Costa Amaral, Pedro Jose

30 Pages·2017·0.1 MB·English

by  Caroline Pringle

Conduct and Competence Committee
Substantive Hearing
27 – 30 March 2017

Nursing and Midwifery Council, 61 Aldwych, London WC2B 4AE

Name of Registrant Nurse: Mr Pedro Jose Costa Amaral

NMC PIN: 09F0021C

Part(s) of the register: RN1: Registered Nurse (Sub Part 1)
Adult Nurse (Level 1) – June 2009

Area of Registered Address: England

Type of Case: Misconduct

Panel Members: Martin Parker (Chair Lay member)
Simon Williams (Registrant member)
Sarah Bowie (Lay member)

Legal Assessor: Paul Hester

Panel Secretary: Caroline Pringle

Mr Costa Amaral: Not present or represented

Nursing and Midwifery Council: Represented by Ben Edwards, counsel,
instructed by NMC Regulatory Legal Team.

Facts proved: 1, 3.1, 4.1, 4.2, 4.3

Facts not proved: 2, 3.2

Fitness to practise: Impaired

Sanction: Striking-off order

Interim Order: Interim suspension order – 18 months
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Details of charge

That you, whilst employed by North Bristol NHS Trust (“The Trust”) as a Band 5 Staff
Nurse in the Intensive Care Unit at Southmead Hospital between October 2012 and 24
July 2014:

1. During the period of October 2012 to 24 July 2014, failed to complete
intravenous medication training and/or were not signed off as competent to
administer intravenous medication – found proved

2. On one or more occasions between 16 March 2013 and 06 June 2013
administered intravenous medication as set out in Schedule 1 without having the
appropriate training and/or competencies. – found not proved

3. On 6 June 2014, in relation to Patient A:

3.1 Administered a controlled drug for an epidural without having the appropriate
training and/or competencies – found proved

3.2 Failed to sign the controlled drugs register in respect of the epidural
administered in charge 3.1 – found not proved

4. On 24 July 2014, in relation to Patient B:

4.1 Administered an intravenous phosphate infusion without having the
appropriate training and/or competencies – found proved

4.2 Administered the intravenous phosphate infusion referred to in Charge 4.1 at
an incorrect rate and incorrect dosage of 500mls over 12 hours at a rate of
12mls/hour instead of the prescribed rate and volume of 100mls over 12
hours at a rate of 8.3mls/hour – found proved
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4.3 Administered the intravenous phosphate infusion referred to in Charge 4.1
despite being aware that you should not administer intravenous medication –
found proved

AND in light of the above, your fitness to practise is impaired by reason of your
misconduct.

Schedule 1

1. On 16 March 2013, you administered an intravenous bolus drug to Patient C
2. On 16 March 2013, you attempted to administer intravenous Noradrenalin to
Patient D
3. On 02 April 2013, you administered IV medication to Patient E through a
central line
4. On 6 June 2013, you administered intravenous Haloperidol to Patient F

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Decision on Service of Notice of Hearing

The panel was informed at the start of this hearing that Mr Costa Amaral was not in
attendance and that written notice of this hearing had been sent to Mr Costa Amaral’s
registered address by international delivery on 9 February 2017. Royal Mail “Track and
Trace” documentation confirmed that the notice of hearing was sent to Mr Costa
Amaral’s registered address in Portugal by international delivery on that date. Notice
was also sent by email on 9 February 2017 to Mr Costa Amaral’s representative, Ms
Catarino, at the Portuguese Nursing Council.

The panel took into account that the notice letter provided details of the allegation, the
time, dates and venue of the hearing and, amongst other things, information about Mr
Costa Amaral’s right to attend, be represented and call evidence, as well as the panel’s
power to proceed in his absence. The “Track and Trace” documentation also indicated
that the notice was delivered to Mr Costa Amaral’s address on 16 February 2017. Mr
Edwards submitted the NMC had complied with the requirements of Rules 11 and 34 of
the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended (“the
Rules”).

The panel accepted the advice of the legal assessor.

In the light of all of the information available, the panel was satisfied that Mr Costa
Amaral has been served with notice of this hearing in accordance with the requirements
of Rules 11 and 34. It noted that the rules do not require delivery and that it is the
responsibility of any registrant to maintain an effective and up-to-date registered
address.

Decision on proceeding in the absence of the Registrant

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

“Where the registrant fails to attend and is not represented at the hearing, the
Committee...may, where the Committee is satisfied that the notice of hearing has
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been duly served, direct that the allegation should be heard and determined
notwithstanding the absence of the registrant...”

