Nursing and Midwifery Council Fitness to Practise Committee. Substantive Order Review Meeting

Transcription

1 Nursing and Midwifery Council Fitness to Practise Committee Substantive Order Review Meeting 30 May 2018 Nursing and Midwifery Council, 61 Aldwych, London, WC2B 4AE Name of registrant: NMC PIN: Minel Serbu 15F0528C Part(s) of the register: Registered Nurse Adult 16 June 2015 Area of Registered Address: Type of Case: Panel Members: Legal Assessor: Panel Secretary: Order being reviewed: Outcome: Romania Misconduct Richard Davies (Chair, Lay member) Carla Hartnell (Registrant member) Georgina Foster (Lay member) Tracy Ayling Kelly O Brien Suspension Order for 12 months Order to lapse upon expiry in accordance with Article 30 (1), namely 10 July 2018 Striking-off order to come into effect on 10 July 2018 in accordance with Article 30 (1) 1

2 Service of Notice of Meeting The panel considered whether notice of this meeting has been served in accordance with the rules. Rules 11A and 34 of the Nursing and Midwifery Council (Fitness to Practise) Rules 2004, as amended state: 11A.(1) Where a meeting is to be held in accordance with rule 10(3), the Conduct and Competence Committee or the Health Committee shall send notice of the meeting to the registrant no later than 28 days before the date the meeting is to be held. 34.(3) Any other notice or document to be served on a person under these Rules may be sent by (a) ordinary post The letter of notice of this substantive meeting was sent to Mr Serbu s address on the register by recorded delivery and first class post on 16 April Bearing in mind the information above, the panel was satisfied, that the service has been effected in accordance with the Rules. 2

3 Decision and reasons on review of the current order: The panel decided to impose a striking-off order. This order will come into effect at the end of 10 July 2018 in accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 (as amended) (the Order). This is the first review of a suspension order, originally imposed by a Fitness to Practise panel on 9 June 2017 for 12 months. The current order is due to expire on 10 July The panel is reviewing the order pursuant to Article 30(1) of the Order. The charges found proved which resulted in the imposition of the substantive order were as follows: That you, a registered nurse: 1. On or around 18 June 2015, did not inform your employer, Carlingford Lodge, that you had been arrested and/or bailed by the police in relation to an incident involving Resident A at Woodcote Hall Care Home. 2. On 29 July 2015, failed to surrender to police bail at Malinsgate Police Station. 3. Are currently wanted by police in relation to an offence, under section 20 of the Criminal Justice and Courts Act 2015 in relation to the incident at charge 1 above. AND in light of the above, your fitness to practise is impaired by reason of your misconduct. 3

4 Background Mr Serbu qualified as a nurse in Romania. In early June 2015 he was working as a senior care assistant at Woodcote Hall Care Home (the Home), whilst he waited for his NMC PIN number to be issued. On 9 June 2015 Resident A was found on the floor at the Home after a suspected fall. Mr Serbu, assisted by two other health care assistants lifted her up by her arms. This was contrary to Resident A s care plan which stated that she should be moved with a hoist after any fall. Mr Serbu was arrested and interviewed about this matter at Malinsgate Police Station, Telford by DC H on 12 June On 13 June 2015 he was bailed to report back to the police station on 14 July 2015 to receive a caution for section 20 of the Criminal Justice and Courts Act 2015, which relates to an offence of ill treatment or wilful neglect of a vulnerable person. Mr Serbu received his NMC PIN number on 16 June On 22 May 2015 he was issued with his contract of employment at Carlingford Lodge (the Lodge) in northern Ireland. By 23 June 2015 he was working in the dementia unit as a supernumerary registered nurse. On his first day at work, he had a lengthy conversation with Ms G, home manager at the Lodge. He did not inform her of the earlier incident involving Resident A at the Home. On 14 July 2015 DC H contacted the Lodge and informed an employee of the situation regarding Resident A and Mr Serbu s arrest. Mr Serbu was initially suspended and later dismissed on 24 July 2015 on the basis that he had not disclosed the incident relating to Resident A. Mr Serbu s original bail reporting date was changed to 29 July He did not attend to receive his police caution on that day. He later ed the police on 20 January 2016 stating that he would not be returning to the UK. He sent a further along similar lines on 3 May

