe manner;
- Failing to implement one or more recommendations contained in HIQA action plans;
- Being “untruthful” with the wards of court office (Registrant B only);
- Financial impropriety in relation to a particular resident's HSE subvention funds (Respondent only);
- Failing to ensure adequate policies and procedures were in place (Respondent only);
- Failing to ensure that the premises was safe for residents (Respondent only);
- Failing to ensure adequate staffing levels and ensure staff had been Garda vetted (Respondent only);
- Leaving personal belongings (such as PPS cards and medications) of residents behind in a hotel (Respondent only).
On conclusion of the Inquiry, the Committee set out in its report the allegations that were proven as to fact and the proven facts that amounted to professional misconduct. The Committee then submitted their report to the Board recommending the sanction of erasure, given that the conduct of both women was “fundamentally incompatible with being a nurse”.
The Board of NMBI then met and considered the Committee's Report, the transcripts and exhibits from the Inquiry and accepted the Committee’s rationale for the sanction and confirmed that the Respondent and Registrant' B's names should be erased from the Register. The Board also decided, pursuant to s38(5) of the 1985 Act, that the Respondent’s name and Registrant B's name, the Committee's findings, and decision should be published. Despite being invited to attend, neither the Respondent nor Registrant B were present or represented at the meeting of the Board.
Confirmation
On 15 November 2021, this matter came before the High Court for confirmation of sanction. Irvine P. noted that the Court must have due regard to the gravity of erasure as a sanction, given the impact it can have on an individual's ability to earn an income (Medical Council v. Whelan). Irvine P. also noted that the Court's jurisdiction under s39 of the 1985 Act was that it should confirm sanction unless it was found that the Board had not acted reasonably. The case of Medical Council v Lohan Mannion [2017] IEHC 40 was also referred to in this regard.
Irvine P. stated that in her view, the Board was clearly satisfied that the Respondent’s conduct was at the most serious end of the spectrum, given the wide ranging, persistent and repeated nature of the misconduct concerned. In granting the Order sought, Irvine P. noted "the profound dishonesty and serious disregard shown by the Respondent to the people in her care, who deserved to be treated at a minimum in accordance with standard practice".
Irvine P. then considered the application regarding Registrant B and noted that there were less findings made in respect of her conduct. However, in noting the submissions by the CEO's legal representatives (Fieldfisher) regarding allegations of a similarly egregious nature to that of the Respondent, Irvine P. again found there could be no alternative but to grant the Order sought.
Irvine P. also ordered that the Nursing Board of Australia be notified of the erasure in respect of both women.
Written by JP McDowell and Hannah Unger
[1] Section 6(1)(b) of the Nurses and Midwives Act 2011 provides that anything commenced but not completed by the Applicant or a committee established under s.13(2) of the 1985 Act may be carried out and completed by the Applicant after such repeal as if section 6 and 13 of the Act had not been appealed.