Mr Edwards invited the panel to continue in the absence of Mr Costa Amaral on the
basis that he had voluntarily absented himself. Mr Edwards drew the panel’s attention to
email correspondence between Mr Costa Amaral and an NMC case officer, which
included an email from Mr Costa Amaral dated 25 February 2017, in which he stated he
would not be attending today’s hearing. Further, Mr Costa Amaral had indicated on the
Standard Directions Form, dated 22 April 2016, that he would not be attending. Mr
Edwards submitted that there was no reason to believe that an adjournment would
secure his attendance on some future occasion.

The panel accepted the advice of the legal assessor. The panel noted that its
discretionary power to proceed in the absence of a registrant under the provisions of
Rule 21 is one that should be exercised “with the utmost care and caution”. The panel
further noted the case of R (on the application of Raheem) v Nursing and Midwifery
Council [2010] EWHC 2549 (Admin) and the ruling of Mr Justice Holman that:

“...reference by committees or tribunals such as this, or indeed judges, to
exercising the discretion to proceed in the person's absence "with the utmost
caution" is much more than mere lip service to a phrase used by Lord Bingham
of Cornhill. If it is the law that in this sort of situation a committee or tribunal
should exercise its discretion "with the utmost care and caution", it is extremely
important that the committee or tribunal in question demonstrates by its language
(even though, of course, it need not use those precise words) that it appreciates
that the discretion which it is exercising is one that requires to be exercised with
that degree of care and caution.”

The panel has decided to proceed in the absence of Mr Costa Amaral. In reaching this
decision, the panel has considered the submissions of the case presenter, and the
advice of the legal assessor. It has had particular regard to the factors set out in the
decision of Jones R. v Jones (Anthony William), (No.2) [2002] UKHL 5. It has had
regard to the overall interests of justice and fairness to all parties. It noted that:
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• no application for an adjournment has been made by Mr Costa Amaral;
• there is a recent email from Mr Costa Amaral, dated 25 February 2017, in which
he stated that he would not be attending;
• there is no reason to suppose that adjourning would secure his attendance at
some future date;
• three witnesses have attended today to give live evidence, others are due to
attend;
• not proceeding may inconvenience the witnesses, their employer(s) and, for
those involved in clinical practice, the clients who need their professional
services;
• the charges relate to events that occurred between 2012 and 2014;
• further delay may have an adverse effect on the ability of witnesses accurately to
recall events;
• there is a strong public interest in the expeditious disposal of the case.

There is some disadvantage to Mr Costa Amaral in proceeding in his absence. Although
the evidence upon which the NMC relies will have been sent to him at his registered
address and Mr Costa Amaral has provided a written response to the charges he will
not be able to challenge the evidence relied on by the NMC and will not be able to give
evidence on his own behalf. However, in the panel’s judgment, this can be mitigated.
The panel can make allowance for the fact that the NMC’s evidence will not be tested
by cross examination and, of its own volition, can explore any inconsistencies in the
evidence which it identifies and test the evidence with Mr Costa Amaral’s replies in the
investigatory interviews and written response to the NMC. Furthermore, the limited
disadvantage is the consequence of Mr Costa Amaral’s decisions to absent himself
from the hearing, waive his rights to attend and/or be represented and to not provide
evidence or make submissions on his own behalf.

In these circumstances, the panel has decided that it is fair, appropriate and
proportionate to proceed in the absence of Mr Costa Amaral. The panel will draw no
adverse inference from Mr Costa Amaral’s absence in its findings of fact.

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Decision and Reasons on application to hear evidence via WebEx pursuant to
Rule 31

During the hearing Mr Edwards made an application for a witness, Mr 5, to give
evidence via WebEx. He informed the panel that Mr 5 was unable to attend due to
childcare issues but that giving evidence via WebEx would allow the panel to test his
evidence and assess his demeanour and responses. Mr Edwards submitted that the
evidence of Mr 5 was relevant to the charges and allowing it would not prejudice Mr
Costa Amaral.

Further, Mr Edwards informed the panel that Mr Costa Amaral was aware of the NMC’s
intention for Mr 5 to give evidence via WebEx and referred the panel to an email, dated
2 March 2017, in which Mr Costa Amaral stated that he had no objections to this.

The panel heard and accepted the legal assessor’s advice on the issues it should take
into consideration in respect of this application. This included Rule 31 which provides
that, so far as it is ‘fair and relevant,’ a panel may accept evidence in a range of forms
and circumstances, whether or not it is admissible in civil proceedings.

The panel decided to allow the application. It considered that the evidence was relevant
to the charges and it was fair to both the NMC and Mr Costa Amaral to include it. The
panel noted that the video link would allow it to observe the witness’s behaviour and
demeanour which would assist the panel in testing his evidence and assessing his
credibility. It also noted that in an email dated 2 March 2017 Mr Costa Amaral had no
objections to Mr 5 giving evidence in this manner.