5 The original panel determined the following with regard to impairment: Having found that Mr Serbu s behaviour amounted to misconduct, the panel went on to consider whether his fitness to practise is currently impaired by reason of that misconduct. The panel was mindful that a registrant s impairment should be judged by reference to his suitability to remain on the register without restriction. In deciding this matter the panel has exercised its independent professional judgement. The panel considered the case of CHRE v NMC and Grant [2011] EWHC 97 and took into account the guidance provided by Dame Janet Smith and approved by Cox J. When deciding whether fitness to practise is impaired, it should be aware of the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession. The panel reminded itself of the guidance formulated by Dame Janet Smith in her Fifth Shipman Report, as cited in Grant, regarding the proper approach to be taken when considering impairment: a) Whether the registrant has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; b) Whether the registrant has in the past brought and/or is liable in the future to bring the profession into disrepute; c) Whether the registrant has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession. d) Whether the registrant has in the past acted dishonestly and/or is liable to act dishonestly in the future. 5

6 The panel concluded that by not informing his new employer, the Lodge, that he had been arrested and bailed in relation to resident A, Mr Serbu denied his employer the opportunity to risk assess his employment, and to take any necessary steps to minimise risk. As such, there was the potential for patient harm. Mr Serbu s actions which resulted in his arrest and his subsequent behaviour in not answering bail, and in leaving the country while wanted by the police would undoubtedly bring the profession into disrepute. Mr Serbu has breached a fundamental tenet of the profession in that he did not act with honesty and integrity and keep to the laws of the country in which he was practising. The NMC regard honesty and integrity as a bedrock of the nursing profession. Finally, although dishonesty is not charged the panel considered Mr Serbu s behaviour in not informing his new employer of his arrest to be dishonest. He had signed a contract stating that he should make such a declaration. Given that Mr Serbu s behaviour engages all four limbs of the Grant test the panel concluded that at time of these events his fitness to practise was impaired. Given the nature of the behaviour the panel concluded that he is impaired both on the grounds of public protection as he presents a risk to patients, and on the grounds of public interest in upholding proper standards of behaviour and maintaining confidence in the profession and in the NMC as regulator. The panel next considered Mr Serbu s current fitness to practise. In doing so, it took into account the guidance in the case of Cohen v General Medical Council [2008] EWHC 581 (Admin), quoted at paragraph 70 of Grant: It must be highly relevant in determining if a doctor's fitness to practise is impaired that first his or her conduct which led to the charge is easily 6

7 remediable, second that it has been remedied and third that it is highly unlikely to be repeated. The panel had no direct information from Mr Serbu. What information there is in the papers before it indicate a lack of understanding of the seriousness of his situation and consequently little or no insight. The panel noted that following these incidents and his return to Romania he then applied for a further post in the UK. As there is no demonstration of insight, remorse and/or remediation the panel concluded that there remained a risk of repetition. The panel therefore determined that Mr Serbu s fitness to practise is currently impaired, both on public protection and public interest grounds. The original panel determined the following with regard to sanction: The panel concluded that the aggravating features in this case include: The charges involve matters which indicate a lack of honesty and integrity; The matters being investigated by the police involved alleged ill treatment or wilful neglect of a vulnerable patient. The panel concluded that in the absence of any meaningful information from Mr Serbu it could not identify any relevant mitigating features in this case. The panel first considered taking no further action but determined that this would be inappropriate. It would not address the risks identified in relation to patient safety. In such circumstances it would not be in the public interest to take no further action. To do so would not provide sufficient public protection nor would it uphold the standards of behaviour expected of a registered nurse. 7

8 The panel then went on to consider whether a caution order would be appropriate. The panel concluded that a caution order was not appropriate as the matters of concern were too serious and could not be described as being at the lower end of the spectrum of impaired fitness to practise. Further, the panel concluded that a caution order would not be in the public interest given the lack of evidence of insight, remorse and remediation. The panel next considered a conditions of practice order. It concluded that there was no evidence that Mr Serbu would be willing to comply with a conditions of practice order. Further, as he is currently residing in Romania, and there is no information to suggest he is intending to return to the UK, it would not be possible to formulate practical and workable conditions of practice. The panel went on to consider whether a suspension order would be the appropriate and proportionate response in this matter. A period of suspension would reflect the seriousness of this case and provide sufficient public protection while an order was in force. Further, it would give Mr Serbu time to consider whether he wishes to return to practise in the UK and, if so, to put his affairs in order. That is, to return and engage with the police and to rectify the current situation. Before settling on a suspension order the panel considered whether in these circumstances a striking-off order was appropriate. The panel concluded that a striking off order is not the only sanction sufficient to protect the public interest and afford patient safety. A suspension order will provide adequate protection because it will be reviewed before expiry and will only be lifted when a reviewing panel is satisfied that it is safe to do so. Although serious, Mr Serbu s misconduct is not such that a striking off order is necessary at this stage and it is the panel s view that he should be given an opportunity to address his shortcomings. Having weighed up Mr Serbu s interests with the public interest, the panel concluded that a striking off order would be disproptionate at this stage. The panel therefore 8