Accordingly, the panel decided to allow the application for Mr 5 to give evidence via
WebEx.
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Background

The charges arose while Mr Costa Amaral was employed by North Bristol NHS Trust
(“the Trust”) as a Band 5 Staff Nurse in the Intensive Care Unit (“ICU”) at Southmead
Hospital (“the Hospital”).

On 6 June 2014 a medication incident report was submitted to the Hospital alleging that
Mr Costa Amaral had failed to sign the controlled drugs book in relation to a controlled
drug which he had administered via an epidural to Patient A. This incident was
investigated by the Trust’s Clinical Risk Manager. During the investigation it came to
light that Mr Costa Amaral had allegedly not completed the relevant training or been
signed off as competent to administer intravenous (“IV”) medication.

A disciplinary meeting was held with Ms 2 on 7 July 2014 and a letter was sent to Mr
Costa Amaral on this date confirming that he was not permitted to administer any IV
medication until the Trust’s IV competency assessment and ICU IV competency
assessment had been completed. Mr Costa Amaral signed a copy of this letter.

It was alleged that on 24 July 2014 Mr Costa Amaral commenced an IV phosphate
infusion on Patient B, in breach of managerial instructions not to carry out any IV
administration, and was also alleged to have made a drug error while doing so.

The Trust carried out an internal investigation into the allegations that he had
administered a controlled drug for an epidural on 6 June 2014 without completing the
appropriate training; failed to follow correct administration procedures in relation to
controlled drugs; failed to follow management instructions to undertake appropriate
training and gain appropriate competence prior to administering drugs for an epidural
and failed to follow management instructions, both verbal and written. Lastly that he was
not permitted to administer any IV medication but allegedly undertook further IV
medication administration on 24 July 2014 and made an error when doing so.

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On 15 August 2014 Mr Costa Amaral was interviewed by Ms 1 as part of the disciplinary
investigation. During this interview Mr Costa Amaral made various admissions relating
to administering IV drugs and failing to record the administration of controlled drugs in
the controlled drugs book.

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 Mr Edwards, on behalf of the NMC.

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

The panel was aware that the burden of proof rests on the NMC, and that the standard
of proof is the civil standard, namely the balance of probabilities. This means that the
facts will be proved if the panel was satisfied that it was more likely than not that the
incidents occurred as alleged.

The panel drew no adverse inference from the non-attendance of Mr Costa Amaral.

The panel heard oral evidence from five witnesses called on behalf of the NMC: Ms 1,
Perioperative Education Manager for the Trust, assigned with investigating the
allegations on behalf of the Trust; Ms 2, Head of Nursing for ICU at the Hospital; Mr 3,
Senior Staff Nurse on ICU; Ms 4, Clinical Nurse Educator for the Trust. Mr 5, Senior
Staff Nurse on ICU, also gave evidence via WebEx.

The panel found Ms 1 to be a credible witness who gave consistent evidence. She was
knowledgeable and forthright.

The panel found Ms 2 to be a credible and reliable witness. Although her involvement in
the investigation of the allegations was more limited, due to her role at the Trust, the
panel found her to be a fair and balanced witness.

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The panel found Mr 3 to be an honest and reliable witness. Although clearly nervous he
gave clear evidence which was consistent with his statement.

The panel found the evidence given by Ms 4 to be at times vague and somewhat
unclear. Owing to the passage of time and changing systems within the Trust she was
unable to give clear answers to a number of questions put to her by the panel which
reduced her credibility as a witness. For this reason the panel attached less weight to
her evidence.

The panel found Mr 5 to be a credible and reliable witness. He gave clear evidence
which was consistent with his statement made during the Trust’s internal investigation
and had a good recollection of the events.

The panel considered each charge and made the following findings:

1. During the period of October 2012 to 24 July 2014, failed to complete
intravenous medication training and/or were not signed off as competent to
administer intravenous medication

This charge is found proved.

In reaching this decision, the panel took into account the evidence of Ms 1, Ms 2 and
Ms 4 as well as the documentary evidence before it including Mr Costa Amaral’s
responses at the investigatory stage and his written replies to the NMC. The panel
noted that the Trust’s Medicines Management policy stated that “staff must not
prescribe, supply or administer medicines unless they are assessed as competent to do
so by their line manager or professional supervisor. The nature of the assessment will
be determined locally by line manager or professional supervisor…. All qualified
Nursing…practitioners who administer IV drugs must have undertaken the NBT
designated training programme and have been assessed as competent to carry out this
skill. ” The panel heard evidence from Ms 1, 2 and 4 that the all staff working in ICU
were required to undertake the general Trust IV training and then further ICU IV training,
which involved theoretical and practical competencies, before being signed off as
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