9 decided to impose a suspension order for the maximum period of 12 months to reflect the seriousness of this case. This order will be reviewed before its expiry. The panel are of the view that a reviewing panel would be assisted by the following: Mr Serbu s return to the UK to engage with the police Mr Serbu engaging with the NMC Evidence of development of insight, remorse and remediation. Decision on current fitness to practise The panel considered whether Mr Serbu s fitness to practise remains impaired. Whilst there is no statutory definition of fitness to practise, the NMC has defined fitness to practise as a registrant s suitability to remain on the register without restriction. In considering this case, the panel has carried out a comprehensive review of the order in light of the current circumstances. It has noted the decision of the last panel. However, it has exercised its own judgment as to current impairment. The panel had regard to the bundle of documentation before it, and heard and accepted the advice of the legal assessor. In reaching its decision, the panel was mindful of the need to protect the public, maintain public confidence in the profession and to declare and uphold proper standards of conduct and performance. Regarding insight, the panel noted that it had not received any information from Mr Serbu. The last panel found that he had a lack of understanding of the seriousness of his situation and consequently little or no insight. The last panel confirmed that a reviewing panel would be assisted by Mr Serbu engaging with the NMC. However, the reviewing panel has not received any information from Mr Serbu to demonstrate active 9

10 engagement. Accordingly, the reviewing panel determined that Mr Serbu had still not demonstrated any insight, and had not taken any steps to remediate his practice. The last panel determined that Mr Serbu was liable to repeat matters of the kind found proved. This panel has not received any new information regarding Mr Serbu s insight, remediation, remorse, or any other information about his future plans regarding his nursing career. In light of this the panel determined that Mr Serbu is still liable to repeat matters of the kind found proved. The panel therefore decided that a finding of continuing impairment is necessary on the grounds of public protection. The panel has borne in mind that its primary function was to protect patients and the wider public interest which includes maintaining confidence in the nursing profession and upholding proper standards of conduct and performance. The panel determined that, in this case, a finding of continuing impairment on public interest grounds is required. For these reasons, the panel finds that Mr Serbu s fitness to practise remains impaired. Determination on sanction Having found Mr Serbu s fitness to practise currently impaired, the panel then considered what, if any, sanction it should impose in this case. The panel noted that its powers are set out in Article 29 and 30 of the Order. The panel has also taken into account the NMC s Sanctions Guidance (SG) and has borne in mind that the purpose of a sanction is not to be punitive, though any sanction imposed may have a punitive effect. The panel first considered whether to take no action but concluded that this would be inappropriate in view of the risk of repetition identified and seriousness of the case. The panel decided that it would be neither proportionate nor in the public interest to take no further action. The panel decided that a caution order would be inappropriate for the same reasons. 10

11 The panel next considered the imposition of a conditions of practice order. The panel concluded that a conditions of practice order would not be sufficient to protect patients and the wider public interest, noting (as the original panel did) that that there was no evidence that Mr Serbu would be willing to comply with a conditions of practice order. Furthermore given the nature of the charges the panel could identify no practicable conditions to protect patients or the public or satisfy the wider public interest for the period in which they would be in force. Accordingly, the panel concluded that a conditions of practice order would not be proportionate or sufficient in this case. The panel next considered imposing a suspension order. The panel noted that Mr Serbu had not engaged with his regulator either at the substantive hearing, or in advance of this review hearing. He has not provided evidence of remorse for his misconduct, nor has he demonstrated that he has taken any remedial steps, or developed insight into his failings. The panel noted that there was no evidence that Mr Serbu intended to engage with NMC proceedings in the future. It concluded that he had no intention of doing so. The panel had regard to the original panel s determination and considered that it had not been provided with any of the information that the original panel considered it would be assisted by. Mr Serbu had not taken the opportunity for further reflection and action implicit in the sanction ordered at the substantive hearing. In these circumstances the panel determined that a period of suspension would not serve any useful purpose. The panel determined that it was necessary to take action to prevent Mr Serbu from practising in the future and concluded that the only sanction that would adequately protect the public and serve the public interest was a striking-off order. The panel therefore directs the registrar to strike Mr Serbu s name from the register. In accordance with Article 30 (1) of the Nursing and Midwifery Order 2001 this strikingoff will come into effect upon the expiry of the existing suspension order, namely 10 July This decision will be confirmed to Mr Serbu in writing. That concludes this determination. 11